Brown v. Ray
| Decision Date | 16 December 1924 |
| Docket Number | No. 14903.,14903. |
| Citation | 145 N.E. 676,314 Ill. 570 |
| Parties | BROWN et al. v. RAY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by William Brown, Jr., and another against Julian D. Ray and others. Decree for plaintiffs and defendant named and others appeal.
Reversed and remanded, with directions.
Appeal from Circuit Court, Fayette County; Thomas M. Jett, judge.
Albert, Webb & Albert, of Vandalia, for appellants.
Brown & Burnside, of Vandalia, for appellees.
William Henninger was previous to his death the owner of a large amount of real estate and other property in Fayette county. He executed his will in 1879 and died January 20, 1882, leaving surviving him Mary J. Henninger, his widow, and Martha J. Davidson, Mary M. Brown, Sarah E. Rice, Illinois V. Farmer, and Josephine E. Barkley, his daughters and only heirs at law. Mary M. Brown died in February, 1891, leaving surviving her husband, William Brown (now deceased), William Brown, Jr., and Isabelle McLain, as her children and only heirs at law, who were, respectively, 34 and 39 years of age when the bill in this case was filed. Martha J. Davidson died about April, 1891, leaving surviving John Davidson, her husband (since deceased), Mary Taylor, John Davidson, Martha Davidson, and Grace Wright, as her only children and heirs at law. Josephine E. Barkley shortly after the death of testator was intermarried with J. D. Ray and has living only one child, Julian D. Ray, born in 1886. All the other daughters of the testator are now living. The will was duly probated in the county court of Fayette county, and the parts thereof material to the issues in this case are the following:
First. The last sentence of the provision for his widow in the first clause of the will, to wit:
‘And in lieu of her right of dower and homestead in and to my real estate I give her a life estate in and to the home place where we now live, of 220 acres of land, the same as is hereinafter described as given to the children of Josephine Barkley, to have and hold with all the use, rents and profits thereof during her natural life.’
Second. The third clause of the will, to wit:
‘To the children born of the body of my daughter Mary Margaret Brown, share and share alike, at her death I give and bequeath of my real estate as follows: The west half of the southwest quarter of section 26, the west half of the northwest quarter of section 35, and 40 acres bounded as follows: Beginning at a point sixteen (16) rods east of the northeast corner of the southwest quarter of the southwest quarter of section twenty-six (26), running thence south 200 rods, thence west 16 rods, thence north 200 rods, thence east to the place of beginning; also 21 acres of land described as follows: Beginning at the northwest corner of the northwest quarter of the southwest quarter of section twenty-six (26), running thence west 15 rods, thence south 47 rods, thence west 65 rods, thence south 33 rods, thence east 80 rods, thence north 80 rods to the place of beginning, all in township 6, north, range 1, west of the third principal meridian, in Fayette county, containing in all 221 acres; and hereby giving to my said daughter her life estate in said land, to use, occupy and enjoy, with right of all rents and profits, during her natural life, by keeping the taxes paid and place in repair.’
Third. The clause of the will designated ‘Sixth,’ to wit:
Fourth. That portion of the twelth clause of the will by which the testator devised and bequeathed to his five daughters aforesaid in equal parts, and if one be dead her heirs to take her share, the residue of his estate, both real and personal.
The testator named his two sons-in-law, William M. Farmer and William Brown, executors of his will. Similar specific devises of farm lands were given by the testator to his other daughters, Martha J. Davidson, Sarah E. Rice, and Illinois V. Farmer, for their natural lives, with remainders to their children and their descendants.
William Brown, Jr., and Isabelle McLain, only surviving children of Mary M. Brown, deceased, in July, 1914, filed their bill in the circuit court of Fayette county alleging the facts above stated, and further alleging, in substance, that as tenants in common they are owners in fee simple of 20 acres of land owned by the testator at the time of his death and which he intended by his will to devise to them, with these boundaries: Beginning at a point 32 rods east of the northeast corner of the southwest quarter of the southwest quarter of section 26, thence south 200 rods, thence west 16 rods, thence north 200 rods, thence east 16 rods to the beginning; that by his will the testator did not intend by the sixth clause of his will to devise any portion of said 20 acres to Josephine E. Ray and her son, Julian D. Ray; that J. D. Ray, father of Julian D. Ray, has been in possession of said premises for the five years previous to the filing of the bill and received all issues and profits therefrom during that time; and that he should account to complainants for the reasonable rental value of the same for that period. They made parties defendant to the bill J. D. Ray, Julian D. Ray, Josephine E. Ray, Illinois V. Farmer, Sarah E. Rice, Mary Taylor, John Davidson, Grace Wright, and Martha Davidson. The three Rays answered the bill and issues were joined thereon. The other defendants appear to have been duly served by publication and by process, but defaults were taken against them. The prayer of the bill is that the will of the testator might be so construed as to devise to the complainants the 20 acres aforesaid and that no part thereof was devised by his will to Julian D. Ray and his mother; that the premises be partitionedor divided equally between them as tenants in common in fee, and for an accounting for the rents against J. D. Ray. The court entered a decree in accordance with the prayer of the bill, appointed commissioners to make partition of the same, and postponed the accounting to a later time. The three Rays have prosecuted this appeal for a review of the decree.
The following plat shows the disputed 20-acre strip also the lands devised to appellees and their mother and the lands devised to appellants, the Rays:
Image 1 (2.64" X 2.95") Available for Offline Print
It will be observed that the 12-acre tract devised to the Ray heirs is in the sixth clause of the will described as being 40 rods north and south and 64 rods east and west, which would amount to 16 acres, and not 12 acres, as is stated in the will. Therefore, if this tract is 64 rods long east and west, it takes four acres off of the south end of the disputed 20-acre strip. We also call attention to the fact that the sixth clause of the will states that the total number of acres devised to the Rays is 220, and that in reckoning the amount of acres in this tract the testator regarded the small tract as containing just 12 acres, and not 16 acres. It will be further observed that the third clause of the will purports to devise to the Browns 221 acres, and that according to the description of the land 20 acres more are required to give them 221 acres, or the amount of land in the disputed strip. It is a clear proposition, therefore, that the testator, in devising the Brown tract, made a mistake in his calculation of the number of acres that he devised to them or erred in describing by metes and bounds the tract of land devised to them on their east boundary. It is equally clear that he made a mistake in describing the small tract devised to the Rays by the sixth clause of his will, because that tract cannot be 40 rods north and south and 64 rods east and west and contain just 12 acres. If it contained just 12 acres, it would be of the same dimensions, east and west, as the 24-acre tract just north of it, or 48 rods east and west. It will be noted, also, that in the first clause of the will the devise of the life estate to the widow is of ‘the home place where we now live, of 220 acres of land, the same as is hereinafter described as given to the children of Josephine Barkley.’ Also, that in the sixth clause of the will, after describing all the lands devised to the Rays, the testator closes with this statement:
etc.
Appellees' contention is that the mistake of the testator was in describing the east tract of land devised to them by a metes and bounds description, and not in stating the amount of land to them in that description....
To continue reading
Request your trial
- Farmer v. Reed
- Leininger v. Reichle
- Morgan v. Nat'l Trust Bank of Charleston
-
Whittington v. Cameron
...of barring, under the twenty-year statute of limitations, claims of other persons to the real estate in dispute. In Brown v. Ray, 314 Ill. 570, 145 N.E. 676, 683, this court adopted the doctrine laid down in Hanson v. Johnson, 62 Md. 25, 50 Am.Rep. 199, that “The estate claimed by him (the ......