Harrison v. Weatherly

• Decision Date: 17 June 1899
• Citation: 54 N.E. 237,180 Ill. 418
• Parties: HARRISON et al. v. WEATHERLY et al.
• Court: Illinois Supreme Court

180 Ill. 418

54 N.E. 237

HARRISON et al.

v.WEATHERLY et al.

Supreme Court of Illinois.

June 17, 1899.

Appeal from circuit court, Adams county; John C. Broady, Judge.

Bill by Edwin M. Harrison and another against Thomas Weatherly and others for partition of certain real estate. From a judgment dismissing their complaint on demurrer, complainants appeal. Affirmed.G. Edmunds, J. H. Williams, and Arnold & Gale, for appellants.

Neece & Son, Wyand & Brown, Sharp & Berry Bros., Scofield, O'Harra & Scofield, N. F. Anderson, B. F. Thompson, A. P. Miller, Charles K. Ladd, Stevens, Horton & Abbott, Jack & Tichenor, C. C. Craig, Grier & Stewart, and Thompson & Donahue, for appellees.

A copy of the will, and of the certificates appended thereto, which is referred to in the opinion in this case, is as follows:

‘I, Richard Smith, of the city of Raleigh, county of Wake, and state of North Carolina, being of sound mind and memory, do make and ordain this to be my last will and testament, as follows, viz. to wit: Item First. It is my will and desire that the whole of my estate, both real and personal, be divided between my wife and daughter, Mary Ann Smith, as the laws of the state have and are made and provided, believing those laws make as equitable and fair a division as I can make, with the following proviso and exceptions, to wit: It is my will and desire that my wife, Penelope Smith, who will be entitled to the one-third of all the personal estate, to her and to her heirs forever, and her third or dower of all the real estate during her natural life. Second. I also give and bequeath to her, to do as she pleases with, one equal half of all the net profits of my estate, both real and personal, for her maintenance and support as long as she live and require it. Third. I give and bequeath to my daughter, Mary Ann Smith, who will be entitled to the other two-thirds of all my estate, both real and personal, the other one equal half of all the net profits of my estate, both real and personal, for her maintenance and support, the care and management of which, and collections of the same, is to be managed by her mother, and not to be paid over to her until it is collected, unless her mother chooses to do so, which I leave to her discretion. Fourth. I give and bequeath to my daughter, Mary Ann Smith, all the rest and residue of my estate, both real and personal, as the laws of the state allows, and not given away in either of three items of my will above, with the following provisos and exceptions, intended by me for her especial benefit and protection: That is, she is to have the one-third of her portion, if she requires it, for her support and maintenance, and do as she pleases with. The other two-thirds I only lend to her in trust, to be managed by the county court of Wake, and superior court and courts of equity of said county, as trustees for her and her heirs forever, allowing to her and her heirs the net income of the said two-thirds aforesaid, after the decease of her mother; and if the courts aforesaid should not act in the capacity of a trustee, as before desired, then it is my will and desire for either of said courts to appoint some safe and competent person or persons from time to time to act as trustee, and the court is to make such order and decree as to them may appear fair and proper, and may require such sureties of said trustees as to them may appear proper. If such trustees are appointed, they are not permitted to diminish, but it is to remain as a separate and special and trust fund for her benefit, and her heirs forever; she receiving the net profits after the decease of her mother, as mentioned in another clause of this will, for and during her natural life, and then to such of her child or children as she may have or leave surviving her. I do not make this provision to deprive her or her husband, if she marries, from the free use and enjoyment of the fruits of my labor and industry, but to provide as far as I can for her and her children against any misfortune that might happen, and which I am legally advised is proper. Fifth. The whole of my estate I wish to be kept as much together as the case will admit, though I make no positive item to that effect, and the whole of my servants to be treated well and provided for, except such as may become refractory and unruly; and, if so, they may be sold. It is my first request that all my just debts be paid out of the first avails of my estate. Having been careful to keep out of debt, it is my wish to owe little or nothing at my decease; but, no doubt, some small charges or debts will have to be paid, which may be paid out of any moneys I have at the time of my demise. Written by myself, and pronounced by me to be my last will and testament, and signed in my own proper handwriting, and preferring not to have any subscribing witnesses, as the laws provide, as good or better proof of any person's handwriting making a will; and I file this my will among my most valuable papers, revoking or disannulling all or any other wills made by me, if any should appear, and pronouncing this to be my last and only will and testament. Given under my hand and seal this 10th day of October, A. D. 1851. Richard Smith. [Seal.]’

‘Codicil to this my will: It is my wish and desire that the Black Lead Plumbago mine, which I own now, one-half of the same may never be sold, but kept in perpetuity for my estate; but small part or parts of the lands that may not be material to keep may be sold, if necessary, but no part or parts of the mines. Richard Smith. October 10, 1851.’

‘Item Sixth. I hereby appoint my wife executor to this my last will and testament, and request her to call on such friends to aid her as she may find desirable. Richard Smith. [Seal.] October 10, 1851.’

‘The State of North Carolina. To all to Whom These Presents shall Come, Greeting: Be it known that James J. Marriott, whose name, in his own proper handwriting, is subscribed to the annexed certificate, is, and was at the time of granting the same, clerk of the county court for Wake county, and that his said certificate is in due form. In witness whereof, his excellency, David S. Reid, our governor, captain general, and commander in chief, hath signed with his hands these presents, and caused our great seal to be affixed thereto, on the fifth day of April, in the year of our Lord one thousand eight hundred and fifty-three, and in the seventy-seventh year of our independence. By the Governor: David S. Reid. Samuel F. Adams, Private Secretary.’

‘Wake County Court, November Sessions, A. D. 1852. A paper writing purporting to be the last will and testament of the late Richard Smith, deceased, of the city of Raleigh, is exhibited in court and propounded for probate by Penelope Smith, the executrix therein nominated, as the last will and testament of the deceased, altogether in the handwriting of the supposed testator, and found at his death among his valuable papers; and the same is duly proved and declared by the court to be the last will and testament of the said Richard Smith, and ordered to be recorded as such. Whereupon the said Penelope Smith is duly qualified as executrix thereto, and license is given by the court to the executrix to sell the perishable estate. Attest: James J. Marriott, Clerk. [Seal.]’

‘State of North Carolina, Wake County. I, James J. Marriott, clerk of the court of pleas and quarter sessions for the county of Wake aforesaid, do hereby certify that the foregoing is a true and correct copy of the last will and testament of Richard Smith, deceased, and also of the probate and proceedings had in court therein, and which said will was proved according to the laws of this state. In testimony of all which I have hereunto affixed the seal of said court and subscribed my name at my office, in Raleigh, this 11th day of January, 1853. James J. Marriott, Clerk. [Seal.]’

MAGRUDER, J. (after stating the facts).

This case comes up from an order of the court below sustaining a demurrer to the bill, and dismissing it, for want of equity. Therefore, as to the facts, we are confined to the allegations of the bill. Both appellants, who were complainants below, and appellees, who were defendants below, claim title under one Richard Smith, who in his lifetime was a resident of Wake county, in the state of North Carolina, and died testate in that state in the year 1852. A copy of his will, dated October 10, 1851, is attached to the bill, and referred to therein as an exhibit. Richard Smith left surviving him a widow, named Penelope Smith, and one child only, a daughter, named Mary A. Smith, his only heir at law. The widow is dead, and the daughter, who married one Morehead after the execution of the deed hereinafter mentioned, died on January 4, 1891, leaving no issue, and without having had any child or children. Morehead is also dead. At the time of his death, Richard Smith owned in fee 35 quarter sections of land situated in Adams, Pike, Calhoun, McDonough, Schuyler, Fulton, Peoria, Stark, Knox, Warren, Henderson, Mercer, and Henry counties, in Illinois. On February 20, 1856, Penelope Smith and Mary A. Smith executed a warranty deed to one Silas T. Green, of Richmond, Ky., conveying to him all the lands in Illinois which Richard Smith owned at his death, describingthem as ‘all those certain tracts of land situated in the military bounty land district in the state of Illinois.’ The grantors in the deed are described as ‘Penelope Smith, widow, and Mary A. Smith, only child, together sole heirs of Richard Smith, deceased, late of Raleigh, North Carolina.’ A copy of the deed is referred to in the bill, and attached thereto as an exhibit. The deed contains no reference whatever to any will of Richard Smith, and no intimation that the grantors held as devisees, or otherwise than as heirs of a deceased intestate. The deed to Green was recorded in many of the counties where the lands are situated. After...