Nevius v. Gourley

• Decision Date: 03 February 1881
• Citation: 97 Ill. 365,1881 WL 10417
• Parties: MARY A. NEVIUSv.THOMAS R. GOURLEY et al.
• Court: Illinois Supreme Court

97 Ill. 365

1881 WL 10417 (Ill.)

MARY A. NEVIUS

v.THOMAS R. GOURLEY et al.

Supreme Court of Illinois.

Filed at Ottawa Feb. 3, 1881.

APPEAL from the Circuit Court of Mercer county; the Hon. ARTHUR A. SMITH, Judge, presiding. Messrs. BASSETT & WHARTON, for the appellant:

Henry W. Nevius has never taken out letters testamentary, has never given bond, filed an inventory, or given notice of adjustment, or done anything to settle the estate, except prove the will and take possession of the personal property, a part of which he still retains. The estate is not settled. The first question is, had Henry W. Nevius a vested title in the tract of land? We think, under the will, he had no title. The devise was contingent. Beatty v. Montgomery, 21 N. J. Eq. Rep. 325; Clayton v. Somers, 27 Id. 230.

And the title would not vest until the contingency happened. Candles v. Dinkle, 4 Watts (Pa. Rep.), 143; Collier v. Stoughton, 20 Ala. 263; Huckabee v. Swoop, 20 Id. 491; Burns v. Clark, 37 Barb. (N. Y.) 496; Tilden v. Tilden, 13 Gray (Mass.), 103; American Col. Society v. Trustees, 2 Allen, 302.

And where the title vested but the will enjoined some restrictions, or act to be done by the devisee as a condition of enjoyment, a failure by the legatee to perform the conditions would cause a forfeiture of the legacy. Clapp v. Stoughton, 10 Pick. 463; Hayden v. Stoughton, 5 Id. 528; Rogers v. Law, 1 Black (U. S.), 253; Shackelford v. Hall, 19 Ill. 211.

Where the special is forfeited, or fails on account of the non-performance of a condition of the will by the legatee, the legacy passes to the residuary legatee, and not to the heirs. Hayden v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 Pick. 306; Clapp v. Stoughton, 10 Pick. 463; Booth v. Montgomery, 21 N. J. Eq. 324; Hereat v. Redd, 50 Ga. 151; Bradford v. Bradford, 19 Ohio, 546; 2 Redf. on Wills, 454, 504.

Where a portion of the mortgage debt is due, and the mortgage is foreclosed as to the portion due, it is not proper to decree that the sale to be made under the decree of foreclosure shall be subject to that portion of the mortgage debt still to become due. Hards v. Burton, 79 Ill. 510; Smith v. Smith, 32 Id. 198; Weiner v. Heintz, 17 Id. 259.

The defendants to the bill of complaint, other than Henry Nevius, claimed title under the will, and not under Henry Nevius. Their right arose by title distinct and separate from that of complainant, and there is no jurisdiction in equity to try title to real estate. As to all of the defendants, the bill should have been dismissed, as they were not proper parties to the foreclosure. Burton v. Gleason, 56 Ill. 25; Comstock v. Henneberry, 66 Id. 212; Kennedy v. Kennedy, 66 Id. 190; Shubber v. Belsey, 79 Id. 307.

Messrs. PEPPER & WILSON, for the appellees, commented at some length upon the evidence to show the conditions of the will have been performed.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was a bill in chancery, filed in the Mercer county circuit court on the 12th day of November, 1878, by appellees against appellant and others, to foreclose a mortgage executed by Henry W. Nevius to appellees on the 9th day of August, A. D. 1877, to secure two promissory notes given by him to them at the same time, for the sum of $1000 each, payable, respectively, on or before the 1st of January, 1885 and 1886, with interest thereon, payable annually, at the rate of ten per cent per annum.

The tract of land upon which this mortgage was executed, was devised, upon certain conditions, to Henry W. Nevius, by his father, William I. Nevius, who died testate on the 10th day of June, 1877, leaving the appellant, his widow, and a number of children and grand-children. By his will he made, among others, the following specific bequests to his daughters, namely: to Rebecca E. McCreight $200; to Adriania J. Parks $300; and to Cornelia L. Johnson $150. The devise to Henry, their brother, of the mortgaged premises, was conditioned that he should, within one year from the decease of the testator, pay to his sisters, out of his own private funds, the three specific legacies above specified, and should pay, or cause to be paid, all notes, bonds and obligations for which the testator was bound as his surety; and should also settle his estate “without any other charge to said estate.” By another provision of the will appellant was made residuary legatee for life.

Henry W. Nevius was nominated executor of the will, and upon the decease of his father he made probate of the same, and qualified as such executor.

Default having been made in the payment of the interest on the above mentioned notes, the present suit was instituted for the purpose of foreclosing the mortgage as to such interest, and a decree was rendered in the court below to that effect, from which decree Mary A. Nevius alone has appealed to this court.

The defendants, other than Henry W. Nevius, resisted the foreclosure proceedings, on the alleged ground that the conditions upon which the mortgaged premises were devised to Henry had not been performed, and that by reason thereof no title to them had ever vested in him,--in other words, it is claimed that Henry did not, within twelve months from the decease of the testator (the time limited by the will), pay to the legatees the above mentioned specific legacies, particularly that of Adriania J. Parks; and,...