Brown v. Auburn State Bank

Mr. Justice Glenn delivered the opinion of the Court. This is an appeal from an order of the Circuit Court of Macoupin County, Illinois, which finds that certain lands belonging to the estate of one George S. Brown, deceased, were not inventoried or accounted for by the executors of his will, and that said lands are liable to be converted into money to pay the claims of the appellees, who filed their demands against the estate of said George S. Brown more than two years after the issuance of letters testamentary. The facts are as follows: George S. Brown died testate in Macoupin county on the 30th-day of November, A. D. 1893. Letters testamentary were issued to the appellants as executors of his will on December 30, 1893. An inventory purporting to list all of the property of the estate was filed by them, bearing date January 17, 1891. They made their first report of their acts and doings as such executors to the County Court of said county on December 30, 1895, and subsequent to that date, after the publication of a final settlement notice, they filed a second report on the yf-th day of March, 1896. Prior to the filing of this last report, but after two years had elapsed from the date of the issuance of letters testamentary to the appellants, these appellees filed claims against the estate of George S. Brown, which claims were founded upon promissory notes signed by him in his lifetime. The appellants pleaded the two-year statute of limitations provided in the administration act as a bar to the allowance of the claims, and their payment out of property before that time inventoried or accounted for by them. The County Court allowed the claims, but required that they should be paid out of assets of the estate of George S. Brown not previously inventoried or accounted for. The inventory filed by the executors described a large quantity of real estate consisting of town lots in Modesto, Ill., some farm lands, and also a business house in Jacksonville, Ill. The method of arranging and describing the real estate in the inventory was a little unusual. The scrivener grouped certain town lots together and marked them Division Ao. 1; certain other town lots, similarly grouped, were Divisions Aos. 2, 3, 4, etc.; then certain lands were described together and marked Aos. 5, 6 and so on down to the conclusion of the description of the real estate. All of the real property in each of these divisions is fully, carefully and properly described except in Division Ao. 7. Division Ao. 7 describes 67£ acres of land as situated in sections Aos. 22 and 23, without any reference to any township or range, county or State, and absolutely without any link to connect it with any subsequent or preceding division, or any words to show anything with reference to the location of the land, except that it is in certain sections named in the description. The land involved in this controversy is described in the inventory filed by the executors as follows: “ Ao. 7. The west one-half of the north one-half of the southeast one-fourth of southwest one-fourth of section 23. Also the northwest one-fourth of the northeast one-fourth and 17^ acres off the east side of the northeast one-fourth of the northwest one-fourth of section 22.” It is contended by the appellee, that this description is void for uncertainty, as" it specifies neither township, range, meridian, county nor State. It can not be said by looking at the description in the inventory alone that it is void for uncertainty. It does describe the premises as certainly and accurately as if they had been described as “ Black Acre,’ which is held to be a good and certain description. But if we look' outside of the description in the inventory, and examine the acts of Congress,- and the public surveys of the State, we see there is an ambiguity in the description, which, unexplained, leaves it entirely uncertain, because it does not refer to any township, range or meridian. We find 'there are as many sections twenty-two and twenty-three as there are congressional townships in the State. This is a latent ambiguity, which is only shown to exist by evidence outside the description in the inventory. It being a latent ambiguity is susceptible of explanation by parol testimony. The ambiguity in this case arises from the fact that there are several sections twenty-two and twenty-three in this State. Dougherty v. Purdy, 18 Ill. 206; Bybee v. Hageman, 66 Ill. 519; Mason v. Merrill et al., 129 Ill. 503; St. Louis Bridge Co. v. Curtis et al., 103 Ill. 410, 416; Billings v. Kankakee Coal Co., 67 Ill. 489; Allen v. Bowen et al., 105 Ill. 361; Clark v. Powers, 45 Ill. 283; Colcord v. Alexander, 67 Ill. 581; Atwater v. Schenck, 9 Wis. 160. As it appears from the evidence, the testator at the time of his death was the owner of the north one-half of north half of the southeast one-fourth of the southwest one-fourth of section 23, also the northwest one-fourth of the northeast one-fourth and 17£ acres off the east side of the northeast one-fourth of northwest one-fourth of section 22, in township number 12", north of range 8, west of the 3d principal meridian, in Macoupin county, State of Illinois; that he acquired title to it from one McPherson, May 3, 1886, that he was in possession at the time of his death and had been since the purchase of it; and that he owned no land in any other township,' except township 12 north, range 8, west of the 3d principal meridian. From these facts and circumstances it seems clear the land intended to be inventoried by the executors, the appellants, was that described as in sections 22 and 23, in township 12'north, of range 8, west of the third principal meridian, in said Macoupin county. As the testator resided in Macoupin county, Illinois, the presumption will be indulged in by the court, that the lands referred to are situated in Macoupin county and in this State, until the contrary appears. There can be no doubt under the cases above cited as to the sufficiency of this proof to remove the latent ambiguity. From the view we have taken of this case, we deem it unnecessary to discuss the question whether there has been such an accounting by the executors of the lands in controversy, that will relieve them from being liable to the payment of appellee’s claims. The decree of the court below is reversed and the cause remanded with instructions to dismiss the petition.