Bley v. Luebeck

• Decision Date: 13 June 1941
• Docket Number: No. 25987.,25987.
• Citation: 377 Ill. 50,35 N.E.2d 334
• Parties: BLEY v. LUEBECK et al.
• Court: Illinois Supreme Court

377 Ill. 50

35 N.E.2d 334

BLEY

v.LUEBECK et al.

No. 25987.

Supreme Court of Illinois.

June 13, 1941.

Proceeding by Pearl Barkley Bley for the probate of the will of William T. Workman, opposed by Elijah S. Luebeck and others. From an adverse order, contestants appeal.

Reversed and remanded.Appeal from Circuit Court, Cass County; A. Clay Williams, judge.

Velde & Coppel, of Havana, Guy B. Reno, of Rockford, and Clarence W. Heyl, of Peoria, for appellants.

R. L. Northcutt, of Beardstown, and William J. Dieterich, of Quincy, for appellee.

SMITH, Justice.

This is an appeal from a decree of the circuit court of Cass county admitting to probate a copy of an alleged last will and testament of William T. Workman, as a lost will.

William T. Workman resided in the city of Beardstown for many years prior to his death. His death occurred on October 17, 1938. At the time of his death he was the owner of a substantial estate consisting of both real and personal property. He left no widow, child, or children, or descendants of child or children, him surviving. His nearest relatives, at the time of his death, were three sisters and a number of nieces, nephews, grandnieces and grandnephews, who constituted his heirsat-law. On January 23, 1934, the deceased executed a last will and testament. It was prepared by an attorney. No question is raised as to its due execution and attestation, or as to the mental capacity of the testator. The will, after it was executed by the testator and attested by the witnesses, was delivered to the testator. The attorney retained a carbon copy consisting of four type-written pages.

On October 24, 1938, Elijah S. Luebeck and Eura Haist, two of the appellants in this case, were appointed administrators of the estate of William T. Workman, deceased, by the county court of Cass county. Thereafter, on November 10, 1939, appellee Pearl Barkley Bley filed a petition in said court alleging that the deceased left a last will and testament. To this petition she attached what she alleged to be a true copy of said will. The petition further alleged that said will had been lost, or destroyed, subsequent to the death of the testator, and asked that the said will be established as a lost will, and that the copy attached to the petition be admitted to probate as the last will and testament of the deceased.

Upon a hearing, the county court admitted the copy of the will attached to the petition to probate as a true and correct copy of the lost will, and further found that said will had never been destroyed, revoked, or modified by the testator in his lifetime. Appellee was appointed executrix without bond, as directed in the purported last will and testament. The testator, by the purported will, gave to appellee all of his personal estate and, in addition thereto, some two hundred acres of land in Cass county, Illinois. She was not related to him in any way. As already observed, it is not disputed that the deceased did, in fact, execute the will as alleged in the petition for probate, nor is any question raised as to his soundness of mind at that time. It is also conceded that the copy attached to the petition for probate is a true copy of the will so executed by deceased on January 23, 1934.

Appellants perfected an appeal from the order of the county court admitting the will to probate to the circuit court of Cass county. Upon a hearing in the circuit court, that court entered an order establishing the copy attached to the petition to probate as a true copy of the lost will and admitted the same to probate as such. The case is here on appeal from that order, by appellants, who constitute the heirsat-law of the deceased.

On the hearing in the circuit court appellee, as the proponent, offered evidence tending to show the due execution and attestation of the will; that the original will was in existence at the time of the death of the deceased, and that it had been lost, or destroyed, subsequent to that time. On that hearing the appellants offered a large number of witnesses. The testimony of some of these witnesses tended to impeach the testimony of witnesses offered by appellee tending to show that the will was in existence at the time of the death of the deceased. The testimony of other witnesses examined by appellants on that hearing tended to show that the deceased had destroyed the will prior to his death.

At the conclusion of the hearing the court, on motion of appellee, struck all of the testimony and evidence offered by appellants tending to impeach the testimony offered by appellee on the subject of the existence of the will at the time of, and subsequent to, the death of the deceased. The court, also, struck all of the testimony and evidence offered by appellants tending to show that the deceased, in his lifetime, had revoked, or destroyed, the will. This action was taken, because the court was of the opinion that under section 71 of the Probate Act of 1939, Ill.Rev.Stat.1939, chap. 3, par. 223, the court was not authorized to hear any evidence on the appeal from the probate court, offered by contestants, except evidence of fraud, forgery, compulsion, or other improper conduct. The court proceeded upon the theory that all such evidence was incompetent; that the proponent having established primafacie, the due execution and attestation of the will, its existence at the time of the death of the testator and its subsequent loss, or destruction, no other evidence was competent or admissible, and that the court had no alternative except to admit the will to probate as a lost will.

Counsel in this court, both by their briefs and on oral argument, have limited the issues to the sole question of whether the limitation imposed on contestants by section 71 of the Probate Act applies to a hearing in the circuit court on an appeal from an order of the county court admitting a lost will to probate. At the threshold of this inquiry it will be of aid to refer briefly to the history of the decisions and legislation in this State relating to appeals to the circuit court from orders of a county court admitting, or refusing to admit, wills to probate.

As early as 1840 this court, in the case of Walker v. Walker, 2 Scam. 291, established the rule that on a hearing to probate a will no witnesses could be heard except the attesting witnesses. The court in that case further held this rule applied to a hearing on appeal from an order of the county court either admitting, or refusing to admit, a will to probate.

In 1845, for the obvious purpose of in part relieving the proponent in proceedings to probate a will, from the rule established by the court in the above case, the legislature, by statute, provided that when probate of any will shall have been refused, and an appeal shall have been taken from the order refusing to admit said will to probate to the circuit court, it shall be competent for the propoent to support the will on the hearing in the circuit court by evidence other than the testimony of the subscribing witnesses. Rev.Stat.1845, p. 596.

This provision was continued in the act of 1872 relating to wills and was preserved in the general revision of the statutes of 1874 as section 13 of the chapter on wills. Rev.Stat.1874, chap. 148, sec. 13. By these statutory provisions, when the probate of a will was refused by the probate court, then, on an appeal from the order refusing to admit such will to probate, the party seeking probate of the will was authorized to support the same on the hearing in the circuit court by any evidence competent to establish the will in chancery. Under these statutes, the right of a contestant to produce evidence on the hearing on appeal in the circuit court was still limited to the cross-examination of the subscribing witnesses, and any other witnesses produced by the proponent on such hearing. It should also be noted that the right of a proponent to offer evidence on such hearing, other than the testimony of the subscribing witnesses, was limited to cases where the probate of the will had been denied by the order appealed from. In no event did the contestant have a right to call witnesses to testify on the hearing in the circuit court. Nevertheless, the contestant's rights were protected in all cases because he had the right to contest the will by an appropriate proceeding in the circuit court after the will had been admitted to probate. Originally, if the proponent was unable to sustain the will on the hearing in the probate court by the testimony of the subscribing witnesses, he had no further remedy. True, he could appeal to the circuit court, but he was there also limited to the testimony of the subscribing witnesses. The necessity of relieving a proponent from this situation obviously led to the modification of the rule by the above statutes giving him the right on the hearing on appeal in the circuit court to sustain the will by any competent evidence, and not limiting him to a trial de novo upon the testimony of the subscribing witnesses alone, to which he was limited on the hearing in the probate court.

The legislature undoubtedly deemed it unwise to create two methods by which a contestant should have the right to contesta will; first, by offering general evidence on the hearing in the probate court, or on appeal in the circuit court, and second, by an independent suit to contest the will after it had been admitted to probate. It should be observed in this connection that for many years proceedings to probate a will were regarded as ex parte and not inter partes. Such a proceeding was not regarded as controversial, but wholly ex parte.

Section 2 of the act of 1874 made it the duty of the court to admit the will to probate if, by the testimony of two or more of the attesting witnesses, it was shown that the will was duly executed and attested and that the testator was of sound mind. ‘Provided, that no proof of fraud, forgery, compulsion or other improper conduct...