Davison v. Heinrich

• Decision Date: 11 October 1930
• Docket Number: No. 19108.,19108.
• Citation: 340 Ill. 349,172 N.E. 770
• Parties: DAVISON et al. v. HEINRICH.
• Court: Illinois Supreme Court

340 Ill. 349

172 N.E. 770

DAVISON et al.

v.HEINRICH.

No. 19108.

Supreme Court of Illinois.

June 20, 1930.

Rehearing Denied Oct. 11, 1930.

Proceedings by Junior H. Davison by guardian ad litem and another for the probate of the last will of Adelbert H. Davison deceased, opposed by Lela Davison Heinrich. Probate was denied by the county court and proponents appealed to the circuit court. Motion to dismiss the appeal was overruled, and, after hearing on the merits, an order was entered admitting the instrument to probate, and contestant named appeals.

Decree of circuit court affirmed.

Appeal from Circuit Court, Woodford County; Stevens R. Baker, judge.

Quinn & Quinn, of Peoria, and Fort & Fort, of Minonk (C. V. O'Hern and Emerson T. Anthony, both of Peoria, of counsel), for appellant.

Ernest J. Henderson, of Minonk, and Horace H. Baker, of El Paso, guardians ad litem (George W. Hunt, of Peoria, of counsel), for appellees.

PER CURIAM.

Original proceedings were instituted in the county court of Woodford county to probate an instrument purporting to be the last will and testament of Adelbert H. Davison, deceased. On December 27, 1927, the probate thereof was denied, and the appellees, Margaret Heinrich and Junior H. Davison, who are minor grandchildren of Adelbert H. Davison and beneficiaries under his will, on the same day prayed for and were allowed an appeal to the circuit court. On the same day Ernest J. Henderson, who had been appointed guardian ad litem for Margaret Heinrich, and Horace H. Baker, who had been appointed guardian ad litem for Junior H. Davison, filed their appeal bond, in which they described themselves, respectively, as guardians for the minors, which bond was in all respects conditioned according to law and was approved by the county judge and filed with the county clerk on the same day. Some time during the following March they paid the appeal fee to the clerk of the circuit court, and on March 22 of the same year filed with him the record of the county court proceedings. On April 2, 1928, appellant, Lela Davison Heinrich, who is a daughter of Adelbert H. Davison, filed in the circuit court her motion to dismiss the appeal for want of jurisdiction, on the grounds that the appeal fee had not been paid within twenty days from the entry of the order appealed from, and that the appeal bond was executed by Baker and Henderson, respectively, in their individual capacities and not as guardinas ad litem. She limited her appearance especially for the purpose of the motion. The motion was overruled. A hearing on the merits ensued, at which counsel for appellant participated, and which resulted in the entry of an order admitting the instrument to probate, from which order Lela Davison Heinrich has appealed to this court.

The questions raised by appellant are that the circuit court should have dismissed the appeal for the reasons that the bond filed was not the bond of appellees, that the appeal fee had not been paid and the appeal perfected in the time required by the statute, and that no guardians ad litem were appointed by the circuit court upon the hearing in that court.

The right to appeal from the county court to the circuit court in probate proceedings is purely statutory, and a strict compliance with the statutory provisions is required. Hall v. First Nat. Bank, 330 Ill. 234, 161 N. E. 311;Hill v. City of Chicago, 218 Ill. 178, 75 N. E. 766. Section 14 of the Wills Act (Smith-Hurd Rev. St. 1927, c. 148, § 16) provides that such appeals may be taken ‘in the same time and manner as appeals may be taken from justices of the peace.’ The statute governing appeals from justices of the peace, in force at the time the appeal from the county court was taken in this case, requires that ‘the fee provided by law for the filing of such appeal’ shall be paid by ‘the party praying for an appeal shall, within twenty days from the rendition of the judgment’ appealed from. Smith-Hurd Rev. St. 1927, c. 79, § 116. At the time section 14 of the Wills Act was enacted the statute governing appeals from justices of the peace contained no appeal fee requirement. Rev. St. 1874, C. 79, § 62. The appellant maintains that the appeal from the county court in this case is governed by the statute providing for appeals from justices of the peace, in force at the time such appeal was taken. The appellees assert that it is governed by the statute providing for appeals from justices of the peace in force at the time section 14 was enacted.

It is a well-settled rule of statutory construction that, where the reference in an adopting statute is to the law generally which governs the particular subject and not to a particular act, by title or otherwise, the reference will be regarded as signifying and including the law in force on the subject at the time it is invoked. People v. Kramer, 328 Ill. 512, 160 N. E. 60;People v. Crossley, 261 Ill. 78, 103 N. E. 537;Culver v. People, 161 Ill. 89, 43 N. E. 812. Applying this rule, it is clear that the appeal from the county court in this case is governed by the statute pertaining to appeals from justices of the peace, in force at the time such appeal was taken, which required the appeal fee to be paid by the appellees within twenty days from the entry of the order appealed from. It is...