Morris v. Phillips

• Decision Date: 15 April 1919
• Docket Number: No. 11612.,11612.
• Citation: 122 N.E. 831,287 Ill. 633
• Parties: MORRIS v. PHILLIPS et al.
• Court: Illinois Supreme Court

287 Ill. 633

122 N.E. 831

MORRIS

v.PHILLIPS et al.

No. 11612.

Supreme Court of Illinois.

April 15, 1919.

Error to Circuit Court, Vermilion County; John H. Marshall, Judge.

Bill by Howard W. Morris against Martha W. Phillips and others. Decree for complainant, and defendants bring error. Reversed and remanded.David Allison, of Danville, Maxwell & Maxwell, of Robinson, and Hall & Holaday, of Danville (L. A. Cranston, of Danville, of counsel), for plaintiffs in error.

Rearick & Meeks, of Danville (Knapp & Campbell, of Chicago, of counsel), for defendant in error.

CARTWRIGHT, J.

Levi Long, of Georgetown, Vermilion county, died on March 20, 1902, leaving no widow and leaving his children, William L. Long, Charles F. Long, Nancy J. Black, Josiah S. Long, Sarah F. Baker, and James P. Long, and his grandchildren, Joseph Levi Long, William T. Long, and Anna C. Pritchard, children of his deceased son, John E. Long, his only heirs at law. He left a last will and testament, by the second clause of which he requested his heirs to make an equal division of his estate in seven equal shares among his five sons and two daughters, all of whom were living when the will was made, and expressed a wish that within two months after his death all his sons and daughters should meet and make due effort to effect such equal division among themselves, granting unto the heirs of William L. Long as such share, subject to his use, benefit, and control during the term of his natural life, his real estate therein described, containing 112 acres, being the old family homestead, and then to make equal division into six shares of the remaining real estate therein described and in case of inability to make such division to select referees to make the same. A division, in either case, was to be make by interchanging deeds of conveyance, the grantees named in each deed to be the heirs of the respective sons and daughters, subject to a life use, benefit, and control of the parent, son, or daughter. In case of a failure to make such division the devises contained in the subsequent clauses of the will by which he devised the several tracts of land were to become effective. There was no attempt by the children of the testator to make the division recommended by the second clause and the real estate passed by the subsequent devises, seven in number. The real estate in controversy in this case passed under the fourth, fifth, and sixth clauses of the will as affected by the thirteenth clause. They are as follows:

‘Fourth. Unto the heirs of my son William L. Long, subject to his use, benefit and control during the term of his natural life, I do hereby give and devise all of the [describing 112 acres].

‘Fifth. Unto the heirs of my son Charles F. Long, subject to his use, benefit and control during the term of his natural life, I do hereby give and devise [describing 50 acres].

‘Sixth. Unto the heirs of my daughter Nancy J. Black, subject to her use, benefit and control during the term of her natural life, I do hereby give and devise [describing 40 acres]. * * *

‘Thirteenth. I hereby direct that if any of the heirs of my body shall depart this life leaving no living issue of their body, the said real estate so given or devised shall revert to the heirs of my body in equal shares, saving to the widow of any of my sons or to the husband of any of my daughtersa life estate therein, if they have been a good, faithful and dutiful wife or a good, faithful and dutiful husband.’

On November 30, 1903, the sons and daughters and the three grandchildren, with their wives and husbands, respectively, made quitclaim deeds among themselves, whereby each conveyed whatever interest the grantor had in any of the lands other than that specifically devised to such grantor, with covenants binding themselves, their heirs, executors, administrators, and assigns, never to take, claim, or assert any right, title or interest in or to the premises conveyed, or any part thereof, under the will or the statute of descent (Hurd's Rev. St. 1917, c. 39), and with further covenants to execute and deliver such further assurance or assurances as should or might be deemed necessary to perfect title in the premises conveyed in the grantee and his or her heirs or assigns. The lands described in the conveyances to William L. Long, Charles F. Long, and Nancy J. Black were the same devised by the fourth, fifth, and sixth clause of the will, respectively. William L. Long had eight children, and on August 20, 1915, by separate deeds he and seven of his children, with their respective wives and husbands, conveyed to the defendant in error, Howard W. Morris, by deeds of bargain and sale, the life estate and remainder in fee, and all interest, present or future, in the lands devised by the fourth clause of the will. Charles E. Long, one of the plaintiffs in error, a son of William L. Long, did not join in any of the deeds. On the same day Charles F. Long and his children, with their respective wives and husbands, made similar deeds to defendant in error of the lands devised by the fifth clause, and on the same day Nancy J. Black and her children, with the husbands of the children, executed similar deeds to the defendant in error of the lands devised by the sixth clause.

On December 17, 1915, defendant in error, Howard W. Morris, filed in the circuit court of Vermilion county his bill of complaint to quiet his title to the lands devised in the fourth, fifth, and sixth clauses of the will, for which deeds had been made to him. The bill set forth numerous defects in the title, not involved in this writ of error, and alleged that by the will the children of the testator, William L. Long, Charles F. Long, and Nancy J. Black, became seized of a life estate in the lands devised to them, respectively, with a contingent remainder to the surviving issue of his or her body, if any should be alive at his or her death, that the feesimple title was vested in the six children and...