Dunlavy v. Lowrie

• Citation: 25 N.E.2d 67,372 Ill. 622
• Decision Date: 13 February 1940
• Docket Number: No. 25422.,25422.
• Parties: DUNLAVY v. LOWRIE et al.
• Court: Supreme Court of Illinois

372 Ill. 622

25 N.E.2d 67

DUNLAVY

v.LOWRIE et al.

No. 25422.

Supreme Court of Illinois.

Dec. 15, 1939.

Rehearing Denied Feb. 13, 1940.

Suit for the partition of realty by James Howard Dunlavy against Rebecca P. Lowrie and others. From a decree for the plaintiff, defendants appeal.

Affirmed.Appeal from Circuit Court, Putnam County; Henry, J. Ingram, judge.

Eugene D. Hardy, of Galesburg, for appellants.

Jack, Irwin & Seidenberg, of Peoria, and Walter B. Smith, of Chicago, for appellee.

WILSON, Chief Justice

A decree entered by the circuit court of Putnam county ordered partition of a parcel of real property, a farm of 235 acres, between the plaintiff, James Howard Dunlavy, and the defendants, Rebecca P. Lowrie, individually and as executrix and trustee under the will of George A. Lawrence, deceased, and her husband, John M. Lowrie, as executor and trustee. Defendants prosecute this appeal.

James G. Dunlavy, a resident of Putnam county, died intestate on December 29, 1873. He left surviving as his only heirs-at-law his widow, Nancy Dunlavy, their son, James H. Dunlavy, five daughters and the son of a deceased daughter. Thereafter, Nancy Dunlavy and her son acquired title as tenants in common to the undivided six-sevenths interest in the farm inherited by the daughters and the grandson. Following these conveyances, James H. Dunlavy, who had inherited an undivided one-seventh interest from his father, owned an undivided four-sevenths interest in the land subject to the dower of his mother, and she an undivided three-sevenths, together with dower in the other four-sevenths. Nancy Dunlavy died testate November 7, 1887. By her last will and testament duly admitted to record in the county court the testatrix devised her three-sevenths interest to her son for life. The second section of her will reads: ‘If my said son, James H. Dunlavy, shall at his death leave him surviving any child or children of his body, then it is my will that the title to said real estate shall go to and vest in such child or children in fee simple and in equal portions in case there shall be more than one such child then living.’ The will provided, further, that if the life tenant died leaving no child or children him surviving then the title should vest in those daughters, if any, living at the time of the son's decease. Upon the death of Nancy Dunlavy her son, James H., already the owner of an undivided four-sevenths in fee, became vested with a life estate in the remaining three-sevenths of the property formerly owned by his mother in severalty. The plaintiff, the son of James H. Dunlavy and Julia Frances Fitch, was born on August 27, 1889. Subsequently, Dunlavy obtained a decree of divorce from his wife and married the mother of his son. This family of three, James H. and Julia Dunlavy and their son, lived together both before and after the marriage. The plaintiff was at all times acknowledged by his father to be his son and, as noted, was eventually legitimatized.

In 1898, Franklin J. Berry recovered a judgment for $4,822.87, and costs, against James H. Dunlavy in the circuit court and an execution issued upon the judgment. By this time Dulavy had acquired an additional 95 acres contiguous to the 235 acres. The sheriff levied upon Dunlavy's interest in the entire 330 acres and sold the tract to Berry for $4,600. The latter, in turn, assigned his certificate of purchase to Ella P. Lawrence, mother of the defendant Rebecca P. Lowrie, for $2,000. On April 23, 1900, the period of redemption having expired, the sheriff issued his deed purporting to convey the entire tract in fee to Mrs. Lawrence. By the sheriff's deed, Mrs. Lawrence became vested with an estate in fee in the undivided four-sevenths interest formerly owned by James H. Dunlavy and the life estate in the undivided three-sevenths interest devised to him by Nancy Dunlavy. Ella P. Lawrence entered into possession and since 1900 she and her successors in title, through their tenants, have continued in possession and dominion of the property. During this time Mrs. Lawrence and her heirs made improvements on the property, paid all taxes, and collected and retained the rents. In particular, from 1900 to 1934, George A. Lawrence managed the farm, had charge of the execution of all leases and collected the rents, distributing them to his wife and daughter according to their respective interests.

James H. Dunlavy, the life tenant, died on August 2, 1923, leaving the plaintiff as his only child. At this time Ella P. Lawrence was still in possession and control of the property in controversy. She died intestate March 17, 1924, leaving as her only heirs-at-law, her husband, George A. Lawrence, and their daughter, Rebecca P. Lowrie, who inherited her interest in the property. George A. Lawrence died testate September 21, 1934. By his will Rebecca P. Lowrie succeeded to his interest.

Upon the basis of the facts narrated plaintiff, by his complaint filed July 23, 1935, alleges that since the death of his father, James H. Dunlavy, he has been the owner of an undivided three-sevenths interest in the land in question as tenant in common, first, with Ella P. Lawrence, next, with George A. Lawrence and Rebecca P. Lowrie, and thereafter, with Mrs. Lowrie, individually and in her representative capacity as executrix and trustee, and her husband, as executor and trustee, who have been successively vested with an undivided four-sevenths interest. The relief sought was partition of the farm to the extent of 235 acres and an accounting. Defendants interposed the defense, among others, that plaintiff's right, title and interest, if any, had become barred by section 6 of the Statute of Limitations. The cause was referred to a special master in chancery, who heard evidence and recommended the entry of a decree in partition in accordance with the prayer of plaintiff's complaint. Defendants' objections to the report were overruled and ordered to stand as exceptions, the chancellor overruled the exceptions material to this inquiry, and entered a decree directing partition as sought. The decree reserved the question of an accounting of the rents pending the disposition of this appeal.

Additional facts and circumstances appear from the record. At the time of James H. Dunlavy's death the property was occupied by a tenant, one Wiertz, under a written lease executed by George A. Lawrence on behalf of his wife. This tenant occupied the farm from March 1, 1922, to March 1, 1932. The next five years, the land was leased to one Patarozzi by written leases likewise executed by Lawrence. No accounting of the rents derived from these leases was ever made to plaintiff, either voluntarily, or upon demand by him.

The day of his father's funeral, plaintiff and his mother made a trip to the farm. He did not go on the property on this occasion or on a later visit in 1924, merely inspecting the farm from the road. During the year last named plaintiff made inquiry and some investigation as to his interest in the property. He admitted that on the visits mentioned he knew the land was in possession of the Lawrence family, adding, however, that he did not know what interest was claimed. Plaintiff also retained an attorney in 1924 but this attorney did not prosecute his client's claim, and made no demand of any kind upon defendants. So far as is disclosed by the evidence plaintiff did nothing further to assert his rights in the property until 1935 when he instituted this action. On the other hand, the defendants and their predecessors in title never notified plaintiff that they were holding the property adversely to him.

A certified copy of portions of the report of the inheritance tax appraiser appointed to appraise the property of Ella P. Lawrence, deceased, was introduced in evidence. Incident to valuing the land in controversy in 1924, George A. Lawrence, testified, in part: ‘I am now receiving nineteen hundred dollars annual rental for this land, with a satisfactory tenant. * * * Out of this nineteen hundred dollars, whenever the outstanding interest is established in any one, my understanding is that they will acquire whatever interest Nancy Dunlavy had in her life time in this property. Under her will, * * * as I understand it the lawful issue of James Dunlavy are to receive it at his death. In default of lawful issue, the sisters of James Dunlavy surviving him would receive it. Of course, when this interest is established, I will be obliged to account to the owner of that interest for whatever share he, or she, may be able to establish in this land.’

To obtain a reversal of the decree, the defendants contend that plaintiff is not a devisee under the will of his grandmother, Nancy Dunlavy, entitling him to or vesting him with any interest in the property. The laws of this State ordain that an illegitimate child shall be deemed legitimate upon the marriage of the mother and the reputed father. Ill.Rev.Stat.1939, chap. 17, § 15, p. 256. Plaintiff, having been born subsequent to the execution of the will of and the death of Nancy Dunlavy, acquired no interest in tha land devised by her upon his birth and could acquire none thereafter unless he survived his father, the life tenant. This he did, and when the life estate terminated there was a child of the body of James H. Dunlavy to take the contingent remainder created by the will of Nancy Dunlavy. The child was admittedly legitimate when the prior estate expired and it is immaterial that he was born illegitimate. We find nothing in the language of the will of Nancy Dunlavy warranting an interpretation of the words ‘child or children of his body’ which would exclude plaintiff. The defendants, however, place reliance upon the familiar principle that a devise to a child must be held to mean a legitimate child unless there is an express designation of illegitimate children, or a necessary implication of an intention that illegitimate be treated as legitimate issue....