Tucker v. Tucker
| Decision Date | 07 June 1923 |
| Docket Number | No. 14742.,14742. |
| Citation | 308 Ill. 371,139 N.E. 609 |
| Parties | TUCKER et al. v. TUCKER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by Frank W. Tucker and others against Junius Tucker and others, in which several cross-bills were filed. From the decree, Wathen Hamilton and others appealed.
Affirmed.Appeal from Circuit Court, Sangamon County; E. S. Smith, judge.
Sampson & Giffin, of Springfield, for appellants.
George B. Gillespie, of Springfield, and C. G. Schroeder, of El Paso (George M. Gillepsie and Thomas E. Gillespie, both of Springfield, of counsel), for appellees.
James H. Wathen died testate in Woodford county August 7, 1902, seized and possessed of considerable real and personal property, and leaving no child or lineal descendantsor parents surviving him. Four sisters, Louisa Tucker, Jane Hamilton, Tennessee Hamilton, and Mary E. Bell, died previous to his death, leaving children, and those children and their descendants surviving the testator were his only heirs. The testator's will was executed November 3, 1885, containing nine items. and the will and three codicils thereto were probated shortly after his death as his will. Item 1 of the will directed the payment of his debts and funeral expenses. By item 2 he devised to John Iron and his wife the lots in the city of El Paso, Woodford county, upon which they lived, for their lives, and the remainder after the death of the survivor to their daughter, Bessie. By item 3 he devised to Jerry Kels and his wife, for their lives, the lots in said city upon which they lived, and the remainder to their two sons, Jack and Jede. By item 4 he devised in fee to Fannie Pleasants two lots in said city, and by the same item bequeathed to her the sum of $500, and to Ruth Barfoot, her half-sister, the sum of $100 in money. By items 5 and 6 he bequeathed to Josephus Thompson and Hattie, his wife, the sum of $100 each; to their daughter, Emily, $500; to Emma J. Worthington, $500; to Major, her son, the sum of $500; and to her daughter, Nellie, $100 in money. By item 7 he bequeathed to his nephew, Lloyd F. Hamilton, the sum of $40,000 in money, and in case of his death before the testator the same to go to his children in equal parts. By item 9 he named Lloyd F. Hamilton and Oscar W. Bell as his executors. Item 8 of the will, which is material in this case, is in the following words:
‘Item 8.-All the rest and residue of my property, both real and personal, of every kind and description, not needed or required to pay the aforesaid legacies and bequests hereinbefore made, I will, devise and bequeath to my nephews and nieces, the children of my deceased sisters, Tennessee Hamilton, Mary E. Bell and Louisa Tucker, in equal parts between them, share and share alike, except that my executors shall pay one-third of the sum which would otherwise go to my nephew Horace Bell to his former wife, Amanda Bell; and in case of the death of any of said nephews and nieces before my death, his or her portion shall go to his or her child or children in equal parts.’
The first codicil to the will was executed May 2, 1896, and simply directs his executors (1) to divide among his devisees and legatees, according to the terms of his will, all United States bonds of which he may die possessed, and for the purposes of such division the bonds shall be treated as money and valued at the market price thereof at the time of the division; (2) that they collect as speedits, as possible all his notes and accounts, debts, and rents due or to become due, and divide the proceeds of such collections among his devisees and legatees, according to the will, as soon as such collections amount to $2,000 or over; and (3) that devisees or legatees indebted to him at his death shall deduct the amount of their debts from their shares as devisees and legatees.
By the second codicil, dated August 8, 1896, he first revoked and annulled the legacy of $40,000 given by his will to his nephew Lloyd F. Hamilton, and in lieu thereof he devised and bequeathed to him one-seventh of all the property, both real and personal, of which the testator might die seized or possessed, after the other legacies and devises in his will are satisfied and paid, and in case of the death of Hamilton before his death he devised and bequeathed said one-seventh to his children in equal parts. The second paragraph of said codicil is the part that is material in this controversy and is in the following language:
‘Upon the settlement of my estate I order and direct my executors to pay over to the said Lloyd F. Hamilton the part or share which shall belong to my niece, Anna Tucker, under the terms and conditions of said last will and testament, as trustee of the said Anna Tucker, and it shall be the duty of the said Lloyd F. Hamilton, as such trustee, to invest said part or share of the said Anna Tucker in land, retaining, however, sufficient of said part or share to put said land and the buildings thereon in good repair and improvement; and it shall also be the duty of said trustee to rent said land, (in case the said Anna Tucker does not desire to live on same,) to collect the rent thereof, and after paying the taxes on said land and any necessary repairs and improvements thereon, to pay the balance of said rent over to the said Anna Tucker yearly; and I hereby give to the said Anna Tucker power to dispose of said land only by her last will and testament, made in due form of law.’
By the third codicil, executed July 3, 1902, the testator simply revokes and annuls the appointment of Oscar W. Bell as one of his executors, and makes Lloyd F. Hamilton sole executor of his will.
Lloyd F. Hamilton purchased a tract of 160 acres of land with the proceeds of the devise and bequest to Anna Tucker in the eighth item of the will, and managed the same, collected the rents and paid the net income to her up to his death, April 29, 1917, and thereafter B. L. Catron, appointed as the successor in trust, managed the land and paid over the net income thereof to her until her death, May 4, 1920. She died intestate, unmarried, and left no children or descendants of children. After her death certain of her heirs, Frank W. Tucker and others, filed their bill for partition in the circuit court of Sangamon county, alleging that she died intestate and seized in fee of said land, and that she obtained her title to the same through the will of the testator, and that they as complainants, and the other heirs of Anna Tucker, made defendants to the bill, are owners of said land by descent from her, and entitled to all of the income from the same in the hands of Catron, trustee, and prayed for partition. They also made Catron, trustee, a party defendant. Catron, as trustee, filed an answer and a cross-bill, in which he alleged that he was uncertain whether, upon the death of Anna Tucker, the beneficial interest in said tract of land became vested in her heirs at law or passed to the residuary legatees named in the will or to the heirs at law of the testator, and asked the court to determine all such matters. He made as parties defendant to his cross-bill all the heirs of the testator and also the heirs of Anna Tucker. In his cross-bill he prayed for partition among all persons interested in the premises as should be determined by the court. The heirs of Anna Tucker filed an answer to the cross-bill, and certain of the heirs of the testator filed their answer, in which they made the claim that said tract of land was owned by the heirs of the testator and asked that the answer stand as a cross-bill. Issues were joined on all the pleadings.
The cause was referred to the master in chancery, who heard the evidence touching the matters and reported the same to the court without his conclusion. The circuit court on the hearing entered a decree finding that the heirs of Anna Tucker were the equitable owners of said tract of land and directed partition of the same among them. Wathen...
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