Hudnall v. Ham

Mr. Justice Carter delivered the opinion of the court: Upon the final hearing, where the greater part of the testimony of the witnesses was heard in open court, the chancellor rendered the decree appealed from, finding the issues in favor of the Hams and dismissing both the amended bill and the cross-bill. From this decree the Hudnalls and the widow have taken separate appeals, but these appeals have been considered together and will be disposed of here as one case. The cross-bill was not before us when the case was here on error, (172 Ill. 76,) and it was there said that the rights of the widow under her cross-bill were not affected by that decision, except that, as the bill alleged, the ante-nuptial contract having been fully performed by her acceptance of and receipt for the money under it, the burden rested upon her to show, if she could, any sufficient grounds upon which it could be set aside. We have carefully considered all of the evidence, and cannot avoid the conclusion, reached also by the court below, that she has not sustained this burden, but has failed to establish the allegations of her cross-bill that she was deceived by Jeremiah Taylor as to the extent and value of his property and as tó the facts upon which her right to inherit his property would depend, or that the same were concealed from her. We cannot find, from the evidence, that the contract was not fairly entered into or not fairly carried out. It is clearly shown that she approved and joined in Taylor’s desire that the bulk of his property should go to his said two step-sons, whom, as she knew, he had brought up from boyhood in his family with the same affectionate care as if they had been his own children, and who had aided him in the acquisition of his property. While it is doubtless true that she accepted and receipted for the $2000 in ignorance of the law that her marriage with Taylor revoked the will which he had made in favor of the Hams, still no deception was practiced upon her, and the Hams seemed to know no more of that subject than she, and evidently Taylor died in the belief that his property would pass in accordance with his will and the ante-nuptial contract. Such was the intention of both parties to this contract, shown both by the contract itself and the circumstances under which it was entered into. Her mere ignorance of the law can not be availed of by her to overturn the settlement. Counsel for appellees make the contention, and cite authorities to support it, that the marriage was only a presumptive revocation of the will, and that that presumption was in this case rebutted by the ante-nuptial agreement. But in effect the decision of this court when the case was here before on demurrer to the bill was, that the will was revoked by the subsequent marriage notwithstanding the ante-nuptial agreement. 'The question has been settled, at all events, by this court in McAnnulty v. McAnnulty, 120 Ill. 26, where it was held that under the provision of the statute that “a marriage shall be deemed a revocation of a prior will,” a marriage operates per se as such revocation. It follows, therefore, that Taylor’s will was revoked by his subsequent marriage, and that the devisees and legatees therein named cannot take the property under that instrument as a will. Nor can they take it at all unless the ante-nuptial agreement and the instrument executed as a will, when taken and construed together, constitute an equitable assignment of the property to them which a court of equity will enforce to carry the contract into affect in accordance with the intention of the parties to it. It follows, also, that the widow is barred by the ante-nuptial contract and its full performance unless the inheritance is cast upon her as the sole heir, for the reason that, as a matter of law, it can go nowhere else. Section 2 of chapter 39 of the Revised Statutes, in regard to descent, after providing that an illegitimate child shall inherit from its maternal ancestor, etc., provides: “Second, the estate, real and personal, of an illegitimate person, shall descend to and vest in the widow or surviving husband and children, as the estate of other persons in like cases; .third, in case of the death of an illegitimate intestate leaving no child or descendant of a child, the whole estate, personal and real, shall descend to and absolutely vest in the widow or surviving' husband; fourth, when there is no widow or surviving husband, and no child or descendants of a child, the estate of such person shall descend to and vest in the mother and her children, and their descendants — one-half to the mother, and the other half to be equally divided between her children and their descendants, the descendants of a child taking the share of their deceased parent or ancestor; fifth, in case there is no heir as above provided, the estate of such person shall descend to and vest in the next of kin to the mother of such intestate, according to the rule of the civil law; sixth, when there are no heirs or kindred, the estate of such person shall escheat to the State, and not otherwise.” It is clear from the evidence that Taylor was the illegitimate son of Sallie Taylor, who by her subsequent marriage became the maternal ancestor of the appellants, the Hudnalls, and that if Taylor had left no widow they would have been his heirs-at-law, his mother, Sallie Taylor, having previously died and he never having had any child. The grounds, then, upon which the respective parties claim the property in controversy are reduced to these: The Hudnalls claim as Taylor’s heirs-at-law under the statute; the Hams claim as equitable assignees under the ante-nuptial agreement, coupled with the instrument which, as a will, was revoked by Taylor’s marriage; the widow claims that Taylor left no heir-at-law but herself, and that, being the sole heir, under the statute she is entitled to the property notwithstanding her agreement. The Hudnalls, by their, bill, are the moving parties in the controversy, and their contention will be considered first. At common law an illegitimate had no inheritable blood — could neither inherit nor transmit by inheritance save to those of his own body. The right of an illegitimate to inherit property, and the right of others, though legitimate, to inherit from him through the maternal line, are conferred by the statute and can have no existence in any case which does not come within the statute. The second paragraph, that “the estate, real and personal, of an illegitimate person, shall descend to and vest in the widow or surviving husband and children, as the estate of other persons in like cases,” has nothing to do with the case at bar, as mistakenly supposed by appellants, the Hudnalls. It confers no rights whatever upon collaterals. It simply gives to the surviving husband or wife and children of an illegitimate the same rights of inheritance from the deceased parent that they would have had if he or she had been legitimate. And by the third paragraph the widow, Mary E. T. Taylor, is made the sole heir of her deceased husband. Counsel for Hudnalls claim under the fourth paragraph of the statute. Had Mary E. T. Taylor died first, or had there been no widow, it is plain they could inherit under this clause, as they were children and descendants of deceased children of Sallie Taylor, the mother of Jeremiah Taylor. But the difficulty with their position is that the statute would make them heirs only in case Taylor left no widow, and he did leave a widow. It is immaterial whether the widow has assigned or has barred or estopped herself from taking or not, as their right to inherit does not, under the statute, depend on any act or contract of hers, but, so to speak, on her non-existence at Taylor’s death. They cannot take under the statute and against the statute at the same time. They are not his heirs-at-law at all, because he left surviving him a widow. If we were at liberty to interpolate words in the statute and make it read, “When there is no widow who has not released or who is not barred or estopped by contract the estate shall descend,” etc., the Hudnalls could be declared the heirs; but we have no authority to add to or qualify the statute or to pervert its plain meaning. Mary E. T. Taylor is no less the widow of Jeremiah Taylor because she executed the ante-nuptial agreement. She was his lawful wife and upon his death became his lawful widow, and her ante-nuptial contract cannot be used to confer heirship upon these appellants where none is conferred by law. Heir-ship is not created by contract, but by law only. Persons who inherit are heirs-at-law — not heirs by contract. It is insisted by counsel for the Hudnalls that their contention is supported by Crum v. Sawyer, 132 Ill. 443,— that is, that the ante-nuptial agreement had the same effect to make them the heirs as would the death of the widow before the death of her husband. But in this they are in error. What was there said was in reference to the ante-nuptial contract on the rights of the" surviving husband and other heirs where there were other heirs-at-law of the wife, he being only one of such heirs. It was not held or intimated that the effect of the contract was to make persons heirs-at-law who were not so by •law, but only to enlarge the portions which the other heirs would take. And such, of course, would be the necessary effect, for the release of one heir to the estate would operate to increase the shares of the rest without at all changing the legal status of heirship. Again, it is difficult to see upon what principle of equity a court of equity could proceed to grant the relief prayed for. " To give the ante-nuptial agreement the effect contended for would violate equities of the strongest character, and would be to enforce only a part of the contract, — just enough of it to dispose of the widow out of the. way of the other appellants, and then, ignoring the rest of it, to violate the clearly expressed intention of the contracting parties by disposing of the property in utter disregard of the sole purpose for which the contract was made. It is to be noted that the Hudnalls rely upon this contract, for without it they concede that the widow would be the sole heir and they 'would have no rights, as heirs or otherwise. The contract, however, shows on its face that it was not made for their benefit but for the benefit of others, — that is, to dispose of the property at Taylor’s death to the persons as named in his will. The Hudnalls assume the same position toward the contract as toward the statute, — that is, while claiming- by virtue of it they at the same time claim against its provisions. This they cannot be permitted to do. They cannot avail themselves of so much of9 the contract as is favorable to them and disregard or override that which is against them. The contract should be enforced altogether, if at all, and not partially, (2 Story’s Eq. Jur. 986, 1077, and notes,) and so as to carry into effect the intention of the contracting parties, and not to thwart that intention. It clearly appearing, then, that the Hudnalls are not entitled to the property, the question remains whether the widow, as sole heir of her deceased husband, is entitied to it, or whether there was an equitable assignment of it to the Hams. It is plain that it did not escheat, for the sixth paragraph of the statute provides, that “when-. there are no heirs or kindred, the estate of such person shall escheat to the State, and not otherwise." Clearly, then, unless the ante-nuptial contract, in connection with the instrument revoked, as a will, by operation of law, constitutes an equitable assignment to the Hams, — the persons pamed as beneficiaries in the so-called will, — the -widow is entitled to the property as the sole heir, for if the contract does not have this effect it cannot, under the facts in this case, have any effect whatever. As a mere release or relinquishment for the benefit of the heirs of the deceased, there being no heir but herself, the instrument could have no more effect than one made for her own benefit. But we are of the opinion that the contract has all the effect of an equitable assignment of all her interest in the property to the intended beneficiaries, as expressed in the instrument executed by Taylor for his last will. It is too well settled to require discussion that .contingent interests and expectancies, and things having no present existence but which rest only in possibility, may, by contract bona fide made and for a sufficient consideration, be assigned so as to be binding in equity. Such a contract will be enforced in equity after the subject matter of it has come into existence. (Crum v. Sawyer, 132 Ill. 443; 2 Am. & Eng. Ency. of Law, — 2d ed. — • 1029, and notes.) Thus it was said by this court in Crum v. Sawyer: “This court has repeatedly held that estates in. expectancy, though contingent, are proper subjects of contract, and, therefore, that assignments by expectant heirs of their future contingent estates, when made fairly and upon valuable considerations, though inoperative at law, will be enforced in equity as executory agreements to convey." (132 Ill. p. 461; Ridgeway v. Underwood, 67 id. 419.) It is also well settled that it is competent for persons owning property or interests therein to make a contract to dispose of it, by will or otherwise, in a certain way, and that such a contract, based upon a sufficient consideration, will be enforced in equity. (Whiton v. Whiton, 179 Ill. 32; Barrett v.Geisinger, id. 240.) It is also true that several instruments may be taken and construed together as constituting one entire contract. Freer v. Lake, ll5 Ill. 662; Wilson v. Roots, 119 id. 379. Taylor had been appointed the legal guardian of his step-sons when they were infants and had received certain moneys belonging to them, and there was no record or other evidence whether or nqt, he had ever accounted for or paid the same, but the evidence is undisputed that he stood in loco parentis to them from his marriage to their mother, and after they grew to manhood still regarded them as his sons, and until his death cherished the lifelong purpose of making them the beneficiaries of all of his property. To accomplish this purpose he made the will in question, and the contract with his second wife before his marriage. The record shows that she was fully informed of substantially all of these facts and was willing to assist him in carrying out his long-cherished purpose. Under these circumstances the ante-nuptial agreement was made, which, in addition to the usual provisions of release and relinquishment in such instruments, contained this provision: “Said party of the second part hereby declares that she has been informed of the execution of a will by the party of the first part, by the terms of which his entire estate, whether in possession or expectancy, has been devised and bequeathed to persons other than herself; and she further declares that such disposition of the property of the first party meets with her approval, and will not be interfered with by her in any way, either during the lifetime of the party of the first part or thereafter.” It appears, also, that the will in question was the will referred to, and that after Taylor’s death and the probate of the will she received from O. M. D. Ham, the executor, the $2000, and gave her receipt for the same, which receipt stated, among other things, that it was given for “the amount due me by the terms of the ante-nuptial agreement between the undersigned and said Jeremiah Taylor, deceased, and in full of all claims against said estate, either under said last will and testament or said ante-nuptial agreement, or otherwise.” The receipt also recited that she had received certain other articles of personal property which had been given to her by Taylor in his lifetime. It seems too clear for argument upon the facts and circumstances under Tillich the will and ante-nuptial agreement were made, and from the reference to the will in the agreement and her covenant not to interfere with its provisions, that the written instrument intended as a will became a part of the whole agreement between the parties, notwithstanding the operation of the’ statute revoking the instrument as a will. It was still an intelligible written declaration of Taylor’s wishes and intentions that the property should go to the Hams at his death, and though inoperative as a will, the written contract signed by him, and by the widow, who was his sole heir, made it operative as a part of their contract. Her contract of approval was a contract of confirmation, and her covenant not to interfere in any way with the disposition of the property thus made is binding upon her, especially in view of her ratification and full performance of the contract after Taylor’s death. Construing the instrument intended as a will and the ante-nuptial agreement as one entire contract, its effect was a binding agreement between the only two parties having any interest in the property, either in possession or expectancy, that upon Taylor’s death the whole title of the property should vest in the Hams, as provided in the instrument called a will. While no case precisely in point has been cited by counsel on either side, we are referred .to many cases which announced and applied equitable principles to carry out the intention of the parties, which are equally applicable here. Thus, in Lant’s Appeal, 95 Pa. St. 279, on the eve of marriage the man and woman agreed verbally that she should dispose of her property, which was of large value, as she pleased, whereupon she made a will giving a liberal portion to her intended husband and the rest to relatives and charities, and thereupon they were married. Two years thereafter she died. The husband contested the will and claimed the entire estate, but it was held that while the will was revoked, under the statute, by the marriage, it would, in connection with the verbal agreement, be enforced in equity as an ante-nuptial contract, and that the husband was estopped from interfering with its full enforcement. See, also, Bradish v. Gibbs, 4 Johns. Ch. 532; 1 Ld. Eaym. 290; 2 P. Wms. 209; also Neves v. Scott, 9 How. 196, (13 How. 268,) where an ante-nuptial agreement was enforced which provided that the property of each of the contracting parties should be held in common after their marriage during their joint lives, and by the survivor during his or her life, and then should be equally divided among the heirs of the man on the one hand and of the woman on the other. There were no direct heirs, and evidently none were contemplated by the contracting parties, and it was held that their collateral heirs could enforce the contract; that they were not volunteers, but came fairly within the influence of the considerations upon which the agreement of the parties was founded, and were the special objects of their bounty. It was said by the court in that case that “courts will endeavor, as much as possible, to give effect to marriage agreements according to the understanding of the parties.” There would seem to be no serious difficulty in the case at bar in carrying into effect the marriage settlement under consideration. Nor do we regard the suggestion of counsel, even if it be correct, that Taylor was not deprived, by the ante-nuptial agreement, of the power to change his will, but •that it remained ambulatory till his death and might have been changed altogether, as fatal to the contentions of the Hams. As a matter of fact, he did not modify or change it. The ante-nuptial agreement would not have been invalid if it had in express terms reserved to Taylor the power to make a different disposition of his property freed from all claims of the widow. . It is further suggested that the contract was not sufficient to bar or release the yddow’s dower. She was the sole heir and there was no separate dower interest, and no question of homestead is involved in the case. It is next said that as the Hams filed no cross-bill they can have no relief. It is sufficient to say that the decree appealed from granted them no affirmative relief, but simply found the issues in their favor and dismissed the bill of the Hudnalls and the cross-bill of the widow, which attacked their right to and possession of the property. The Hudnalls had no right to it whatever, and the widow had. disposed of her right to it ..by contract, and had estopped herself from interfering in any way with the Hams in the assertion of their claims. The decree is right from every standpoint, and it will be affirmed. Decree affirmed. Phillips and Magruder, JJ., and Cartwright, C. J., dissenting.