Whitaker v. Rhodes

Mr. Chief Justice Farmer delivered the opinion of the court: The only error assigned by appellant is the ruling óf the court in denying the prayer of his bill for the partition of the fee in the premises assigned to and occupied by the widow of Absalom Patterson as her homestead, subject to said estate of said widow. Appellees, Susan Patterson, W. D. Patterson and Gertrude Rhodes, in addition to contending for the correctness of that part of the decree refusing partition of the homestead premises, have by the assignment of cross-errors challenged the correctness of that part of the decree granting partition of the premises in which the dower interest of the widow, Susan Patterson, was assigned. Appellees take the position that as to the homestead premises the heir takes no title whatever until the termination of the homestead estate, and that until that time “the heir has but a reversionary interest in the homestead, expectant upon the termination of the homestead estate,” and that at such termination the title reverts to the “deceased husband, from whom the estate devolved to the successor.” Substantially the same position is taken with reference to premises in which the right of dower exists. In such case the contention is that the heirs have “a contingent expectancy, depending on their outliving the widow,” in which event they would derive title “directly from the deceased ancestor.” Upon these premises as a basis of reasoning, appellees insist that the grantors of appellant had no title to any of the premises involved and therefore no right to ask for partition thereof, and appellant, as their grantee, can have no right to partition. We do not regard the premises of appellees as sound or as sustained by authority. Miller v. Lanning, 211 Ill. 620, is on “all-fours” with this case and cannot be distinguished from it. That case settles every proposition contended for by appellees contrary to their contention, and we could not sustain the appellees’ position without overruling that case, which we are not inclined to do. There it was sought to partition eighty acres of land which had been assigned to the widow for homestead and dower, .subject to said estates of the widow. There, as here, it was insisted the premises were not subject to partition until the termination of the widow’s life estate. The suit was brought by the grantee of an heir, and it was held the grantee was entitled to partition, subject to the life estate of the widow. The commissioners appointed to make partition reported the premises could not be divided and a decree of sale was entered. This court affirmed the decree, and said: “We do not see why the owners of the fee would be entitled to partition after the expiration of the life estate rather than before.” That case has never been modified or questioned, but was cited and followed in Deadman v. Yantis, 230 Ill. 243, where the same principles were announced. Those cases are sustained, in principle, by Brokaw v. Ogle, 170 Ill. 115, Drake v. Merkle, 153 id. 318, and Ruddell v. Wren, 208 id. 508. Section 22 of the Partition act authorizes the partition of premises in which homestead and dower have been set off, subject thereto. (Brokaw v. Ogle, supra.) The owners of the fee, subject to a life estate, are entitled to partition as a matter of right, except where the interests of minors are involved and the chancellor can see that the partition will result injuriously to their interests. (Miller v. Lanning, supra.) Nothing of that kind is involved in this case. It has been held a number of times that it is not merely the right of occupancy which is exempted by the statute from levy and forced sale by creditors, but that it is the lot of ground occupied as a residence, and as to such lot of ground so occupied by a widow no sale can be made by the administrator for the benefit of the deceased husband’s creditors. Obviously, the authorities so holding can have no application where partition is sought by heirs, subject to the widow’s life estate. In our opinion the court did not err in decreeing partition of the premises assigned to the widow of Absalom Patterson as dower, subject thereto, but did err in denying partition of the premises assigned to her as homestead,- subject to her life estate in said premises. The decree will therefore be affirmed in part and reversed in part and remanded to the circuit court, with directions to enter a decree in accordance with the views herein expressed. Reversed in part and remanded, with directions.