Bouslough v. Bouslough

• Decision Date: 19 December 1922
• Docket Number: No. 14917.,14917.
• Citation: 137 N.E. 517,306 Ill. 24
• Parties: BOUSLOUGH v. BOUSLOUGH.
• Court: Illinois Supreme Court

306 Ill. 24

137 N.E. 517

BOUSLOUGH

v.BOUSLOUGH.

No. 14917.

Supreme Court of Illinois.

Dec. 19, 1922.

Bill by Bessie B. Bouslough against Winfield W. Bouslough. Decree for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, La Salle County; Edgar Eldredge, judge.

Jacob Cantlin, of Rock Falls, for appellant.

C. P. Gardner, of Mendota, for appellee.

CARTWRIGHT, J.

The appellant, Bessie B. Bouslough, filed her bill in equity in the circuit court of La Salle county praying that homestead and dower might be set off to her mother, Mary D. Bouslough, as widow of Jacob H. Bouslough, and, subject thereto, for partition between herself and the appellee, Winfield W. Bouslough. The court sustained the general demurrer of Winfield W. Bouslough to the amended bill, and, the appellant electing to stand by the bill, it was dismissed for want of equity.

The facts stated in the bill and admitted to be true for the purpose of the demurrer are as follows: Jacob H. Bouslough died January 14, 1916, leaving a last will and testament, by which he devised to his wife, Mary D. Bouslough, for life, or so long as she should remain his widow, his homestead, being block 4 in Harbaugh's addition to the city of Mendota, and requested his wife to allow his daughters Clissie and the complainant to live with her and occupy the homestead as a home during the continuance of such life estate. After the death of the wife, or in case of her marriage, the executor was directed to sell the property and distribute the proceeds, over and above necessary costs and expenses, equally among four of testator's children, viz. Annie G. Aumiller, Viola V. Feik, Delay D. Bouslough, and Winfield W. Bouslough. The will was admitted to probate on February 15, 1916, and on June 28, 1916, the widow renounced the will and became entitled to homestead and dower in the property. About the time the will was admitted to probate Winfield W. Bouslough, defendant in this suit, in the presence of the widow, the complainant and the other children above named, suggested that for reasons which he then stated, in justice to the complainant and in order to assure her a home, the premises should be conveyed by all the devisees to her, investing her with the legal title in fee simple, and promised that, if the others would agree to that proposition, he would join with them in executing and delivering deeds conveying to complainant all right, title, and interest in the premises. During the spring of 1916 it was finally agreed between all the devisees that they would convey to the complainant all their right, title, and interest in the premises so as to vest her with the fee-simple title. In reliance upon that agreement, the widow in the fall of 1916 expended $2,500 in remodeling and improving the dwelling for the purpose of providing the complainant, who lived with her, with a permanent home furnished with modern conveniences. This remodeling was done at the personal suggestion of the defendant and under his personal supervision for the purpose stated. On or about August 22, 1917, the defendant caused to be prepared drafts for three quitclaim deeds conveying the property to the complainant. In one of them Mary D. Bouslough, Annie G. Aumiller, and William J. Aumiller, her husband, Delay D. Bouslough, a bachelor, and Clissie C. Bouslough, who is named in the will, were grantors. The second deed was to be executed by Viola V. Feik and Albert Feik, her husband, and in the third the defendant and his wife were grantors. The deeds, with the exception of the one from the defendant and wife, were executed, filed for record, and recorded, and he took the draft for a deed to be executed by himself and wife, but after the other deeds had been executed and recorded he refused to execute the deed conveying his interest. The conclusion of the bill was that the complainant had become seized in fee of an undivided three-fourths of the premises subject to the homestead estate and dower interest of the widow, and the defendant, subject to the same interests of the widow, had an undivided one-fourth. The prayer was for assignment of homestead and dower and for partition.

Where a testator devises land to be sold and the proceeds distributed, his presumed intention is to give the real estate the quality of personalty, and a court of equity, which regards things directed to be done as if actually performed, will carry out such intention unless something has intervened which prevents performance. The doctrine is a doctrine of equity and has no application at law. Connell v. Crosby, 210 Ill. 380, 71 N. E. 350. In such a case, if the devisees are all sui juris, they may by concurrent action elect to take the real estate, as such, in place of the proceeds, and the converted property is thereby restored in...