Shields v. Bush
| Decision Date | 20 February 1901 |
| Citation | 59 N.E. 962,189 Ill. 534 |
| Parties | SHIELDS v. BUSH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, McLean county; Colostin D. Myers, Judge.
Suit by James Shields against Christie Bush and others. From the decree, complaintant appeals. Affirmed.D. D. Donahue, for appellant.
John T. Lillard, for appellees.
The original bill in this case was filed on March 24, 1899, and the amended bill was filed on May 27, 1899. The bill, as originally filed by the appellant, James Shields, and as subsequently amended by him, seeks to set aside a deed of certain lands, made by him to his wife in her lifetime, as a cloud upon his title to such lands. The defendants to the bill are the heirs of the deceased wife of the appellant. The cause was referred to a master in chancery to take proofs, and report the same to the court, together with his findings thereon. The master took testimony, and made a report, in which he recommended that the bill be dismissed for want of equity. Objections were filed to the master's report, and overruled. On May 29, 1900, the circuit court rendered a decree overruling all the exceptions to the master's report except No. 19, which was sustained, and finding the issues in favor of the defendants below, the appellees here, except as to the homestead premises. The present appeal is prosecuted from the decree so entered by the circuit court on May 29, 1900.
The facts, as developed in the pleadings and proofs, are substantially as follows: The appellant, James Shields, was on September 12, 1893, a widower, about 76 years of age, and having children by a former deceased wife. On that day, to wit, September 12, 1893, he married one Catherine Bush, a spinster, aged 44 years, of Clark county, Ky., the appellant being a resident of the village of Holder, in McLean county, Ill. About three months after the marriage, to wit, on December 22, 1893, the appellant executed a deed to his said wife, Catherine B. Shields, conveying to her lot 1, in block 6, in said village of Holder, and a strip of land connected with the same, together constituting the homestead premises of appellant and his wife, and also 80 acres of land in said county. The deed is in the statutory form, and recites that the grantor, James Shields, ‘for and in consideration of love and affection and the sum of $1.00 in hand paid, conveys and warrants to his wife, Catherine B. Shields, * * * the following described real estate,’ etc. The deed releases and waives all rights under and by virtue of the homestead exemption laws of the state, and it also contains the following provision: ‘This deed is made subject to a life estate in the grantor, James Shields, for and during his natural life, in all of the real estate herein conveyed.’ The deed in question was not signed or executed by Catherine B. Shields, the wife of the appellant. On December 20, 1898, Catherine B. Shields, the wife of appellant and the grantee named in the deed above mentioned, died intestate and without children, in the state of Kentucky, leaving her surviving, as her heirs at law, her husband, James Shields, and her father and certain brothers and sisters living in the state of Kentucky. The final decree, entered by the court below, finds that on December 22, 1893, appellant filed said deed for record in the recorder's office of McLean county; that he afterwards delivered the deed to his wife, Catherine Shields; that, at the time of the execution and delivery of the deed, appellant was a man of strong and vigorous mind, and capable of understanding ordinary and usual business transactions, and was under no undue influence or restraint; that, after the making and delivery of the deed to her, Catherine Shields died intestate, leaving as her heirs at law the persons above named; that, at the time of the making of said deed, appellant occupied as a homestead said lot 1 and the strip of land connected therewith; that the lot and the strip of land occupied as a homestead did not exceed in value $1,000; that Catherine Shields did not join in the deed, and that no title passed thereby to her to the tracts of land occupied as a homestead, but that by said deed title passed to her to the 80 acres of land described therein, subject to a life estate therein in the appellant; and the court in said decree ordered, adjudged, and decreed that said deed should be, and was thereby, declared null and void, in so far as it purported to vest title in Catherine Shields and her heirs to the homestead property, but that title passed from appellant to her to the 80 acres of land subject to said life estate in appellant, and that the title to said 80 acres was vested in appellant and the defendants below as heirs of Catherine Shields, deceased, subject to the life estate therein of the appellant, James Shields. The decree ordered that James Shields should pay one half of the costs, and that the defendants should pay the other half thereof.
MAGRUDER, J. (after stating the facts).
1. The original and amended bills in this case charge that the deed executed by the appellant to his deceased wife, Catherine Shields, on December 22, 1893, was never delivered to her, and this charge in the bill is denied by the adult defendants in their answer. The first question, therefore, in the case is whether or not there was a delivery of the deed in question. There is conflict in the testimony between the appellant and his witnesses on one side, and the appellees and their witnesses on the other side; but the facts and circumstances in regard to the execution of the deed on December 22, 1893, as established by the weight of the evidence, are as follows: On December 22, 1893, appellant and his wife, Catherine Shields, went together gether to the law office of Lillard & Williams, two practicing lawyers in Bloomington. Appellant then and there introduced his wife to Lillard and Williams, and stated that he wanted to deed his farm and his home place in Holder to his wife, reserving a life estate in himself. He also stated that she was a young woman, and would make him a good wife, and he wanted to reward her, and that he had given his children ‘all he wanted them to have.’ R. E. Williams, one of the members of the law firm, then wrote the deed, and appellant signed it. The deed was then read over to the appellant, and acknowledged by him before Williams as a notary public. Appellant stated that the deed, which was read to him, was as he desired to have it. Appellant and Williams then left Mrs. Shields in the office of Lillard & Williams, and went together to the recorder's office, and there left the deed for record, the recorder handing appellant a receipt for the deed. Appellant and Williams then returned to the office of Lillard & Williams, where Mrs. Shields awaited appellant, and he and she left the office together. On January 8, 1894, appellant called at the recorder's office for the deed, and surrendered the receipt therefor, and took the deed out of the recorder's office. As to what occurred in reference to the possession of the deed after it was taken out of the recorder's office by appellant, on January 8, 1894, there is much conflict in the testimony. Appellant claims that the deed was in his possession until March, 1898, and the charge is made that it was then taken from appellant's possession in Holder by one of the brothers of Mrs. Shields. We do not think, however, that the contention of the appellant in this regard is sustained by the evidence. In September, 1894, appellant and his wife went to Kentucky to make a visit to her relatives in that state, and they stayed there about two months. During this visit the deed was produced, and exhibited to, and examined by, several witnesses. The appellant there stated, in the presence of several witnesses, that he had made a deed of his farm and house and lot to his wife. Upon one occasion he told his wife to go into the house, and get the deed, and show it to her father. She brought the deed from the house, and the appellant read it. After it was read, she took it and put it in her trunk. The deed was, during that visit, exhibited by the appellant to a witness, who was a lawyer, with a view of satisfying the relatives of Mrs. Shields that the deed was valid. It is shown by the testimony of some four or five witnesses, that the appellant, during that visit, stated that he had already provided for his children by his former wife, and had given what was left, to wit, the farm and the homestead, to his wife, Catherine. When the appellant and his wife, Catherine, were preparing to return from Kentuckyto Illinois after the visit made in September, 1894, she gave the deed to her father, A. G. Bush, and asked him to put it with his papers, and take care of it for her. The evidence tends strongly to show that during that visit the deed was in her trunk and in her possession. Upon the trial of this case the deed was produced from the possession of A. G. Bush, who stated that he had it in his possession from the fall of 1894 until he produced it upon the trial of this case. In the spring of 1898 appellant and his wife had made up their minds to leave Illinois, and go to Kentucky to live. At that time they did move from Illinois to Kentucky, and lived there until the day of her death, in December, 1898. Previous to their leaving Illinois for Kentucky in 1898, a search was made at the homestead of the appellant for certain documents and papers, but particularly for a certain note book which he desired to carry away with him. During this search, appellant stated, in answer to an inquiry as to the whereabouts of the deed which he had made to his wife, that he had no other papers in his possession than those which were found upon that search, and that he had ‘left his and Kitty's papers with Mr. Bush.’ This statement on the part of appellant, that he had left his wife's papers in Kentucky with Mr. Bush, confirms the statement of Bush that he had...
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