Holman v. Gill

Citations

• 107 Ill. 467
• 1883 Ill. LEXIS 285

Syllabus

<p>1. Partition—decree as to a part of the owners no bar to a second bill. It is a fundamental doctrine of the law of partition that all co-tenants must be made parties to the proceeding, otherwise the decree will be no bar to a second partition, at the suit of the omitted parties.</p> <p>2. Same—may be had, subject to life estate. The fact that a widow may have a life estate in premises left by her husband as an estate of homestead or dower, is no bar to proceedings for partition of such premises between the heirs. Like any other intervening life, estate, it could only postpone the possession of the reversion until its termination.</p> <p>3. Seizin in fee—what constitutes—heir is seized, though subject to dower in land. A bill for partition charged that upon the death of a person his children, eight in number, became seized in fee simple, as tenants in common of certain real estate, of an undivided one-eighth share each, while the proof showed the estate of the children was subject to the widow’s dower and homestead: Held, that there was no variance, as the heirs, in technical language, were severally seized in fee of their respective shares.</p> <p>4. Homestead—as against heirs. Where an owner of real estate died, in 1865, leaving a widow and children, it was held that the widow, under the law then in force, had no homestead in the premises as against the heirs.</p> <p>5. Practice—when to take an objection—as to variance. If a party desires to raise the question, in this court, of variance between an allegation in a bill in chancery and the proof offered, he should make the same specifically in the court below, so as to afford an opportunity to obviate the same by amendment.</p> <p>6. Sajie—when specific objection necessary. A general objection to the evidence offered is not sufficient to raise the question of variance, but is regarded as going to the competency of the evidence. Equity always looks to the real substance of matters put in evidence, and will disrega