100 Ill. 347 | Ill. | 1881
delivered the opinion of the Court:
This wa.s an action of attachment, brought by Lewis Monroe against James Van Meter, a levy having been made on certain real estate in Coles county. Appellees appeared and interpléaded, claiming to own the property levied upon under the writ of attachment. Upon a trial of the issue presented by the pleadings the court found in favor of appellees, and rendered judgment against the plaintiff in the attachment for costs. To reverse this judgment an appeal was taken to this court.
The first question presented by the record is, whether an appeal will lie directly to this court. If a freehold is' involved, then the appeal was properly taken; otherwise it will have to be dismissed, in an ordinary attachment, where a levy is made upon real estate, it is plain that a freehold would not be involved. But in this ease, after the writ had been levied on the real estate involved, appellees, who were not parties to the proceeding, appeared, as they had the right to do under sec. 29, Rev. Stat. 1874, p. 157, and interpleaded, claiming to own the property. In the plea it was, among other things, averred “that they are the owners in fee simple of the said property so levied on and attached, and this they are ready to verify, ” etc. To the interpleader the plaintiff filed a replication, in which he averred “that the said James L. VanMeter had, at the time of the levy of the attachment writ in this case upon the lands in said interpleader mentioned, a life estate in the said premises and lands, and now has such life estate, ” etc. To this replication a rejoinder was filed by appellees, in which they averred that they were the owners in fee of the premises, as set up in their plea of interpleader, and that the said James L. VanMeter did not, at the time of the levy of the writ of attachment, or at any other time, have a life estate in the premises.
It will be observed, that under the pleadings the issue made and to be determined by the evidence was one of title to the -land levied on by the writ of attachment. On the one hand it was claimed that the defendant in the attachment owned, a life estate in the premises, while on the other hand appellees, who were his children, claimed that he had no title whatever to the property, and that they were the owners in fee. A freehold is always involved in an action where the title to the land is presented and in issue between the parties. Here a freehold was as clearly involved as it would have been had appellees brought an action of ejectment against James Van Meter to recover the possession of the land. Under the pleadings and evidence there was but one question before the court, and that was whether James VanMeter had title to the land at the time the attachment was levied; and in the determination of that question there can be no doubt in regard to a freehold being involved.
We now come to the merits of the case. The court, on the hearing of the evidence, found that appellees owned the premises, and that James Van Meter, the defendant in the attachment, had no interest therein, and it is urged that this finding is erroneous. The premises originally belonged to Thornton Lewis, who' died in 1872, testate, devising the premises to his daughter, Fannie L. Van Meter, who was the wife of James VanMeter and the mother of appellees. Fannie L. Van Meter died in 1880, testate, directing in her will that the property should be sold and the proceeds invested in real estate in Kentucky, and that such property should be disposed of in a certain specified manner. Under this evidence it is contended that James VanMeter is tenant by the curtesy of the lands in question. The estate of curtesy having been abrogated by section 1, Rev. Stat. 1874, page 423, it was incumbent upon appellant to prove that James Van Meter became invested with the estate as'tenant by the curtesy before this statute became the law of the land. This the evidence does not establish. “There are four requisites necessary to make a tenancy by the curtesy: marriage, seizin of the wife, issue, and death of the wife. ” 1 Blackstone, 127. Now, while the evidence shows marriage, seizin of the wife, and her death, the record fails to show children born prior to July 1, 1874, the time when the estate was abolished by the legislature.
But, aside from this question, we are not satisfied, after a careful consideration of the will of Thornton Lewis, deceased, that James Van Meter would be entitled to an estate of curtesy in the lands had the estate never been abolished by statute. The will of the testator, after devising the property in question to Fannie L. Van Meter, contains this provision:
“Item 5. No part of any property or money herein given to my said daughters, Amelia C. Van Meter, Fannie L. Van Meter, or Mary S. Phillips, that has not already passed beyond my control by deed of gift, conveyance, or otherwise, is ever, in any event, to be responsible or liable, in whole or part, toward the payment of any debt or debts, owing or hereafter created by their respective husbands, but all of it, of every kind and description, and the proceeds thereof, is to be held and kept free from such liabilities. If, however, any of my said daughters should 'desire to sell the real estate thus given to them they may do so, provided the proceeds thereof are reinvested in other real estate, with the title to still remain in them. ”
While it is true this clause in the will does not in express words declare that the husband of the daughter shall be excluded from the estate of curtesy in the lands claimed, yet such is the _ obvious meaning of the language employed by the testator. The evident intent of the testator was to so devise the property to his daughter that it could never be taken and sold for any debt or liability of the husband. This object could not be carried out if the husband could, in any event, acquire an estate of curtesy, and hence there can be no doubt the testator intended that the husband should be excluded from such an estate. Shall the intention of the testator prevail? In Pool v. Blakie, 53 Ill. 495, which was a case similar to the one under consideration, it was held to be a rule in construing deeds or wills, that the intention of the grantor or testator, as manifested by the words employed, must be carried into effect,—that a husband can not be tenant by the curtesy of real estate conveyed to the wife for her sole and separate use, and with power of disposal, and who has disposed of it by will duly executed and attested. There is no difference in principle, between the case cited and the one before us, and unless the decision in the Pool case is to be overruled, it must control here.
The judgment will be affirmed;
Judgment affirmed.
