Clark v. Shawen

• Decision Date: 18 April 1901
• Citation: 60 N.E. 116,190 Ill. 47
• Parties: CLARK v. SHAWEN et al.
• Court: Illinois Supreme Court

190 Ill. 47

60 N.E. 116

CLARK

v.SHAWEN et al.

Supreme Court of Illinois.

April 18, 1901.

Error to circuit court, Morgan county; James A. Creighton, Judge.

Bill by Inathe Clark, by her next friend, against Elizabeth A. Shawen and others. From a decree dismissing the bill, complainant brings error. Affirmed.R. W. Mills, for plaintiff in error.

Morrison, Worthington & Reeve, for defendants in error.

This is a bill in chancery filed on April 6, 1900, by the plaintiff in error, an infant, who sues by her next friend, Hettie Hall, for the purpose of reviewing, vacating, and setting aside a decree entered at the November term, 1898, of the circuit court of Morgan county in a certain proceeding instituted in said court for the purpose of construing the will of one William C. Clark, deceased; the defendants to said bill being the defendants in error herein, who are the heirs and descendants of one Ruth Potts, a deceased sister of said testator, except the defendant in error Michael Kinney, the executor of the will of said deceased testator. The plaintiff in error in her bill recites that she sues not only in her own behalf, but on behalf of all others similarly interested who might come in and join in the bill, and assist in defraying the costs and expenses, etc. Certain persons, heirs and descendants of Sarah Clark, the widow of the deceased testator, William C. Clark, came in by petition, and asked to be made parties complainant in the bill. After the bill was amended, a general and special demurrer was filed thereto by the defendants below, who are the defendants in error here, and upon argument the demurrer was sustained and the bill was dismissed. The present writ of error is sued out for the purpose of reviewing the decree of the court sustaining the demurrer to the bill and dismissing the same.

The will of William C. Clark was executed on June 24, 1882, and is set out (with the exception of the omitted clause referred to in the opinion) in Kinney v. Keplinger, 172 Ill. 449, 50 N. E. 131. William C. Clark died, leaving said will, on or about July 18, 1882, leaving, him surviving, his widow, Sarah Clark, but no child or descendant thereof, and no parent, living. Sarah Clark acted as executrix of his will until April 15, 1896, when she died intestate. On May 9, 1896, letters testamentary were granted to Michael Kinney as executor of the will of William C. Clark. Michael Kinney, as such executor, filed his bill in the Morgan county circuit court for a construction of the will, so far only as it related to his rights as executor to control the real estate of William C. Clark, and made the heirs and devisees of the testator defendants to the bill. The bill so filed was prosecuted to a final decree, in which the provisions of the will relating to the real estate of the testator were construed. The present bill of the plaintiff in error alleges that said decree remains of record, but that all of the files in the proceeding instituted by said executor for the construction of the will have been lost, so that plaintiff in error could not state with any certainty what said bill contained.

As appears from the allegations of the present bill filed by plaintiff in error, after the rendition of the final decree in the cause of Michael Kinney, executor, against the heirs and devisees of William C. Clark, Elizabeth A. Shawen and nine other persons, defendants in error herein, being descendants of said Ruth Potts, filed a cross bill in said proceeding instituted by the executor, which cross bill is set out in haec verba in the present bill filed in the case at bar. Said cross bill refers to the filing by said executor of the original bill on September 22, 1896, and on the ___ day of February, 1898, of an amended bill against the complainants in the cross bill and others for a construction of said will, and for other purposes. The cross bill then sets up, in substance, the provisions of the will, and alleges that the deceased testator was seised of various tracts of real estate described in the bill, and of personal property to the value of $29,000, at the time of his death. The cross bill, after setting up the death of Sarah Clark, the widow, and the appointment of Keplinger as her administrator, etc., names all the heirs of the deceased testator and also the heirs of his deceased wife, and makes them parties defendant thereto, and prays for a construction of the will, and alleges that all parties expressly precluded from participation in the estate of the testator are not entitled to any interestin the residuary clause of the will, and that the heirs and next of kin of such parties are also excluded, except to the extent of their specific legacies; that none of the heirs of Ruth S. Potts, the testator's sister, are excluded by the terms of the will; and that they are entitled to the residue of said estate after the payment of the specific legacies.

A decree was entered as above stated at the November term, A. D. 1898, in the proceeding, in which said original and amended bills and said cross bill were filed, reciting that a decree had been entered theretofore on July 6, 1898, in said cause, construing the will of Clark as to the powers of the executor over the real estate of the testator, and reserving the questions, except those disposed of, for the further hearing and order of court; and the decree then proceeds to find, among other things, that the widow, Sarah Clark, was fully provided for by said will by the gift of testator's entire estate to her for life, and that the same was in lieu of any other interest she might have in said estate, and was accepted and enjoyed by her, and that neither she, nor her heirs or representatives, have any further interest in said estate; that said testator left as his only heirs at law and next of kin at the time of his death (1) his sister Ruth Potts; (2) his brother Stephen S. Clark; (3) the children of his brother John Clark, Martin Clark and William J. Clark; (4) the descendants of his sister Hannah Nation, naming them; (5) William Grover Clark, described in the will as William Rose Clark, the only son of Abner Clark, deceased's brother,-making five collateral branches of descent. The decree so entered further finds that, after the payment of the expenses of administration and the specific legacies mentioned, the residue is given to said heirs according to the statutes of descent, except such as are excluded by the will, and that the will gave $100 to Stephen S. Clark, and provided that he is ‘to have nothing more from my estate.’ The decree further finds that all the others, except the heirs of Ruth Potts, are excluded from participation in the residuary clause; that Ruth Potts was living at testator's death, and was the only one of his heirs who was not excluded from participation in the residue; that she died intestate in August, 1891; that she left certain persons, who are named, as her heirs, and that her descendants are entitled to the whole of said residue; and the decree then orders the distribution of said residuary estate in accordance with the findings of the court. The present bill, filed by the infant plaintiff in error, charges that the decree so entered at the November term, 1898, is erroneous in construing the will so as to give the descendants of Ruth S. Potts the whole of the residuary estate of William C. Clark, and in excluding plaintiff in error and the other heirs at law of William C. Clark from participation in the same; that the decree is erroneous in holding that the residuary clause of the will became operative at the death of William C. Clark, upon the alleged ground that the residuary estate is not devised to certain persons, either as individuals or as a class, but is a mere instruction to divide a fund at a given time. The bill charges that it was the intention of the testator that the residuum of the estate should be divided between those persons who were his heirs at law at the death of his widow. The bill further alleges that the infant plaintiff in error, Inathe Clark, is the only daughter of John Clark, the son of Stephen S. Clark, brother of the testator; that both Stephen and John died before the death of Sarah Clark.

One Solomon Morris, an infant, filed a petition in the case by his next friend, alleging that Sarah Clark, the wife of the testator, was one of the heirs of William C. Clark, and as such took, under the statutes of descent, one-half of all of his real estate in fee, and all his personal estate remaining after the payment of the specific legacies, and that at her death the same descended to her heirs at law, and that certain persons (naming them), including the infant petitioner, Solomon Morris, were heirs at law of Sarah Clark at the time of her death. This petition of Solomon Morris charges that the decree is erroneous in excluding the heirs of Sarah Clark from participation in the residuary estate, and prays for the vacating of the decree. Certain other persons, claiming to be heirs of Sarah Clark, also came in and filed petitions for a new construction of the will.

MAGRUDER, J. (after stating the facts).

1. This is an original bill filed by the plaintiff in error, as an infant, to impeach a decree for error apparent on its face. The infant plaintiff in error who files the bill was a party defendant in the proceeding in which the decree alleged to be erroneous was entered. That such a bill may be filed by an infant defendant is settled by the decisions of this court. Loyd v. Malone, 23 Ill. 41;Kuchenbeiser v. Beckert, 41 Ill. 172;...