Powell v. McDowell

• Court: Illinois Supreme Court
• Writing for the Court: WILKIN
• Citation: Powell v. McDowell, 194 Ill. 394, 62 N. E. 879 (Ill. 1902)
• Decision Date: 21 February 1902
• Parties: POWELL v. McDOWELL et al.

194 Ill. 394

62 N.E. 879

POWELL

v.McDOWELL et al.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from circuit court, Livingston county; C. W. Patton, Judge.

Suit by Herbert Powell against Jason L. McDowell and others. Decree for defendants. Plaintiff appeals. Affirmed.

George B. Marvel, for appellant.

H. H. McDowell, for appellees McDowell and Dancey.

WILKIN, C. J.

This litigation originated in the circuit court of Livingston county on a bill for partition by the appellant against appellees. The bill alleges that the appellant, complainant below, is the owner of the undivided five-sixths (or ten-twelfths) of the S. W. 1/4 of section 30, township 27 N., range 6 E. of the third principal meridian, in said Livingston county, and that the defendants Jason L. McDowell and Samuel Dancey are the owners each of an undivided one-twelfth thereof; Miller Hotaling merely occupying the premises as a tenant. The answer of the defendants McDowell and Dancey denies most of the allegations of the bill, but in effect admits the tenancy in common, and avers that said lands should be divided into eight shares, instead of twelve, and that they (the defendants) are each entitled to a one-eighth interest therein, instead of one-twelfth, and that the complainant is entitled to six-eighths, instead of five-sixths, as alleged in the bill. The real controversy, therefore, between the parties, is as to the several interests of the parties as tenants in common, and this issue arises upon the construction of the last will and testament of one George Armstrong, from whose heirs and devisees the respective parties deraign their title. By the first item of that will the testator gave to his wife, Ann M., a life estate in the lands in question, if she remained unmarried, subject to a mortgage lien of about $240. By the second item he gave her all his personal property, subject to the payment of the bequests afterwards made and of his debts. By the third he gave to each of his children and stepchildren (hereafter named) one dollar each, payable only after his just debts were settled. The next clause is called a ‘memorandum,’ and provides that the wife shall have the control, etc., of five of the children of the testator. The fourth and last item is as follows: ‘I hereby constitute my said wife, Ann M. Armstrong, sole executrix of this, my last will and testament, without being required by court or officer of a court to give bondsmen for the performance of her duties. Should she again marry, it is my will and desire that the premises herein devised shall, according to law, be sold, and the proceeds thereof be equally divided among my heirs, except to James B. Armstrong, James B. Chesney, and Louisa Matthews. Memorandum. I hereby include Mary Ann Van Wormer as entitled, in any contingency, to share equally of my estate with my other legal heirs not herein excepted.’ It appears from the evidence that George Armstrong, the testator, was three times married. By the first marriage he was the father of two children, James B. and Elizabeth Armstrong; the latter being dead at the time of the execution of his will, leaving, her surviving, a son, James B. Chesney. By the second marriage he was the father of five children, Mary, Isabelle, Louisa, Rebecca, and George; the said Louisa being, at the time of the execution of his will, the wife of one Matthews. By the last marriage he was the father of four children, Melville C., Elizabeth J., Martha J., and Elmer Y. Armstrong. His last wife Ann M., had been previously married, and had three living children of that marriage,-two sons and one daughter, the said Mary Ann Van Wormer, mentioned in the last item of the will. The construction insisted upon by the appellant of this item 4 is that the eleven children of the testator, together with the said stepdaughter, Mary Ann Van Wormer, are each entitled to one-twelfth of the estate; he having obtained conveyances from nine of those children and said stepdaughter, Mary Ann Van Wormer. The deeds of conveyance from these parties, as well as those by other children to McDowell and Dancey, purport to convey only the undivided interests of the grantors in said lands. The contention of defendants, on the other hand, is, that by said item 4 the three parties, James B. Armstrong, James B. Chesney, and Louisa Matthews, are excluded from participating in the estate, and that with the other children and heirs at law of the testator Mary Ann Van Wormer is to be included, thus dividing the estate into nine shares. This construction was adopted by the circuit court in its...