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Keywords

willlevy
willlevy

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Darst v. Swearingen, 224 Ill. 229, 79 N.E. 635, 115 Am.St.Rep. 152

Facts

Joseph B. McCorkle died testate, leaving a will that bequeathed his homestead and certain lands to his wife for her lifetime, with the proceeds from the sale of the property to be divided among his six children after her death. The widow occupied the homestead until her death in 1905. In 1902, Orpha Jane Hedrick assigned her interest in the proceeds from the sale of the real estate to Ezra F. Swearingen. However, a judgment against Hedrick led to a sheriff's sale of her interest, which Swearingen contested, claiming that Hedrick had no vested title at the time of the sale.

Joseph B. McCorkle died testate, leaving a will that bequeathed his homestead and certain lands to his wife for her lifetime, with the proceeds from the sale of the property to be divided among his six children after her death.

Issue

Did Orpha Jane Hedrick take real estate or personal property under the fourth clause of her father's will?

Did Orpha Jane Hedrick take real estate or personal property under the fourth clause of her father's will?

Rule

A devise of real estate that is to be converted into money and distributed among devisees is treated as a devise of money, not land, unless all devisees agree to change the character of the devise.

A devise of real estate that is to be converted into money and distributed among devisees is treated as a devise of money, not land, unless all devisees agree to change the character of the devise.

Analysis

The court analyzed the will's provisions and determined that the interest granted to Orpha Jane Hedrick was a right to money derived from the sale of the property, rather than a vested interest in real estate. Since the will specified that the property was to be sold and the proceeds divided, Hedrick's interest was classified as personal property, which could not be levied upon by creditors.

The court analyzed the will's provisions and determined that the interest granted to Orpha Jane Hedrick was a right to money derived from the sale of the property, rather than a vested interest in real estate.

Conclusion

The court concluded that the levy and sale of Orpha Jane Hedrick's interest were void, affirming the lower court's decree in favor of Swearingen.

The court concluded that the levy and sale of Orpha Jane Hedrick's interest were void, affirming the lower court's decree in favor of Swearingen.

Who won?

Ezra F. Swearingen prevailed in the case because the court found that Orpha Jane Hedrick's interest was personal property, not real estate, thus invalidating the creditor's claim.

Ezra F. Swearingen prevailed in the case because the court found that Orpha Jane Hedrick's interest was personal property, not real estate, thus invalidating the creditor's claim.

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