Bache v. Ward

• Decision Date: 21 February 1907
• Parties: BACHE et al. v. WARD.
• Court: Illinois Supreme Court

225 Ill. 320

80 N.E. 330

BACHE et al.

v.WARD.

Supreme Court of Illinois.

Feb. 21, 1907.

Appeal from Appellate Court, Second District.

Action by William Bache and another against Nathaniel S. Ward, executor. From an order of the county court, overruling plaintiff's objection to the account of defendant as executor, affirmed by the Appellate Court, plaintiffs appeal. Dismissed.Rosenthal & Hamill and Charles Goodman, for appellants.

Horace R. Brown and Watts A. Johnson, for appellee.

The will of Joseph Ward, deceased, who died July 18, 1903, was admitted to probate in Bureau county on September 14, 1903, and letters testamentary were issued to his son, Nathaniel S. Ward. The testator, at the time of his death, was seised and possessed of real and personal property. He left him surviving nine children and the descendants of two deceased daughters as his heirs at law, who were also the devisees named in his will. After providing for the payment of his debts and funeral expenses, and disposing of his real estate, by paragraph 11 of his will he gave and bequeathed unto the three children of his ‘deceased daughter, Mary M. Bache, to wit, William Bache, Joseph Bache and John Bache, the sum of two hundred (200) dollars, each, absolutely and forever;’ and by paragraph 14 he gave, bequeathed, and devised one-eleventh of the residue of his estate to each of his nine living children, one-eleventh to Charles Criswell, the only child of a deceased daughter, and ‘one eleventh (1/11) thereof to said William, Joseph and John Bache.’ John Bache died prior to Joseph Ward, leaving no issue him surviving.

On December 17, 1904, the executor filed in the county court of Bureau county his final account and report, showing a balance in his hands of $19,594.68 subject to distribution, and reported that the share of the estate which would have gone to John Bache had he survived the testator, which amounted to the sum of $789.93, should be distributed between the heirs at law of Joseph Ward, deceased, as intestate estate, according to the laws of descent of the state of Illinois. William Bache and Joseph Bache entered their appearance and filed 18 objections to the account and report of said executor, the fourteenth objection being to the effect that the executor had in said account and report credited himself with the sum of $1,066.33 as his fees as executor, which sum was averred to be grossly excessive; and the seventeenth objection challenged the correctness of the report, so far as it averred that the share of the estate which would have gone to John Bache, deceased, had he been living at the time of the death of Joseph Ward, deceased, should be treated and considered as intestate estate and distributed between the heirs at law of Joseph Ward, deceased, according to the laws of descent of the state of Illinois, and charged, on the contrary, that the share of John Bache, deceased, in said estate, by reason of his death prior to the death of Joseph Ward, deceased, became payable to William Bache and Joseph Bache, as the bequest to William, Joseph and John Bache was said to be a class, and not to them individually. The objections to the account and report of the executor, other than objections 14 and 17, are not here involved, and therefore not material to the questions raised on this appeal. The county court overruled said objections 14 and 17, together with the other objections filed to said account and report which were not withdrawn, and ordered the residuary estate shown by said account and report to be in the hands of the executor to be distributed according to the showing made in said report, whereupon William Bache and Joseph Bache prosecuted an appeal from the order of the county court to the circuit court of Bureau county in so far as it overruled objections 14 and 17 to said report, which prayer for an appeal, and the order granting the same, appear in the record in the following form: ‘And thereupon the said Joseph Bache and William Bache pray an appeal from so much of the foregoing order as overrules the fourteenth and seventeenth objections to said account and report, to the circuit court of Bureau county, Ill., which is allowed upon the said Joseph Bache and William Bache filing their bond herein in the penal sum of $200, with surety to be approved by the court, within 20 days, conditioned as the law directs.’ The appeal was perfected to the circuit court by filing a transcript of the proceedings in the county court and an appeal bond, and, on the hearing in that court, the executor's fees were reduced to $1,056.45, and thereupon the bill of exceptions recites, the ‘appellants and objectors, William Bache and Joseph Bache, here now agree in open court not to review or question the allowance of said executor's fees by appeal, writ of error, or in any other mode,’ and an order was entered overruling the said fourteenth and seventeenth objections, and the case was ‘referred back to the said county court for the final settlement and distribution of said estate pursuant to said order of this court, and that said appellants and objectors, William Bache and Joseph Bache, pay the costs of their appeal,’ whereupon an appeal was prayed and perfected to the Appellate Court for the Second District, where the order of the circuit court was affirmed, and a further appeal has been prosecuted to this court.

HAND, J. (after stating the facts).

A motion has been made in this court to dismiss this appeal for want of jurisdiction in this court to hear and determine the same, on the ground that the amount involved is less than $1,000, and no certificate of importance was granted by the...