Frazier v. Patterson

Decision Date22 December 1909
Citation90 N.E. 216,243 Ill. 80
PartiesFRAZIER et al. v. PATTERSON et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Pike County; Harry Higbee, Judge.

Bill by James Virgil Frazier and another against Ollie May Patterson and others for partition of certain real estate. Judgment for complainants, and defendants appeal. Affirmed.

Anderson & Matthews, for appellants.

W. E. Williams and A. Clay Williams, for appellees.

VICKERS, J.

Thomas R. James and Jane G. James, husband and wife, acquired title to a farm of about 200 acres in Pike county, Ill., a part of which was owned by each in severalty and the residue was owned by them jointly. The several tracts so acquired constituted a part of a regular subdivision; but their respective titles were so intermixed as to make it difficult to trace the lines of ownership except by recourse to their numerous deeds. The entire body of land constituted one farm and was occupied and farmed in common. They had one child, Eva, who married a man by the name of Frazier. Some time prior to the year 1889, the date not being given, the following joint and mutual will was executed by them:

‘Know all men by these presents, that we, Thomas R. James and Jane G. James, wife of said Thomas, being of sound, disposing mind and memory and desirous of disposing of our worldly estate after our deaths, respectively do make, publish and declare this and none other to be our and each of our last will and testament, hereby revoking all and singular any other will or wills by us or either of us at any time made.

‘First-It is our will that all our debts, joint and several, together with funeral expenses, be fully paid directly after our deaths, respectively.

‘Second-We give, devise and bequeath to each other, respectively, all such estate, right, title and interest as we, respectively, hold, possess and enjoy in and to the following described real estate, viz.: The northwest quarter of the northeast quarter, the northeast quarter of the northwest quarter, the southwest quarter of the northeast quarter and the southeast quarter of the northwest quarter of section eleven (11), and twenty-nine and one-half acres on the west side of the east half of said section 11, all in township 6, south, range 4, west of the fourth principal meridian, in Pike county, Illinois, being the same premises on a part of which we now reside, and all of which we own, not as tenants in common, but each his and her part in severalty, hereby giving and devising the land of the one who may die first to the survivor during his or her natural life.

‘Third-After the decease of both, it is the intention of this testament that the whole of said real estate, or any other we may own at the time of the decease of the survivor of us, shall go to and be held and enjoyed by our daughter, Eva Frazier, for and during her natural life, and after her death it is our will that the whole of our said real estate, and every part and parcel thereof, with the remainder in fee simple, shall pass to and in such estate vest in the lawful issue and children of the body of the said Eva Frazier living at the time of her decease, by her present or any other husband.

T. R. James. [Seal.]

Jane G. James. [Seal.]

Thomas R. James died in 1889, and his widow filed the will for probate, which was duly granted. She thereupon entered into the possession and control of the whole of said farm under the will, accepted its provisions, and continued to use and occupy the whole of said premises, and to enjoy the rents, issues, and profits thereof, to the exclusion of the heirs of Thomas R. James, until the date of her death, which occurred in 1909. Eva Frazier died prior to the death of her mother, and left surviving her James Virgil Frazier, Charles Lester Frazier, and Ollie May Patterson, her only children and the only descendants of the said Thomas R. and Jane G. James. On the 21st day of May, 1900, Jane G. James executed another will, by which she attempted to revoke the joint and mutual will so far as it affected her individual property and make a different disposition of her estate. The present bill is filed by James Virgil Frazier and Charles Lester Frazier, children of Eva Frazier, for the purpose of having the last will of their grandmother set aside and for a partition of the real estate described in the joint will in accordance with its provisions. There is no controversy about the facts. A demurrer to the bill was overruled, and the material allegations were admitted by the answer. On the hearing no evidence of any agreement or compact between the husband and wife, other than that afforded by the will itself, was introduced. The court below sustained the bill and entered a decree for partition among the children of Eva Frazier in accordance with the provisions of the joint will. From this decree Ollie May Patterson and other defendants below have appealed to this court.

The parties agree that the single question presented for our consideration is: Does the joint will itself, on its face, sufficiently prove a compact or agreement to make a will mutually disposing of their property, each for and in consideration of the will of the other? Appellants contend that this question should be answered in the negative, while appellees insist that it should be answered in the affirmative. This is the issue.

There is no legal objection to uniting the wills of two persons in a single instrument if such instrument can be given effect, on the death of either, as the will of that one. Gerbrich v. Freitag, 213 Ill. 552, 73 N. E. 338,104 Am. St. Rep. 234;Peoria Humane Society v. McMurtrie, 229 Ill. 519, 82 N. E. 319. A joint will contained in a single instrument is the will of each of the makers, and at the death of one may be probated as his will and be again probated at the death of the...

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    ...(Colo.) 194 P. 943; Stewart vs. Todd (Ia.) 173 N.W. 622; the execution of each Will was a consideration for the other; Frazier vs. Patterson (Ill.) 90 N.E. 218; Torgerson vs. Hauge (N. Dak.) 159 N.W. 7; vs. Miles (Kan.) 132 P. 146; Prince vs. Prince (Wash.) 117 P. 257; Baker vs. Syfritt (Ia......
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