Burns v. Miller

Citations

• 110 Ill. 242

Syllabus

<p>1. Description—rejecting one of two descriptions of land in the same instrument. Where there are two descriptions of the same premises in a deed or other writing, one of which is complete and the other has something added which is subordinate and incorrect, the incorrect or subordinate part may be regarded as surplusage.</p> <p>2. A decree on a bill for the assignment of dower and partition of lands found that the ancestor of the heirs, and husband of the widow, died seized of the north-west quarter of the south-west quarter of section 1, and the north half of the south-west quarter of the south-west quarter of section 1, in town 14 south, range 2 east, and other lands described, and appointed commissioners to set apart the widow’s dower in such lands, and divide the residue thereof between the heirs, if partition could be made without prejudice to the owners. The commissioners reported that they had examined “the said real estate,” and set apart and allotted to the widow, “as her dower in full in and to said real estate,” the north-west quarter of the south-west quarter, and the north half of the south-west quarter of the south-west quarter of section 2, town 14 south, range 2 east. It further appeared that the deceased ancestor never owned any such land in section 2: Held, that from the whole decree it was apparent the commissioners never intended to set off to the widow the land described as being in section 2, but on the contrary it was plain that the figure “2” was used when “1” was intended, and that the description of the land as being in section 2 might be rejected as surplusage.</p> <p>3. Evidence—admissions amounting to proof of life tenant’s death. The heirs of a deceased person can not recover in ejectment the lands of their ancestor set off to the widow as dower, during her lifetime; but when it is admitted on the trial that plaintiffs are prima facie entitled to recover the lands in controversy by reason of being the heirs of F. M., deceased, who di