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should be granted; but the chancellor sustain. to John Carnagey, Jr., were the sole and only ed exceptions to the master's report as to heirs at law of John Carnagey, deceased. the two points herein discussed, and dismiss- This affidavit, which was presented on April ed the original bill for want of equity, at the 3d, was also rejected as insufficient. There same time granting the relief prayed for in was some conversation concerning a bill to the cross-bill, and Clark appealed.
quiet title and the extension of the time for The chancellor based the decree upon two the performance of the contract in order that propositions: That the abstract furnished by the title might be quieted; Jackson's attorney Clark to Jackson was not a sufficient compli- saying that he had no authority in the premance with the terms of the contract, and that ises, but would speak to Jackson on the subthere was no sufficient offer to pay the inter-ject. Afterwards, and on the same day, est on the said incumbrance of $10,000, or Clark made a tender of certain papers intendtender of any definite or certain arrangement ed to show an offer to perform the contract for the satisfaction thereof. While it is true on his part. The time for the performance that it is the decree which is brought under of the contract expired on April 4th, and the review by this appeal, and not the reasons bill of complaint in this cause was filed on upon which the same was based by the chan- April 8th. cellor, yet it is proper to consider these rea- There can be no doubt that the abstract sons first, since they are most important ques- furnished by Clark to Jackson, as first pretions, either of them, if decided adversely to sented, without any proof that the persons Clark, necessitating the dismissal of his bill who conveyed as the heirs of John Carnagey of complaint.
were in fact his only heirs, did not show First. The abstract of title to the Attica satisfactory title to the Attica Lithia Springs Lithia Springs Hotel property furnished Jack- Hotel property. The question whether any son by Clark in March, 1903, pursuant to the defect in an abstract can be cured by affirequirements of the contract, showed title davits does not arise in this case, as the in John Carnagey prior to February 18, 1850, contract did not require that an abstract of and showed a quitclaim deed of that date the title to the Attica Lithia Springs Hotel for lands including the premises in question, realty should be furnished. The provision running to John Carnagey, Jr., as grantee, in reference to showing that title was that from a number of grantors, bearing the names Clark should furnish "satisfactory evidence" of BarkleyStewart, Evans, Higbee and of the title, and Clark elected so to do by Carnagey, respectively. Henry S. Shedd, furnishing an abstract and affidavits. The Jackson's attorney, examined the abstract, defect in the abstract occasioned by its failand specified numerous objections thereto, ure to show who were the heirs of John among them, that it did not appear that the Carnagey was not cured by the affidavit of grantors in the deed to John Carnagey, Jr., Homer Sewell, which was made on informawere the only heirs at law of John Carnagey, tion and belief and without personal knowlthe grantee in the preceding deed. On March edge of the facts. Neither was the affidavit 24th Charles R. Milford, of Attica, Clark's at: of Gilbert Carnagey sufficient, for the reason torney, wrote to H. W. Sisson, who represent- that he swears to a conclusion, and not to ed the firm of H. O. Stone & Co., of Chicago, the facts, as to the heirs of John Carnagey. through whom Clark was endeavoring to per
If under this contract it could properly be fect arrangements to enable him to comply shown by affidavits attached to the abstract with the contract, and stated, concerning the that certain persons, grantors in one deed, break in the title in question, that he could are the sole and only heirs at law of a prenot show this matter satisfactorily; that he ceding grantee in a chain of title, such affibelieved he could clear it up in part, but per
davits should set forth the facts with the haps not entirely to the satisfaction of the same certainty and precision with which attorneys; that a suit to quiet title might be such facts must be proved in court in a necessary; that he had a man hunting up a
contest over the title. The affidavits preperson whom he thought to be a Carnagey sented with this abstract were ex parte stateheir, and that he might be able, if he found ments, and those making them were not subthe man, to fix this matter to the satisfac-jected to cross-examination, and hence the tion of Jackson's attorneys; and that he was
statements therein contained should have left very much surprised to find the title in this nothing to conjecture. condition. Afterwards an affidavit of Homer As against objection, a witness would not Sewell, made on March 25th, was offered as be permitted to testify in a court of justice connecting the two conveyances by showing that certain persons are the heirs of a deheirship, but the affidavit expressly disavow- ceased person, but would be required to state ed personal knowledge of the facts by the who are the children of thn decedent, and affiant, and the same was rejected by Jack- whether or not any of his children are dead, son's attorney. Afterwards another affidavit and, if so, when they died, and whether or was presented, made by Gilbert Carnagey, a not there are living children of such deceased man 75 years of age, who signed his name children, and so on, until all material facts with a cross and claimed he was one of the should be thus developed, and the court heirs of John Carnagey, and who stated in would be in a position to determine whether his affidavit that certain grantors in the deed or not the persons in question are the sole and only heirs at law of the decedent. 3 of law, but is "equivalent to a statement of Elliott on Evidence, $ 2193; 4 Ency. of Evi- the fact that the appellees stood in such redence, pp. 576, 577, and notes; Skinner v. lation of kinship to Margaret Wilkinson as Fulton, 39 Ill. 484; 2 Greenleaf on Evidence, that, at her death, the law of descent cast $ 354. In 3 Elliott on Evidence (section her estate upon them.” But this decision 2193) it is said: "In proof of heirship, as relates to the sufficiency of the complaint in other cases, it is not competent for wit- after verdict and upon assignment of error nesses to state conclusions. It is not within in the Supreme Court, and not to the question the province of the witness to state that under consideration in this case. The Wilthe claimant is an heir of a certain decedent, kinson Case was tried by jury, and a judgbut he may state the relationship of the ment was rendered upon the verdict. It was parties. According to Mr. Greenleaf it is assigned for error in the Supreme Court that necessary to establish two propositions: (1) the complaint did not state sufficient facts to The relationship of the claimant through constitute a cause of action. Undoubtedly a common ancestry; (2) that there are no the allegation that the plaintiffs were the descendants from the same ancestry who are only heirs was good after verdict. The Suentitled to share in the estate. It is not preme Court, in passing upon the question, sufficient to prove that the claimants are says: "If the appellant had deemed it imthe children and heirs of the decedent, nor portant that the degree of consanguinity or is it sufficient to prove that they are the only affinity relatively occupied by the deceased children who survive the ancestor. It would and the plaintiffs should appear more in deonly be sufficient to prove that the claimants tail, a motion to make the complaint more were the only children that the ancestor specific might with propriety have been ever had, or that if he had other children entertained." The Wilkinson Case is not they had died leaving no children or hus- in conflict with the views expressed in this bands or wives, and upon such proof the law opinion. would declare these claimants to be the only. But it is urged that the insufficiency of the heirs."
Carnagey affidavit in this respect was waived, The danger of accepting the conclusion of or that Jackson is in some way estopped an affiant in such case may be readily illus- to insist upon this point. H. W. Sisson testitrated from the record before us. Gilbert fied that Henry S. Shedd, Jackson's attorney, Carnagey, who made the affidavit, was at said to Charles R. Milford, Clark's attorney, the time 75 years of age, of a morose dis- when the Sewell affidavit was presented, that position, difficult of approach, especially by he did not think it was competent, as it was strangers, and unable to write his own name. not sworn to by the affiant as of his own He might have known much or little con- knowledge. Milford testified to the same efcerning the Indiana law of descent, but it fect. On the other hand, Shedd testified that is probable that his information on this sub- he told Sisson, after examining the Sewell ject was by no means complete. He testi- affidavit, that he would not accept it, and fied before the master in chancery within that he did not believe an affidavit would less than two years after making the affi- cure the objection, but was of the opinion davit, and counsel for appellant, in answer- that a proceeding to quiet the title would be ing the statement that sundry depositions necessary. Shedd further testified as folwere needed on the trial itself to show the lows: That when Sisson and Milford called heirship, state that there was a long interval on the next day he told them that the Sewell between the times when Gilbert Carnagey made affidavit was wholly insufficient, that it did his affidavit and gave his deposition, and not show personal knowledge of the facts, and then add: “It may well be that at the lat- that he would not accept that affidavit; that ter time this aged man's memory of details Milford thereupon said that there was a (or of mere evidentiary facts) was such that grandson of John Carnagey in the country corroborative depositions were deemed ad- some distance from Attica, who was a hervisable.” This is the very reason why the mit, and of morose disposition and difficult statinent of the ultimate fact or conclusion of approach by strangers, for which reasons by an affiant or witness is not permitted. he thought he would be unable to get this If the witness is not able to state the evi- man's affidavit; that he (Shedd) stated that a dentiary facts, he is certainly disqualified suit to quiet the title would be the only thing from stating the conclusion. And, lest he that would meet the requirements; that Milmay not be able to draw the proper conclu- ford did not say that he would endeavor to sion, the law will not permit him to draw it get another affidavit; that he (Shedd), havat all, but will require him to state the ing noticed the name of another than Carnevidentiary facts, and leave it for the court, agey in the Sewell affidavit, asked Milford learned in the law, to draw the conclusion. who this person was, and that Milford said
Appellant's counsel cite Physio-Medical he understood him to be an illegitimate child; College of Indiana v. Wilkinson, 108 Ind. 314, that he (Shedd) then said that there must be 9 N. E. 167, to the effect that the averment some irregularities in the family, to which that plaintiffs are the only heirs .of an in- Milford answered that there were, apparenttestate is not the statement of a conclusion ly; and that he (Shedd) then said that that
was a further reason why the family history should be gone into very thoroughly with reference to the heirship. This conversation with reference to the illegitimate child is not denied either by Sisson or Milford. The evidence shows that Milford himself had written to Sisson, before either affidavit was furnished, that he feared he would not be able to clear up entirely the facts as to the Carnagey heirs, and that it might be that a suit to quiet title would be the only way in which the matter could be adjusted.
It is manifest, from these and other facts appearing in the record, that Shedd was objecting to the affidavits throughout these conversations and insisting that a proceeding to quiet title would be necessary. His statement that the illegitimacy of one of the children was a further reason why the family history should be gone into very thoroughly with reference to the heirship clearly indicates an intention to insist upon something more than the mere statement of a conclusion as to the heirship in any affidavit which might be furnished. We are of the opinion that Jackson was not bound to accept the affidavit of Gilbert Carnagey as presented, and was not estopped to rely upon its insufficiency in the particular above indicated.
Among the papers tendered with the abstract of title by Clark to Jackson on April 3d was an affidavit of Charles R. Milford made on April 3, 1903, as to the question of possession, evidently intended to strengthen the title by invoking the statute of limitations. The language of Milford's affidavit was as follows: That Erastus G. Bond, the grantee in No. 7 of the abstract, “ and after him, successively, Mary Bond, Estella Picken, Richard Picken, Charles C. Bond, Olive 0. Bond, Elbert Bond and Leotie Bond, Rebecca A. Holmes, Alexander Holmes, were to my personal knowledge, up to the present time, in open, continuous and undisturbed possession of said portion of said land which is now known as the hotel property of the Attica Lithia Springs Company; said company in 1900 built its hotel and sanitarium on its said land, and then took and ever since has been and now is in actual possession thereof."
Is this affidavit sufficient to show title by limitation? The statutes of Indiana in evidence provide that an action for the recovery of the possession of real estate shall be commenced within 20 years after the cause of action has accrued, and not afterwards. So far as the questions involved in this case are concerned, the statutes of Indiana are not materially different from the statutes of Illinois on the same subject, and it will not be presumed, in the absence of evidence, that the construction of these statutes by the Supreme Courts of the two states is materially variant. To establish a title by limitation in this state by 20 years' possession mere possession is not sufficient, but the possession aust be (1) hostile or adverse; (2) actual;
(3) visible, notorious, and exclusive; (4) continuous; and (5) under claim of ownership. Illinois Central Railroad Co. v. Hatter, 207 Ill. 88, 69 N. E. 751. "All these elements must be made out by clear and positive proof." Roby v. Calumet & Chicago Canal & Dock Co., 211 Ill. 173, 71 N. E. 822. Among the extracts from the opinions of the Supreme Court of Indiana introduced in evidence by counsel for the appellant is the following: “Adverse possession under claim and color of right gave him a complete and perfect title." Evidently the law of Indiana as to what constitutes adverse possession is not different from the general law on that subject, which is correctly expressed in five specifications in the decisions of this court above cited. The commencement of such title is a disseisin, producing a change by which the estate is taken from the rightful owner and placed in the wrongdoer, and the possession so taken by the disseisor must be hostile or adverse in its character, importing a denial of the owner's title in the property claimed; otherwise, however open, notorious, constant, and long continued the possession may be, the owner's action will not be barred. 1 Cyc. 1026. Claim of title or right by the occupant is in all cases necessary. Maple v. Stevenson, 122 Ind. 368, 23 N. E. 854; Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109; Pennington v. Flock, 93 Ind. 378.
An examination of Milford's affidavit in the light of these authorities shows the same to be wholly insufficient to establish title by limitation. The affidavit fails to show that the possession of the persons therein named was hostile or adverse, or that the same was exclusive, or that the same was under claim of ownership. The affidavit states that certain persons were successively in possession of the premises, and yet, manifestly, if the abstract it to be considered, some of these persons must have been in possession thereof jointly, and not successively. The affidavit states that certain persons were in possession of the premises "up to the present time”—that is, up to April 3, 1903, the date of the affidavit; and yet the affidavit afterwards states that the Attica Lithia Springs Company, not one of those before mentioned, built its hotel and sanitarium on the land in 1900, and then took possession of the land, and ever since that time has been in the actual possession thereof. Here is a contradiction in the terms of the affidavit indicating carelessness in its preparation, to say the least. Under this affidavit, the possession of the Attica Lithia Springs Company, covering a period of three years, has no element of adverse possession except that of mere possession, which is clearly insufficient.
The facts stated in this affidavit, if presented in court in a contest over the title, would not be sufficient, standing alone or in connection with the abstract, to show title by limitation, and Jackson was not bound to
(222 Ill. 83)
accept the abstract, and the affidavits therewith tendered, as showing good and sufficient title. In this view of the matter it is unnecessary
decide whether affidavits attached to an abstract showing title by limitation, if clearly sufficient for that purpose would satisfy the requirements of the contract in question under the laws of Indiana. It is urged, however, that the Carnagey link is sufficiently shown by the abstract without any affidavit whatever. The argument in this connection is that, after 53 years of undisturbed possession of the land under the chain of title shown by the abstract, it is to be presumed that all of the heirs of John Carnagey joined in the conveyance of the premises. Manifestly, any evidence taken on the hearing nearly two years after April 4, 1903, cannot be treated as part of the abstract which was furnished and tendered before that date. The right of the appellant to maintain this bill for specific performance depends upon the abstract and affidavits furnished during the 30 days allowed for performance under the contract. Jackson was not required to act upon the presumption in question, even if such presumption arose, for it would not be conclusive, but subject to be overcome by evidence that the facts were otherwise.
Second. There is another reason why the specific performance of the contract should be denied. The interest on the incumbrance of $10,000 on the Attica Lithia Springs Hotel property, amounting to about $800 at the date of the contract, was to be paid by the appellant or satisfied by him in some sufficient manner, so that the same would not stand as a lien against the premises. Appellant evidently undertook to make arrangements for the payment of the interest through H. O. Stone & Co., the same to be taken out of the rent of the apartment building. But there was not sufficient definiteness as to this arrangement at the time of the tender on April 3d to amount to a compliance with this requirement of the contract. Skeen v. Patterson, 180 Ill. 289, 54 N. E. 196.
Many other questions are presented by this record, among them the foreclosure of the incumbrance on the Attica Lithia Springs Hotel property occurring since the commencement of this suit; but such questions need not be considered, inasmuch as the points already passed upon are decisive of the issues. There is no merit in the claim that the contract was executed by the actual exchange of the possession of the premises involved, for the evidence shows that such exchange of possession as did in fact take place was temporary and subject to the consummation of the contract.
The decree of the circuit court dismissing the original bill for want of equity, and granting the relief prayed for in the cross-bill, is justified under this record, and such decree is therefore affirmed.
PAVLICEK V. ROESSLER. (Supreme Court of Illinois. June 14, 1906.) 1. EXECUTORS AND ADMINISTRATORS-ALLOW
ANCE TO WIDOW-APPEAL FROM APPRAISERS -JUDGMENT-SUFFICIENCY.
The judgment of the circuit court on appeal from the estimate of appraisers on the widow's award was not improper, because it affirmed and approved the order of the probate court, as if it were a court of review, where such part of the judgment was merely preliminary and followed by a judgment containing all the formal requisites. 2. SAME-EVIDENCE ON APPEAL.
A judgment of the circuit court approving an estimate of appraisers on a widow's award, was not without evidence to support it merely because the estimate of the appraisers was not offered in evidence; the report not being evidence, but merely the basis of the proceeding. 3. RELINQUISHMENT ANTENUPTIAL CONTRACT.
Where there are no children having an interest in a widow's award, a fair antenuptial contract by which she relinquished the award, may be enforced against her.
[Ed. Note-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, $ 695.) 4. SAME_CONSTRUCTION OF CONTRACT.
Where an antenuptial contract provided that each party should mutually waive and release all rights and interests which each of them might have in the property of the other, and provided that each party released all "right, title, and claim to any and all distributive share or portion in the personal estate” of the other, and there were further covenants to the effect that neither party would sue for or demand any distributive share or interest as surviving spouse, it precluded the widow from claiming a widow's award.
[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, S 695.]
Appeal from Appellate Court, First District.
Appeal by Charles V. Pavlicek, Executor, from a judgment of the Appellate Court affirming a judgment of the circuit court approving an estimate of appraisers on the widow's award to Katarina Roessler. versed,
H. B. Spurlock, for appellant. Lantry & Lyon, for appellee.
PER CURIAM. An award of $1,000, as estimated by the appraisers in the estate of the appellee's deceased husband, was allowed her by the probate court of Cook county. Upon appeal to the circuit court the estimate of the appraisers was approved and ordered to be recorded. The case is now before this court on appeal from the judgment of the Appellate Court affirming the order or judgment of the circuit court.
It is urged that the judgment of the circuit court is improper, for the reason that it affirms and approves the order of the probate court as if the circuit court were a court of review exercising functions similar to those of the Supreme or Appellate Court. But this part of the judgment is merely prefatory, and is followed by a judgment containing all formal requisites. There is no merit in this
criticism. It is insisted that there is no evi- real estate of her intended husband. In the dence to support the judgment of the circuit same connection the intended wife releases court for the reason that the estimate of the and relinquishes to the intended husband all appraisers was not formally offered in evi- right, title, and claim to any and all distribudence. But the appraisers' report was not tive share or portion of his personal estate, evidence in the case, but simply the basis of with covenant that in the event of her surthe proceeding, and was before the court for viving him she will not sue for, claim, or consideration, like a declaration or a plea, demand any distributive share or interest without any formal offer of the same in evi- whatsoever, to which she might be entitled as dence.
the surviving widow or wife of the intended The next and the most important inquiry husband, in or out of the personal estate of relates to the effect of the antenuptial con- which he might die possessed. Mutual covetract in this case upon the right of the appel- nants follow, to the effect that either will lee to what the statute calls the widow's join in conveyances of the real estate of the award. It is not claimed, nor is there any other, at any time, on request, formally reevidence tending to show, that the widow was leasing all contingent rights or interests in overreached or imposed upon in any manner the real estate of the other. The widow's in the execution of the antenuptial contract. award is a statutory allowance made for the When the instrument was made the parties benefit of the widow and other members of were, respectively, 67 and 55 years of age. the family of the decedent, and especially his The decedent had been married before and children of tender years, that they may not had five children, but all these children were be left wholly without support in the days of age, and no one of them was living with of desolation following the death of the husthe parties at the time of the husband's band and father, and before time or oppordeath or constituted a member of his family tunity has been afforded for readjustment to at that time. There was no child born of the changed conditions. Hence it has been held marriage of decedent and appellee. The con- that the widow cannot release the award by tract was made on the day preceding the mar- an antenuptial contract where there are chilriage, and was under seal and duly acknowl- dren entitled to share in the benefit of its edged, the acknowledgment containing the protection. Phelps v. Phelps, 72 Ill. 545, 22 statutory clause for the release of homestead. Am. Rep. 149; Weaver v. Weaver, 109 Ill. The contract recites that the intended hus- 225; Zachmann v. Zachmann, 201 Ill. 380, 66 band is the owner of certain personal prop- N. E. 256, 94 Am. St. Rep. 180; Friederich v. erty, and also seised of certain real estate, Wombacher, 204 Ill. 72, 68 N. E. 459. But which is specifically described. Then fol- where the widow is the only person interestlows a similar recital concerning the personal ed, an antenuptial contract fair in its proand real property of the intended wife. The visions, by which she relinquishes the widnext recital is that a marriage is intended to ow's award, may be enforced against her. be had between these parties, and that it McMabill v. McMahill, 113 Ill. 461 ; Spencer has been and is agreed by and between them v. Boardman, 118 Ill. 553, 9 N. E. 330. This that they, and each of them, shall 'mutually may be true even where the award is not rewaive and release all right and interest which linquished by the use of that very word, prothey and each of them may have in and to the vided the contract makes use of other lanproperty of the other.
guage sufficiently comprehensive to include The next provision of the contract is a re- the award. It has been so held in the conlease and relinquishment by the intended hus- struction of a will, and there is no reason band of all his right and interest of any kind why one rule of construction should be apand nature whatsoever, in the intended wife's plied to wills and another to antenuptial conreal estate, and especially his contingent tracts, so far as the mere question of conrights of dower and homestead, followed by struction is concerned. Cowdrey V. Hitchcovenants similar to those contained in the cock, 103 Ill. 262; Friederich v. Wombacher, contract involved in Crum v. Sawyer, 132 supra. Ill. 443, 24 N. E. 956. This is followed by a The contract in the case before us does not similar release and relinquishment by the in- contain a release of the widow's award by tended husband of any and all distributive specific mention, and the question now arises share or portion of the intended wife's per- whether or not the award is included within sonal estate, with like covenant against suing the general terms of the instrument. The for, claiming, or demanding any distributive contract in question is broad in its terms, share or interest whatsoever to which he and includes, we think, a release of every might be entitled as surviving husband. right in or to the property of the appellee's
The next provision is a release and relin- husband which she acquired by virtue of the quishment by the intended wife of all her marriage, and every interest in his estate right and interest, of any kind and nature which she otherwise would become entitled to whatsoever, and especially her contingent upon his death in case she should survive rights of dower and homestead, in her intend him, and that said contract is a bar to a ed husband's real estate, with covenants widow's award in favor of the appellee out similar to those in the Crum Case, that she of her husband's estate, and that it can make will not sue for, claim, or demand any right no difference, in determining the appellee's of dower, or other interest whatsoever, in the right to a widow's award in her deceased bus