Conzet v. Hibben

• Decision Date: 20 April 1916
• Docket Number: No. 10585.,10585.
• Citation: 272 Ill. 508,112 N.E. 305
• Parties: CONZET et al. v. HIBBEN et al.
• Court: Illinois Supreme Court

272 Ill. 508

112 N.E. 305

CONZET et al.

v.HIBBEN et al.

No. 10585.

Supreme Court of Illinois.

April 20, 1916.

Appeal from Circuit Court, Cumberland County; Walter Brewer, Judge.

Proceedings by Eliza F. Conzet and others against Nett Hibben and others for the probate of an instrument alleged to be the last will and testament of Charles Conzet, deceased. From a judgment of the circuit court denying a probate on appeal from the probate court, the proponents appeal. Affirmed.W. E. Redmon, of Decatur, and W. H. McDonald, of Greenup, for appellants.

Levi N. Brewer, of Toledo, Edward C. Craig and Donald B. Craig, both of Mattoon, for appellees.

FARMER, C. J.

This is an appeal from a judgment of the circuit court of Cumberland county affirming a judgment of the county court of said county refusing the probate of an instrument alleged to be the last will and testament of Charles Conzet, deceased.

Charles Conzet died December 10, 1912, leaving surviving him a widow, Louisa C. Conzet, and Edward Conzet, J. C. Conzet, John Conzet, Eliza Conzet, and Henrietta Meeker, his brothers and sisters, as his next of kin and only heirs at law. At the January, 1913, term of the county court of Cumberland county an instrument bearing date of February 21, 1896, was admitted to probate as the last will and testament of Charles Conzet, deceased. By the terms of such will all testator's property was given in fee simple to his widow, Louisa C. Conzet. The widow was named as executrix without bond, but she waived her right so to act and the court appointed Ed. E. Elstun to act as administrator with the will annexed. The widow and all the brothers and sisters of testator, being all the heirs at law and next of kin, filed in the probate court their written appearance and consent that the will be probated at that term without further notice to them. The estate was administered by said Elstun, his final report filed and approved, and he was discharged November 9, 1914. The widow, Louisa C. Conzet, died testate September 9, 1914. Her will was admitted to probate and her executor and executrices are now settling her estate. At the June, 1915, term a bill was filed in the circuit court of Cumberland county to ‘set aside or construe the will’ of Louisa C. Conzet. All the brothers and sisters of said Charles Conzet, deceased, together with the heirs of said brothers and sisters who had died since the death of said Charles Conzet, were made parties to such proceeding. The court sustained and construed the said will of Louisa C. Conzet, the terms and provisions of which need not here be noticed.

August 13, 1915, appellants Eliza Conzet and Howard D. Conzet, the former being a sister of Charles Conzet, deceased, filed their petition in the probate court of Cumberland county to have probated an instrument bearing date June 18, 1907, as the last will and testament of Charles Conzet, deceased. By the terms of this instrument the widow, Louisa C. Conzet, was given a life estate in the property of her husband, and the remainder at her death, after the payment of debts that might then be owing by her, was to go to the testator's brothers and sisters in equal parts. The testator's brother John Conzet and his sister Eliza Conzet were named executor and executrix, respectively, of the will, which was witnessed by Hallie Brady and Daisy D. Himes. The matter of the probate of said instrument came on to be heard September 6, 1915, when the executrices and executor of the will of Louisa C. Conzet, deceased, appeared and upon leave granted were made parties and filed a paper denominated a plea, setting up the will of Charles Conzet, deceased, dated February 21, 1896, and the order admitting the same to probate at the January, 1913, term, and the record of the court with reference to the probate of said will; also the death of Louisa C. Conzet, testate, a copy of her will showing the appointment of Nett Hibben, Bonnie Kelly, and Ed. E. Elstun as executrices and executor thereof, and reciting said executrices and executor have accepted said office and were then executing said will and testament. The ‘plea’ also recited the filing of the suit in the circuit court to contest or construe the will of Louisa C. Conzet, in which proceeding all the brothers and sisters of Charles Conzet, deceased, were made parties defendant; that the order admitting the will of Charles Conzet, dated February 21, 1896, to probate at the January, 1913, term, had never been set aside, and that the time within which the order allowing the probate of such will could be set aside on appeal to the circuitcourt or by a bill filed in the circuit court to contest the same had gone by, and that there could not be two last wills and testaments, and therefore the paper presented bearing date of June 18, 1907, should not be admitted to probate. The probate court, after a hearing, in which proof was made of the facts set forth in the alleged ‘plea,’ entered an order refusing the probate of the said instrument, and thereupon an appeal was taken to the circuit court of said county. The ‘plea’ of the executrices and executor of the last will and testament of Louisa C. Conzet, deceased, filed in the probate court, was allowed to stand in the circuit court over the objections of appellants that the same should be stricken on the ground that such executrices and executor were not proper parties in the proceeding to probate the will, being neither heirs at law nor legatees under the will, and that the circuit court, on appeal from the county court, had no jurisdiction to hear or try and matter except the question whether the paper produced was the will of Charles Conzet, deceased, and properly executed by him. On the hearing in the circuit court Daisy D. Himes testified to the execution of the instrument dated June 18, 1907. The other subscribing witness, Hallie Brady, was dead, but six or seven witnesses testified the signature appearing on the instrument was her signature. The record of the probate court admitting the former will, dated February 21, 1896, to probate, was introduced in evidence by the executrices and executor of the will of Louisa C. Conzet. The circuit court denied admission of the 1907 will to probate, and this appeal is prosecuted from such order.

The executrices and executor of the will of Louisa C. Conzet were interested in the application to probate the 1907 will, and it was not improper to allow them to be made parties. Mosser v. Flake, 258 Ill. 233, 101 N. E. 540, Ann. Cas. 1914B, 425. Whether the so-called plea was a proper pleading or not, it worked no injury to appellants. The record of the probate of the former will could have been called to the court's attention without filing the plea.

The...