165 N.E. 650 (Ill. 1929), 19151, Koester v. Jennings

Docket Nº19151.
Citation165 N.E. 650, 334 Ill. 107
Opinion JudgeSTONE, J.
Party NameKOESTER v. JENNINGS et al.
AttorneyHector A. Brouillet, of Chicago (Clyde C. Fisher, of Chicago, of counsel), for appellant. Edgar D. Mohan, Castle, Williams, Long & Castle, Campbell & Fischer, Frank W. Swett, and Ringer, Wilhartz & Hirsch, all of Chicago, for appellees.
Case DateFebruary 20, 1929
CourtSupreme Court of Illinois

Page 650

165 N.E. 650 (Ill. 1929)

334 Ill. 107

KOESTER

v.

JENNINGS et al.

No. 19151.

Supreme Court of Illinois

February 20, 1929

Petition by Edward C. Koester against George T. Jennings and others to probate a lost will of Edwin B. Jennings, deceased. The probate court denied the petition, and, on appeal, the circuit court also denied the petition, and petitioner appeals.

Affirmed.

[334 Ill. 108] Appeal from Circuit Court, Cook County; H. Sterling Pomeroy, judge.

Hector A. Brouillet, of Chicago (Clyde C. Fisher, of Chicago, of counsel), for appellant.

Edgar D. Mohan, Castle, Williams, Long & Castle, Campbell & Fischer, Frank W. Swett, and Ringer, Wilhartz & Hirsch, all of Chicago, for appellees.

STONE, J.

This is an appeal from an order of the circuit court of Cook county denying the petition of appellant to probate a lost will of Edwin B. Jennings, deceased. Jennings died in the city of Chicago on October 31, 1923, leaving a substantial estate in real and personal property in Cook county. On November 2, 1923, the probate court of that county appointed administrators of his estate. That court found that he left surviving him as his only heirs at law and next of kin, George T. Jennings, Edna E. Quest, Florence E. Brady, Charles R. Jennings, John A. Jennings, Norman C. Brizse, Sarah M. O'Carr, and Cassey Bogart. This finding of heirship was later approved in the case of Bogart v. Brazee, 331 Ill. 160, 162 N.E. 877. On January 26, 1926, appellant, Edward C. Koester, sent by mail to a firm of attorneys in the city of Chicago a document purporting to be the will of Edwin B. Jennings. Accompanying the same was a letter requesting the attorneys to file the will in the probate court. On February 1, 1926, this document was filed in the probate court of Cook county. On October 23, 1926, appellant filed a petition in the probate court to probate the document filed on February 1, 1926. In this petition he set forth the names of the eight persons included in the table of heirship and the names of many other claimants to heirship. By his petition he described himself as 'the sole legatee and devisee[334 Ill. 109] under the will of said deceased,' but made no claim to heirship, stating that he was without knowledge of the names and relations of the heirs of Edwin B. Jennings. At the time he mailed the purported will to Chicago, and up to December, 1926, appellant was in the state penitentiary of Michigan, at Marquette. The petition came on for hearing in the probate court in March, 1927. The proponent produced one of the attesting witnesses, Mary S. Warner, who testified that the document filed in the probate court was prepared by her at the direction of Edwin B. Jennings on October 3, 1918, and that at his direction she signed his name, and he thereupon signed the same by two crosses, and that the instrument was thereupon signed by herself, William Lawrence, and Lester Ensign as witnesses. The respondents in that hearing produced a witness, one Oberweiser, who testified that by the water marks in the paper on which the purported will was written he was able to determine that that paper was not manufactured prior to the year 1920. The probate court thereupon denied probate of the purported will, and appellant, who was proponent in that case, prayed and perfected an appeal to the circuit court of Cook county. On Setember 20, 1927, while appellant's appeal was pending in the circuit court, a second petition was filed by him in the probate court alleging that the paper then on file in the office of the probate clerk, which the previous petition sought to probate, is, in fact, a forgery, and that appellant, as proponent in the second petition, would have his appeal in the original petition dismissed as soon as it could be reached on call. This second petition set forth an alleged copy of a will which it stated was executed by Jennings on October 3, 1918, the original of which, however, had been, without the knowledge of the petitioner, destroyed or lost. The petition prayed for further hearing concerning the facts of the matter and that the probate court find that the paper now on [334 Ill. 110] file purporting to be the last will and testament of Jennings is, in fact, a forgery, and that the copy of the purported will as set forth in the second petition be probated as the lost will of Jennings. In January, 1928, the second petition was heard in the probate court, and the witnesses Mary S. Warner and Lester Ensign testified. This petition was denied by the probate court, and an appeal was taken to the circuit court, where, in June, 1928, the petition was again heard and again denied, and the cause comes here on appeal, for the reason that Edwin B. Jennings died leaving real property in the county of Cook.

On hearing in the circuit court, Mary S. Warner testified...

To continue reading

Request your trial
49 practice notes
  • 293 F.Supp. 1328 (D.D.C. 1968), Civ. A. 2975-67, Burke v. Washington Hospital Center
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • 6 Diciembre 1968
    ...One of the leading cases upholding and applying this doctrine is a Massachusetts decision in Cappuci v. Barone (1929) 266 Mass. 578, 165 N.E. 653. There, a surgical operation was performed on the plaintiff in May 1924. The fact that a piece of gauze was Page 1330 in the wound during the ope......
  • 49 N.E.2d 795 (Ill.App. 1 Dist. 1943), 42538, Gangloff v. Apfelbach
    • United States
    • Illinois United States Appellate Court of Illinois
    • 16 Junio 1943
    ...action of this kind from the date of the wrongful act rather than from the date of the damage caused. Cappucci v. Barone, 266 Mass. 578, 165 N.E. 653; Ogg v. Robb, 181 Iowa [145], 155, 162 N.W. 217, L.R.A.1918C, 981; Hahn v. Claybrook, 130 Md. 179, 100 A. 83, L.R.A.1917C, 1169; Wetzel v. Pi......
  • 295 Mass. 234 (1936), Norwood Trust Co. v. Twenty-Four Federal St. Corp.
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 9 Septiembre 1936
    ...L.R.A.(N.S.) 701, Ann.Cas.1916A, 883; O'Brien v. McSherry, 222 Mass. 147, 150, 109 N.E. 904; Cappucci v. Barone, 266 Mass. 578, 581, 165 N.E. 653.The mere failure of a wrongdoer to disclose his wrongdoing, where no fiduciary relation exists, is not a fraudulent concealment of the cause of a......
  • 428 A.2d 1189 (Me. 1981), Anderson v. Neal
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • 30 Abril 1981
    ...actions. See Franklin v. Albert, supra, 411 N.E.2d at 461, announcing a discovery rule and overruling Capucci v. Barone, 266 Mass. 578, 165 N.E. 653 (1929), which defined the time of accrual in medical malpractice cases as the date of the malpractice. Agreeing with the Supreme Court of Oreg......
  • Request a trial to view additional results
49 cases
  • 293 F.Supp. 1328 (D.D.C. 1968), Civ. A. 2975-67, Burke v. Washington Hospital Center
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • 6 Diciembre 1968
    ...One of the leading cases upholding and applying this doctrine is a Massachusetts decision in Cappuci v. Barone (1929) 266 Mass. 578, 165 N.E. 653. There, a surgical operation was performed on the plaintiff in May 1924. The fact that a piece of gauze was Page 1330 in the wound during the ope......
  • 49 N.E.2d 795 (Ill.App. 1 Dist. 1943), 42538, Gangloff v. Apfelbach
    • United States
    • Illinois United States Appellate Court of Illinois
    • 16 Junio 1943
    ...action of this kind from the date of the wrongful act rather than from the date of the damage caused. Cappucci v. Barone, 266 Mass. 578, 165 N.E. 653; Ogg v. Robb, 181 Iowa [145], 155, 162 N.W. 217, L.R.A.1918C, 981; Hahn v. Claybrook, 130 Md. 179, 100 A. 83, L.R.A.1917C, 1169; Wetzel v. Pi......
  • 295 Mass. 234 (1936), Norwood Trust Co. v. Twenty-Four Federal St. Corp.
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 9 Septiembre 1936
    ...L.R.A.(N.S.) 701, Ann.Cas.1916A, 883; O'Brien v. McSherry, 222 Mass. 147, 150, 109 N.E. 904; Cappucci v. Barone, 266 Mass. 578, 581, 165 N.E. 653.The mere failure of a wrongdoer to disclose his wrongdoing, where no fiduciary relation exists, is not a fraudulent concealment of the cause of a......
  • 428 A.2d 1189 (Me. 1981), Anderson v. Neal
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • 30 Abril 1981
    ...actions. See Franklin v. Albert, supra, 411 N.E.2d at 461, announcing a discovery rule and overruling Capucci v. Barone, 266 Mass. 578, 165 N.E. 653 (1929), which defined the time of accrual in medical malpractice cases as the date of the malpractice. Agreeing with the Supreme Court of Oreg......
  • Request a trial to view additional results