Phillips v. Gannon

• Decision Date: 12 October 1910
• Parties: PHILLIPS et al. v. GANNON et al.
• Court: Illinois Supreme Court

246 Ill. 98

92 N.E. 616

PHILLIPS et al.

v.GANNON et al.

Supreme Court of Illinois.

June 29, 1910.

Rehearing Denied Oct. 12, 1910.

Appeal from Circuit Court, Hancock County; Robert J. Grier, Judge.

Suit by Charles W. Phillips and others against Thomas L. Gannon and others. Decree for defendants. Plaintiffs appeal. Affirmed.Charles J. Scofield and J. Paul Califf, for appellants.

O'Harra & O'Harra, Hartzell & McCrory, and D. E. Mack, for appellees.

CARTER, J.

This is a bill filed in the circuit court of Hancock county for the partition of certain lands in said county, or for the partition of a homestead estate therein in case a certain deed to said lands be held otherwise valid. The bill was amended, and a supplemental bill thereafter filed by leave of court. Appellees answered the bill, also the amended and supplemental bills. After hearing the court dismissed the bills for want of equity, and from that decree this appeal was prayed.

April 7, 1897, John W. Phillips was the owner of two tracts of land in Hancock county, one of 40 and the other of 5 acres. He and his wife had resided on the larger tract for a long time previous to her death, about 1893, and for several years thereafter he lived there with various of his unmarried sons. Shortly before April, 1897, being then about 80 years of age, he became desirous of making arrangements with some one to support and care for him during the remainder of his life in return for a deed of the real estate and he endeavored to make an arrangement of that nature with Edward Huey, son of a neighbor, but without success. He then made such a proposition to his grandson, Thomas L. Gannon, and the latter's wife, Annie Gannon, appellees herein, and they accepted. Phillips and Gannon thereupon went to the county seat, Carthage, accompanied by a neighbor, who went at Phillips' request, and the deed in question was prepared by a lawyer according to directions given him by Phillips and was signed by Phillips and Gannon. Thereafter Annie Gannon signed, and the following day all three acknowledged the deed before Douglas Aleshire, a justice of the peace who lived in the vicinity of the farm, and it was recorded. The instrument in question reads as follows:

‘This indenture, made and entered into this seventh day of April, A. D. 1897, by and between John W. Phillips, party of the first part, and Thomas L. Gannon and Annie Gannon, his wife, party of the second part: Witnesseth, that said John W. Phillips, party of the first part, for the consideration hereinafter specified and upon the condition hereinafter mentioned, sells and conveys to the said party of the second part, their heirs and assigns forever, the following described premises, to-wit: [describing them.] And the said Thomas L. Gannon and Annie Gannon, his wife, parties of the second part, in consideration of the premises and of the conveyance to them of the said lands, hereby covenant, promise and agree to and with said John W. Phillips, party of the first part, that they will, at their own expense, severally furnish to said John W. Phillips a comfortable support, consisting of food, shelter and clothing, and kind treatment, and all proper, necessary medical assistance and treatment, during his natural life, and give him a decent burial and a suitable monument to mark his grave after his death, and that they will fully pay and discharge a certain encumbrance, by mortgage, on said premises made by said party of the first part, and that the said John W. Phillips, party of the first part, shall have the right to re-enter and take possession of said premises for a breach of any or either of the above covenants, promises or agreements, and to eject the said party of the second, * * * or any person or persons holding under them, therefrom, and to have, hold and enjoy said premises as though this conveyance had not been made; and the performance of said covenants is hereby made a condition precedent to the vesting of the title of said premises in said parties of the second part.’ (Then follow the signatures and seals of the three parties and the acknowledgment.)

About this time John W. Phillips went to live with the Gannons on the farm they were renting in the vicinity. While there is some conflict on the point, we think the great weight of the evidence shows that he went to live with them after, and not before, the instrument in question was executed. For some two years the three continued to live on the farm where the Gannons were residing at the time this deed was made, and the Gannons rented out the 40-acre tract here in question to third parties. Thereafter the Gannons and Phillips moved onto the 40-acre tract, where they continued to reside until Phillips' death, July 30, 1907, and the Gannons were residing there at the time of the hearing in this cause. The evidence shows, without serious controversy, that during all of this time, from the date of the execution of the instrument until Phillips' death, the Gannons furnished him with good food, clothing, care, and shelter. The testimony of a number of witnesses was to the effect that Phillips was pleased with the arrangement he had made, and frequently said the Gannons were good to him-‘too good,’ as he put it-that is, that they took more care for his comfort than he thought was necessary. The doctor who attended Phillips from 1899 until his death testified that he was employed by the Gannons to do so, and that they gave Phillips a good home and all the attention a man of his age required; that from April, 1907, until Phillips' death, in July of that year, he (the doctor) attended Phillips every two or three days, and before that six or eight times a year. The evidence also shows that the Gannons paid off the mortgage referred to in the deed, amounting to $425, and that they provided and paid for a decent burial of Phillips. It appears that before the deed was executed Phillips had erected a monument on his family lot, and that he said, when the deed was being prepared, that the provision with reference to the monument was unnecessary. The testimony shows that the Gannons caused a proper inscription as to Phillips to be placed on the monument after his death and a ‘marker’ at his grave. On this record there can be no doubt that the appellees carried out all their agreements as required by the deed.

John W. Phillips died intestate and left no widow, but left seven children and certain children of deceased children, of which grandchildren Thomas L. Gannon is one. The appellants here are some of the heirs at law; all the heirs having been parties, either plaintiffs or defendants, to the original proceeding. The bill charges that Phillips at the time he made the instrument in question was of unsound mind and not competent to transact ordinary business, and was subject to undue influence on the part of the Gannons. It is not claimed that there is any evidence in the record that substantiates in any degree the charge of undue influence, and we do not think that the evidence supports the allegations as to mental incapacity. The alleged declarations of Thomas L. Gannon as to the mental condition of the grantor in the deed, made at about the time of its execution, were properly excluded by the trial court, as they were not made in the presence of Annie Gannon, who was also a party to the deed. Furthermore, had these alleged declarations been admitted, we cannot see how they could have changed the conclusion that must be reached on this record, that Phillips had sufficient mental capacity to execute this instrument.

The chief contention of appellants, however, is that the conditions upon which the title under this deed was to vest in appellees were conditions precedent, and that, as certain of these could not be performed until after the death of Phillips, the deed, by its terms, must be held void, as an attempt to make a testamentary disposition of property without complying with the statute of wills. A condition in a deed is a qualification of the estate granted, and may be either precedent or subsequent. 1 Jones on Real Property, § 619; 6 Am. & Eng. Ency. of Law (2d Ed.) p. 500. ‘Precedent are such as must happen or be performed before the estate can vest or be enlarged; subsequent are such by the failure or nonperformance of which an estate already vested may be defeated.’ 2 Blackstone's Com. *154; 5 Viner's Abr. 75. The distinction between conditions precedent and subsequent is obvious in its consequences (1 Tiffany on Real Property, § 69), but it is not always easy to determine which of such conditions the words of a particular devise or conveyance create. 2 Washburn on Real Property (6th Ed.) § 941. There are no technical words to distinguish between them. The distinction is a matter of construction. 4 Kent's Com. (14th Ed.) *125; Burdis v. Burdis, 96 Va. 81, 30 S. E. 462,70 Am. St. Rep. 825, and note; 3 Greenleaf's Cruise on Real Estate, *354. The same words have been construed differently, depending on the connection in which used. Finlay v. King's Lessees, 3 Pet. 346, 7 L. Ed. 701; Creswell v. Lawson, 7 Gill & J. (Md.) 227. If the act or condition required does not necessarily precede the vesting of the estate but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or if, from the nature of the act to be performed and the time required for its performance, it is evident that the intention of the parties was that the estate should vest and the grantee perform the act or acts after taking possession, then the condition is subsequent. City of Chicago v. Chicago & Western Indiana Railroad Co., 105 Ill. 73; 2 Washburn on Real Property (6th Ed.) § 941; Underhill v. Saratoga & Washington Railroad Co., 20 Barb. (N. Y.) 455, and cases cited; 13 Cyc. 691. When the words are of doubtful meaning, the courts prefer to construe the conditions as conditions subsequent rather than precedent (In re Stickney's Will, ...