Winter v. Dibble

• Citation: 95 N.E. 1093,251 Ill. 200
• Parties: WINTER v. DIBBLE et al.
• Decision Date: 14 October 1911
• Court: Supreme Court of Illinois

251 Ill. 200

95 N.E. 1093

WINTER

v.DIBBLE et al.

Supreme Court of Illinois.

June 20, 1911.

Rehearing Denied Oct. 14, 1911.

Appeal from Superior Court, Cook County; William Fennimore Cooper, Judge.

Bill by Antoinette Thayer Winter against Sarah P. Dibble and another. Judgment for complainant, and defendants appeal. Affirmed.Albert M. Kales, for appellants.

Morris St. P. Thomas, for appellee.

DUNN, J.

The defendants have appealed from a decree of partition involving several parcels of real estate claimed by different titles and presenting distinct questions. Appellee claims as the widow and sole devisee of Samuel Blair Winter, who died in December, 1908, leaving no descendant, but leaving the appellants, his sisters, heirs surviving him. For more than a year preceding his death he was domiciled in Holland, Mich., where he died, and shortly before his death he there executed a will devising all his property to the appellee. The will was admitted to probate in Michigan, and an authenticated copy was filed in the probate court of Cook county in accordance with the provisions of the statute which relate to foreign wills. The appellee thereupon filed the bill now under review for the partition of the premises. The appellants soon after filed their bill against the appellee to have the copy of the will set aside, canceled, and declared void on account of the want of testamentary capacity of the testator and undue influence exercised upon him. The court dismissed the latter bill upon demurrer, but this decree was reversed (Dibble v. Winter, 247 Ill. 243, 93 N. E. 145), the cause was remanded, and it was pending when the decree was entered in the partition suit at the December term, 1910.

It is the claim of the appellee, in accordance with which the decree was rendered, that Samuel Blair Winter and his two sisters, the appellants, were in his lifetime tenants in common, in equal shares, of all the real estate mentioned in the bill, and that the appellee succeeded, under his will, to his title. The appellants, on the other hand, contend that Samuel Blair Winter had only a life estate in the whole of one parcel and in the undivided third of another, and had, therefore, no interest in these two parcels which he could devise. They also contend that the appellee was not lawfully married to Samuel Blair Winter; that there is a defect of parties defendant; that the entry of the decree should have been postponed until the determination of the suit to set aside the copy of the will and until claims against the estate of Samuel Blair Winter have been barred; and that the court erred in referring the cause to the master to ascertain a reasonable solicitor's fee for the complainant.

[1] Samuel Blair Winter and the appellee were married in June, 1907, by a minister of a Congregational church, at the home of the appellant, Mrs. Dibble, in Chicago. Evidence was introduced tending to prove that she had previously been married three times, and that her former husbands were living at the time of the last marriage. It is insisted that the last marriage was not shown to be lawful because the evidence does not show that the appellee was divorced from any of her husbands. The rule is well settled that, where the celebration of a marriage is shown, everything essential to the validity of the marriage, including the capacity of the parties, will be presumed. If a prior marriage is shown, the death or divorce of the former spouse will be presumed, and the burden is on the party asserting the invalidity of the subsequent marriage because of the former to show that the former spouse is living and has not been divorced, even though such burden imposes the proving of a negative. Potter v. Clapp, 203 Ill. 592, 68 N. E. 81,96 Am. St. Rep. 322;Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737,2 Am. St. Rep. 105;Schmisseur v. Beatrie, 147 Ill. 210, 35 N. E. 525;Cole v. Cole, 153 Ill. 585, 38 N. E. 703.

[2] To sustain the burden thus imposed upon them, the appellants introduced evidence tending to show that the appellee instituted divorce proceedings against each of her husbands in Cleveland, Ohio. This, of course, has no tendency to prove that she was not divorced from them. The appellants filed a cross-bill, one of the purposes of which was to obtain a discovery from the appellee as to when and where any divorce suits to which she was a party had ever been pending. She demurred to this portion of the cross-bill because the allegations were not sufficiently definite, and because it was obvious that the purpose of the appellants in seeking the discovery was to obtain evidence that the appellee's marriage to Samuel Blair Winter was bigamous, and, if that fact were established, the appellee might be subject to indictment and punishment. The court sustained the demurrer, and the counsel for the appellants seems to think that from this action in regard to the pleadings some inference should be drawn against the appellee in the hearing upon the evidence. We do not see any basis for this claim. There was no evidence tending to impeach the validity of the appellee's marriage.

The two parcels of property the title to which is drawn in question on this appeal were known as 417 and 421 Warren avenue, which will be referred to as the Warren avenue property, and 905 and 907 West Madison street, which will be referred to as the Madison street property. Peter Winter, the father of Samuel Blair Winter, owned the Madison street property in his lifetime, and it is the claim of the appellants that he conveyed it to Samuel Blair Winter for life after the death of Peter Winter, and then to the appellants, with certain gifts over. The appellee's claim is that Peter Winter did not convey this property but owned it at his death, and that it passed under his will to Samuel Blair Winter and the appellants, in equal shares. The questions in regard to the conveyance concern its execution, its contents and its construction, all of which are in issue.

The instrument which is claimed to have the effect of a conveyance was not produced at the hearing, but was sought to be established by secondary evidence, and a document certified by the recorder of Cook county to be a copy of an instrument recorded in his office was introduced in evidence. It bore the date of November 20, 1880, purported to be signed by Peter Winter and Samuel Blair Winter and to be witnessed by Isaac Winter, though it was not acknowledged, and was filed for record on September 29, 1883, 20 days after the death of Peter Winter. It occupies four pages of the printed abstract, and is in the form of a lease by Peter Winter, of the first part, to Samuel Blair Winter, of the second part, of the Madison street property from the day of the death of the party of the first part, in the year 1870, to the day of the death of the party of the second part, in 1870. It provides that the ‘party of the second part is to pay all taxes and assessments and keep the property in good repair, and the rents of the above 905 and 907 West Madison street to be used for the support and maintenance of Samuel Blair Winter so long as he may live. After his death the rest of the property 905-907 West Madison street shall be equally dividedbetween my daughters, Mrs. Sarah P. Dibble and Estella Winter, or if they should die, or either of them, then each one's share to go to their children, if any, or either die die without heirs, the surviving heirs to have the income by complying with the requirements of this lease.’ Then follow about three pages of covenants and agreements entirely inappropriate to a deed conveying a life estate or fee, and meaningless in that connection, but of such a character as are frequently found in leases.

That an instrument relating to this Madison street property was executed by Peter Winter and Samuel Blair Winter about the time of the date of this instrument and delivered to Samuel Blair Winter is proved by the testimony of Isaac Winter. An instrument relating to this Madison street property purporting to be executed by Peter Winter and Samuel Blair Winter was filed for record in the recorder's office of Cook county on September 29, 1883, and there recorded. But the evidence fails to show that these two are the same instrument. The deposition of Isaac Winter, the attesting witness, was taken in the spring of 1910-29 years after the instrument was executed, when he was 89 years old. He testified that he remembered being a witness to an instrument in November, 1880, between Samuel Blair Winter and Peter Winter-a lease of the Madison street property. The lease was to go to Blair Winter and the rent of these shops after his father's death, then the rents were to go to Sarah P. Dibble and Estella Winter; that it was a long instrument, written on one sheet with a pen, but not in the handwriting of either Peter Winter or Samuel Blair Winter. When the recorder's copy was read over to him, he said he believed it was a copy of the lease referred to, but on cross-examination said that he could not tell about that; that all he remembered about the lease was the part that was to go to Blair and the girls, the way he understood it; that all he remembered was that Blair was to draw after Peter's death; that it should go to Estella Winter and Sarah Dibble, the rents of the shops were to go to them; that, when they died, he did not remember exactly what was to become of it, or whether the lease said anything about that or not. He said that he remembered the meaning of the lease and that was about all, he could not remember the language; that he had read the lease, but was uncertain whether he had read all of it; that he had not seen or thought of it since 1881, when Samuel Blair Winter had it; that it was delivered to Samuel Blair Winter when Peter Winter signed it. No other witness who had ever read the instrument testified about it.

[3] The testimony of a witness 29 years after the casual reading of an...