Sill v. Sill

Mr. Justice Magruder, delivered the opinion of the court: First—A motion was made by the appellees in this case at the October term, 1899, of this court to dismiss the appeal, taken herein in the name of Helen Irene Sill, the record having been filed at the June term, 1899, and the cause having been continued from the June term to the October term, 1899. The final decree entered in the cause recites as follows: “Mary E. Sill for herself and Helen Irene Sill by her guardian, Mary E. Sill, prays an appeal, * * * ..which is allowed on said parties giving bond in the sum of $300.00 in thirty days,” etc. The bond was given within the time and in the amount required by the decree of the court, and, as it appears in the record, is signed by Mary E. Sill and by “Helen Irene Sill by Mary E. Sill, her guardian.” The appeal has thus been perfected in accordance with the decree of the trial court which allowed the appeal, and the appeal bond has been made by the persons praying" for and obtaining the appeal. (Phœnix Ins. Co. v. Hedrick, 69 Ill. App. 184; Tedrick v. Wells, 152 Ill. 214). The ground, upon which it is urged that the appeal should be dismissed, is not that the appeal bond is insufficient, or that the appeal was not taken in accordance with the order of the trial court, but it is said, that the appeal should be dismissed for the alleged reason, that Mary E. Sill had no lawful power and authority to take the appeal in the name of and for the infant, Helen Irene Sill. In other words, the ground, upon which the motion to dismiss the appeal taken in the name of Helen Irene Sill, is based, is, that the decree below was ‘erroneous in allowing the guardian of the infant to take an appeal for the infant. Without stopping to decide whether this court will entertain a motion to dismiss an appeal for error appearing" in the final decree of the trial court, the power of the guardian to take an appeal in the name of the' infant ward will be considered. Abundant authority exists for the position, that a guardian may take an appeal for the infant ward. “An appeal lies from judgments and final orders involving substantial rights, and when taken on behalf of the ward, who is regarded as the real appellant, is usually required to be prosecuted by the guardian.” (9 Ency. of Pl. & Pr. p. 947). In Miller v. Smith, 98 Ind. 226, the Supreme Court of Indiana said: “We hold that a guardian of the person and estate of a minor, in an action for the partition of real estate in which his ward is interested, may, as such guardian, in behalf of his ward, appear and plead and appeal from the judgment rendered.” This is a proceeding for partition and assignment of dower. Section 21 of the Dower act provides that “when an infant or person under guardianship is a defendant, he may appear by guardian or conservator, or the court may appoint a guardian ad litem for such person, and compel the person so appointed to act.” (2 Starr & Curt. Ann. Stat.—2d ed.—p. 1470). Section 18 of the act, entitled “Guardian and Ward,” also provides for the appearance of the guardian for his ward and for the representation by the guardian of his ward in all legal suits and proceedings. (2 Starr & Cur. Stat.—2d ed.—p. 2083). As the guardian thus has the power under the statute to appear for and represent his ward, it would seem to follow that he has the power to take an appeal in behalf of the ward, when the interests of the latter require it. Section 18 of the act, entitled “Guardian and Ward,” provides as follows: “He (the guardian) shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, as guardian or next friend,” etc. The contention of the appellees is, that a general guardian has no right or authority to prosecute or defend in the name of his ward, where, in the language of the statute, “another person is appointed for that purpose.” Here, the minor, Helen Irene Sill, was a defendant to the suit, and one James W. Kern, a lawyer, was appointed her guardian ad litem, and filed an answer for'her, and appeared in her behalf, both in the taking of testimony before the master, and in the hearing of the cause. This being so, it is claimed that the appeal could only be taken by the guardian ad litem. It is true, that, under section 18 as above quoted, it is not absolutely necessary for the guardian to appear and represent his ward in a legal proceeding, where another person has been appointed as guardian ad litem for that purpose. But, in the present case, the complainant filing' the bill for partition, not only made the minor, Helen Irene Sill, a defendant, but also made Mary E. Sill a defendant, both individually and as guardian of Helen Irene Sill. In other words, the guardian, as such, was made a defendant, and was served as such with process, and, as such, answered the bill. “Although it may not be necessary in all cases to make the guardian a party to an action or proceeding affecting the ward, solely, yet it is usually proper to do so that he may protect his ward’s interests.” (9 Ency. of Pl. & Pr. p. 935). The record shows, that the guardian ad litem performed his duty in the preparation of the case for trial, and in the trial of the case, as the representative of the minor defendant. But when the proceeding was ended in the trial court by the rendition of the final decree, we see no reason why the court might not permit the appeal to be taken for the minor by the guardian, the latter being a party to the suit. It is true the appeal might have been taken by the guardian ad litem (Sprague v. Beamer, 45 Ill. App. 17), but, at the same time, the guardian, who was then before the court, had also the power under the statute to take the appeal. Cases are referred to where it is said, that tliq guardian should not be allowed to represent the minor where the interests of the guardian are adverse to those of the minor. (Roodhouse v. Roodhouse, 132 Ill. 360; Ames v. Ames, 151 id. 280). But we are unable to see, that the interests of the guardian are opposed to those of the minor, so far as the questions involved in this appeal are concerned. The first question involved is, whether or not the dower of Edmund Sill in the eighty-acre tract in question has been barred. The establishment of such a bar, if it could be established, would operate to the advantage of both the guardian, Mary E. Sill, and the ward, Helen Irene Sill. The second question involved in. the appeal is, whether or not the appellees, Charles B. Sill and Edmund Sill, have properly accounted for the rents and profits derived from the land since October, 1892. Both the guardian and ward are interested in such accounting equally. A third question involved is as to the existence of an estate of homestead in the interest in the land, which James W. Sill owned at the time of his death; but, if the existence of such an estate was established, it would be for the benefit of the infant child, as well as for the benefit of her guardian and mother. ' ; Upon the whole, we are of the opinion that the motion to dismiss the appeal for the reason alleged should not be granted. An order will accordingly be entered denying the motion. Second—It is claimed by the appellees, that the right of Edmund Sill to dower in the eighty acres has been barred. The tract of eighty acres was owned by Helen M. Sill, the wife of Edmund Sill. When she died intestate on April 15, 1888, she left two sons, the appellee, Charles B. Sill, and James W. Sill since deceased. Charles B. Sill and James W. Sill each owned an undivided one-half in the eighty acres, subject to the dower of their father, Edmund Sill. James W. Sill died intestate on October 20,1892. From April 15,1888, to October 20,1892, Charles B. Sill was in possession of the tract for himself and his brother, and they two, with the knowledge and consent of their father, Edmund Sill, divided the rents between them. The premises were rented for §3.00 per acre, or §240.00 peir annum, before the death of James W. Sill, and have been rented for the same amount since his death. Since the death of James W. Sill, Charles B. Sill has been in possession of the tract, and has collected the rents, and out of them has each year paid Edmund Sill the sum of $80.00, being one-third of the rents and being the amount of his dower in the premises. The appellants claim, that Charles B. Sill should have rented the premises for a larg'er amount than $3.00 per acre, and have introduced testimony tending to show the rental value of the premises per year was $4.00 per acre. On the contrary, the appellees introduced testimony tending to show the rental value of the premises per year was not more than $3.00 per acre. The witnesses of the appellees upon this subject, who exceed in number those of the appellants, seem to be as credible and as well informed as the witnesses of the appellants. The trial court found that $3.00 per acre was a fair rental value for the premises, and we are not disposed to disturb this finding. Shortly after the death of James W. Sill in October, 1892, Edmund Sill made a demand for his dower upon Charles B. Sill, and, through the latter, upon Mary E. Sill in her own right and as guardian of Helen Irene Sill. By an arrangement between Edmund Sill, and Charles B. Sill, and Mary E. Sill individually and as guardian, the rents of $240.00 per year were divided into three parts, of which $80.00 were paid to Edmund Sill on account of his dower; and $80.00 to Charles B. Sill on account of his one-half interest in the property, subject to Edmund Sill’s dower, and after deducting one-half of said dower, to-wit: $40.00 out of $120.00, the share of the rents belonging to Charles B. Sill; and the remaining $80.00 was paid to Mary E. Sill for herself and her ward, being her interest of one-sixth in the premises after taking out the dower of Edmund Sill, and being the one-third interest of her ward therein after taking out the dower therein of said Edmund Sill. In view of what has been said, it is manifest that the possession of the premises has never been held adversely to Edmund Sill since the death of Helen M. Sill on April 15,1888. On the contrary, the possession both in the lifetime of James W. Sill, and after that date up to the time of commencing this suit, has been subject to the dower estate of Edmund Sill. The heir cannot set up the Statute of Limitations against the holder of the dower estate, because his possession is not adverse to the holder of said estate. It is the duty of the heir to assign dower, and, for this reason, his possession is not regarded as adverse to the owner of the dower estate, for, otherwise, he would be allowed to take advantage of his own wrong. It is only as against strangers, or a purchaser either from the deceased owner of the fee, or from his heir or heirs, that the Statute of Limitations can be pleaded as a defense to the enforcement of a dower right. “While the heirs of a deceased husband are in possession of his lands, the Statute of Limitations does not run against the widow’s claim for dower; otherwise, where a purchaser is in possession holding adversely.” (Livingston v. Cochran, 83 Ark. 294; Stidham v. Matthews, 29 id. 650; Danley v. Danley, 22 id. 263; Hastings v. Mace, 157 Mass. 499; O'Gara v. Neylon, 161 id. 140; Hart v. Randolph, 142 Ill. 521). We have held in a number of cases that, where a stranger, or other person, or purchaser from the husband, or heir-at-law, or devisee, has been in possession of land under color of title for seven successive years, and paid all the taxes levied thereon during that time, and has thereby complied with the provisions of the first section of the Limitation act of 1839, or section 6 of the present Limitation act, he is entitled to be protected against the enforcement of the widow’s dower. In other words, we have held that the widow’s dower may be barred as against a stranger or purchaser, who has been in possession of the premises for seven years, and paid the taxes thereon, as required by section 6 of the Limitation act. (Owen v. Peacock, 38 Ill. 33; Steele v. Gellatly, 41 id. 89; Whiting v. Nicoll, 46 id. 230; Brian v. Melton, 125 id. 647; Miller v. Pence, 132 id. 149; Hart v. Randolph, supra). But these cases all refer to such a bar to the widow’s dower, as arises out of an adverse possession held for the statutory period by strangers or purchasers; they have no reference to the possession of the property by the heir, which is as a general thing not adverse to the estate of dower, but subject and subordinate to it. In Owen v. Pea'coclc, supra, the view, that the possession is not adverse to the dowress when the parties claim under the same right, was held to be applicable to the heir-at-law upon whom the descent is cast, and that, when such view is so applied, the heir-at-law may be said,to hold in subordination to the right of the widow to her dower, but that,' as regards a purchaser from the husband or heir-at-law or devisee, the rule does not apply, as such purchaser, when he enters and occupies, should be deemed as holding adversely to all the world. In the case at bar it cannot be said that the dower of Edmund Sill has been barred by any adverse possession on the part of the lieirs of Helen M. Sill. Mary E. Sill and Helen Irene Sill, holding under the deceased Jam.es W. Sill, are privies in estate to Helen M. Sill. The appellants, Mary E. Sill and Helen Irene Sill, have never been in possession of the premises at all since the death of James W. Sill; and have therefore had no possession, which can be reg'arded as adverse to the dower estate of Edmund Sill. The appellee, Charles B. Sill, does not claim or set up that the dower of Edmund Sill is barred, and, under the arrangement already set forth, his possession cannot be considered as adverse. 'We are, therefore, of the opinion that the dower estate of Edmund Sill in the premises in question has not been barred. Third—It is claimed on the part of the appellants, that Edmund Sill and Charles B. Sill should account for the rents and profits received from the premises in question since the death of James W. Sill on October 20, 1892. The arrangement between the parties has airead;' been referred to. Edmund Sill’s dower, amounting to $80.00 per year, was one-third of the total yearly rental of $240.00. This dower was apportioned by the arrangement in question among the parties according to their respective interests during the years from 1892 to 1898 inclusive. Charles B. Sill, being entitled to $120.00, or one-half of the rents, paid one-half of the dower, to-wit: $40.00 per year, leaving his own interest in the rents, after the deduction of the $40.00, the sum of $80.00 per year. Mary E. Sill, having a one-sixth interest in the premises as heir of her posthumous child, Bernice Sill, was liable to pay, and did pay, in each of said years, towards the dower of Edmund Sill one-third of her one-sixth interest, or one-third of $40.00, to-wit: $13.33-^, leaving- after deducting- $13.33¿- from $40.00 the sum of $26.66f, as the amount of the annual rents belonging to her. The minor, Helen Irene Sill, being the owner by inheritance from her father, James W. Sill, and from her deceased sister, Bernice Sill, of an undivided one-third of the premises, was, in case a proper demand had been made, liable for one-third of the dower due to Edmund Sill, to-wit: the sum of $26.66| for each year, leaving, after making the deduction of that amount from her one-third interest of $80.00, the sum of $53.33£, as the share of the rents belonging'to Helen Irene Sill. In other words, by the arrangement made, Charles B. Sill and Mary E. Sill contributed $53.33^- towards paying the dower during each of said years of Edmund Sill, and Mary E. Sill, as guardian, contributed $26.66f each year towards the payment of Edmund Sill’s dower out of the interest of the minor, Helen Irene Sill. This arrangement was valid and binding so far as Charles B. Sill and Mary E. Sill in her own right were concerned. The proof shows, that the .demand for his dower was made by Edmund Sill upon them shortly after the death of his son, James W. Sill, in October, 1892. The dower interest of a surviving husband in his deceased wife’s land is a mere expectancy, and rests in action only, until it is assigned. He is only entitled to one-third of the rents and profits of the land of his wife’s property as against her children and heirs from the time his dower has been demanded, or set off, or assigned to him. Where no demand is made, or petition filed, for the assignment of dower, the heirs-at-law are entitled to the whole of the rents. Damages are allowed from the time of demand and a refusal to assign dower. One-third of the rents of the land in which there is dower forms a proper measure of such damages. Until demand is made, the surviving wife or husband is entitled to no damages. The filing of a petition for the assignment of dower against the heirs-at-law is a sufficient demand to give a claim to one-third of whatever rents have accrued since that time as damages. (Bedford v. Bedford, 186 Ill. 354; Peyton v. Jeffries, 50 id. 143; Rawson v. Corbett, 150 id. 466). The demand here made was sufficient so far as the adults, Charles B. Sill and Mary E. Sill, were concerned. Where the heirs are of age, they may legally assign the wfidow her dower in the premises. (Strawn v. Strawn's Heirs, 50 Ill. 256). Section 18 of the Dower act makes it the duty of the heir to assign dower in the lands in which any person is entitled to dower. (Ratuson v. Corbett, supra). This assignment may be by parol, and when it is impracticable to assign dower by metes and bounds, an allotment may be made to the holder of the dower estate out of his or her proportionate share of the rents and profits arising from the entire property. The holder of the dower estate may, by an arrangement with the heir or devisee, suffer him to rent out the land with the understanding that such holder, in lieu of dower, is to receive one-third of his or her proportion of the annual rents. (Lenfers v. Henke, 73 Ill. 405; Rawson v. Corbett, supra; 10 Am. & Eng. Ency. of Law,—2d ed.—pp. 172, 175-178). The demand upon Charles B. Sill and Mary E. Sill having been made shortly after the death of James W. Sill, and, in response thereto and in pursuance thereof a verbal arrangement having been made with Edmund Sill, by which he was to receive, in lieu of his dower, one-third of the annual rents to be derived from the interests of Charles B. Sill and Mary E. Sill, the decree of the court below was correct in refusing to allow an accounting, so far as the dower paid out of those interests was concerned. In other words, Edmund Sill is entitled to retain the $40,00 per year paid to him on account of his dower out of the one-half interest of Charles B. Sill during each of the years from 1892 to 1898 inclusive, and to retain the sum of $13.33¿- per year paid to him on account of his dower out of the one-sixth interest of Mary E. Sill during each of the said seven years. As to Charles B. Sill and Mary E. Sill, the demand for dower was made in time to justify the retention of said rents, and the oral assignment of dower, being made by them as adults, was valid. It is not claimed that any demand was made upon the minor child, Helen Irene Sill, for the assignment of dower in her interest. A demand, however, was made upon Mary E. Sill as guardian of Helen Irene Sill for the assignment of dower in the interest of her ward. But it is the settled doctrine of this court, that a minor cannot make such an assignment of dower'as will be binding on him on arriving at age; nor has the guardian of a minor any power to assign dower. (Bonner v. Peterson, 44 Ill. 253; Strawn v. Strawn’s Heirs, supra; Atkin v. Merrell, 39 Ill. 62; Rawson v. Corbett, supra; Muller v. Benner, 69 Ill. 108; Shoot v. Galbreath, 128 id. 214). In Heisen v. Heisen, 145 Ill. 658, we said: “Whatever may be the rule elsewhere, it is well settled in this State, as indeed it must be held under the statute, that a guardian has no power to assign dower.” In view of the fact, that neither the minor himself, nor his guardian, has any power to make an assignment of dower, a demand for such assignment upon the heir or upon the guardian is useless, and not legal or binding. (Bonner v. Peterson, supra; Strawn v. Strawn’s Heirs, supra). It follows, that the demand upon Mary E. Sill as guardian was invalid, and Edmund Sill was not entitled to dower out of .the interest of the minor from the time of such demand. He did, as matter of fact, receive $80.00 per year on account of his dower for the seven years above named, and, of the amount so received in each year, $26.66J came out of the rents derived from the one-third’ interest belonging to the minor. Inasmuch as Edmund Sill filed no petition for assignment of his dower out of the minor’s interest, and no legal demand was made for assignment of dower out of such interest, the minor, or his guardian for him, was entitled to retain the sum of $26.66f out of the rents derived from his interest for each of the said seven years, and Edmund Sill should be required to account for the same. His answer in this case was filed on April 20, 1899, and therein he asks that his dower in the minor’s interest may be assigned to him. The filing of the petition thus contained in his answer is a sufficient demand to give a claim to one-third of the rents, that have accrued out of the minor’s interest since the filing of the answer. He is entitled to such rents since April 20,1899, but not before. In stating the account there should be deducted- one-third of the taxes paid by Charles B. Sill in each of the seven years above mentioned. (Peyton v. Jeffries, supra; Walsh v. Reis, 50 Ill. 477). We are of the opinion, that the decree of the court below was erroneous in not requiring Edmund Sill to account for the $26.66f received by him out of the rents derived from the interest of the minor in said premises during each of the seven years above mentioned, after deducting therefrom one-third of the taxes paid for each year upon the whole of said premises. Fourth—It is contended by the appellants, that Mary E. Sill- and Helen Irene Sill have an estate of homestead in the one undivided half interest owned by James W. Sill when he died. We cannot discover that any such homestead estate had any existence in fact. Prior to October 1,1892, or thereabouts, James W. Sill had resided in Cook county, but about that time he came to Iroquois county with a view of living upon a farm in that county. There was an old house upon the eighty acres in question, and James W. Sill, having no place to stay, intended to occupy this house until the following spring, when he should take possession of the farm which he had leased. He never intended to live permanently in this house, but only temporarily, until he could get possession of the farm so leased. About October 1, 1892, he and his wife moved a few pieces of furniture into the house, and were preparing to occupy it when James W. Sill was taken sick while at his father-in-law’s house and died there. Neither he nor his wife ever occupied the house upon these premises, or slept in it a single night. It cannot be claimed, therefore, that they ever acquired any homestead estate in it. Under the statute a homestead can only be acquired in a farm or lot occupied by the householder as a residence. The house upon the premises in question was never occupied by James W. Sill as a home or residence in his lifetime, nor by his wife or child at any time after his death. Even if the placing of a small amount of furniture- in the house could be considered as occupying it, Helen M. Sill and her child after the death of James W. Sill left the premises in question, and never returned thereto. This amounted to an abandonment of the homestead, if there ever was a homestead. (Hart v. Randolph, supra). For the error above indicated, the decree of the circuit court is reversed, and the cause is remanded to that court with directions to proceed in accordance with the views herein expressed. Reversed and remanded.