Darst v. Swearingen

• Decision Date: 22 December 1906
• Citation: 79 N.E. 635,224 Ill. 229
• Parties: DARST et al. v. SWEARINGEN.
• Court: Illinois Supreme Court

224 Ill. 229

79 N.E. 635

DARST et al.

v.SWEARINGEN.

Supreme Court of Illinois.

Dec. 22, 1906.

Appeal from Circuit Court, Woodford County; G. W. Patton, Judge.

Bill by Ezra F. Swearingen against J. P. Darst and others. From a decree in favor of complainant, defendants appeal. Affirmed.

W. W. Hammond and H. V. Foster, for appellants.

Lillard & Williams, for appellee.

WILKIN, J.

On July 12, 1882, Joseph B. McCorkle died testate. The fourth clause of his will was as follows: ‘I give and bequeath to my wife, Cynthia Ann McCorkle, my homestead or home place, with all its appurtenances thereunto belonging, and all the land described as belonging to me in sections 18 and 19, Tp. 26, N. R. 1 W. 3d P. M., Olio Tp., Woodford county, Illinois, to have and to hold during her natural lifetime, and within two years after her death the above described homestead and lands I will to be sold and the proceeds to be equally divided between my six children, viz.: Maria Josephine Poynter, Richard Henry McCorkle, Orpha Jane Hedrick, Eunice Adele McCorkle, Missouri (or Zuie) Amanda McCorkle, Cyrus Byron McCorkle.’ The widow and six children named in this clause were testator's sole heirs at law. The will was admitted to probate by the county court of Woodford county on August 10, 1882, but the executor named therein failed to qualify. The widow occupied the homestead until her death, on August 16, 1905. On June 15, 1902, Orpha Jane Hedrick, a daughter, in consideration of $1,200, assigned to appellee, Ezra F. Swearingen, her estate in all moneys derived from the sale of the real estate described in the fourth clause. On April 4, 1897, J. P. Darst, L. C. Darst, and G. W. Darst, partners doing business as J. P. Darst & Co., obtained a judgment in the circuit court of Woodford county against Orpha J. Hedrick and others. An execution was issued and levied upon the share of Orpha Jane Hedrick in the real estate above described, and the same was sold by the sheriff in satisfaction thereof. No redemption was made from this sale, and on June 26, 1905, the sheriff issued a deed conveying said interest to appellants J. P. Darst & Co. On December 8, 1905, appellee, Ezra F. Swearingen, filed his bill in the circuit court of Woodford county against J. P. Darst & Co. and the six children of Joseph B. McCorkle, in which he alleged the above facts; also that no title was vested in Orpha Jane Hedrick at the time of said judgment, levy, and sale; that the time had arrived when said homestead property should be sold and the proceeds divided, and that the sheriff's deed was void and a cloud upon complainant's title. The prayer of the bill was that a trustee should be appointed to sell said real estate, that the sheriff's levy, sale, and deed be set aside, and that the master in chancery be directed to sell the property and distribute the proceeds, giving to appellee, Swearingen, the share of Orpha Jane Hedrick. A demurrer to the bill was filed by J. P. Darst & Co., which was overruled, and, they electing to stand by their demurrer, a decree was entered in accordance with the prayer of the bill. From that decree this appeal is prosecuted.

The only question for our determination is whether Orpha Jane Hedrick took, under the fourth clause of the will, real estate or personal property. On behalf of appellants, it is claimed that she took real estate subject to levy and sale by judgment creditors. On the other hand, appellee contends that it became personal property under the will, and that the title to the same, as realty, did not vest in her. We have held in a great many cases that a devise of real estate which by the provisions of a will is to be converted into money and the money distributed among the devisees is...