Albrecht v. Hittle

• Decision Date: 21 December 1910
• Citation: Albrecht v. Hittle, 248 Ill. 72, 93 N.E. 351 (Ill. 1910)
• Parties: ALBRECHT et al. v. HITTLE et al.
• Court: Illinois Supreme Court

248 Ill. 72

93 N.E. 351

ALBRECHT et al.

v.HITTLE et al.

Supreme Court of Illinois.

Dec. 21, 1910.

Appeal from Circuit Court, Lee County; Richard S. Farrand, Judge.

Suit by William Albrecht and others against Caroline Hittle and others.From the decree, defendants appeal.Affirmed.

Louis H. Burrell, Trusdell, Smith & Leech, and John E. Erwin, for appellants.

W. H. Winn and Brooks & Brooks, for appellees.

CARTWRIGHT, J.

In this suit, brought by the appellees against the appellants, the circuit court of Lee county entered a decree upon the verdict of a jury setting aside the will of Frederick Augustus Albrecht and the probate of the same.

Three of the defendants were nonresidents of the state, and were brought under the jurisdiction of the court by publication of notice, which is claimed to have been insufficient on account of a defective affidavit.Two of the nonresident defendants appeared in the cause, but one of them was defaulted.The principal objection to the affidavit is that it did not state that process could not be served upon the defendants.It stated that they were not residents of this state, and that the affiant was informed and believed that they resided at certain places therein named, in other states.If a defendant is not a resident of this state, it is not necessary to say that he cannot be served with process, and in this case the summons issued to the sheriff was returned not found as to the three defendants.The provision of the statute for stating that process cannot be served upon a defendant relates only to one who is concealedwithin the state or on due inquiry cannot be found.One making an affidavit as a basis for publication of notice is bound to make due inquiry to ascertain the place of residence of a nonresident defendant, and he may state the fact of his own knowledge; but, if his information is the result of inquiry, he must necessarily state the residence upon information and belief.The statute, therefore, contemplates that such an affidavit may be made, and the objections to the affidavit are not good.

The proceedings at the trial were not entirely free from error; but no different result could be expected upon another trial, and therefore the decree ought not to be reversed on account of them.The testator, Frederick Augustus Albrecht, executed the will on March 19, 1900, and by it he first provided that his wife should have only what the law would allow her.His wife died in his lifetime, so that the provision relating to her did not become operative; and he died on January 1, 1909, leaving 11 children and 7 grandchildren, his heirs at law.By the will the whole estate was given to 5 of the children.The proponents of the will proved that the testator was capable of transacting ordinary business, and there was no evidence to the contrary, so that he was shown to be capable of making a will, if it was not invalidated by insane delusions affecting its provisions.The ground of attack upon the will was that the testator was the subject of such delusions, and the contestants proved that he was in the habit of speaking of his wife to neighbors and acquaintances as a bitch and a whore, and...