Crooker v. McArdle

• Decision Date: 25 October 1928
• Docket Number: No. 18883.,18883.
• Citation: 332 Ill. 27,163 N.E. 384
• Parties: CROOKER et al. v. McARDLE et al.
• Court: Illinois Supreme Court

332 Ill. 27

163 N.E. 384

CROOKER et al.

v.McARDLE et al.

No. 18883.

Supreme Court of Illinois.

Oct. 25, 1928.

Bill by Louis Crooker and another against Patrick L. McArdle and others to contest the probate of the will of Marie de Rohan McArdle, deceased. From a decree adverse to contestants, they appeal.

Affirmed.

Appeal from Circuit Court, Cook County; Phillip L. Sullivan, judge.

John J. Sonsteby, of Chicago, for appellants.

Patrick L. McArdle, of Chicago (E. J. McArdle, of Wilmette, of counsel), for appellees.

DUNN, J.

The circuit court of Cook county, in a proceeding to contest the will of Marie de Rohan McArdle, after the hearing of the evidence by a jury, directed the jury to return a verdict finding the instrument in question to be the true last will and testament of the deceased, and, the jury having rendered such verdict, entered a decree in accordance with the finding, from which the complainants appealed.

Marie de Rohan McArdle executed her will on February 14, 1922. She died on December 26, 1925, and her will was admitted to probate on February 26, 1926. Her heirs were her husband, Patrick L. McArdle, a brother, two sisters, a nephew, and three nieces. The will gave all the property of the testatrix to her husband, and named him as executor. The brother and a sister of the testatrix filed a bill to contest the will on the ground of undue influence and the revocation of the will by another will subsequently executed by the testatrix making other disposition of the property, and the later will was alleged never to have been revoked, but to have been lost. No evidence was offered on the allegation of undue influence, but the complainants offered to make proof of certain declarations of the testatrix tending to show the execution of the subsequent will, and objections were sustained to all the testimony offered. The court directed the jury to return a verdict sustaining the will. This was done, and the court entered an order dismissing the bill for want of equity.

[1] The decree must be affirmed, for the reason that the execution of a subsequent will, even if it contain an express declaration of revocation of the previous will, does not revoke the previous will. Section 17 of the Statute of Wills (Smith-Hurd Rev. St. 1927, c. 148, § 19) provides that:

‘No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testamentor codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law.’

The rule that a testamentary writing is of no legal effect as a will until the testator's death applies to a will purporting to revoke a previous will, including the revocatory clause, and therefore the revocation by virtue of the subsequent will has no legal effect until the death of the testator, although the later will contain an express revocatory clause. Stetson v. Stetson, 200 Ill. 601, 66 N. E. 262,61 L. R. A. 258;Moore v. Rowlett, 269 Ill. 88, 109 N. E. 682, L. R. A. 1916C, 89, Ann. Cas. 1916E, 718;Limbach v. Limbach, 290 Ill. 94, 124 N. E. 859. There was no attempt to show that the subsequent will had been admitted to probate, and no offer to prove its terms except some vague statements of the testatrix that she had made ample provision for Imogene Crooker, her sister, and that Imogene would be very well provided for when the testatrix passed on, and her statement that she had made a new will, giving all of her estate to her husband for life and afterward to Imogene for life, and after her death to go to the children of Charles, a deceased brother.

[2][3][4] A will is not effective for any purpose until it is admitted to probate. Section 2 of the Statute of Wills provides, in part, that a will when it is admitted to probate ‘shall be good and available in law for the...