Jeffers v. Jeffers

• Decision Date: 02 November 1891
• Citation: 28 N.E. 913,139 Ill. 368
• Parties: JEFFERS et al. v. JEFFERS et al.
• Court: Illinois Supreme Court

139 Ill. 368

28 N.E. 913

JEFFERS et al.

v.JEFFERS et al.

Supreme Court of Illinois.

Nov. 2, 1891.

Error to circuit court, Pike county; CHARLES J. SCOFIELD, Judge.

Bill by Samuel P. Jeffers and others against Clara N. Jeffers and others for partition and other relief. Decree in part as prayed. Complainants bring error. Affirmed.J. S. Irwin

, for plaintiffs in error.

A. C. Bentley, for defendants in error.

WILKIN, J.

This was a bill in chancery by plaintiffs in error against defendants in error to the November term, 1888, of the circuit court of Pike county. The bill alleged that about May 31, 1883, Elijah Jeffers died testate, seised of certain real estate, and possessed of a large amount of personal property, leaving, him surviving, a widow, the complainants, his only children, and the defendants, his grandchildren, being the children and heirs at law of a deceased son, Francis L. Jeffers; that by a clause in his last will said Elijah disposed of his property by the following clause: ‘ Second. I give and bequeath to my wife all my property, both real and personal, during her life. After her decease, that each of my children shall share equally in all that remains of my property, both real and personal.’ The bill then proceeds to allege: ‘That on the ___ day of June, 1888, the said widow departed this life; upon the happening of which event the heirs became and now are entitled to a partition of the real estate owned by said testator, and to an equal division of the personal estate remaining after the death of said widow. That by said last will and testament no power or authority was given to the executor or any one else to sell or make partition of said estate, and the same is so situate that no equal division thereof can be made without the aid of this court, and from the fact that a part of those interested therein are minors under age. That the children of the said Elijah Jeffers are your orators, as hereinbefore named, (except Hiram Harper, Thomas Patten, and David P. Daniels, who claim only marital rights through their respective wives as herein set forth,) and the heirs of Francis T. Jeffers, deceased, who was a son of the said Elijah Jeffers, but who is now deceased, having died in the life-time of his father. The said Francis left surviving him and now in life the following children and heirs at law, viz., Clara Nettie, Effie Lucinda, Lillie Gilbert,and Mertie Leonidas, and his widow, Ann Jeffers. * * * That there are no personal effects belonging to said estate except the notes and accounts due said testator in his life-time for money loaned to his several children above named, and your orators aver that it is right and just that the amount of money due severally on said notes and accounts should be taken into account and consideration, and charged to said heirs severally in the settlement and distribution of said estate.’ Then follows a description of the real estate of which the testator died seised. The prayer is for process against the defendants, the appointment of a guardian ad litem for them, and that upon a hearing an account be taken of the interest of the parties, and a finding as to the respective shares of the owners of said lands; that commissioners be appointed, etc.; concluding with the usual prayer in bills for partition.

The will of Elijah Jeffers was attached to and made part of the bill. The answer of the defendants by their guardian ad litem specifically denies that any charge should be made against their share of the estate of Elijah Jeffers, on account of any indebtedness of their deceased father. At said November term the master in chancery, in pursuance of an order of the court, made his report of evidence taken by him, and also his conclusions thereon, finding each of the complainants entitled to one-tenth, and each of the defendants to one-fortieth, of said real estate. This report was approved, and commissioners duly appointed to make partition accordingly. Subsequently these commissioners reported the premises not susceptible of division, and thereupon a decree of sale was entered, in obedience to which the master sold the premises, and his report thereof was duly approved. At the next term of said circuit court the cause was re-referred to the master, with directions to take and report the evidence, with his conclusions as to whether advancements had been made by Elijah Jeffers in his life-time to the father of defendants, and whether said father was indebted to the testator, and whether in the distribution of the funds in the master's hands said defendants should be charged with any such indebtedness. In his report on this reference the master found that said Francis L. Jeffers, father of the defendants, at the time of his death was indebted to said Elijah Jeffers in the sum of $611.40, as shown by certain promissory notes. These notes do not appear in the record, and there is nothing to show when they were given, or when they became due. The master reported his conclusion from the evidence taken on this branch of the case, that such indebtedness should not be charged to the defendants. He also found,...