| Ill. | Apr 16, 1902
delivered the opinion of the court:
After a careful consideration of this case we are convinced that the decree ought to be affirmed. While we have considered all of the questions raised by appellants there are but two necessary to be mentioned: First, it is contended that the findings of the trial court on the questions of the alleged mental incapacity of Joseph Spencer and of undue influence exercised over him are against the weight and preponderance of the evidence; second, that the decree does not sufficiently establish and protect in appellants Edward, George and Frank Spencer the title to the Wayne county land in accordance with their stipulation, by which they agreed to take title to said land and pay to the estate the $4000 which Joseph Spencer had advanced for its purchase, and that it was error to require them to pay said $4000 to the estate without vesting in them a good title in fee simple absolute.
As to the first question, it is sufficient to say that it does not appear that the findings are against the weight or preponderance of the evidence. Nearly fifty witnesses were examined upon the questions submitted to the jury, and as usual in such cases there was an irreconcilable conflict in their testimony. Joseph Spencer was upwards of eighty-three years of age, and had within a few months been twice stricken with paralysis, when the division and transfers sought to be set aside were made. All the witnesses agreed that he was physically unable himself to perform the labor necessary to ascertain the amount of the principal and interest due on the notes and mortgages and the amount to be assigned to each of his children. He was confined to his bed, and so weak and helpless that he could not bear the worry which the calculation and figuring up in his presence of the different amounts, and the discussions incident thereto, caused him, and it was necessary for appellants and others engaged in that work to repair to an adjoining room, and when the assignments and transfers were prepared he was lifted from his bed to execute them, and although he could write when in health, his name was signed by others and he could only make his mark. We are satisfied, also, from the entire evidence, that his mind had become impaired to some extent from his disease and age, and the only doubt upon this question is as to the extent of this impairment. The chancellor adopted the verdict of the jury, and we cannot, from the evidence in-the record, say that the finding was not a proper one and fully sustained by the evidence. Nor can it be said, reasonably, that the finding that the division and transfers were obtained by the beneficiaries, or some of them, by undue influence exerted over Joseph Spencer, was not authorized by the evidence. The division seems to have been agreed on by at least six of them, and was practically made by them/ and in the absence and without the knowledge of the complainant in the bill. Martha Hill, one of the daughters of Joseph Spencer, was also absent and was excluded from any share in the first attempted division, and it is clear from the evidence she would have been excluded from the final one had she not learned of it and appeared on the scene and insisted on having an equal share in the estate. It is a significant fact that it does not appear from the evidence that the donor was not as well satisfied with the division leaving his daughter Martha Hill unprovided for as with the later one giving her a full share, and that when she came to her father’s house at the time, her contentions that she should share with the others in her father’s bounty were not addressed to her father, but to her mother and her unwilling brothers. It appears, also, that Joseph Spencer executed, without question, every paper presented to him for his signature, —not only those making the final division, but also the previous ones found to be incorrect and for which the final ones were substituted; also, that he executed these assignments and transfers without reading or having them read to him, and that he did not know what property was assigned to each of his children or to any one of them. But further comment on the facts is unnecessary, inasmuch as we, after full consideration of them all, are of the opinion that they fully sustain the finding of the court. We would not be authorized to set such findings aside unless they appeared from the record to be clearly against the weight of the evidence. Kinnah v. Kinnah, 184 Ill. 284" date_filed="1900-02-19" court="Ill." case_name="Kinnah v. Kinnah">184 Ill. 284.
Nor are we of the opinion that the decree is erroneous on the second ground urged by appellants. The deed to the Wayne county lands was made to “Rosa B. Spruell and the heirs of her body.” Appellants treat this deed as giving a life estate to Rosa B. Spruell and the fee to her children, and claim that although Mrs. Spruell refused to accept the deed, yet she could not by her refusal take away from her children the title in fee which it is claimed vested in them by the delivery of the deed to Joseph Spencer and the recording of the same by him. The language of the deed is in apt words to create a fee in Rosa B. Spruell at common law, for as the word “heir” was necessary to create a fee, so in further limitation of the strictness of the feodal donation the word “body,” or some other words of procreation, are necessary to make it a fee tail and to ascertain to what heirs in particular the fee is limited. (2 Blackstone’s Com. 114.) The grantee was at liberty to refuse to accept the deed, and by such refusal the intended gift of a fee tail to her, or the estate which our statute creates from a fee tail, never took effect, and the equitable title would result to Joseph Spencer, whose money paid for the land, as recited in the deed. It is true that our statute converts a fee tail into a life estate in the first taker, with thq remainder in fee simple to those to whom the estate would pass according to the common law on the death of the first taker; but this statute is only operative “in cases where, by the common law, any person or persons might hereafter become seized, in fee tail, of any lands, tenements or hereditaments, by virtue of any devise, gift, grant or other conveyance.” (Rev. Stat. chap. 30, sec. 6.) As Mrs. Spruell, by her refusal to accept the deed, never became seized, according to the common law, of a fee tail, the statute had nothing to operate on, and her children never had any title to be divested. They were not, therefore, necessary parties. The grantor' and all the heirs of Joseph Spencer, including Mrs. Spruell, were before the court, aud under the stipulation filed and the amendment to the bill the court had full power to render the decree it did.
Taking this view of the effect of the non-acceptance of the deed by Mrs. Spruell, it will be unnecessary to consider the other provisions of the deed, as they would also be inoperative.
Finding no material error in the record the decree must be affirmed.
Decree affirmed.