Cassem v. Prindle

• Decision Date: 02 April 1913
• Parties: CASSEM v. PRINDLE et al.
• Court: Illinois Supreme Court

258 Ill. 11

101 N.E. 241

CASSEM

v.PRINDLE et al.

Supreme Court of Illinois.

Feb. 20, 1913.

Rehearing Denied April 2, 1913.

Appeal from Circuit Court, Kane County: Duane J. Carnes, Judge.

Consolidated suit by Maggie Adelia Cassem against Kate Terry Prindle and others to contest a will, and suit by the latter against the former for partition. From a decree granting partition and refusing to vacate the probate of the will, Maggie Adelia Cassem appeals. Affirmed.Botsford & McCarthy, of Elgin (Russell & McNerney, of Elgin, of counsel), for appellant.

C. F. Irwin and R. S. Egan, both of Elgin, and John M. Raymond and John K. Newhall, both of Aurora, for appellees.

COOKE, J.

On the 12th day of October, 1910, Kate Terry Prindle, one of the appellees herein, filed her bill in the circuit court of Kane county for the partition of certain real estate therein described between her sister, Laura Terry Hunt (also one of the appellees herein), and herself; title to said premises being claimed by virtue of the last will and testament of Richard Terry, the grandfather of the appellees, executed March 17, 1888, and admitted to probate in the probate court of Kane county on September 26, 1910, as a will which had been lost or destroyed after the death of the testator. Thereafter, on July 28, 1911, Maggie A. Cassem, the appellant herein and one of the defendants to the partition suit, filed her bill in the circuit court of Kane county to contest the said last will and testament of RichardTerry, deceased, which had been so admitted to probate on September 26, 1910. By stipulation a jury was waived in the will case, and the causes were consolidated in the circuit court and were heard together.

On the hearing it was shown that Richard Terry, the grandfather of appellees, died April 1, 1888, leaving surviving him his wife, Ann Eliza Terry, and his son, Arthur Terry, as his only heirs at law. The appellees were daughters of the said Arthur Terry, and at that time were 13 and 15 years of age. On or about March 17, 1888, Richard Terry employed C. I. McNett, an attorney residing in the city of Aurora, to draw his last will and testament, and the same was executed by him on that date in the presence of McNett and Dr. W. T. Patterson, then of Aurora, who subscribed the same as witnesses. The will was left in the custody of Richard Terry, who on that occasion requested Dr. Patterson to see that the same was filed for probate after his death. About three weeks after the death of Richard Terry, Dr. Patterson called upon Ann Eliza Terry, the widow, and requested her to deliver to him the will, in order that he might file the same for probate, as he had promised the testator. The will was produced at that time, but was not delivered to Dr. Patterson, as Mrs. Terry expressed a desire to consult with her son, Arthur, before delivering the same to him. This is the last time Dr. Patterson ever saw the will, and the last time, so far as is shown by the proof, that the instrument was seen by any one. This particular instrument was never filed for probate. Richard Terry died seised of lot 10 and the east 112 feet of lot 7, in block 16, of the original town of Aurora, Kane county, Ill. On April 20, 1888, Arthur Terry and his wife, by quitclaim deeds, conveyed the said real estate to the said Ann Eliza Terry, and on July 26, 1889, she, in turn, conveyed by warranty deed said lot 10, in block 16, to one Randall Cassem, an attorney, who resided in the city of Aurora; the expressed consideration being $100. On February 4, 1890, Ann Eliza Terry also conveyed by warranty deed to said Randall Cassem the remainder of the real estate of which her husband died seised, being the east 112 feet of lot 7, in said block 16, subject to an incumbrance of $900; the expressed consideration being $3,500. On October 22, 1897, Randall Cassem and said Maggie A. Cassem, his wife, conveyed by warranty deed to one L. V. Pike said lot 10, in block 16, and said Pike immediately thereafter went into actual possession of said premises, and from that time has been in the continuous and exclusive possession of the same, and has occupied the same as his homestead. On November 14, 1909, Randall Cassem died testate, leaving appellant, Maggie A. Cassem, his widow and sole devisee under a last will and testament, in which said Maggie A. Cassem was also appointed executrix. Ever since February 4, 1890, the said east 112 feet of lot 7, in block 16, have been in the possession of the said Randall Cassem and his devisee, Maggie A. Cassem, and have been occupied by them during all of that time as a homestead. Arthur Terry died May 1, 1905, and the said Ann Eliza Terry died December 12, 1908. As has been stated, the last will and testament of said Richard Terry was established and admitted to probate in the probate court of Kane county on September 26, 1910, upon the petition of appellees, who represented that the same had been lost or destroyed since the death of said Richard Terry. By said last will and testament so established and admitted to probate, said Richard Terry devised and bequeathed to his wife, Ann Eliza Terry, for and during her natural life, all of his property, both real and personal, of which he should die seised, and at her death he devised and bequeathed the same to his grandchildren, Kate Terry (now Kate Terry Prindle) and Laura Terry (now Laura Terry Hunt), the appellees herein. G. A. Dulmage, a resident of the city of Chicago, was appointed executor. Dulmagehaving died prior to the probate of the will, letters testamentary have been issued to another.

The court found the issues for the complainant in the partition suit, and decreed partition of the said east 112 feet of lot 7, in block 16, between the appellees. The decree further found that L. V. Pike was a bona fide innocent purchaser for value of said lot 10, in block 16, and that the value of said lot 10 at the time of the death of Ann Eliza Terry was $10,000, and decreed that said Maggie A. Cassem, as executor of the last will and testament of Randall Cassem, should pay to appellees the sum of $11,700 in due course of administration, being the value of said lot 10 at the time of the death of Ann Eliza Terry, together with interest thereon. In the will case the court found and decreed that the instrument established as the will of Richard Terry and admitted to probate in the probate court of Kane county on September 26, 1910, was the last will and testament of the said Richard Terry, deceased. Separate appeals were prayed and allowed from these decrees to this court, and the causes have again been consolidated here.

[1] It is contended on the part of appellees that appellant, Maggie A. Cassem, as a remote grantee of an heir at law of Richard Terry, was not a ‘person interested,’ within the meaning of the statute providing for the contest of wills, and was therefore not authorized to maintain her bill to set aside the last will and testament of Richard Terry. Section 7 of the act in regard to wills (Hurd's Rev. St. 1911, c. 148) provides that when any will shall be admitted to probate any person interested may, within one year after such probate, contest the validity of the same by a bill in chancery. The words ‘any person interested’ mean any person who has a direct, existing, pecuniary interest which will be detrimentally affected by the probate of the will. McDonald v. White, 130 Ill. 493, 22 N. E. 599;Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860,130 Am. St. Rep. 180. See, also, Adams v. First M. E. Church, 251 Ill. 268, 96 N. E. 253. Appellant, Maggie A. Cassem, had such an interest, and had the right to file this bill. Her interest existed at the time the will of Richard Terry was admitted to probate, and it was a pecuniary interest which was vitally affected by the probate of the will. While she was not an heir at law or a devisee of Richard Terry, she was a remote grantee of an heir at law by virtue of conveyances made before the will was admitted to probate, and was such an interested person as was entitled to maintain this suit.

[2] Dr. W. T. Patterson had removed to the state of Louisiana prior to the time this litigation arose, and his deposition was taken in the partition suit. The bill for partition, among other things, set up the execution, loss, and probate of the last will and testament of Richard Terry. Dr. Patterson testified fully as to the circumstances surrounding the execution of the will, its attestation, and the contents of the same. His deposition was read and considered upon the hearing of the consolidated causes, and appellant, Maggie A. Cassem, now contends that the same was not competent to be considered in the will case. The stipulation upon which the order consolidating the causes was based, and which was filed in the will case, provided that that case should be tried by the court without a jury, and should be consolidated with the partition suit and the issues tried together by the court upon reasonable notice to both sides. The basis for the objection is that this deposition was taken before the bill was filed in the will case, and that no opportunity was had to cross-examine Dr. Patterson in the light of the issues presented in that case. The validity of the will of Richard Terry, as probated, was drawn in question by the pleadings in both suits. While it is true that the deposition of Dr. Patterson was taken before the filing of the bill in the will case, it is also true that it was taken before the above stipulation was entered into. The same attorneys represented appellant, Maggie A. Cassem, in the will case who represented her individually and as executrix in the partition suit. When the deposition of Dr. Patterson was read upon the hearing of the consolidated causes, no objection was made to this testimony being considered in the will case. Under these circumstances, and in view of the fact that one of the evident purposes of...