Brumback v. Brumback

• Decision Date: 19 June 1902
• Citation: 64 N.E. 741,198 Ill. 66
• Parties: BRUMBACK v. BRUMBACK.
• Court: Illinois Supreme Court

198 Ill. 66

64 N.E. 741

BRUMBACK

v.BRUMBACK.¹

Supreme Court of Illinois.

June 19, 1902.

Appeal from circuit court, Hancock county; John G. Glenn, Judge.

Suit for partition and for the admeasurement of dower by Nancy Brumback against Abby Brumback and others. From a decree for plaintiff, defendant Abby Brumback appeals. Affirmed.Scofield & McMahan, for appellant.

Appolos W. O'Harra, for appellees.

This is a petition or bill, filed on September 4, 1900, by the appellee, Nancy Brumback, against the appellant, Abby Brumback, and Arthur Brumback and Thomas E. Burner, for the assignment of homestead and dower in, and for the partition of, about 500 acres of land in Hancock county, to wit, the S. 1/2 of the N. E. 1/4, and the W. 1/2 of the S. E. 1/4, and the S. E. 1/4 of the S. E. 1/4 of section 19, and the N. W. 1/4 of the N. E. 1/4, and the north half of 25 acres in the middle part of the E. 1/2 of the N. W. 1/4 of section 20, and the N. E. 1/4 of section 30, and the E. 1/2 of the N. W 1/4 of section 30, all of said lands being situated in township 4 N., range 5 W. Default was taken against Burner, who was merely a tenant of the appellant. Appellant, Abby Brumback, and her son, Arthur Brumback, filed a joint and several answer, denying that appellee, Nancy Brumback, was entitled to homestead or dower in said premises, or to a partition of the same, and alleging that she was barred of any rights of homestead or dower, or as a tenant in common in said premises, by the statute of limitations, and that she was also estopped from asserting the same by laches. Testimony was taken in the cause, and upon a hearing thereof a decree was entered by the court on June 6, 1901, finding that Arthur Brumback had no interest in said premises, that appellee was the owner of an interest of 32/392 in said premises and was entitled to have the same set off in fee to her, and that she was entitled to dower in 360/392 parts of said land, and ordering that appellee have her dower assigned and set off to her, and that partition be made between her and the appellant, according to their respective rights and titles, and appointing commissioners for that purpose. The present appeal is taken by the appellant, Abby Brumback, from the decree so entered by the circuit court. The material facts as shown by the pleadings, proofs, and decree entered in the cause, are substantially as follows:

On February 5, 1835, Jacob Brumback was lawfully married to the appellee. Nancy Brumback, and he and appellee lived together as man and wife from that time until the death of Jacob Brumback. On January 6, 1853, Jacob Brumback died intestate, leaving appellee as his widow, and leaving, as his only heirs at law, seven children, to wit, Thomas B., Henry P., Mary E., Emily E., John W., Laura Ann, and Susan F. Brumback. At the time of his death Jacob Brumback was the owner, seised in fee, of the premises here in controversy, amounting to about 500 acres of land, and of about 600 acres in addition thereto, making altogether 1,100 acres of land. At the time of the death of Jacob Brumback all of his children above named were minors; the oldest, Thomas B., being only 14 years of age. After his death, and while they were minors, two of the children, to wit, John W. and Susan F., died intestate, leaving their mother and their brothers and sisters their only heirs at law. At the time of Jacob Brumback's death he and appellee, with their children, resided in a dwelling house, located on the east side of the E. 1/2 of the N. W. 1/4 of said section 30, which house had been constructed in 1848, and was their homestead from that time up to the time of his death in 1853. After his death, appellee, as his widow, continued to reside in said dwelling house and upon said premises with her children. Upon the 1,100 acres of land there were situated three houses, two besides the dwelling house above named. The oldest child, Thomas B., married Abby Southwick, the present appellant, in 1862, and took possession of one of the houses upon the 1,100 acres, south of the home place above mentioned. Mary E. Brumback married a man named Boliver R. Cannon, and took up her abode in the other of the three houses. Subsequently Henry P. married, and took up his abode with his mother and two sisters, Emily E. and Laura A., on the home place. Shortly afterwards, Thomas B. and Henry P. exchanged places, and Thomas B. and his wife went to live with the appellee at the home place, and he and his wife, Abby Brumback, the present appellant, and his mother, Nancy Brumback, the present appellee, and his sisters, Emily and Laura, were living at the home place in 1865. On August 23, 1865, a division or partition of the 1,100 acres of ground was made between the children. On that day Henry P. Brumback, and his sister, Mary E. Cannon, conveyed all of their interest in the 500 acres above described to Thomas B. Brumback and his sister, Emily E. Brumback; and Thomas B. and his sister, Emily E., conveyed other parts of the 1,100 acres to the other children. On January 5, 1877, Emily E. Brumback, who had married a man by the name of Lewis, under the name of Emily E. Lewis, conveyed all of her interest in the above described 500 acres to Thomas B. Brumback. On March 1, 1880, Laura Ann Brumback conveyed all her interest in said 500 acres to Thomas B. Brumback. Thus by the deaths of his father, Jacob Brumback, and of his sister, Susan F., and his brother, John W., and by the deeds above executed, Thomas B. Brumback became seised in fee of 360/392 of said 500 acres, subject to the dower therein of his mother, Nancy Brumback. The appellee, Nancy Brumback, inherited from her deceased children, John W. and Susan F., 32/392 of said land. For 12 years after August 23, 1865, Thomas B. Brumback and his wife, and his sisters, Emily and Laura, and his mother, the appellee, all lived on this 500 acres in the dwelling house, where appellee had resided ever since 1848. After the marriage of Emily, Thomas B. and his wife, and his sister, Laura, and his mother, appellee, continued to live thereon until March, 1880, when Laura, having conveyed her interest therein to Thomas B. as above stated, married and left home. Thomas B. and his wife, however, continued to live with appellee in the dwelling house, and occupied the premises with her, until the death of Thomas B. Brumback in 1894, with the exception of a short period in the early part of 1893, when Thomas B. Brumback went to Chicago to be treated by his son Arthur, who was a physician living in Chicago; the said Thomas B. being at that time in poor health. During this absence of Thomas B. and his wife, one Gault, a tenant, lived in the house with appellee. During his last sickness, and on March 3, 1893, Thomas B. Brumback executed a quitclaim deed, conveying his interest in this tract of 500 acres, or thereabouts, to his wife, the appellant, Abby Brumback, at the suggestion of his son Arthur Brumback, and for the purpose of saving expense and trouble in settling up his estate; the design being that the deed should take the place of a will. After the death of Thomas B. Brumback, in April, 1894, the appellant, Abby Brumback, and the appellee, Nancy Brumback, continued as before to occupy this dwelling until the fall of 1899, when, on account of ill health, appellant went to Chicago to spend the winter with her son Arthur, and appellee, leaving all her furniture in the house, went to the house of her daughter Mary Cannon to remain while appellant was in Chicago. Within a few weeks thereafter appellee was stricken with paralysis at the advanced age of 86 years at the house of her daughter Mary, and was unable to return to the home place.

MAGRUDER, J. (after stating the facts).

Although the petition asked for the assignment of homestead, yet no estate of homestead was claimed by the appellee upon the hearing in the court below, and hence no finding upon that subject was made by the court in its decree. Therefore the question of homestead is not in the case.

[198 Ill. 71]1. It is not denied, nor could it be, that, upon the death of Jacob Brumback intestate in January, 1853, the appellee, as his widow, became and was entitled to dower in the 500 acres of land here in controversy. It is claimed, however, by the appellant, that her dower has been barred under the statute of limitations. In the first place, it is said that, when the arrangement was made between Thomas B. Brumback and his brothers and sisters on August 23, 1865, he took possession of the 500 acres of land, and remained in the exclusive and adverse possession thereof from that date down to the date of the deed executed by him to his wife, the appellant, on March 3, 1893, a period of more than 20 years. In the second place, it is said that the appellant, under the deed executed to her by her husband, Thomas B. Brumback, on March 3, 1893, as claim and color of title, had the exclusive and adverse possession of said premises for 7 successive years, and paid all the taxes thereon during that time. The dower of the appellee was not barred by the possession of the premises by her son prior to 1893, under the 20-years limitation law. This is so, because the possession of Thomas B. Brumback was not adverse, as against his mother, Nancy Brumback, the appellee. She was in possession of the premises during all of this time jointly with him and his wife. Her dower and homestead were never assigned to her. The testimony tends to show that on August 23, 1865, it was understood and agreed that she was to live on the home place, and that her son Thomas B. was to live there with her and take care of her. She was to have a home there as long as she lived. The possession was no more his possession than it was her possession. His possession was in no sense adverse to hers. She was in the occupancy of the premises as the widow of her deceased husband, Jacob Brumback, and Thomas B. Brumback was the son and heir of her...