Huffman v. Young

• Decision Date: 08 November 1897
• Citation: 49 N.E. 570,170 Ill. 290
• Parties: HUFFMAN et al. v. YOUNG et al.
• Court: Illinois Supreme Court

170 Ill. 290

49 N.E. 570

HUFFMAN et al.

v.YOUNG et al.¹

Supreme Court of Illinois.

Nov. 8, 1897.

Error to circuit court, Vermilion county; F. Bookwalter, Judge.

Bill for partition by Jane Huffman and others against Noah Young and others. From a decree dismissing the bill, complainants bring error. Affirmed.

Harvey C. Adams, for plaintiffs in error,

E. R. E. Kimbrough and James A. Meeks, for defendants in error.

CRAIG, J.

This was a proceeding in chancery for partition, and an accounting of rents, etc., brought by plaintiffs in error in the Vermilion circuit court. The bill alleges that parties complainant and defendant are the owners of a strip of land 17 rods in width off the west side of E. 1/2 of the N. E. 1/4 of section 20, township 21 N., range 11 W., in Vermilion county, Ill., except about 3 acres off the south end; that they derived title thereto by descent from Charles S. Young, who died testate, but without making disposition of the said strip; that testator left undevised and as intestate property about 800 acres of land; and that at the time of making said will and at testator's death there were located on said strip three dwelling houses, each fronting on a road running along the west side of said strip, two of which were occupied by testator's daughters; that the greater portion of the E. 1/2 of the N. E. 1/4 of said section was devised to Noah Young as ‘sixty-two and one-half acres off of the east side of said quarter section’; that the strip sought to be partitioned is the balance of said 80-acre tract; that defendant, Noah Young, is in possession of said strip, and has received the rents thereof since testator's death. Bill alleges that five of defendants are minors and prays for partition, and an accounting of rents and profits. A guardian ad litem was appointed by the court for minor defendants. Adult defendants, except Noah Young, failed to answer, and were defaulted. Noah Young answered the bill, and averred that he was the sole owner of said strip; that he derived title thereto by virtue of the last will of Charles S. Young; and relied upon the following clause of the will as his evidence to title: ‘Item 3. I give and devise to my son Noah Young the northwest quarter of section twenty-one (21), townshiptwenty-one (21) north, range number eleven (11) west of second P. M.; also sixty-two and one-half acres off of the east side of the northeast quarter of section number twenty (20), township and range aforesaid.’ The answer admits that there are three houses on said strip, and that two were, at testator's death, occupied by two of testator's daughters, but avers that said daughters were occupying them as tenants of testator. Answer admits possession, but denies having received any rents except what he had expended for taxes, etc.; denies that testator did not make any disposition of the strip in controversy, and avers that the same is devised to him in the third clause of said will. Defendant further avers that when said testator made his will this defendant was, and now is, the owner of 160 acres adjoining said strip on the west, and that testator owned the 160 acres on the east of said strip; that the ‘homestead’ was on the last-named 160 acres, and that the homestead 160 acres and the land owned by testator in the E. 1/2 of the N. E. 1/4 of section 20 (the land in controversy) constituted what was known as the ‘Home Farm,’ and that testator had long purposed giving the ‘Home Farm’ to Noah, because he was the eldest son, and the owner of the adjoining land on the west. Answer further avers that when said will was made the Chicago & Eastern Illinois Railroad Company owned a right of way across said E. 1/2 of the N. E. 1/4, from north to south, 100 feet wide, which right of way was 333 feet west of the east line of the 80-acre tract; that, in addition to said right of way, there was laid out of the south end of said 80-acre tract a part of the village of Bismarck; that on the east side of right of way the plat covers 54 rods north from the south line of said tract, on the west the plat extends 26 rods north, and that decedent at the time of making his will and at his death did not own any part of said village west of said right of way; that all the land owned and claimed by testator in said E. 1/2 of the N. E. 1/4 was only about 62 1/2 acres; that the same was off the north end, rather than the east side, and was exclusive of the right of way of said railroad company. Answer avers that if the ‘strip’ is partitioned as prayed for he will have but 48 acres, instead of 62 1/2 given to him by said will, and that a part of the land will be cut off from any highway, and will not be accessible from his other lands. Answer also denies that testator left any lands not disposed of by his will, but avers that as to a part of the lands the will was held void by the circuit court of said county for want of certainty in the designation of beneficiaries, and that the said 800 acres had been partitioned. The complainants put in a replication to the answer, and on the hearing the defendants called as a witness E. R. E. Kimbrough, who testified Charles S. Young, at the time of making his will, and at the time of his death, owned but 62 1/2 acres in the E. 1/2 of N. E. 1/4 of section 20, township 21 N., range 11 W. of second P. M., and this was off the north end of said tract, and was exclusive of the right of way of the Chicago & Eastern Illinois Railroad Company, 100 feet wide, which was owned by said railroad company in fee. The right of way extends across said land from north to south, and is about 330 feet west from the east line of said tract. Charles S. Young owned 62 1/2 acres over and above the right of way, on the north end, rather than off the east side thereof. He did not own the south end, which was a part of the village of Bismarck. The allegations of fact alleged in the answer of Noah Young are true as therein stated, except such allegations as are only the conclusions of the pleader. At the time the will was executed, and at the time of the death of said testator, Noah Young, the defendant and eldest son of the testator, owned and occupied the 160 acres of land adjoining the 62 1/2 acres on the west. By the will he was given the lands adjoining the 62 1/2 acres on the east. The home farm...