| Ill. | Nov 9, 1896
delivered the opinion of the court:
It is insisted by counsel for appellant that the division of the property as made by the court below is an arbitrary one, unsupported by the evidence, and they contend that by the terms of the first clause in the will the widow took, as the homestead of her deceased husband, all of the property described in block 19. We think it must be'admitted that at the time of the execution of the will and at the death o„f the testator he owned two distinct pieces of property in block 19,—that is to say, there were two distinct houses and two sets of out-houses on the block. That which renders the meaning of the testator uncertain as to whether he meant to give his wife a life estate in only a part or the whole of the land, arises from the fact that these two distinct pieces of property were not separated by any street, alley or lot line. If a line had been platted where the court fixed it by its decree, or if the testator had, prior to making his will, established that line by building a fence thereon or staking it off, no one would hesitate to say that by the language “my homestead” he meant only that part of the property north of the line. No question is made as to the competency of the evidence tending to show that, notwithstanding that line was not established by any physical act on his part, he recognized it as the dividing line. Without reviewing the evidence bearing upon that question, we think it satisfactorily shows that he treated the two houses and appurtenances as distinct property, and that in renting the old house, through his agent, he let with it a certain amount of ground, including that on which the closet and coal house stood, and the evidence of the agent is to the effect that so much of block 19 as lies south of the line fixed by the court was treated as belonging to that house. The water-closet built and used in connection with that house could only be set apart with it by drawing the line where the court established it, the north side of the closet being substantially on that line. Neither could the water-closet built and used in connection with the new house be set apart to it without so fixing the line, the south side of that closet also being on or very near the line. We think the mere fact that the well connected with the old house was used by the family occupying the new one is not a controlling consideration in determining what part of the property the testator treated as belonging to his homestead. The well was appurtenant to 'the old house, and was used simply for convenience with the new one. In fact, the evidence shows that the testator stated that a new well would be provided for his residence in case the other property was sold. The term “homestead,” as used in this will, means “the dwelling house at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary and convenient for family use, and lands used for the purposes thereof.” (Anderson’s Law Dic. 512.) Within this meaning it can scarcely be claimed that the testator intended to will to his wife the two houses, one the family residence and the other a house devoted to otlrer purposes.
We think the acts of the testator in improving the north part of the property, together with the manner in which the south part was rented, sufficiently show his intention to give his wife, as her life estate, only that part of the property decreed her by the circuit court. Perkins v. Jewitt, 11 Allen, 9; Brown v. Saltenstall, 3 Metc. 423.
. No substantial error was committed by the court below in the admission or exclusion of testimony.
The point that it was error to decree that no partition should be made of the homestead willed to the wife is, we think, without force. On the pleadings no partition of that part of the estate was asked, complainants in their bill expressly praying that it be not partitioned, and defendants not asking for a partition either in their answer or by cross-bill.
The decree of the circuit court is in harmony with the views here expressed, and it will be affirmed.
Decree affirmed.