Perry v. Bowman

Mr. Justice Shope delivered

the opinion of the Court:

The contention of counsel for appellant, if we understand them, is, that by the will there was a joint devise of the land to the children of the testatrix named, and that each took an interest in the property in controversy, as tenants in common for their lives. This is, we think, a misapprehension. In construing the will, the intention of the testatrix, as derived from all its provisions, will control, and effect will be given to such intention when ascertained.

By the first clause of the will quoted, there is devised all of the property of testatrix, both real and personal, in equal shares to her eight children; “and to secure such equality in the final distribution of property among her said children, the testatrix directs, ‘that all advancements heretofore made by me, or my orders, to any of my said children, or which may be so made hereafter to any of said children, shall be accounted for and deducted from said shares respectively, as such amounts or sums, either in money or valuable property, shall finally appear in items of charges made by me, or by my orders, against any of my said children.’ ” While, therefore, the devise was to her children equally, the sums of money or property, given to the childremseverally, in the life time of the testatrix and charged to them as an advancement, was to be deducted out of the share or portion, which the child or children, receiving the advancement, would otherwise receive of her estate,—clearly evincing thereby an intention, that the advancements made should be held in severalty by her children, to whom they were severally given. And, lest there should be any misapprehension on this subject, the testatrix immediately follows the general granting clause with the further provision: “It is further my will that certain real estate advanced by me to Alvin C. Bowman, Annie Tedder, Catherine Black and Elizabeth Leman, separately and respectively, be by each of them held as a life estate, without power of sale,” etc. It is apparent that the advancement made of “certain real estate,” to the four children named, was “separately and respectively,” and by each of them, to be held for life, etc. And the testatrix subsequently adds the further provision: “And it is my further will, that in each case where advancements have been made by me, or may hereafter be so made to any of my children, the same be by them held, together with whatever may be received by either of them, under this will, * * * free from debts,” etc.

It appears that a part of the real estate in controversy was purchased by Mrs. Bowman in 1870 and the balance in 1873, and that immediately after the purchases, she put appellee in possession of the land, and he1 remained in possession as owner until after her death, and until dispossessed in the manner hereinafter stated.

By the second clause of the will, as we have seen, it is provided, that “certain real estate advanced by me to Alvin C. Bowman, Annie Tedder, Catherine Black and Elizabeth Leman, separately and respectively, be by each of them held” for life, etc., and by the former clause of the will, that such advancements were to be deducted out of the share devised to such children respectively. To determine what was intended by the devise for life of certain lands advanced, it becomes necessary to ascertain whether advancements had been made to appellee, to which the devise in the second clause could be referred. In no other "way could the language be made intelligible or effective. While extrinsic evidence is not admissible to import into the will an intention not expressed, it is competent to show the fact or circumstance referred to by the testator, when necessary to identify the subject of disposition or object of the testator’s bounty. In construing wills, the court should always endeavor to read its provisions in the sense in which they were employed by the testator, and for this purpose, may consider it in the light of the facts and circumstances surrounding the testator at the time the will was made. Wigram on Wills (2 Am. Ed.), 161; 2 Jarman on Wills, 733; Decker v. Decker, 121 Ill. 341; Bingle v. Volz et al., 142 id. 214; cases cited.

Here, proof of advancement of land to appellee became necessary to point the devise and render it intelligible. Such proof contravenes no provision of the will, nor imports into it any intention not expressed by the testatrix, but gives effect to the devise by pointing out the subject referred to as “certain real estate advanced by me.” For this purpose it was clearly competent. The testatrix, as we have seen, had, before the making of the will, made the advancement to appellee of the land in question; had charged the same to him as such, and put him in possession as owner. It therefore becomes definite and certain that- the devise was of a life estate in the lands in controversy to appellee in severalty, and not jointly with the devisees named, and vested in appellee an estate for life in all said lands.

The defendant offered in evidence a tax deed, as paramount title, made February 2, 1886, by the clerk of the County Court of Greene county, to appellant, Mary B. Perry, for all of said lands, issued in pursuance of sale of said lands, for non-payment of taxes, made on June 18, 1883. Upon acquiring said tax deed, the defendant Lanham, who had been the tenant of appellee, in possession of said lands for many years, refused to pay rent to appellee, and claimed thereafter to hold as tenant of appellant, Perry. Waiving the question as to whether she could thus acquire possession and hold it, even under paramount title, or whether the previous possesion of appellee would enable him to maintain ejectment against one having no title, we may consider the validity of the tax deed which the court excluded. To sustain that deed, appellant introduced in evidence the records and files, showing the precedent steps taken to perfect title under the tax sale. There are a number of objections, one of which will be enough for us to consider. The tracts of land were severally bid off by W. D. Roberts, June 18, 1883. April 30, 1884, said Roberts assigned the certificate of purchase to Mary B. Perry. The affidavit, presented to the county clerk, as showing compliance with section 216 of the Revenue act is fatally defective. Section 217 provides: “Every such purchaser or assignee, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, stating particularly the facts relied on as such compliance, which affidavit shall be delivered to the person authorized by law to execute such tax deed '* * * and which '* * * affidavit shall be prima facie evidence that such notice has been given.”

The requirement that such affidavit shall be made by the purchaser or assignee, by himself or agent, is mandatory. By section 216 of the act it is provided that hereafter no purchaser, or assignee of such purchaser, at any tax sale, shall be entitled to a deed for the lands or lots purchased, until he shall have complied with the conditions of that section following. That is, that he shall serve, or cause to be served, a notice of such purchase, as prescribed by the statute, on every person in actual possession or occupancy of the land or lot, and also upon the person in whose name taxed or specially assessed, if upon diligent inquiry he or she can be found in the county, and prescribing the form and time of service of the notice, etc. In Taylor v. Wright, 121 Ill. 467, it was held that the affidavit must be made by the purchaser or assignee, by himself or agent. And this would seem to be so from the plain reading of the statute.

In this case, the affidavit was not made by the purchaser at the tax sale, or by the assignee of the certificate of purchase, but by a stranger to the transaction, who does not even purport to act as the agent either of the purchaser or assignee. Fielden M. Roberts makes the affidavit for and on his own behalf, that “this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices,” etc. It then proceeds: “Said notices stated when he” (affiant) “purchased the real estate, in whose name taxed, the description of the lands purchased, for what year taxed or specially assessed, and when the time of redemption would expire,” and further states: “and that he, this affiant, relies on the facts stated in this affidavit, and on compliance with the provisions of the Constitution and laws of the State of Illinois in this behalf,” etc. Further quotation from the affidavit will be unnecessary. There is no pretense that there was any mistake in the name of the person making the affidavit. It is manifest that the affiant did not purchase the land at the tax sale, but that the purchase was made by W. D. Roberts. It is not shown in the affidavit that the affiant was acting, or claiming to act, for and on behalf either of the purchaser or the assignee of the certificate of purchase. Evidence was offered, tending to show that Bielden M. Boberts was, in fact, the agent of said Mary B. Perry, in respect of perfecting said tax title, and excluded.

It was held in Gage v. Mayer, 117 Ill. 632, that parol evidence cannot be received to supply defects or omissions in the affidavit filed in pursuance of section 217 of the Be venue act, and if the affidavit does not contain the facts necessary to authorize the clerk to act, the deed is unauthorized and nugatory, regardless of what the real fact is. And the same was in effect held in Combs et al. v. Goff, 127 Ill. 431. To give jurisdiction to the county clerk to' act in the matter of execution of the deed, it is necessary that an affidavit should be presented, in conformity with section 217, showing strict compliance with section 216. Otherwise, the act of the clerk would be unauthorized and void. Hughes v. Game, 135 Ill. 519; Gage v. Hervey, Ill id. 305; Davis v. Gossnell, 113 id. 121.

The court did not err, therefore, in rejecting the offered evidence, or in refusing to admit the deed in evidence as title. Numerous other errors are pointed out in respect of the tax deed, but it is unnecessary, in view of what has been said, to consider them.

We are of opinion that the plaintiff showed that he was seized of an estate for his life in the premises mentioned in the declaration, and was entitled, as against the defendants, to recover the same. Finding no error in the record, the judgment will be affirmed. The death of appellee having been suggested of record in this cause, it is ordered that the judgment of affirmance be entered now as of the day of the submission of this cause in this court, to-wit: June 10, 1892.

Judgment affirmed.