Rossiter v. Soper

• Decision Date: 24 September 1943
• Docket Number: No. 27045.,27045.
• Citation: 50 N.E.2d 701,384 Ill. 47
• Parties: ROSSITER v. SOPER et al.
• Court: Illinois Supreme Court

384 Ill. 47

50 N.E.2d 701

ROSSITER

v.SOPER et al.

No. 27045.

Supreme Court of Illinois.

Sept. 24, 1943.

Suit by Harold Rossiter against Taylor G. Soper and others to partition realty. From an adverse decree, defendant Walter A. Davis, Sr., appeals.

Reversed.

See, also, 313 Ill.App. 607, 40 N.E.2d 532.Appeal from Circuit Court, Cook County; Benjamin P. Epstein, judge.

Lloyd M. Brown and C. W. Armstrong, both of Chicago, for appellant.

March & Rossiter, of Chicago (Benjamin F. March, Lyle H. Rossiter, and W. D. Sellers, all of Chicago, of counsel), for appellees.

SMITH, Chief Justice.

This is a direct appeal from a decree entered by the circuit court of Cook county. Appellee Rossiter filed the complaint for the partition of certain real estate located in that county. Appellee Soper, appellant Davis, and Josephine Salzer Elsner were named as defendants. It was alleged in the complaint that Marie Salzer Davis died testate on October 20, 1935; that at the time of her death she was the owner of the real estate involved; that she left surviving, appellant, her husband, and Josephine Salzer Elsner, her sister, as her only heirs-at-law; that the property in question consisted of a house and lot occupied by Marie Salzer Davis and her husband, as their homestead, at the time of her death. It was further alleged that the will was duly admitted to probate and letters testamentary issued; that the will provided, after the payment of the debts of decedent, all the balance of her property should go to her sister, Josephine Salzer Elsner, ‘except such property as her husband is entitled to under the inheritance laws of the State of Illinois,’ which she devised to him; that appellant, as surviving husband, did not renounce that will, and, consequently, that he and Josephine Elsner became the owners of the property, under the will, as tenants in common, subject to the debts of the estate.

It may be noted in this connection, that the will was void and wholly inoperative. It devised to the surviving husband and sister of the testatrix, who were her only heirs, the same interests which they would take by descent had she died intestate. Ill.Rev.Stat.1939 chap. 39, par. 1(3)(a). They, therefore, took under the statute by descent, and not under the will. Akers v. Clark, 184 Ill. 136, 56 N.E. 296,75 Am.St.Rep. 152. The surviving husband and sister each took a one-half interest in the property, in fee, by descent, subject to the debts of the estate, and also subject to the homestead of the husband. The surviving husband was also entitled to dower in the one-half interest which descended to the sister of the deceased, under the Descent Act in force at the time of her death. Dial v. Dial, 378 Ill. 276, 38 N.E.2d 43;Shoot v. Galbreath, 128 Ill. 214, 21 N.E. 217. The homestead was a freehold estate and not a mere exemption. Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 86 N.E. 219. The fact that appellant did not renounce the will can have no bearing whatever on the issues in this case. Upon the death of appellant's wife, he inherited a one-half interest in the property, subject to the debts of the estate, and subject to his homestead. His homestead estate was fixed by law. He took nothing under the will. He was wholly unaffected by the will. His failure to renounce the will did not affect his right of homestead. Having received nothing under the will, he received nothing in lieu of his right of homestead. He was not required to elect whether he would take under the will or under the Statute of Descent. The interest which he took by inheritance under the law of descent, in no way affected his right to his homestead. It was exempt from the laws of descent and paramount to the rights of the heirs. Gradler v. Johnson, 372 Ill. 137, 22 N.E.2d 946. His rights are the same as if no will had ever been in existence. There was nothing on which a finding could be based that he had waived his homestead by not renouncing the will.

It was further alleged that a certain proceeding was had in the probate court, in which the real estate was sold to pay the debts of the deceased. Appellant was made a party to that proceeding. It was alleged that a decree for sale was entered; that the property was sold under that decree to appellee Soper; that the sale was duly approved by the probate court and conveyance made in accordance with the decree; that thereafter Soper conveyed an undivided one-fourth interest in the property to appellee Rossiter. Rossiter, thereupon, filed the complaint in this cause for partition, six days after the one-fourth interest was conveyed to him. Obviously, this manipulation of the title between Soper and Rossiter was intended to enable Soper to obtain a decree, under which he might recover the possession of the property, which was still occupied by appellant, as his homestead.

It was further alleged in the complaint that Rossiter and Soper were the sole owners of the property at the time the suit was filed, one fourth being owned by Rossiter and three fourths by Soper. Appellant was named as a party defendant, but the interest claimed by him was not set out in the complaint. To this complaint, appellant filed an answer in which he alleged that the premises were occupied by himself and his wife, Marie Salzer Davis, at the time of her death, as a homestead, and that he had continuously occupied the same as his homestead since her death. He further alleged that he was in possession of the premises; that they were of the value of more than $1000; that he owned a homestead interest therein; that he did not assent in writing to the sale of his homestead in the proceedings in the probate court for the sale of the property to pay the debts of the deceased. He further averred that the probate court had no jurisdiction to authorize the sale of his homestead interest. He alleged that if the sale under the decree of the probate court was void for want of jurisdiction, then he was the owner of a one-half interest in said real estate and Josephine Elsner was the owner of the remaining one-half interest under the will, subject, however, to the homestead estate of appellant, and also subject to the taxes and debts of the estate. He then alleged, in the alternative, that if that sale was valid the property was sold subject to his homestead interest. In that event he alleged that a three-fourths interest in the property was owned by Soper and the remaining one-fourth interest was vested in Rossiter, under his deed from Soper; that the interests of Soper and Rossiter were both subject to the estate of homestead of appellant. He also filed a counterclaim in which the made the same allegations as to his homestead interest in said property, and the ownership thereof.

The issues thus framed by the pleadings were whether Rossiter and Soper were the sole owners of the property, free from the homestead interest of appellant, as charged in the complaint, or whether their interests in the property were subject to the homestead interest of appellant, as alleged in his answer and counterclaim. Soper filed an answer to the counterclaim in which he substantially repeated the averments of the original complaint. The cause was referred to a master. After overruling exceptions to the master's report, the court entered a decree finding that appellant had a homestead interest in the property which had not been extinguished by the proceedings in the probate court. The decree further found that the interests of Rossiter and Soper were subject to the homestead of appellant; that the value of the property was $4500; that the value of the homestead was $1000. It was further decreed that Rossiter had a one-fourth interest in the property and Soper a three-fourths interest therein, both subject to the homestead interest of appellant. The decree provided that if Rossiter and Soper should pay to appellant $1000 for his homestead interest within sixty days, the property should be partitioned free and discharged of the homestead; that if said sum of $1000 was not paid within sixty days, the prayer for partition should be denied.

From that decree Rossiter perfected an appeal to the Appellate Court for the First District. That court held that appellant's homestead interest had been extinguished by the proceedings in the probate court and that its decree was res judicata on that issue. The decree of the circuit court was reversed and the cause remanded with directions to grant the relief prayed for in the complaint and amended complaint for partition. 313 Ill.App. 607, 40 N.E.2d 532. Appellant filed a petition in this court for leave to appeal from that judgment of the Appellate Court. This petition was dismissed because it was not filed within the time allowed by statute.

When the cause was redocketed in the circuit court, appellant entered his special appearance and questioned the jurisdiction of the court to enter any orders in the case. His objection was that the decree from which the appeal had theretofore been taken to the Appellate Court was one in which a freehold was involved. He alleged that the Appellate Court was without jurisdiction to review a decree of the circuit court involving a freehold, and that all of the proceedings in the Appellate Court were void and ineffective. He further alleged that inasmuch as there had been no appeal taken to a court having jurisdiction to review the same, such decree had become final and conclusive on the parties. It also appears that prior to the issuance of the mandate of the Appellate Court he had unsuccessfully attempted to have the Appellate Court expunge all orders in the case for want of jurisdiction. He had also unsuccessfully attempted to obtain leave of this court to file a petition for a writ of mandamus against the judges of the Appellate Court, to compel them to expunge such orders.

After the mandate was filed and appellant's objections to the jurisdiction of the circuit court were overruled, the...