Graff v. Rankin

• Decision Date: 10 April 1917
• Docket Number: 2404.
• Citation: 250 F. 150
• Parties: GRAFF et al. v. RANKIN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

250 F. 150

GRAFF et al. v. RANKIN et al.

No. 2404.

United States Court of Appeals, Seventh Circuit.

April 10, 1917

Rehearing Denied January 31, 1918.

Logan Hay, of Springfield, Ill., and Fred H. Hand, of Cambridge Ill., for appellants.

Wm. J Graham, of Aledo, Ill., and Charles J. Scofield, of Carthage Ill., for appellees.

Before BAKER, MACK, and EVANS, Circuit Judges.

MACK Circuit Judge.

This is an appeal from the decree of the District Court quieting and confirming the title of the complainants, Alexander C. Rankin and his wife, Minnie A. Rankin, to certain lands in Mercer county, Ill., as against the claims of the defendants, Charles Frederick Graff, his wife, Emily B. Graff, and Wilbur F. Gilder, husband and sole devisee of Netta Graff Gilder, deceased, and dismissing for want of equity the cross-bill of defendant Charles F. Graff for possession and accounting.

Romulus Riggs the testator, died in the fall of 1846, seised of the land in controversy. He devised it by the sixth section of his will, which reads as follows:

'I give and devise to my daughter, Illinois Riggs, and to her lawful issue for their only proper use and benefit the following described thirteen quarter sections of land with the appurtenances thereunto belonging, containing one hundred and sixty acres each, more or less. The said lands lying and being in Mercer county and state of Illinois as follows, to wit: N.E. 1/4, 23, 14 north, 3 west (and describing 12 other quarters). If my daughter, Illinois Riggs, should marry and have lawful issue I request that her lawful husband whomsoever he may be will act in conjunction with his wife, my daughter, Illinois, as the agent and guardian of their children and that they will lease out or make such other disposition of the said thirteen quarter sections of land as will produce the most certain and largest income, which income it is my will and direction shall be applied to the education and support of their children and to the support of themselves during the natural life of my said daughter, Illinois, and at her death it is my direction that as many of their children as shall be twenty-one years of age or if they be daughters and married before that time then at eighteen years of age they shall at once receive their equal proportion of said property, and their lawful father, my son-in-law, whomsoever he may be, if then living, shall continue to receive and control the income from the balance of the property for the sole use and benefit of such of my daughter, Illinois' children as may be under lawful age at their mother's death, and shall deliver to each child his or her equal proportion of the same so soon as they become twenty-one years of age, or if there shall be daughters and they are married before that time then they are to receive their proportion at eighteen years of age, so that at the time the youngest child of my daughter, Illinois, shall be of lawful age, the property and income from the same will be equally divided among them and their lawful father, my son-in-law, whomsoever he may be, will be fully discharged from guardianship and have no further control or interest in the same. Nevertheless, if any or all of my daughter Illinois' children should arrive at lawful age before her death, the property is not to be divided among them during her lifetime, but to remain with her and her husband for their mutual use and benefit of them all until her death when it is to be equally distributed among her lawful issue and the legal representative of any of her children that may have previously died, to be entitled to the same share that his or her parent would have been if then living. If, however, my said daughter, Illinois Riggs should die without leaving any lawful issue, then I direct that the above described thirteen quarter sections of land with the appurtenances shall at her death descend to and be equally divided among her brothers and sisters and their lawful issue, in the same manner as they would have descended to her issue had she left any.'

His will was duly probated at testator's domicile in the county of Philadelphia, state of Pennsylvania, and was recorded in Adams county and Mercer county, Ill., in 1849 and 1874, respectively, but before the commencement of this suit the necessary statutory certificate of probate had not been filed for record.

Illinois Riggs, to whom the testator's Mercer county lands were devised, was a spinster at the time of his death. In March, 1847, she married Charles H. Graff. In 1848 a daughter was born to them. On July 29, 1853, Charles H. Graff was appointed by the county court of Peoria county, Ill., guardian of his minor daughter, Netta. On August 2, 1853, he filed on the chancery side of the circuit court of Mercer county a petition to sell real estate, reciting the execution and probate in Philadelphia of the will of Romulus Riggs, the substance of the sixth clause, the petitioner's marriage to Illinois, the birth of their child, Netta, her minority, and his appointment as her guardian by the county court of Peoria, Ill. He further alleged that Netta had no property of any kind applicable to her education and support as contemplated by the will of the testator, that the taxes upon the land were heavy, that the lands, being wild and uncultivated, produced no income whatever, and that no money was thus received to preserve them from waste. The petitioner thereupon charged and prayed that the proceeds of the sale thereof be invested in such manner that a yearly income could be derived therefrom, to be applied towards the education and support of Netta Graff, that Netta Graff be made a party to the proceedings, and that a guardian ad litem be appointed. Affidavit of her nonresidence was duly filed; a decree was entered at the April term, 1854, which, after reciting due notice to the defendant of the pendency of the suit, appointed a guardian ad litem; and thereupon, after further reciting the filing of an answer by him, the decree found the facts as set out in the petition, and ordered the property to be sold by a commissioner and deeds to be executed by him to the purchasers. Pursuant to this decree, the land was sold and conveyed to one Thomas Morehead, by deed dated and recorded in June, 1854. This commissioner's deed recited the decree in haec verba. By mesne conveyances the property came to the complainant, Alexander C. Rankin; he and those under whom he claimed have held possession thereof in good faith and regularly paid the taxes thereon since 1854.

Netta Graff, who had married Wilbur F. Gilder, died in 1897, without having had a child born to her. Her husband, the sole beneficiary under her will, was a party defendant to these proceedings, but disclaimed any interest and did not join in this appeal. Charles Frederick Graff, the other and younger child of Illinois, the principal defendant herein, was born in 1862. It was to quiet and establish their title, as against his threatened ejectment action, that the complainants brought their bill in March, 1913. To the amended bill, filed in October, 1915, defendants filed their answer, including a cross-complaint.

Plaintiffs contend: First, that Morehead, their remote grantor, secured a valid title to the property in controversy by virtue of the proceedings in the circuit court of Mercer county in 1853; second, that, if the legal title were not transferred as the result of such proceedings, they nevertheless acquired title under both sections 1 and 6 of the limitation act (Illinois Revised Statutes, c. 83); third, that, in any event, the defendant Charles Frederick Graff is debarred by his laches, and is estopped from asserting any rights, in view of his own delay and plaintiffs' erection of valuable improvements upon the land in the honest belief of ownership. The defendants, denying plaintiffs' contention, seek possession by their counterclaim.

If the estate limited to the children of Illinois by the will of her father, Romulus Riggs, vested in each at its birth, rather than at the death of Illinois, Netta's vested interest was subject to a decree of sale on petition to the proper court in order to provide for her education and support, and, if the commissioner's sale was thus made, the purchaser acquired that vested interest. Since the remainder, if vested, was subject to open to let in her brother subsequently born, the interest thus sold would be an undivided half of the remainder, subject to Illinois' life estate. If, however, the remainder was contingent, then in Illinois it was not subject to transfer either at private or at guardian's sale, and in that event, subject only to the question hereinafter considered as to whether the Mercer county proceedings were for a guardian's sale, the commissioner's deed conveyed no title to Morehead.

1. We therefore consider, in the first place, the nature of the interest acquired by the children of Illinois under the will. The direct devise to Illinois Riggs and her lawful issue is limited and explained by the subsequent provisions. Concededly, Illinois obtained only the legal life interest, subject to an equitable charge on the income for the support and education of her children and for the support of herself and her husband. Concededly, too, the provision, authorizing Illinois and her husband to 'lease or make such other disposition of the said thirteen quarter sections of land as will produce the most certain and largest income,' did not empower them to sell the fee.

To support their contention that the interest of the children other than their equitable interest in the life estate, is but a contingent remainder, defendants urge certain clauses of the will, which they contend indicate that the testator's scheme for the division of...