Garwood v. Garwood

• Decision Date: 21 April 1910
• Citation: 244 Ill. 580,91 N.E. 672
• Parties: GARWOOD v. GARWOOD et al.
• Court: Illinois Supreme Court

244 Ill. 580

91 N.E. 672

GARWOOD

v.GARWOOD et al.

Supreme Court of Illinois.

April 21, 1910.

Error to Circuit Court, Jasper County; Albert M. Rose, Judge.

Suit by Thomas Garwood against Sarah E. Garwood and others. There was a decree dismissing the bill for want of equity, and plaintiff brings error. Reversed and remanded.Shamhart & Isley and Fithian & Kasserman, for plaintiff in error.

C. A. Davidson, for defendants in error.

CARTWRIGHT, J.

Plaintiff in error, Thomas Garwood, by his amended bill of complaint filed in the circuit court of Jasper county, alleged that his father, Charles E. Garwood, made and acknowledged a quitclaim deed of lands occupied by him as a homestead, of less value than $1,000, to his wife, Sarah E. Garwood; that the deed was not subscribed or acknowledged by the wife, and possession was not abandoned or given pursuant to the conveyance, and the deed was not delivered; that said Charles E. Garwood died intestate on January 8, 1891; that afterward said Sarah E. Garwood executed and delivered to M. E. Jones a mortgage of a portion of said land to secure the payment of a note for $250, and later executed a warranty deed to her daughter Nora A. Adkins of the whole tract of land subject to said mortgage and reserving to herself ‘the life use of the rents and profits thereof.’ The bill prayed for a cancellation of the deed to Sarah E. Garwood and the mortgage to M. E. Jones and the deed to Nora A. Adkins, except as an extinguishment of the homestead estate of said Sarah E. Garwood and dower in the undivided fifth interest of Nora A. Adkins as one of the heirs of Charles E. Garwood, and for assignment of dower and partition of the premises. The widow and a brother and three sisters of the complainant, and M. E. Jones, were made defendants. The widow, Sarah E. Garwood, and Nora A. Adkins and M. E. Jones answered, admitting the execution of the deeds and mortgage, but denying that the premises were of less value than $1,000, and alleging that the widow paid a mortgage lien on the premises created by her husband, Charles E. Garwood. The cause was heard by the court, and the bill was dismissed for want of equity. The record has been brought to this court as a return to a writ of error.

There were controversies at the hearing concerning the value of the property and whether the deed of Charles E. Garwood was delivered, but the facts as we find them from the evidence are as follows: Charles E. Garwood was the owner of a tract of 57 1/2 acres of land in Jasper county, of less value than $1,000, which was occupied by him as a homestead, and on December 24, 1889, he executed a quitclaim deed of the same to his wife, Sarah E. Garwood, in which she did not join. He continued to occupy the premises as a homestead until his death, on January 8, 1891. He had some property in Richland county, and letters of administration were taken out in that county; but the homestead was not abandoned, and the homestead estate did not pass by the deed, which was delivered before his death and was recorded after his death. He left Sarah E. Garwood, his widow, and the complainant, Thomas Garwood, and the defendants, Clara Bixler, Iva Sowers, Samuel Garwood, and Nora A. Adkins, his children and heirs at law. The widow continued to reside on the premises as a homestead, and one of the daughters, Nora A. Adkins, has also resided there with her mother. There never was any allotment of homestead or dower. On September 24, 1907, the widow mortgaged 17 1/2 acres of the premises to M. E. Jones to secure the payment of her note for $250, due five years after date, with 7 per cent. interest. She also executed a deed on March 21, 1908, to her daughter Nora A. Adkins of the whole tract of land, in consideration of $1 and the assumption by the grantee of the mortgage, with this reservation: ‘The grantor reserves the life use of the rents and profits arising from said premises.’The conveyance contained the statutory release of homestead.

The deed from Charles E. Garwood purporting to convey his homestead to his wife was void, and upon his death the fee descended to and vested in his five heirs, subject to the widow's right of dower and estate of homestead (Kitterlin v. Milwaukee Mechanics' Mutual Ins. Co., 134 Ill. 647, 25 N. E. 772,10 L. R. A. 220;Anderson v. Smith, 159 Ill. 93, 42 N. E. 306;Gray v. Schofield, 175 Ill. 36, 51 N. E. 684:Shields v. Bush, 189 Ill. 534, 59 N. E. 962,82 Am. St. Rep. 474), and the heirs have a right to partition subject thereto (Brokaw v. Ogle, 170 Ill. 115, 48 N. E. 394;Miller v. Lanning, 211 Ill. 620, 71 N. E. 1115;Whitaker v. Rhodes, 242 Ill. 146, 89 N. E. 677). There was no evidence as to the value of the 57 1/2 acres of land at the time the deed was made to Nora A. Adkins or at the time of the hearing; but as the complainant was entitled to a partition, and the court erred in dismissing his bill, questions will necessarily arise as to the extent of the homestead right, and whether Nora A. Adkins has any property or estate in the excess over $1,000, if the property is of greater value.

Where there is an estate of homestead in a single tract of land of greater value than $1,000, an allotment is necessary to define the limits of the homestead estate, and in such a case the value is to be determined at the time of the assignment and not at the time of the death of the ancestor. Anderson v. Smith, supra. The rule is the same whether there has been an increase or diminution in the value of the whole premises. In Jesperson v. Mech, 213 Ill. 488, 72 N. E. 1114, the owner of premises of the value of about $3,500, occupied as a homestead, made a quitclaim deed to his wife, which did not convey the homestead estate, and 10 years after his death, when the property had depreciated in value to $1,500, a bill was filed for partition. It was considered that the only practicable rule was to determine the value of the property at the time of the allotment, which could work no hardship to either party, as the bill might have been maintained by either at any time after the death of the grantor in the deed. But the question in this case is a different one. If premises in which there is a homestead estate exceed in value that estate, the widow and heirs hold as tenants in common until a severance of their interests by setting off the homestead (Montague v. Selb, 106 Ill. 49), and, where it is necessary that the homestead should be set off or assigned for the purpose of defining its limits, it is not such an interest as can be conveyed separately from the fee until it has been set off or assigned (Best v. Jenks, 123 Ill. 447, 15 N. E. 173;Lagger v. Mutual Union Loan Ass'n, 146 Ill. 283, 33 N. E. 946). Where one who has an estate of homestead, in a tract worth more than $1,000 dies leaving a widow, the estate of homestead vests in the widow immediately by operation of law, and the purpose of an allotment is not to vest such estate, but merely to determine its boundaries. Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830. Where the whole premises do not exceed in value the homestead estate, the limits of the estate are already definitely fixed, and neither the widow nor heirs could have an allotment out of the premises. There would be neither reason nor justice in a rule requiring either party to incur the useless expense of a proceeding to declare an existing fact. Accordingly, it is held that no allotment is necessary where the premises occupied as a homestead do not exceed in quantity and value the homestead estate vested by law in the widow, and that she may avail herself of her rights without any proceeding for allotment or setting off of the homestead. Parks v. Reilly, 5 Allen (Mass.) ...