Beacroft v. Strawn

• Decision Date: 31 January 1873
• Citation: 1873 WL 8119,67 Ill. 28
• Parties: NANCY L. BEACROFT et al.v.PHEBE B. STRAWN, Admx., etc.
• Court: Illinois Supreme Court

67 Ill. 28

1873 WL 8119 (Ill.)

NANCY L. BEACROFT et al.

v.PHEBE B. STRAWN, Admx., etc.

Supreme Court of Illinois.

January Term, 1873.

WRIT OF ERROR to the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

Mr. WILLIAM BROWN, for the plaintiffs in error.

Mr. WILLIAM THOMAS, for the defendant in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill filed by defendant in error, in the Morgan circuit court, against plaintiffs in error. It appears that Jacob Strawn, in his lifetime, recovered, in the Morgan circuit court, a judgment against Aquilla and George Beacroft for the sum of $577.09, and $9.50 costs, upon which several executions were issued, but the money was not collected. George died intestate in 1865, after the last execution was returned, leaving his father, mother, brothers and sisters his heirs, who inherited his estate; that Aquilla Beacroft, in 1849, or previously, conveyed the lands described in the bill to James Arnold, who was acting as a commissioner of the circuit court of Bourbon county, Kentucky, to invest certain trust funds in real estate for the use of Nancy L. Beacroft and the children of her body; that, in executing the trust, Arnold purchased and paid for the lands, and conveyed them, or intended to convey them, to Nancy L. to hold during her life, and at her death to the children of her body, but made a mistake in describing a portion of them. The deed declared that she should hold them during her life free from the debts of her husband, and at her death to go to the children of her body in fee; that she has held the possession of the land, claiming and holding the same under the conveyance from Arnold, for more than twenty years.

It appears that Nancy L. Beacroft had ten children, of whom George Beacroft was one, and it is claimed that each of them became invested with one-tenth part of the premises subject to the life estate of their mother; that, on George's death, his tenth part descended, subject to the lien of this judgment, to his father, mother, brothers and sisters, the parents taking each two-thirteenths and the brothers and sisters each one-thirteenth, subject to the life estate of Nancy L. Beacroft; that George died, leaving no other property than his interest in this real estate; that no administration was granted on his estate; that Jacob Strawn, after recovering his judgment, died intestate, and defendant in error was duly appointed administratrix of his estate; that other children of Nancy L. have died, and it is claimed that Aquilla has inherited, as an heir of such deceased children, his proportionate share of their interest in the premises, and that his interest thus derived from them and George, and the remainder of George's interest, are subject to sale to satisfy this judgment.

On the hearing, the court below found and decreed that Nancy L. owned a life estate, and that the children of her body were each vested with the fee to one undivided tenth part of the land; that the interest of George was subject to his debts, and liable to be sold therefor; and found that there was due on the judgment, with costs, the sum of $1012.68, and ordered the heirs of George to pay the same in thirty days, and in default thereof, that his interest be sold. The record is brought to this court, and errors are assigned.

It is urged by plaintiffs in error that the conveyance to Mrs. Beacroft falls within the rule in Shelly's case, and that she took the fee pure and absolute. On the other hand, it is contended that she took only a life estate, and “the children of her body” took the remainder; that they took as purchasers, and that the words “children of her body” described them as purchasers, and not as limiting the estate.

As remarked by Preston, in his work on “Estates,” the extent and importance of the rule in that case, the variety of cases which it embraces, the doubts entertained of its extent and application, and the nice distinctions and numerous exceptions which it admits, render the consideration of the rule, and its exceptions, a task of great difficulty in numerous cases. He lays it down, and is fully supported by the authorities, that the rule is of positive institution, and not of interpretation; that instead of seeking the intention of the parties, it, in some of the cases at least, if not in all, interferes with the presumable intention, and in many cases with the express intention of the parties. Preston on Estates, 271. It is usually a question as to the legal effect of the language employed. But Lord MANSFIELD, in Perrin v. Blake, 4 Burr. 2579, said that the rule is not a general proposition subject to no control. And Mr. Justice BULLER, in the case of Hodgson v. Ambrose, Dougl...