| Ill. | May 12, 1896
delivered the opinion of the court:
It cannot be seriously contended in this case that appellant took any title, as devisee, by virtue of the will of Joel Sloniger, deceased. After the date and execution of the will the wife of Joel Sloniger died, and at a later date he again married. By the act entitled “Descent of Property,” (Hurd’s Stat. chap. 39, sec. 10,) the subsequent marriage operated as a revocation of the will.
It is contended by appellant that if the will is void as a will, it should be treated by the court as an equitable contract by Joel Sloniger to convey at a future time, and should be specifically enforced. There is no doubt but in 1859, when the will was executed, it was the intention of Joel that appellant should have this land after his death, and following that he frequently told other parties that such was his intention. Thirty years, however, elapsed from the execution of the will till the date of his death, and the various verbal and indefinite statements made by him tending to establish this fact were during that period. During this time he himself remained in possession of the land, receiving the rents, and that was the condition of affairs at the time of his death. It is in evidence that at one time, long after the execution of the will and only a few years before his death, he attempted to make an exchange of this property for other lands, thus exercising such acts of ownership and disposition of the land as would indicate that he had knowledge of the fact that his will had been revoked by his subsequent marriage. Every man is presumed to know the law, and it is therefore to be presumed that he had knowledge of the fact that his marriage invalidated the will, and if his desire and intention remained the same he must execute another.
It is urged that appellant having made valuable improvements on this land in the belief it was to be devised to him, it was not therefore in the power of Joel Sloniger, by any act, to absolutely revoke the will, but it became operative, as an instrument in writing, to bring his oral declarations within the Statute of Frauds, and that specific performance may be enforced thereon. To enforce this will, not as a will but as a contract, would make a different disposition of the property of a deceased person than that provided by law, and courts of equity look with jealousy upon the evidence offered in support of such contract, and will weigh such evidence in the most scrupulous manner. (Shaw v. Schoonover, 130 Ill. 448" date_filed="1889-10-31" court="Ill." case_name="Shaw v. Schoonover">130 Ill. 448; Woods v. Evans, 113 id. 186; Rode Island and Peoria Railway Co. v. Dimick, 144 id. 628.) In the latter case it is said: “Such a contract must be clearly proved, and be certain and unambiguous in all its terms.” The statements in evidence of witnesses as to declarations made by Joel Sloniger in his lifetime are not so clear, certain and unambiguous as to establish, in our view of the case, a contract, taken in connection with the will, which we can enforce, and resulting in a disposition of his property different from that which would be made by law. The specific performance of a contract in equity is not a matter of right in the party, but a matter of sound discretion in the court, which may grant or deny relief, as may appear equitable under all the facts and circumstances of the case. Story’s Eq. Jur. sec. 769; Woods v. Evans, supra.
The cases cited by appellant’s counsel in support of the proposition that the will in this case should be construed as a contract and enforced accordingly, are, in the main, cases where the testator had made an agreement to devise certain property or had entered into a contract for the future execution of such a will. There was no agreement in the case at bar, separate and distinct from the will, which could bind the testator. A will, in its nature, does not partake of a contract. It refers, in general, to gifts or voluntary dispositions of property. While the will in this case was apparently in the possession of appellant at the time of the death of Joel Sloniger, and was probated by him, there is an absence of that clear proof which would be required to establish that it was delivered to him in connection with or as part of the various verbal declarations of the testator that after his death appellant was to possess this land. Considering the case as a whole, and with all evidence tending to show a contract to convey, we agree with the circuit court that all verbal declarations were within the Statute of Frauds and were null and void. The will, having been revoked by the subsequent marriage, was in this case void for any purpose.
Shortly after the death of Joel Sloniger, and probably under the apprehension that he owned all the real estate in controversy under the will, James K. P. Sloniger, the appellant, took a conveyance from the widow of Joel Sloniger of all her interest in this land. By the appeal in this case the question is raised as to what he took under this deed. If Joel Sloniger died intestate, then the widow, under the statute, was entitled to dower and homestead and one-half the real estate in fee. Her unassigned dower and homestead were not such an estate as was capable of being released or conveyed to one except the owner of the fee. In Best v. Jenks, 123 Ill. 447" date_filed="1888-01-20" court="Ill." case_name="Best v. Jenks">123 Ill. 447, it was said by this court (p. 456): “The right of dower is a mere intangible, inchoate, contingent expectancy, and until it is assigned it is no estate in the land, but it is a right resting in action only, and it cannot be aliened. It may be released so as to bar the right of asserting it against the owner in fee, but it cannot be invested in another separately from the fee.” It is clear, therefore, that the only interest which appellant took by virtue of this deed was one-half the fee and a release of dower and homestead interests in that one-half. The widow was still entitled to dower in the one-half of this land which did not pass by her deed.
Under the decree of the trial court the commissioners appointed by the decree for partition were instructed to set off to appellant that part of the land on which were located the buildings and improvements which he claimed to have made or paid for. Appellant had been taken by Joel Sloniger in infancy, and had been raised by him and brought up on this place as one of the family. Almost his. sole opportunity to acquire money or property was from the proceeds of this land. The buildings and most other improvements alleged to have been paid for by him were placed on this land when he had barely attained his majority. Considering his circumstances, from the evidence in this record it appears to us as very improbable that he should have accumulated, as a mere boy, the several thousand dollars which were expended in these improvements. Cross-errors are assigned by appellees to that part of the decree which instructs the commissioners to set off to him the land on which the buildings are located. These improvements are now, however, old, and presumably of no great value. Appellant himself residing on this farm, has, with his own family, had the use and benefit of the improvements from the time they were new until age has depreciated their value. It was a controverted question of fact in the court below whether he had made or paid for the improvements, and the conclusion of the circuit court in this regard was arrived at after hearing evidence on the trial in open court, and we are not inclined to disturb the decree in that particular. It was, however, as liberal and equitable in its terms as appellant, under all the circumstances, was entitled to.
Some question is raised as to the certainty of the proof regarding heirship. We do not find from this record but that the facts on this branch of the case were sufficient to warrant the decree of the court. Taken as a whole, the decree of the circuit court was in accord with the established principles of equity, and is free from any of the objections urged against it by appellant.
The decree of the circuit court is therefore affirmed.
Decree affirmed.
Mr. Justice Garter, having been of counsel for some of the parties as to questions connected with this litigation, took no part in the decision of this cause.