Best v. Jenks
| Decision Date | 20 January 1888 |
| Citation | 15 N.E. 173,123 Ill. 447 |
| Parties | BEST et al. v. JENKS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, St. Clair county; A. WATTS, Judge.Lewis Hammock, M. W. Wier
, and E. H. Lemen, for appellants.
Dill & Schaefer, for appellees.
This is a bill for partition and assignment of dower and homestead filed in the circuit court of St. Clair county on July 25, 1880, by the appellee Jenks, as complainant, against the appellants, as defendants. The bill alleges that said complainant Jenks was married to Susan Best in 1856, and lived with her as her husband until her death; that his said wife, Susan Best, died intestate, and without children, in March, 1880, leaving, as her only heirs at law, her husband, the complainant, her half-sister, Caroline Lemen, (formerly Caroline Hogan), her nephews Samuel Best and Albert Best, and her niece Ann Smith, wife of James Smith, (formerly Ann Best,) being the three children of her deceased brother of the whole blood, John Best; her niece Lilly Hogan, and her nephews John, Russell, Edward, and Ray Hogan, being all minors and the five children of her deceased brother of the half blood, James Hogan; her nephews and nieces James, Samuel, Cynthia, Larkin D., Mary, and Rosetta Hogan, being the six children of her deceased brother of the half blood, Larkin Hogan, and the last three being minors; that the said Susan Jenks was seized in fee, at the time of her death, of the 55 acres of land sought to be partitioned, and had been the owner of the same before her marriage with complainant; that she was a householder, had a family, and occupied and resided on the 55 acres as her homestead, and had an estate of homestead therein; that complainant has resided and still resides thereon as his homestead, and claims homestead therein; that complainant is entitled to one-half of the premises in fee-simple, as heir of his wife, and to dower and homestead in the other half, as her surviving husband; that Caroline Lemen is entitled to one-eighth of the premises, the children of John Best to one-eighth thereof, the children of James Hogan to one-eighth thereof, and the children of Larkin Hogan to one-eighth thereof; all their interests, however, subject to dower and homestead. The bill makes the heirs as above named, together with Harriet Hogan, widow of James Hogan, and Caroline Hogan, widow of Larkin Hogan, parties defendant, and prays for partition according to the interests as above set forth, and for assignment of dower and homestead, etc. The defendants to the bill in the court below are the appellants here.
+------------------------------------------------------------------------+
¦ ¦ ¦Anne Simpson ¦ ¦ ¦
+-----------+--------------------------------------------+---------------¦
¦ ¦Anne Best, (afterwards Hogan,) wife of ¦ ¦
+--------------------------------------------------------+---------------¦
¦Samuel Best ¦ ¦ ¦ ¦
+------------------------+----------------+--------------+---------------¦
¦Susan Best,¦John Best ¦Larkin Hogan ¦James Hogan ¦Caroline Hogan,¦
+-----------+------------+----------------+--------------+---------------¦
¦(afterwards¦ ¦ ¦ ¦(afterwards ¦
+-----------+------------+----------------+--------------+---------------¦
¦Jenks.) ¦Samuel Best,¦James Hogan, ¦Lilly Hogan, ¦Lemen.) ¦
+-----------+------------+----------------+--------------+---------------¦
¦ ¦Albert Best,¦Samuel Hogan, ¦John Hogan, ¦ ¦
+-----------+------------+----------------+--------------+---------------¦
¦ ¦Anne Best, ¦Cynthia Hogan, ¦Russell Hogan,¦ ¦
+-----------+------------+----------------+--------------+---------------¦
¦ ¦(afterwards ¦Larkin D. Hogan,¦Edward Hogan, ¦ ¦
+-----------+------------+----------------+--------------+---------------¦
¦ ¦Smith.) ¦Mary Hogan, ¦Ray Hogan. ¦ ¦
+-----------+------------+----------------+--------------+---------------¦
¦ ¦ ¦Rosetta Hogan. ¦ ¦ ¦
+------------------------------------------------------------------------+
On September 20, 1880, Isaac W. Lemen filed a petition praying to be made complainant, and setting up that the complainant Jenks had, on August 31, 1880, deeded to petitioner all his (Jenks') interest in the premises so far as he might, and that petitioner was solely interested therein. On June 27, 1881, Caroline Lemen filed an amended answer, and a further amendment thereto on October 3, 1882, therein admitting the heirship and marriage of Susan Jenks, as alleged in the bill; but denying that she was the owner of the 55 acres at her death or before her marriage; denying also the interests of the defendants, as alleged in the bill, or that Susan, in her life-time, or Jenks after her death, had a homestead in the premises, etc.; and averring that Samuel Best, who died in 1815, leaving a widow, Ann Best, was the father of John Best and Susan Best, (afterwards Susan Jenks;) that Ann Best, the widow, married Patrick Hogan, by whom she had three children,-James, Larkin, and Caroline Hogan, above named; that the said Ann Hogan, mother of Susan Jenks, died intestate on June 23, 1872, and was at the time of her death the owner in fee of the 55 acres; that by her death her children and grandchildren inherited the following interests in the premises: Susan Jenks and Caroline Lemen, each one-fifth, and the children of John Best one-fifth; the children of James Hogan one-fifth; the children of Larkin Hogan one-fifth; that Susan Jenks at the time of her death, on March 2, 1880, only owned one-fifth of said premises, one-half of which descended to her sister and the children of her brothers, subject to the rights therein of her husband, etc. The answers of the other heirs were all substantially the same as that of Caroline Lemen. Caroline Lemen and Lilly Hogan filed a cross-bill praying for partition, etc., according to the interests as set up in the answers. Replications were filed to the answers to the original bill. The cross-bill was answered by Jenks and Isaac W. Lemen, and replication was filed to their answer. The circuit court made a decree granting relief in accordance with the prayer of the original bill and the petition, and dismissed the cross-bill. From this decree, which was entered at the September term, 1884, the defendants to the original bill prayed an appeal to the supreme court, which appeal was allowed.
The decree so entered at the September term, 1884, finds and decrees, among other things, as follows: That Lorenzo Y. Jenks, at the time of his conveyance aforesaid, was entitled to a right of homestead to the value of $1,000 in said 55 acres; that he conveyed all his right, title, and interest in said 55 acres aforesaid to Isaac W. Lemen, and that by said conveyance said Lemen then and there became seized of the one undivided one-half of said 55-acre tract in fee-simple; also to right of homestead of the value of $1,000 in said 55-acre tract; * * * that said Lemen is entitled to, and to have set off and allotted to him, a homestead of the value of $1,000 in said 55-acre tract; that the share of said Lemen's portion of said 55 acres contribute one-half of the value of said homestead and that the shares of the defendants contribute the other half of the value of said homestead; that Jenks be endowed of one undivided one-half of said 55 acres of which the defendants are seized in fee-simple, as herein set forth; and the court appoints commissioners, directing that they first take the oath required, and then go on said 55-acre tract, and, if the same is susceptible of division, set off and allot to Lemen a homestead by metes and bounds, to the value of $1,000; and next set off and allot to Jenks his dower in that portion of said land which defendants in original bill are seized of, respectively, as set forth by metes and bounds, according to quantity and quality of said premises, as they may deem best for all parties, after the dower and homestead have been set off and allotted, and make division of the remainder of said 55-acre tract, by metes and bounds, to each of the parties, according to their interests respectively. And if they find the premises not susceptible of division without prejudice to the parties interested, and find dower and homestead cannot be set off without prejudice to parties interested, then that they value such lands, and that they make report of their doings in the premises to the nest term of court. At the May term, 1886, the commissioners reported that dower and homestead could not be set off, and partition could not be made, without manifest prejudice, etc., which report was approved. November, 1886, Lemen, the purchaser of said tract, filed his consent to the sale of his dower and homestead interest, and to take the value thereof in money, to be fixed by the court. Consent approved, and court ordered said lands sold at public sale, not to sell for less than two-thirds of its appraised value; sale on premises; one-third to be paid in cash; sale to conform to statute, and pay over moneys, etc., according to respective interests of parties, and report same. Whereupon Caroline Lemen and Lilly Hogan prayed an appeal, which was allowed by the court.
The deed from Jarrot and wife to Ann Simpson and Samuel Best vested the title to the land in question in them, as joint tenants, under the laws as they then existed. At the death of Samuel Best, in 1815, Ann Simpson took the whole of the land in question by survivorship. January 21, 1821, the law of survivorship between joint tenants was abolished. Purple, St. 1849, p. 413, § 2; Rev. St. 1833, p. 474, § 2. See, also, Rev. St. Ill. 1833, p. 130, § 5, upon the same question. This law of...
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