James v. Hanks

• Decision Date: 24 April 1903
• Citation: 66 N.E. 1034,202 Ill. 114
• Parties: JAMES et al. v. HANKS et al.
• Court: Illinois Supreme Court

202 Ill. 114

66 N.E. 1034

JAMES et al.

v.HANKS et al.

Supreme Court of Illinois.

April 24, 1903.

Error to Circuit Court, Edgar County; Frank K. Dunn, Judge.

Suit by William F. James and others against Thomas R. Hanks and others. Bill dismissed, and complainants bring error. Affirmed.

F. W. Dundas, W. H. Clinton, J. E. Dyas, and H. A. Neal, for plaintiffs in error.

H. S. Tanner, J. W. Shepherd, and F. C. Van Sellar, for defendants in error.

BOGGS, J.

The plaintiffs in error filed this their bill in chancery against the defendants in error. Answers and replications were filed, and the cause was heard in open court before the chancellor upon oral and documentary testimony, and a decree was entered dismissing the bill. The plaintiffs in error preserved the evidence by means of recitals of findings of fact in the decree, and by the incorporation in the decree of copies of the documents produced in evidence, and have sued out this writ of error to reverse the decree on the ground that the chancellor erred in the application of principles of law to the facts as found and recited in the decree, and urge that the application of correct legal principles to the facts so recited in the decree entitled the plaintiffs in error to a decree granting the relief prayed in the bill.

The bill alleged that Firman James on the 16th day of April, 1891, conveyed to Mary Ann James, his wife, 766 acres of land in Edgar county, Ill., and afterwards, in November, 1892, conveyed to his said wife 20 acres of other land in the same county; that in June, 1898, said Mary Ann James died, leaving neither child, children, nor descendants thereof, her surviving; that she left a last will and testament, in which she made no bequest or devise whatever to said Firman James, her husband, who survived her, but directed that all of her real estate be converted into money, and that the proceeds be paid to certain of her brothers and sisters; that said Firman James departed this life in June, 1900, leaving a last will, by which he devised and bequeathed to the complainants and to Thomas James all of his real and personal property, of every nature and kind whatever, in certain proportions, as stated in the will. The bill asked for relief on the theory that, as the will of Mary Ann James made no provision whatever for said Firman James, her estate was intestate as to him, and that, under the statute of descent, he inherited one-half of the real estate of which she died seised, and all of her personal property, she having died, leaving neither child, children, nor descendants thereof her surviving, and that, as she made no devise or bequest to him which would put him upon his election whether he would accept such devise or bequest in lieu of dower, he became entitled to be endowed in the lands of which she died seised, and to receive one-third of the personal estate after the payment of all debts, and that such interest so descending to said Firman James upon his death descended to his heirs at law, the complainants in the bill and said Thomas James.

The answers to the bill disclosed that on the same day the said Firman James conveyed the said tracts of land to his wife, Mary Ann, as charged in the bill, both the husband and wife signed and sealed certain separate instruments of writing, which the respondents alleged were executed contemporaneously with the deed, and should be considered as forming parts of the deed, in which instruments, respondents averred, the husband waived whatever interest he otherwise would acquire in the said lands conveyed to his wife by the laws of descent, as dower or otherwise, in the event he should survive her, and obligated himself to release and quitclaim all such interest to such persons as would take the same by descent or devise from his wife, as in case his death preceded hers, and that the instrument signed by the wife in like manner released and waived all interest she had or might acquire at the death of her husband, as his surviving wife or widow, by the statutes of descent or the statutes relating to homestead and dower, and obligated her, in the event she survived her husband, to waive, release, and quitclaim all such after-acquired interests to such persons as would, in case her death had preceded her husband's, become entitled to the same.

Upon the hearing the deed and the two instruments before referred to were produced in evidence. The deed was found to be executed and acknowledged by both husband and wife, and contained the following stipulation and agreement: ‘The grantor hereby reserves the entire use and control of all the above-described land for and during his natural life, and it is also agreed between granor and grantee that above-described lands are conveyed to grantee, and received by her as above conveyed, as and for and in lieu of all and whatever interest she would have or acquire, as the surviving wife and widow, in whatever real estate he may own at his death.’

The instruments signed by the said husband and wife, respectively, each expressly referred to the deed, and declared that, though the consideration named in the deed was $10,000, the real consideration was the agreement of the wife ‘to release and quitclaim whatever interest she should have or acquire in such lands as' the husband then owned, and, to quote from the instrument signed by the wife, ‘to waive and release and quitclaim all such interest as aforesaid I may have and acquire as aforesaid in all and any of the real estate my husband now owns (960 acres) to such persons, respectively, as will have said lands,...