Provart v. Harriss

• Decision Date: 02 April 1894
• Citation: 36 N.E. 958,150 Ill. 40
• Parties: PROVART et al. v. HARRISS et al.
• Court: Illinois Supreme Court

150 Ill. 40

36 N.E. 958

PROVART et al.

v.HARRISS et al.¹

Supreme Court of Illinois.

April 2, 1894.

Error to circuit court, Perry county; Benjamin R. Burroughs, Judge.

Bill by Emily Harriss and others against Josiah W. Provart and others. Complainants obtained a decree. Defendants appeal. Affirmed.F. M. & D. V. Youngblood, for appellants.

W. K. Murphy and Thos. J. Layman, for appellees.

This was a bill in chancery, in the circuit court of Perry county, brought by appellees, as heirs at law of Philip C. C. Provart, deceased, against the widow and other coheirs at law, and their respective husbands and wives, to set aside and have annulled certain deeds purporting to convey to five of his sons, in severalty, certain lands in said deeds described; to have said lands declared a part of decedent's estate, the dower and homestead of the widow therein set off and assigned, and the lands partitioned among the heirs, etc. Answers were filed by the guardians ad litem of minor defendants, neither admitting nor denying the allegations of the bill, but setting up the interests of the minors, and invoking the protection of the court in that behalf, etc. The adult defendants (appellants), Josiah W., Zepheniah R., Hosea P., Azuriah, and Edgar Provart, the said five sons, filed their joint and several answers, setting up claim to said lands under and by virtue of said deeds. The other defendants did not answer, and were defaulted. Hearing was had on bill, answer, cross bill of minors, replication, and proofs, and a decree entered in accordance with the prayer of the original bill, from which decree appellants prosecute this appeal.

On July 3, 1890, Philip C. C. Provart, causa mortis, undertook the disposition of his estate among his heirs, etc. At his instance a justice of the peace (John Harris) was called in, who drew five deeds, one to each of said five sons (appellants), which deeds were duly signed and acknowledged by said Provart and wife. The justice was then further requested to proceed with the drafting of a will, which was at once entered upon,-the commencement written,-but said Provart, becoming exhausted, deferred the matter until the next morning, and requested the justice to then call and complete it. Before leaving, the said justice asked him if he desired that he (the justice) should take the deeds, which had been laid on a table in the adjoining room, along with him, and retain them till morning, to which Provart replied: ‘No. Leave them where they are. They have been cared for.’ The justice immediately departed, and, in less than one hour thereafter, Provart died. Provart had asked Rev. Josiah Harris, who was present, that if he (Provart) did not get along, or well, to take the deeds, and have them recorded. The Reverend Harris, on July 4th, after Provart's death, took the deeds, and delivered them to two of the sons (not grantees therein), who, on the same day, delivered to each of the grantees therein his deed, respectively. No further act towards the disposition of his estate was done by said Provart. On the hearing, appellants, over objection of complainants in the bill, were permitted to testify in their own behalf, and it is assigned for error that the court refused to consider this testimony in the rendition of its decree. No cross errors are assigned. By the decree entered December 16, 1890, the court found, as to said several deeds to appellants, that ‘no actual delivery of the same was made, neither to the said several grantees, nor to any person in their behalf, but that on the next day, after the deceased of the said Provart, the same were, by the hand of one Josiah Harris, delivered to strangers to the transaction, members of the family of the said Philip C. C. Provart, and were finally permitted to come into the hands of the said grantees, who caused the same to be filed and entered of record as aforesaid, and that there was no actual or constructive delivery of the said deeds, or of either of them, by the said Provart, in his lifetime, to the said grantees, or to either of them, nor to any person in their, or either of their, behalf;’ decreed each of said deeds null and void, and set the same aside; finds advancements made in decedent's lifetime to certain of his children, and decrees that such children bring the amounts thereof, respectively, into hotchpot, etc., or be barred, etc.; decrees assignment of dower and homestead to the widow, and then partition of the estate according to respective interests, as prayed in the bill, etc.

SHOPE, J. (after stating the facts).

The important question presented upon this record is whether the several deeds signed, sealed, and acknowledged by Philip C. C. Provart and wife were in fact delivered, so as to make them effectual to convey the lands herein described, to appellants. Delivery of the deeds is denied, but, as to the facts and circumstances of and attending the alleged delivery, there is practically no controversy. The deeds were all signed and acknowledged by the grantor at the same time. On the day of his death, at his request, a scrivener was called in, whom he directed to draw the five deeds and his will. The deeds were drawn, signed, and acknowledged, and laid upon a table in an adjoining room, where they were found after the grantor's death. After the making of the deeds was completed, the scrivener entered at once upon writing the will; and having written the commencement, and made memorandum of two items of lands to be devised, the said Provart became too weary to proceed, and requested the scrivener to call next morning and finish it. The scrivener, being about to take his departure, asked Mr. Provart if he till morning. The grantor replied: ‘No. till morning. The grantor replied: ‘No. Let them stay where they are.’ A grandson, who was present at the time, testifies that the reply was: ‘No. They are all right. Just leave them alone.’ Within an hour after the scrivener's departure, the grantor died. The pastor, who was also present, testifies: ‘I laid them [the deeds] on the table together, where they remained until he died. He said, two or three times during the day: ‘I want to make the deeds out to my boys. If I don't get along, I want you to take the deeds, and have them recorded. If I get along, I will do that myself.’ After he died, I took the deeds, * * * and next morning gave them to two of the boys,-not the ones the deeds were made to. * * * He did not say what to do with them; only said to bring them, and have them recorded, if he did not get along.' The deeds were subsequently handed to appellants, and filed for record.

It is apparent from this record that the original design and intention of the father was, at the time, the distribution of his entire estate among those having claim upon his bounty, and that the making of the deeds to his five sons (the appellants) was, in the father's contemplation, but a part of the general plan for the final disposition of his property. It is a familiar and fundamental rule of law that, in order for a deed to operate as an...