Chaney v. Baker

• Decision Date: 19 April 1922
• Docket Number: No. 14257.,14257.
• Citation: 135 N.E. 14,302 Ill. 481
• Parties: CHANEY et al. v. BAKER et al.
• Court: Illinois Supreme Court

302 Ill. 481

135 N.E. 14

CHANEY et al.

v.BAKER et al.

No. 14257.

Supreme Court of Illinois.

April 19, 1922.

Error to Circuit Court, De Witt County; George A. Sentel, Judge.

Suit by Mary Jane Chaney and others against Drew Baker and others. From a judgment for defendants, plaintiffs bring error.

Plaintiffs' demurrer to defendants' first plea of release of errors sustained, and defendants' demurrer to plaintiffs' replication carried back and sustained as to defendants' other pleas of release of errors.

W. F. Gray and A. F. Miller, both of Clinton, and Charles G. Miller and Le Forgee, Black & Samuels, all of Decatur, for plaintiffs in error.

Herrick & Herrick, of Clinton, for defendants in error.

CARTWRIGHT, J.

John Baker executed his last will and testament on October 30, 1916, in which he named his sons, Drew Baker and Wesley Baker, as executors. He died on June 10, 1918, leaving Fannie Baker, his widow, Drew Baker and Wesley Baker, his sons, and Mary Jane Chaney, Martha Ella Shinneman, Samantha A. Long, Alice Chaney, Rosa B. Adams, and Emma Halcom, his daughters, his heirs at law. The will was admitted to probate, and the daughters, except Emma Halcom, filed their bill in the circuit court of De Witt county to set aside the probate of the will, charging mental incapacity and undue influence, and making the two sons, Emma Halcom, and the widow defendants. The widow and Emma Halcom were defaulted, and the sons answered the bill. Issues were made up, and on a trial the court withdrew the question of undue influence, and there was a verdict sustaining the will, with a finding that the testator was of sound mind and memory when he executed the same. The widow, Fannie Baker, died on July 2, 1920, and the complainants in the bill sued out a writ of error from this court, making the sons and Emma Halcom defendants, and by the assignment of errors questioned the findings of fact and decree and rulings of the court in the admission of evidence and in giving and refusing instructions. Drew Baker and Wesley Baker, two of the defendants in error, in their own right and as executors, filed eight pleas of release of errors. The plaintiffs in error demurred to the first plea, and filed a replication to the others, and the two defendants in error who filed the pleas demurred to the replication.

The first plea alleged that after the rendition of the decree in the circuit court of De Witt county, and before the suing out of the writ of error, the plaintiffs in error on August 20, 1920, filed their bill in the circuit court of De Witt county against the defendants in error and others, setting forth the will of John Baker in haec verba, the admission of the will to probate, the filing of the bill to contest the will and the resulting verdict and decree; that the bill so filed then alleged that the cause was yet to be reviewed by this court and the litigation would be pending for some time, in order to determine whether the will was valid; that Drew Baker and Wesley Baker, as executors or individuals, had taken possession of the farm lands and real estate, and that clauses 7, 8, 9, 10, 11, 13, and 14 of the will were void and contrary to law, in attempting to create a trust extending beyond the lifetime of the widow. In the bill the plaintiffs in error alleged that they could not ask for a construction of the will at that time until the final determination of the contest, and they prayed for the appointment of a receiver to control and manage the farm lands until the final determination of the will contest and if the instrument was finally held to be the will of John Baker the clauses in question should be held void, and in the event the instrument should finally be declared not to be the will of John Baker then the premises should be partitioned.

The argument in support of the plea is that by filing the bill set forth therein the plaintiffs in error recognized that the will was valid and the defendants in error were executors thereof, and recognized the trusts by calling for an accounting of rents and profits, which amounted to a release of errors. The voluntary acceptance by a party of a provision for his benefit conferred by a will precludes him from attacking other lawful provisions of the will. By accepting the benefit he admits the will to be the instrument of the testator, and he cannot take under the will and make a claim against any lawful provision of it. Langher v. Glos, 276 Ill. 342, 114 N. E. 590;Elmore v. Carter, 289 Ill. 560, 124 N. E. 582;Fishburn v. Green, 291 Ill. 350, 126 N. E. 115. So, if a party to a decree voluntarily accepts benefits conferred on him by it, his acceptance is a release of any errors in the decree. Morgan v. Ladd, 2 Gilman (7 Ill.) 414;Thomas v. Negus, 2 Gilman (7 Ill.) 700;Ruckman v. Alwood, 44 Ill. 183;Moore v. Williams, 132 Ill. 591, 24 N. E. 617;Trapp v. Off, 194 Ill. 287, 62 N. E. 615. A qualification of the rule is, that, even though one accepts a benefit under a will and thereby admits that its provisions constitute the will of the testator, he is not precluded from questioning the validity of provisions therein contrary to the law or public policy. Schuknecht v. Schultz, 212 Ill. 43, 72 N. E. 37; Elmore v. Carter, supra; 10 R. C. L. 820.

The decree sustaining the will conferred no benefit upon the plaintiffs in error, but the provisions of the will were contrary to their interests and against their claim as heirs at law. There was nothing in the bill which could be construed as an admission of the validity of the will, or an acceptance of any benefit under it. There was no averment which either directly or inferentially admitted the validity of the will or any of its provisions, and the prayer was that the estate might be preserved until the final determination of the litigation, and, in the event that the will was sustained, to obtain a construction that the clauses relating to a trust were void. The particular provisions of the will relating to a trust were not the subject of litigation in the will contest, but depended upon construction if the will should be sustained. The allegations of the bill and the attitude of the complainants therein were hostile to the will and to the executors, who had taken possession of the farm lands and were assuming to act...