Lewis v. King

• Decision Date: 19 June 1899
• Citation: 54 N.E. 330,180 Ill. 259
• Parties: LEWIS v. KING et al.
• Court: Illinois Supreme Court

180 Ill. 259

54 N.E. 330

LEWIS

v.KING et al.

Supreme Court of Illinois.

June 19, 1899.

Appeal from circuit court, Pope county.

Bill by Mary King and others against Henry Lewis and others. Decree for complainants, and defendant Lewis appeals. Affirmed.W. S. Morris and Ethar E. Lewis, for appellant.

C. L. V. Mulkey, for appellees.

This is a bill for partition. The original bill was filed in 1892 by the daughter and grandchildren of one Edward Baker, deceased, against Mary E. Baker, his widow, and the appellant, Henry Lewis, lessee and grantee of said widow, and one John McGhee, tenant under Lewis. An amended bill was filed on May 15, 1895; and, Eliza De Graffenreed, one of the grandchildren of Edward Baker, deceased, having died on September 24, 1894, a supplemental bill was filed on October 14, 1895. The facts, as set up in the original, amended and supplemental bills, are that Edward Baker died intestate on July 18, 1891, seised in fee simple of the lands described in the bill, being 100 acres, more or less; that he left, him surviving, his widow, Mary E. Baker, and, as his only heirs at law, his daughter, Harriet Baker Wagner, and his three grandchildren, Mary J. King, Eliza De Graffenreed, and Eli Topsico,-said grandchildren being the only surviving children of Amanda Topsico, deceased. By the death of Eliza De Graffenreed, who died intestate without issue, her undivided interest in the premises was inherited by her father, Rudolph Topsico, her sister, Mary J. King, her brother, Eli Topsico, and her husband, Thomas De Graffenreed. The supplemental bill avers that said Harriet Baker Wagner, Mary J. King, Eli Topsico, Thomas De Graffenreed, and Rudolph Topsico are the sole owners of the lands, as tenants in common, in the proportions set out in the bill. Mary E. Baker, the widow of the deceased intestate, had been only married to him a few months; his wife, Mary, or Mary Elizabeth, or Betsy, Baker, the mother of Harriet Baker Wagner and Amanda Topsico, having died years before his death. Edward Baker left no children by Mary E. Baker. The bills charge that, on December 9, 1891, Mary E. Baker, the widow, who was entitled to homestead and dower in the premises in question, before her homestead was assigned to her, executed a lease of the premises to Henry Lewis for the term of 59 years, and abandoned the land, and moved to the state of Kentucky, where she has since remained, and that the appellant, Henry Lewis, went into the possession of the land by his tenant, William McGhee, and has remained in such possession ever since. It is also charged that on December 9, [180 Ill. 261]1891, Mary E. Baker, the widow, executed a warranty deed to Henry Lewis, the appellant, conveying said premises to him. The relief prayed for is for partition, and that the lease and deed to Lewis be set aside, and that the complainants have process for possession against Lewis. It is also averred that Mary E. Baker, the widow, released her dower and homestead rights in said premises to the said heirs of Edward Baker after the execution of said lease and deed to Lewis. In his answers the appellant, Lewis, denied that Amanda Topsico and Harriet Baker Wagner were the children of Edward Baker, or his heirs at law, or that the parties above named were the owners of the land in fee. Upon the hearing the court rendered a decree in favor of the appellees here, complainants below, granting the relief asked, and finding that the undivided interests of the parties were as set forth in the bill; that Mary E. Baker did, on May 15, 1895, convey to Harriet Baker Wagner, Eli Topsico, Mary J. King, Thomas De Graffenreed, and Rudolph Topsico all her interest in the premises, including homestead and dower; that Amanda Topsico and Harriet Baker Wagner were the legitimate children of Edward Baker, born of his wife, Betsy Baker; that the woman Betsy Baker, called ‘Betsy Baker’ by some of the witnesses, and ‘Mary Elizabeth Baker’ by others, and ‘Mary Baker’ by others, was the same person, and was legally married to Edward Baker under the Kentucky statute offered in evidence; that such marriage legitimatized said Amanda and Harriet, who were the only lawful children of Edward Baker; that the lease and deed from Mary E. Baker, the widow, to Henry Lewis, conveyed nothing, as against the heirs of Edward Baker; that the last-named deed was a nullity. The decree directed that said lease and deed should be canceled, and that the appellant, Lewis, should surrender the premises to the owners. The decree also ordered partition among the parties and appointed commissioners to make the same. The present appeal is prosecuted from the decree so entered by the circuit court.

MAGRUDER, J. (after stating the facts).

The deceased, Edward Baker, who died seised of the lands here in controversy, was a negro, and for a number of years, immediately prior to the late Civil War, was the slave of one Daniel Hillman. He lived, for many years before and after the war, at a point known as ‘Hillman's Iron Worker,’ located on the Cumberland river, in Trigg county, Ky. The appellees affirm that Edward Baker was the husband of Mary, or Mary Elizabeth, or Betsy, Baker, she having been called by all three of these names; that his marriage to her was or was made lawful; and that two children were born to him and said Betsy, as the issue of said marriage, to wit, Amanda Baker, afterwards the wife of Rudolph Topsico, and Harriet Baker, afterwards the wife of a man named Wagner. The appellant insists there was no such lawful marriage between these parties, and that said Amanda and Harriet, if they were the children of Edward Baker, were his illegitimate children. If Amanda Topsico and Harriet Baker Wagner were the legitimate or legitimatized children of Edward Baker, then the appellees are the owners, as tenants in common, of the property here in question, and entitled to a partition of the same, and to the relief asked for in their bill. If, however, as is contended by appellant, Edward Baker left no lawful descendants, no collateral kindred, and no legitimate children, then his widow, Mary E. Baker, acquired the feesimple title in severalty to these premises, and said title passed to the appellant, Henry Lewis, by the deed executed to him by the widow.

It is apparent, therefore, that the main question in the case is a question of fact, and that question of fact is whether or not there was a lawful marriage between Edward Baker and Betsy Baker, and whether Amanda and Harriet were his legitimate children. The testimony upon this question of fact is conflicting. Counsel for appellant says in his brief: ‘Facts tending to prove that Amanda and Harriet were the lawful issue of Edward and Mary E. Baker, and facts tending to disprove their legitimacy, are also contained in the depositions and documentary evidence.’...