Dibble v. Winter

• Decision Date: 09 December 1910
• Citation: 247 Ill. 243,93 N.E. 145
• Parties: DIBBLE et al. v. WINTER.
• Court: Illinois Supreme Court

247 Ill. 243

93 N.E. 145

DIBBLE et al.

v.WINTER.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 9, 1910.

Appeal from Superior Court, Cook County; Arthur H. Chetlain, Judge.

Bill by Sarah P. Dibble and another against Antoinette Thayer Winter. From a decree dismissing the bill, complainants appeal. Reversed and remanded.Albert M. Kales, for appellants.

Morris St. P. Thomas, for appellee.

CARTER, J.

This is a bill filed in the superior court of Cook county on December 7, 1909, by appellants, Sarah P. Dibble and Estella W. Gair, to declare null and void and set aside as a cloud on the title of certain real estate in that county an instrument purporting to be an authenticated copy of the will of Samuel Blair Winter, theretofore filed with the probate clerk of said Cook county in accordance with sections 2 and 9 of the Illinois statute on wills (Hurd's Rev. St. 1909, c. 148). The bill as amended sets forth that the original of the copy so filed is not the last will and testament of said Samuel Blair Winter; that said Winter at the date of said pretended will was, and had been for many years, completely paralyzed from his waist down; and that he was at that time, and for a long time prior thereto, and afterwards until his death, of unsound mind and memory; that owing to his impaired mind and physical condition, he was easily influenced, and at the date of said instrument was entirely in the hands of the appellee, Antoinette Thayer Winter, and dependent for his physical care upon her; that she was a woman of mature and able physical and mental powers and of a strong and aggressive will, possessing more than usual influence over said Winter, and had, owing to the absence of all his friends, relatives, and advisers, and on account of his physical and mental weakness, succeeded in assuming with him the position of confidential agent and adviser in all his business affairs; that, if said instrument was executed by said Winter (which is not admitted), its execution was obtained by fraud of the said Antoinette Thayer Winter and by her taking advantage of said Winter's lack of physical and mental powers, so that it was the result of her will and volition rather than his; that said Antoinette Thayer Winter procured the pretendedexecution of said instrument by means of false and fraudulent representations, which she knew to be such and upon which said Winter relied and acted. The bill further alleges that said Samuel Blair Winter died about December 27, 1908, seised of an undivided one-third of certain real estate in Cook county, Ill., and a possible interest (depending upon the construction of the will of his father) in certain other real estate in Cook county; that about April 12, 1909, there was filed in the probate court of Cook county, on behalf of appellee, an instrument purporting to be the will of said Samuel Blair Winter, and the record of the probate thereof in the probate court of Ottawa county, Michigan, on March 29, 1909. This instrument is set out in haec verba in the bill, and provides that, after the payment of just debts and funeral expenses, all of testator's estate, real and personal, shall go to his wife, appellee herein, as her sole property. She is also appointed executrix. The prayer of the bill, after asking for an answer, is that said instrument may be declared null and void and set aside as a cloud upon the title of the orators, and that the record thereof in the office of the clerk of the probate court be removed, set aside, canceled, and expunged from the records of said office, and for such other and further relief as to equity may seem meet. A general demurrer filed by appellee was sustained by the trial court and a decree entered dismissing the bill for want of equity. From that order this appeal was taken.

Counsel for appellee contends that the demurrer was properly sustained because the bill did not allege that the testator died intestate. We think the bill is not lacking on this point.

It is further contended that the allegation in the bill that the testator died ‘leaving him surviving as his heirs-at-law and next of kin his two sisters,’ appellants herein, is a conclusion of law, and not a statement of fact admitted by the demurrer. A similar allegation has been held to be a statement of fact in Physio-Medical College v. Wilkinson, 108 Ind. 314, 9 N. E. 167, AND Gfroerer v. Gfroerer (Ind.) 90 N. E. 757. A like allegation was conceded by all counsel to be sufficient in Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860,130 Am. St. Rep. 180. ‘Almost any statement of fact may be shown by a refined analysis to depend upon an inference to be drawn from other facts and to require the application of legal rules in making the deduction.’ Koch v. Arnold, 242 Ill. 208, 89 N. E. 1028. Whatever may be the holding in other jurisdictions, we are disposed to hold, on principle as well as under the authorities of this state, that the allegation in question is a statement of fact, and not a conclusion of law. Foss v. People's Gaslight & Coke Co., 241 Ill. 238, 89 N. E. 351;Bogda v. Glos, 244 Ill. 575, 91 N. E. 657;Pease v. Sanderson, 188 Ill. 597, 59 N. E. 425.

Counsel for appellants suggests that the certificate to this will does not comply with the statute so as to entitle a copy to be recorded in this state, the argument being that under section 9 of the statute on wills it is required that it should be certified as executed and proved ‘agreeably to the laws and usages of that state or country in which the same was executed,’ and that there is nothing in this record to indicate that this will was executed in the state of Michigan. Without considering or deciding whether appellants' construction of section 9 on this point is correct, we deem it sufficient to say that we think the record shows that the will was executed in the state of Michigan.

Appellants argue that the bill in this cause should be sustained as one to remove a cloud on the title, under Bale v. Bale, 242 Ill. 519, 90 N. E. 233, and Bieber v. Porter, 242 Ill. 616, 90 N. E. 183. These decisions do not sustain that contention. The case of Bieber v. Porter, supra, simply stated, as did McDonald v. White, 130 Ill. 493, 22 N. E. 599, that where a party is in possession of the land in dispute claiming to hold the same under a will alleged to be invalid a bill cannot be maintained by another claimant to set aside the will as a cloud upon the title. In each of these cases the only point decided was that a bill to quiet title can only be entertained when it is alleged and proved that the complainant is in possession of the premises or that they are vacant and unoccupied. In Bale v. Bale, supra, the will was not declared null and void and set aside as a cloud upon the title. The decision was, in effect, that a provision of the father's will giving to his son a life estate in certain lands which the son already occupied and owned in fee at the time the will was executed could be set aside as a cloud upon the son's title. The will was not thereby declared null and void, but it was held that the father had attempted to devise property which he did not own. This court has decided that a will contest cannot be injected into partition proceedings; that whether the instrument produced is the will of the testator is the only question properly involved in a bill brought under the statute to contest a will. Hollenbeck v. Cook, 180 Ill. 65, 54 N. E. 154;Tagert v. Fletcher, 232 Ill. 197, 83 N. E. 805;Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256,122 Am. St. Rep. 169;Calkins v. Calkins, 229 Ill. 68, 82 N. E. 242. In Keister v. Keister, 178 Ill. 103, 52 N. E. 946, it was held that a bill for partition which alleged that the complainant was a tenant in common by inheritance, but that defendants fraudulently procured a will devising the property to them, which was improperly admitted to probate and which constituted a cloud on complainant's title, was plainly one to contest said will by a bill in chancery; that the right to that relief was purely statutory, and could only be availed of under section 7 of the statute of wills. We have repeatedly held that the right to contest a will in chancery is a right conferred by statute, and independently of the statute no such right has ever been recognized by the courts of this state. Selden v. Illinois Trust & Savings Bank, supra; Waters v. Waters, 225 Ill. 559, 80 N. E. 337;Jele v. Lemberger, 163 Ill. 338, 45 N. E. 279;Luther v. Luther, 122 Ill. 558, 13 N. E. 166. In this case, as in Keister v. Keister, supra, the bill is one to contest a will by a bill in chancery, and the complainants could only have the relief in question by setting aside and rendering the entire will null and void so far as it affects real estate in this state. When the only relief that can be had is to set aside a will and render it null and void, the same as would a contest under section 7 of the act on wills, it is, in effect, a contest of the will, and must be governed by the rules of law controlling such contests. Sufficient facts were alleged in the bill in this case, and the prayer was so worded, as to sustain it as a bill to contest the will in question. This is practically conceded by counsel for appellee. This brings us to the principal question presented in the briefs.

After the will was probated in Michigan, a copy was filed for record in the office of the clerk of the probate court of Cook county, duly authenticated in accordance with the provisions of section 9 of the act on wills. It is argued by counsel for appellee that the statute as to wills in this state must be strictly construed; that, therefore, only domestic wills, or wills probated in the same way as domestic wills, can be contested under section 7. The validity of bequests of personal property depends on the law of the testator's domicile, while the validity of devises of real property rests on the law of the place...