Loveless v. Thomas

• Decision Date: 29 October 1894
• Citation: 152 Ill. 479,38 N.E. 907
• Parties: LOVELESS v. THOMAS et al.
• Court: Illinois Supreme Court

152 Ill. 479

38 N.E. 907

LOVELESS

v.THOMAS et al.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from circuit court, Iroquois county; C. R. Starr, Judge.

Bill by Thomas Loveless against Priscilla Thomas and others for partition and assignment of dower. There was a decree of partition, from which complainant appeals. Affirmed.

Kay & Kay, for appellant.

F. L. Hooper, for appellees.

BAKER, J.

This was a bill filed in the circuit court of Iroquois county, for partition and assignment of dower, by appellant. Robert L. Williams died interstate, seised of the lands in question, leaving Priscilla, his widow, and six children surviving him. Appellant obtained title to the interests of certain of the children, and filed this bill for partition and assignment of dower. It was alleged that Priscilla had, subsequent to the death of Robert L. Williams, intermarried with one Samuel Thomas, and with her two minor children, Robert and Elihu Williams, removed to the residence of her husband, Samuel Thomas, thereby abandoning and relinquishing all her rights of homestead in the premises described in the bill. Priscilla Thomas answered, claiming dower and homestead, and denying that she had abandoned or relinquished her right of homestead. On the hearing the circuit court entered its decree ordering the assignment of dower and homestead to her, and that partition be made between the complainant and defendants owning the fee. From that decree complainant below prosecutes this appeal.

The only error assigned is that the court below erred in decreeing homestead to appellee Priscilla Thomas. It seems that one of the daughters of Robert L. Williams conveyed her interest to her mother, Priscilla, and afterwards deeded the same interest to William Misch, appellant's grantor. On the 26th of March, 1890, the mother made a deed to Misch, in the body of which the whole of the land was described and conveyed, but concluding as follows: ‘Hereby releasing and waiving all right under and by virtue of the homestead exemption laws of this state. Meaning hereby to convey to grantee only all interest I may have in and to the interest in said lands formerly held by Rosetta Raine, formerly Rosetta Williams, in and to said lands, as heir at law of Robert L. Williams.’ It is first contended that by this deed all right of homestead was relinquished. A sufficient answer to this position would be that no such claim is made by the bill. The only reason attempted to be set up in the bill why homestead should not be allowed is that it had been abandoned. But, waiving that answer, it is too clear for argument that the clauses of the deed above quoted, taken as a whole, are not a waiver of homestead. It appears that the deed was made on a blank form with the usual release of homestead, which was not stricken out, but the grantor states that the conveyance is not a...