Hudson v. Hudson

• Decision Date: 03 April 1919
• Docket Number: No. 12340.,12340.
• Citation: 287 Ill. 286,122 N.E. 497
• Parties: HUDSON et al. v. HUDSON et al.
• Court: Illinois Supreme Court

287 Ill. 286

122 N.E. 497

HUDSON et al.

v.HUDSON et al.

No. 12340.

Supreme Court of Illinois.

Feb. 20, 1919.

Rehearing Denied April 3, 1919.

Appeal from Circuit Court, Champaign County; Franklin H. Boggs, Judge.

Suit by Mary Elizabeth Hudson and others against John M. Hudson and others. From decree for complainants, some of the defendants appeal. Affirmed.Green & Palmer, of Urbana (Henry I. Green and Oris Barth, both of Urbana, of counsel), for appellants.

T. E. Lyons, of Champaign, Frank T. Carson, of Urbana, and Dobbins & Dobbins, of Champaign, for appellees.

DUNN, J.

Upon a bill filed in the circuit court of Champaign county by Clifton A. and Mary Elizabeth Hudson against John M. Hudson and others, the court entered a decree directing the master in chancery to convey to the complainants 80 acres of land in Champaign county and two lots of a subdivision in the city of Urbana, and some of the defendants have appealed from the decree.

John H. Hudson was the owner of the land in his lifetime, and the question in the case is whether he conveyed it, after the death of himself and his wife, to Clifton J. Hudson. Prior to and on July 27, 1912, John H. Hudson was the owner of about 665 acres of land in Champaign county and some lots in the city of Urbana, and his wife Eliza E. Hudson, was the owner of 80 acres of land. It is the contention of the appellees that Hudson and his wife on July 27, 1912, decided to partition their estate among their children, retaining the use of it during their respective lives, and executed deeds for that purpose. Clifton A. Hudson was their son, and they had seven other children, one of whom (Oscar) lived in Minnesota upon a farm for which his father had helped him to pay and expected to make further payments. For this reason, in the partition made on the 27th of July, 1912, nothing was given to him, but it is claimed that a deed was made to each of the other seven children, by which all the real estate of John H. and Eliza E. Hudson was conveyed to them; that the deeds were delivered to G. W. Webber, cashier of the First National Bank of Urbana, to be kept until after the death of both the grantors and then delivered to the respective grantees; but that subsequently John H. Hudson obtained the deed made to Clifton and destroyed it. John H. Hudson died March 7, 1916, leaving a will, by which he purported to devise to Clifton a life estate in 60 acres of the land alleged to have been conveyed to Clifton and the lost in Urbana, conveyed to Clifton and the lots in Urbana, a life estate in the remaining 20 acres to John M. Hudson, with remainder to John Howard Hudson. The deeds of the other real estate of John H. and Eliza E. Hudson were found in the custody of the bank, but there was no deed to Clifton. Clifton made a conveyance to his daughter of the real estate claimed to have been conveyed to him by his father, retaining a life estate in himself, and thereupon they filed the bill in this case.

Each of the six deeds contained a clause in substantially the following language:

‘This deed, with six others of the same date, made by the grantors herein, all to their children, is made as anticipating a partition of their estate among their children as they wish it to be done and will only take effect after their decease. Should the grantee die before that event, or at his death, the title to the tracts of land above named shall vest in his legal heirs. A life estate in the grantee named is hereby only intended. The grantee may not in his lifetime make any disposal of the fee interest in said tract of land, nor shall the same, not any interest therein, become liable for his debts.’

It appears from the testimony that in the summer of 1912 John H. Hudson called upon Judge Cunningham, a lawyer living in the city of Urbana, of many years' practice though not then keeping an office, and consulted him about making some disposition of his real estate in view of his death, which he anticipated was near. He said he wanted to make some deeds to his children and lay them aside, not to be delivered until after his death. Cunningham told him that they must be delivered during his lifetime, otherwise they might be set aside, and Hudson was about to give up the plan and make a will; but, after some conversation about what could be done, Cunningham told him that he could make the deeds, place them in the hands of some one to be delivered after his death, but not to be interfered with by him and entirely beyond his control, and that would be a legal delivery. Hudson finally assented to this and the deeds were prepared. Hudson gave Cunningham the names of his children and the pieces of property he wanted them to have. He named the property that he wished to have conveyed to the different members of his family. He told Cunningham how many children he had and spoke of one or more of them being absent. Cunningham's recollection was that he intended to convey his entire property. The deeds were all made upon the same form, and, while Cunningham did not remember the particular language of the deeds to the different grantees, his recollection was that the general provisions of the deeds, outside of the description of the property, were the same. He remembered one of the names in particular was Clifton or Clifford, but did not remember exactly which. No different direction was given as to the deed to Clifton or Clifford from the direction as to the other deeds. Cunningham did not know whether the property was approximately evenly divided or was unevenly divided and did not know how much property or what property was described in the deed to Clifton. He did not remember whether Hudson was reserving any part of his property from the deeds. Cunningham went to Hudson's house with the deeds ready for execution and then came down to the bank with Mr. and Mrs. Hudson, where the deeds were acknowledged by them before Roger F. Little, a lawyer and notary public, who testified to the circumstances of the acknowledgment of the deeds but was not able to state the number of them. The deeds were them placed in an envelope, on which was the following typewritten indorsement:

‘Deeds of John H. Hudson and his wife, Eliza E. Hudson, now sealed and to be kept sealed until after the decease of both, then by the custodian to be opened and delivered to each grantee, the delivery in this form to the custodian to be considered as a delivery of the deed in legal form.’

The envelope was sealed and the package was then delivered to G. W. Webber, the cashier of the bank, who indorsed in writing below the typewritten indorsement these words: ‘Received July 30th, 1912.-G. W. Webber, Cashier.’ The package was put by the cashier in a safety deposit box, where it remained until some time later, when Hudson came to the bank and asked for the package. He told Fay, the president of the bank, that he wanted the package to make some change and would bring it back, and Fay gave it to him. It was still sealed, but when it was returned it was torn open. After its return the package remained in the bank in the same box in which it had been previously kept until after Hudson's death, when it was found to contain the six deeds to the other children, not including Oscar or Clifton.

On April 5, 1915, John H. Hudson executed his will, in which, after giving to his wife all of his personal estate and the use of his real estate during her life, and reciting that in deeds dated July 27, 1912, he and his wife had partitioned among their children all of his real estate, together with certain real estate belonging to her in her own right, to take effect after the death of both of them, such partition and division being, as they believed, right and fair, having in mind the situation of each of their children and the advancements made theretofore to some of them, but in which partition their son Oscar received no part of their real estate for the reason that he established himself upon a farm purchased by him in the state of Minnesota, in the payment for which testator had made some advancements and expected to make advancements from his personal estate before the farm was paid for, he directed that if the farm in Minnesota should remain unpaid for at his death his wife should further contribute from the estate in her hands to such payment, such sums as she or the testator should so pay to be considered as advancements to their son Oscar or his family in the final settlement of the estate. The fifth and sixth clauses of the will then, after reciting that their son Clifton had received no part of the testator's real estate by the deeds mentioned, made the devises which have been already mentioned of the 60 acres of land and the lots in Urbana to Clifton for life with remainder to Frederick M. Hudson, and of the 20 acres to John M. Hudson with remainder to John Howard Hudson. The eighth clause was as follows:

‘Eighth. After the death of my wife and myself, with full knowledge of the circumstances and needs of all our children, have made and executed the aforesaid deeds of partition of our estate among our children and have surrendered possession of the same and each of said deeds of conveyance to the custodian, to be delivered to each of them after our decease, having been actuated in so doing by like affection of all, in the belief that our real estate so distributed would do no injustice to any but would best subserve the interests of all. Therefore we urge upon them, and each of them, acquiescence therein without words of complaint or thought of injustice. Said deeds are hereby declared delivered and titles conveyed.’

The lawyer who wrote this will testified that when John H. Hudson came to see him about writing this will he had a will with him, which was destroyed after the new one was executed. The older will was in all respects identical with the new will, except that the former will devised 80 acres to Clifton, together with some town property,...