Crum v. O'Rear

• Decision Date: 31 March 1890
• Citation: 24 N.E. 956,132 Ill. 443
• Parties: CRUM v. O'REAR et al.
• Court: Illinois Supreme Court

132 Ill. 443

24 N.E. 956

CRUM

v.O'REAR et al.¹

Supreme Court of Illinois.

March 31, 1890.

Appeal from circuit court, Morgan county; CYRUS EPLER, Judge.John M. Palmer, Henry S. Greene, and John A. Bellatti, for appellant.

Morrison & Whitlock and Brown & Kirby, for appellees.

This was a suit in equity, brought by John W. Crum against John S. Sawyer, George O'Rear, and Leanah M. Thomas, for partition. The original bill alleged that Frances D. E. Crum, the complainant's wife, in her life-time and at the time of her death, was seised in fee of certain parcels of land situate in the counties of Cass and Morgan, a portion of said tracts being in the possession of and subject to the life-estate of said Leanah M. Thomas, formerly the widow of William O'Rear, deceased, the same having been assigned and set apart to her, as such widow, as and for her dower in and to all of said lands; that said Frances D. E. Crum departed this life intestate, August 30, 1888, leaving, her surviving, as her next of kin and only heirs at law, the said George O'Rear and John S. Sawyer, her uncles, and the complaint, her husband; that the personal property left by said intestate was amply sufficient to discharge all claims against her estate; that the complainant and said O'Rear and Sawyer, as the heirs at law of said intestate, were seised in fee of all of said lands, subject to said life-estate in said portions thereof, the plaintiff being entitled to an undivided one-half, and said O'Rear and Sawyer each to an undivided one-fourth, thereof; that no ohter persons, with the exception of said Leanch M. Thomas, had any interest in or title to said premises; and the bill therefore prayed for a partition of said lands between the complainant and said O'Rear and Sawyer according to their respective rights and interests therein, subject to the life-estate of said Leanah M. Thomas. After the filing of the original bill, George O'Rear died, and, his death being suggested upon the record, an amended bill was filed, substituting his widow and children as defendants; said amended bill alleging, in addition to the matters set forth in the original bill, that the complainant was also entitled to dower and an estate of homestead in the said lands of his deceased wife, and praying that one-half of said lands be set off to him as heir, and that his dower and homestead, as surviving husband, be assigned and set off to him in the other half. The defendants answered, admitting the facts as stated in the bill, but denying that the complainant had any beneficial interest whatever in the real estate therein described, and alleging that by means of the instrument hereinafter set forth he had released all his interest therein, and estopped and debarred himself from setting up the same as against the defendants, and that he should be charged as trustee for the defendants, and required to convey to them the real estate which descended to him as the heir of his deceased wife. A general replication to said answers having been filed, the cause was heard on pleadings and proofs, and a decree was thereupon rendered finding that the complainant was not entitled to the relief prayed for, and dismissing his original and amended bills for want of equity. From that decree the complainant has appealed to this court.

It appears from the evidence that in April, 1876, William O'Rear died testate as to a portion of his personal estate, but intestate as to all his real estate and the residue of his personal estate. His only child was a daughter, Frances D. Eads, then the widow of Horatio Eads. Mrs. Eads, being the only child, inherited all the intestate estate of her father. The widow of William O'Rear renounced under the will of her husband, and elected to take her distributive share of his personal estate and her dower in his real estate, and a portion of said real estate was thereupon assigned and set off to her as her dower; the same being that portion of the lands in controversy in this suit, in which, as is admitted by the pleadings, she has a life-estate. The lands inherited by Mrs. Eads from her father, consisting of the lands in Cass and Morgan counties in controversy here, and some lands in the state of Missouri, were estimated to be worth from $150,000 to $175,000, and she also received from her father's estate a large amount of personal property. She had no children by her former marriage, and was then a confirmed invalid, and had been such from childhood. On the 21st day of March, 1877, which was nearly a year after her father's death, she made a will by which she undertook to dispose of all her estate, and by said will she devised and bequeathed the bulk of her property to trustees therein named, in trust to found and maintain in perpetuity a charitable institution for friendless women, to be called the ‘Frances D. Eads Home for the Friendless.’ On the 27th day of May, 1879, being about to be married to the complainant, she executed a codicil to her will, giving pecuniary legacies to certain of her relatives and friends, and among them to one of the complainant's sons by a former marriage. On the 29th day of May, 1879, Mrs. Eads and the complainant were married; she then being 52 years of age, and the complainant 2 years her senior. The complainant had been previously married, and had five sons by his former marriage, most of whom were then adults. The complainant and wife, after their marriage, resided on a farm belonging to complainant, about 10 miles north of Jacksonville, until September, 1886, and they then removed to Jacksonville, and resided on property owned by Mrs. Crum until her death, which occurred August 30, 1888. The evidence tends to show that they were strongly attached to each other, and that their conduct towards each other was always kind and affectionate. On the 24th day of June, 1886, the complainant was the owner of real estate worth about $35,000, but was largely in debt; his lands being incumbered by judgments, and otherwise, to nearly their entire value. His wife proposed to furnish, and did furnish, from her separate estate the money to pay and discharge such indebtedness, the entire amount so advanced being $31,922.86; and thereupon the complainant and his wife executed under their hands and seals the following instrument:

‘This agreement, made and entered into this twenty-fourth day of June, Anno Domini eighteen hundred and eighty-six, by and between John W. Crum, of Morgan county, Illinois, party of the first part, and Frances D. E. Crum, his wife, party of the second part, witnesseth, that whereas, the said party of the second part, at the request of the said party of the first part, and in consideration of the covenants and agreements of the said party of the first part hereinafter contained, has heretofore, out of her own separate estate and private means, paid and discharged the following indebtedness of said party of the first part, to-wit: Certain notes, with the interest thereon, made by the said party of the first part as principal, and A. A. Crum, his brother, as surety, to Benjamin F. Beesley and Charles Cox, executors of the last will and testament of William O'Rear, deceased, amounting to the sum of eight thousand one hundred and seventy-five dollars and thirty cents; a certain other note made by the said party of the first part to Benjamin F. Beesley, surviving executor of the said William O'Rear, with the interest thereon, amounting altogether to the sum of one thousand and sixty-two dollars and ninety-eight cents; the balance due on a certain judgment heretofore recovered against the said party of the first part in the circuit court of Morgan county, Illinois, by Josephus and Jackson Henderson, administrators of the estate of David G. Henderson, deceased, the balance so paid on said judgment being the sum of four thousand four hundred and twenty-six dollars and thirty cents; taxes upon the lands of said party of the first part, amounting to the sum of one hundred and seventy-seven dollars and eighty-nine cents; interes upon certain notes made by the said party of the first part to Isaiah Strawn and Charles Strawn, respectively, amounting to two thousand eight hundred and sixty-five dollars and ninety-six cents; and has also covenanted and agreed, and does hereby covenant and agree, to and with the said party of the first part to pay and discharge two certain notes made by the said party of the first part to Isaiah Strawn and Charles W. Strawn, said notes being for the principal sums of ten thousand dollars and five thousand dollars, respectively, together with the interest now accrued thereon, amounting to the sum of two hundred and eighty-four dollars and forty-three cents,-the total amount of the sums so paid, and agreed to be paid as above stated, being thirty-one thousand nine hundred and ninety-two dollars and eighty-six cents. And the said party of the first part, in consideration of the payments made, and to be made, for his benefit, as above stated, and in further consideration of the covenants and agreements of the said party of the second part hereinafter contained, does by these presents remise, release, and relinquish to the said party of the second part, her heirs, executors, and administrators, devisees, and assigns, all his right and interest, of every kind and nature whatsoever, and especially his contingent right of dower and homestead in all lands of which the party of the second part is now seised, or of which she may be hereafter become seised; and does hereby covenant to and with the said party of the second part, her heirs, executors, administrators, devisees, and assigns, that, in the event he should survive the said party of the second part, he will not sue for, claim, or demand any right of dower or other interest whatsoever in or out of any and all real estate of which the said party of the second part may die seised, or to which she may be entitled at the time of her...