Bogart v. Brazee

• Decision Date: 03 October 1928
• Docket Number: No. 17762.,17762.
• Citation: 162 N.E. 877,331 Ill. 160
• Parties: BOGART et al. v. BRAZEE et al.
• Court: Illinois Supreme Court

331 Ill. 160

162 N.E. 877

BOGART et al.

v.BRAZEE et al.

No. 17762.

Supreme Court of Illinois.

June 23, 1928.

Rehearing Denied Oct. 3, 1928.

Commissioners' Opinion.

Suit by Cassie Bogart against Benjamin F. Brazee, after whose death Clementine Orphelia Brazee and another were substituted as parties defendant, and others. From a decree for plaintiff and certain defendants, named defendant and other defendants appeal.

Affirmed.Appeal from Circuit Court, Cook County; Kickham Scanlan, judge.

Lawrence Y. Sherman, of Daytona Beach, Fla., and Noah C. Bainum, of Springfield, for appellants.

Campbell & Fischer, Castle, Williams, Long & Castle, Loe J. Kramer, Frank W. Swett, and Carlton L. Fischer, all of Chicago, for appellees.

PARTLOW, C.

Appellee Cassie Bogart filed her bill for partition in the circuit court of Cook county, in which she alleged that Edwin B. Jennings died intestate in Cook county on October 31, 1923, seized of certain real estate; that complainant, George T. Jennings, Edna E. Quest, Florence E. Brady, Charles R. Jennings, John A. Jennings, Jr., Norman C. Brizse, and Sarah M. O'Carr, the last seven of whom were defendants to the bill and are appellees here, by the death of Edwin B. Jennings, became seized in equal parts, as tenants in common, of the real estate described in the bill. The bill also alleged that Benjamin F. Brazee, Elizabeth B. Campau, Ida E. Ure, Edwin L. Breezee, and several others, including the unknown heirs of Edwin B. Jennings, claim some interest in the real estate, but that said defendants were not heirs of Jennings. Answers were filed to the bill by some of the defendants. Pending a hearing, Benjamin F. Brazee died, and his widow, Clementine O. Brazee, and his daughter, Maud B. Fohrman, were substituted as parties defendant. Elizabeth B. Campau also died, and her husband, Alexander P. Campau, and her children, Della Wodolan,Anna E. Sartwell, Rose M. Salisbury, Frank Coykendall, Milton Coykendall, and Fred E. Coykendall were substituted as parties defendant. Upon a hearing on bill and answers a decree was entered finding that appellees Cassie Bogart, George T. Jennings, Edna E. Quest, Florence E. Brady, Charles R. Jennings, John A. Jennings, Jr., Norman C. Brizse, and Sarah M. O'Carr were heirs of Edwin B. Jennings, and were the equal owners of the real estate as tenants in common and entitled to partition as alleged in the bill. From this decree an appeal has been prosecuted to this court by appellants, who are the heirs of Benjamin F. Brazee and Elizabeth B. Campau, and by Ida E. Ure and Edwin L. Breezee.

The determination of the question as to who are the heirs of Edwin B. Jennings, the intestate, depends on the relationship is any, which existed between Stephen Brizse, who was the grandfather of Jennings, and Jacob Breezee. Appellants claim that Jacob Breezee was the father of Stephen Brizse; that Stephen Brizse was a brother of John Breezee, who was the father of Benjamin F. Brazee and Elizabeth B. Campau; that Stephen Brizse was also a brother of James Breezee, who was the father of Edwin L. Breezee and Ida E. Ure. If Stephen Brizse was the son of Jacob Breezee, then all of appellants were heirs of Edwin B. Jennings and were entitled to share in his estate. Appellees contend that Jacob Breezee was not the father of Stephen Brizse, but that Henri Brizse was the father of Stephen; that John and James Breezee were not the brothers of Stephen, therefore appellants, who were the heirs of John and James Breezee, were not heirs of Stephen and are entitled to no share of the estate, as was found by the decree.

[1] The evidence shows that Edwin B. Jennings, who was a bachelor 64 years old, died intestate in Chicago on October 31, 1923. He had three brothers, who had previously died, and none of their direct descendants, if they had any, are parties to this suit or claim any interest in the estate. The father of Edwin B. Jennings was John D. Jennings, and his mother was Hannah Brizse. The father and mother were married in Lockport, N. Y., in 1838. John D. Jennings died in Chicago on April 14, 1889, at the age of 73, and Hannah B. Jennings died in Chicago on February 1, 1892. John D. Jennings had a brother, Samuel H. Jennings. Their father was Samuel Jennings, and their mother was Betsy D. Jennings. Betsy had a brother, Eli C. Dunham, who was the father of Cassie Bogart, the complainant herein and one of appellees. The father of Eli C. and Betsy D. was Caleb Dunham, who was the great-grandfather of Edwin B. Jennings, the intestate. Samuel H. Jennings, the brother of John D. Jennings, had three children, Charles E., John A. and Samuel H. Jennings, Jr. Charles E. Jennings left three children, Edna E. Quest, Florence E. Brady, and Charles E. Jennings, Jr., all of whom are appellees here. John A. Jennings left one son, John A. Jennings, Jr., who is one of appellees. Samuel H. Jennings, Jr., left one son, George T. Jennings, who is also an appellee. The parentage of Edwin B. Jennings was established by the family Bible produced by his sister-in-law, by a printed family genealogy annotated in his handwriting, and it was confirmed by his father's will, put in evidence by appellants. His grandmother, Betsy D. Jennings, was identified and her parentage established by the family Bibles of her sons John D. and Samuel H. Jennings, produced by a daughter-in-law, containing the following entry:

‘Samuel Jennings was married April 13, 1814, to Betsy Dunham, of and in the town of Westhaven and state of Vermont, and was the daughter of Caleb Dunham and Sarah, his wife, and her name was Sarah Tombling before her marriage.’

The relationship of Caleb Dunham, the father of Betsy D. Jennings, to Cassie Bogart, was established by her father's family tree. The Dunham-Jennings relationship was corroborated by a memorandum for a Bible entry dictated to Mrs. Ruhl by her father, and by the testimony of George E. Pringle, of St. Louis, who had been for many years a close friend of Edwin B. Jennings, and who produced letters in the handwriting of Jennings addressed to Pringle as ‘Dear Cousin.’ This evidence accounts for all of the heirs of Jennings on his father's side of the family, five in number, all of whom are appellees. There can be very little, if any, doubt as to the relationship of these five persons to the intestate.

The heirs of Edwin B. Jennings on his mother's side of the family are as follows: The father of his mother, Hannah Brizse, was Stephen Brizse, and her mother was Mary O'Carr. Stephen Brizse and Mary O'Carr were also the father and mother of Eliza Brizse, who is not interested here, and of Peter F. Brizse, a brother of Hannah B. Jennings. Peter F. Brizse had a son Charles N., who was the father of Norman C. Brizse, one of appellees. The father of Mary O'Carr was Nicholas O'Carr. Mary O'Carr, the mother of Hannah B. Jennings, had a brother, Peter O'Carr, who was the father of Sarah M. O'Carr, another appellee. The identity of Hannah B. Jennings was established by the family Bible, by the genealogy mentioned above, and by the December 5, 1838, issue of the Niagara Democrat and Lockport Balance, which contained a notice of the marriage of John D. Jennings and Hannah Brizse, eldest daughter of S. Brizse. It was confirmed by the will of John D. Jennings, which also established the relationship of Eliza Brizse, his wife's sister, and provided a legacy for his wife's nephew, Charles N. Brizse, then of New York City, who formerly lived in Lockport, N. Y., and who was the father of Norman C. Brizse, one of appellees. Stephen Brizse was identified as the father of these two sisters and brother by inscriptions on tombstones in the family lot at Lockport, and by a memorandum in the handwriting of Eliza Brizse, produced by the daughter of Elbridge Dakin, the husband of Mary B. Dakin, who was a daughter of Stephen Brizse; the memorandum having been kept in the family Bible. The identity of Mary O'Carr Brizse as the wife of Stephen Brizse and as the daughter of Nicholas O'Carr and sister of Peter O'Carr was shown by the will of Mary O'Carr Mumford, the mother of Mary O'Carr Brizse and Peter O'Carr, and by the will of George Mumford, the second husband of Mary O'Carr Mumford, Mrs. Henson, of Chicago, who was a granddaughter of Peter O'Carr, testified to having visited in Simcoe, Ontario, Canada, over 40 years prior, and to her acquaintance there with the family of Peter O'Carr, including his daughter Sarah M. O'Carr. She also testified to family visits in Chicago between Sarah M. O'Carr and Hannah B. Jennings and Eliza Brizse. She was also acquainted with the intestate, who had visited at her home. The record also shows acquaintance, communications and visits between the families of Cassie Bogart, Sarah M. O'Carr, and Edwin B. Jennings. This evidence establishes the heirs of Edwin B. Jennings on his mother's side, making eight in number on both sides, and they are entitled to the entire estate, provided Stephen Brizse, the father of Hannah B. Jennings, was not the son of Jacob Breezee.

The next question is whether Stephen Brizse was the son of Jacob Breezee, as claimed by appellants, so as to entitle them to share in the estate. It is to be noted that there are various spellings of the family name of Jacob Breezee. By some members of the family it is spelled Brazee, by others Brisee, by still others Breezee. All of these spellings, however, are limited to the family and the descendants of Jacob Breezee. Most of the members of this family spelled the name Breezee, except Benjamin F. and his sister, who spelled it Brazee. There are some instances in which the Brizse family name is otherwise spelled, but in the main it is spelled Brizse. Stephen Brizse was born in Massachusetts about 1789, and died in Lockport, N. Y., about 1861. He was married to Mary O'Carr, who lived in Simcoe, Ontario, Canada. It is conceded that he had a brother Henry, who was born in Massachusetts and died in Penn...