Dunshee v. Dunshee

• Decision Date: 25 October 1911
• Citation: 251 Ill. 405,96 N.E. 298
• Parties: DUNSHEE v. DUNSHEE et al.
• Court: Illinois Supreme Court

251 Ill. 405

96 N.E. 298

DUNSHEE

v.DUNSHEE et al.

Supreme Court of Illinois.

Oct. 25, 1911.

Appeal from Circuit Court, Carroll County; R. S. Farrand, Judge.

Action by Sadie K. Dunshee against Charles Dunshee and others for partition. Decree for complainant, and Mary Dunshee, by her guardian ad litem, appeals. Affirmed.

John L. Brearton, for appellant.

F. J. Stransky, for appellee.

HAND, J.

This was a bill in chancery filed in the circuit court of Carroll county by Sadie K. Dunshee against Charles Dunshee, John Dunshee, Hudson Dunshee, Frank S. Dunshee, George W. Dunshee, Edna Dunshee Mann, Mary Dunshee, and Seib Dykstra, for the partition of a farm containing 307 acres, situated in Carroll county. The bill alleged that the complainant, Sadie K. Dunshee, was the owner in fee of the undivided one-half of said premises, subject to her homestead rights in said premises as widow of Robert Dunshee, who departed this life, testate, on March 2, 1910, and subject to the rights of Seib Dykstra in said premises as lessee; that Charles Dunshee was the owner in fee of the undivided one-sixth part of said premises; that John and Hudson Dunshee were each the owner in fee of the undivided one-twelfth part of said premises; that Frank S. Dunshee, George W. Dunshee, and Edna Dunshee Mann were each the owner in fee of the undivided one-eighteenth part of said premises, subject to the homestead rights of complainant and the rights of Seib Dykstra as lessee; and that Mary Dunshee had no rights in said premises, although she claimed to be the owner in fee of a part thereof. An answer was filed by the adult defendants, and a guardian ad litem was appointed for Mary Dunshee, who was a minor, and who filed an answer to the bill by her guardian ad litem. Replications were filed, and the case was tried without a reference, and a decree was entered in accordance with the prayer of the bill. Mary Dunshee, alone, by her guardian ad litem, prosecuted an appeal to this court.

It appears from the record that Robert Dunshee died seised in fee of said premises and other real estate, and was also possessed of a large amount of personal property, which was all disposed of by his will, the premises in question being devised to the complainant; that the complainant, Sadie K. Dunshee, is the widow of said Robert Dunshee; that he left him surviving no child or children, descendant or descendants of a child or children, or parent or parents; that Charles Dunshee is his brother, and John, Hudson, Frank S., George W., and Edna Dunshee Mann are his nephews and niece, and that Mary Dunshee is a grandniece; that subsequent to the probate of the will of Robert Dunshee, and on the 8th day of August, 1910, the complainant, as widow, declined in writing, in due form of law, to take under the will of Robert Dunshee, and elected to take under the law.

The questions arising upon this record involve the consideration of the eleventh and thirteenth paragraphs of the will of Robert Dunshee, which read as follows:

‘Eleventh-I give, devise and bequeath the following described lands [other lands, describing them] to the heirs of my brother, Amasa, as follows, to wit: To Frank S. Dunshee and his heirs an undivided one-third; to George W. Dunshee and his heirs an undivided one-third; to Edna Dunshee Mann and her heirs an undivided one-third. I also devise and bequeath to the surviving heirs of my said brother Amasa Dunshee an undivided one-half interest in the cattle and hogs on said lands; provided that if either of the above named children should die without issue before my death the entire share of such child to go to the survivors, and if any should die childless such share to revertto the survivors, it being my intention that my entire estate shall descend to my own kin and no part thereof to go to the husbands or wives of my kind but all descend to heirs of my blood, except the property herein devised to my wife.’

‘Thirteenth-All the rest and residue of my estate, of every kind, nature and description and wherever situated, I give, devise and bequeath as follows: One-third to Charles Dunshee and his heirs; one-third, share and share alike, to the surviving heirs of Amasa T. Dunshee; one-third, share and share alike, to the surviving heirs of my brother Garrison Dunshee, to wit, John and Hudson; meaning and intending that in no event shall the wives of either of my brothers inherit or become beneficiaries of any part of my estate. Should it become necessary, the testator authorizes his executor to make deeds, collect rents, and to manage my estate not herein specifically devised, and account to the county court.’

[1] It is first contended by the appellant that upon the complainant, as widow, declining to take under the will and electing to take under the law, the farm in question, which had been specifically devised to her, became intestate property, and that the appellant inherited her proportionate share thereof as one of the heirs at law of Robert Dunshee. On the contrary (and the trial court so held), the complainant contends that said premises passed to Charles, John, Hudson, Frank S. George W. Dunshee and Edna Dunshee Mann under the thirteenth paragraph of the will of Robert Dunshee. This court has held in a long line of cases that where the widow renounces the provision made for her by the will of her deceased husband, and elects to take under the law, such renunciation does not have the effect to render any part of the estate of the deceased husband intestate estate. McMurphy v. Boyles, 49 Ill. 110;Marvin v. Ledwith, 111 Ill. 144; Re Qua v. Guaham, 187 Ill. 67, 58 N. E. 357,52 L. R. A. 641;Laurence v. Balch, 195 Ill. 626, 63 N. E. 506;Lewis v. Sedgwick, 223 Ill. 213, 79 N. E. 14. In the Lewis Case, on page 220 of 223 Ill. and page 16 of 79 N. E., it was said: ‘This court has more than once decided that the renunciation of a will by a widow does not make the remaining property left by the testator an intestate estate-it is still testate property. It would lessen the quantity of the balance of the estate to the extent of the estate which the law gives the widow, but otherwise the property will pass by will.’

[2][3] It is said, however, that all the cases on the subject decided by this court are cases in which the property relinquished by the widow was personal property, or an interest in real estate less than a fee; and it is urged that where the property relinquished is,...