Dickinson v. Belden
| Decision Date | 10 June 1915 |
| Docket Number | No. 9648.,9648. |
| Citation | 108 N.E. 1011,268 Ill. 105 |
| Parties | DICKINSON et al. v. BELDEN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, Third District. On appeal from Circuit Court, Menard County; Harry Higbee, Judge.
Bill by Emma F. Dickinson and others against Reuben Belden and others for the construction of the will of Elizabeth S. Lee, deceased. From a judgment of the Appellate Court, in part affirming and in part reversing the decree of the circuit court for complainants, defendants bring error. Affirmed.G. B. Watkins and E. H. Golden, both of Petersburg, John C. Hammond, of Northampton, Mass., and A. W. Lilienstein, of Petersburg (Thomas W. Swan, of Chicago, of counsel), for plaintiffs in error.
Julian H. Hall and Smoot & Laning, all of Petersburg, for defendants in error.
By a writ of certiorari granted at the October term, 1914, of this court, there is brought for review a judgment of the Appellate Court for the Third District placing a construction upon the will of Elizabeth S. Lee, a widow, late of Menard county, who died without issue October 29, 1911, and whose will was probated in said county on December 30 of that year. The will mentioned is here set out in full:
‘I, Elizabeth S. Lee, of the county of Menard and State of Illinois, do make and declare this to be my last will and testament.
‘First-I direct that all my debts and funeral expenses be paid, and I direct that I be buried by the side of my husband and son in the Indian Point Cemetery, near the Presbyterian church.
‘Second-I give and bequeath as follows: To the Athens Presbyterian church $500, to be expended by it in repairs and improvements on the church building when needed; to the North Sangamon Presbyterian church $500; to the Board of Foreign Missions of the Presbyterian Church in the United States of America $100; to the American Bible Society $100; to Wallace Preston, of St. Joseph, Michigan, $500; to John W. Little, Bellevue, Nebraska, $500; to Albert Loomis, of St. Louis, Missouri, $500; to Sarah F. Hitchcock, of Athens, Illinois, $500; to Otis Allen and Fannie G. Allen, grandchildren of my sister, Celia Wells, late of Hatfield, Massachusetts, the sum of $250 each.
‘Third-I give and bequeath all my money on deposit in the savings banks in the State of Massachusetts, together with the savings bank books representing such deposits, one-half to my brother, Calvin S. Loomis, of Whately, Massachusetts, the other half to be equally divided between the children of my deceased sister, Sarah A. Belden, late of Hatfield, Massachusetts, the descendants of a deceased child to take the parent's share, and I appoint my nephew, Daniel W. Wells, as ancillary executor of this will in the State of Massachusetts.
‘Fifth-All the rest and residue of my estate, both real and personal, and any lapsed legacies, I give, devise and bequeath as follows: One equal part thereof to my brother, Calvin S. Loomis, of Whately, Massachusetts, or, in case of his death, to his descendants, according to the laws of descent of the State of Illinois; and the other one equal part thereof to be divided equally among the children of my deceased sister, said Sarah A. Belden, the descendants of a deceased child to take the parental share.
‘Sixth-I hereby appoint Franklin Ridgely, of Springfield, Illinois, executor of this wife, and direct that he be not required to give bond as such executor.
‘Witness my hand and seal this 14th day of April, A. D. 1909.’
Franklin Ridgely qualified as executor in Illinois, and Daniel W. Wells qualified as ancillary executor in Hampshire county, Massachusetts. Under an order of the probate court of said Hampshire county, made upon his petition, the ancillary executor made distribution of $16,000 of the estate found in Massachusetts, the probate court having construed the third and fifth clauses of the will so as to bring the legacy of Calvin S. Loomis, who predeceased the testatrix and who died without issue, into the residue of the estate and so as to cause his legacy to be distributed under the residuary clause. A bill in chancery was afterwards filed in the circuit court of Menard county by certain defendants in error who are heirs at law of said testatrix, setting up the aforementioned facts and praying a construction of said will. A further prayer of the bill was that the circuit court should order a distribution of the whole estate, except the Belden moiety thereof and except the special bequests made in the second clause, as intestate estate, charging the plaintiffs in error, who are the heirs at law of Sarah A. Belden, deceased, with such sum as they received from the ancillary estate in excess of what they would have received had the Massachusetts probate court held the Loomis legacy to be intestate estate. The executors were made defendants and answered the bill, as did the plaintiffs in error. Replications were filed, and the cause was heard in open court by the chancellor, and a decree entered in accordance with the prayer of the bill, except the chancellor held the decision of the probate court in Massachusetts, while incorrect from a legal standpoint, was binding upon the defendants in error, complainants in the bill. Appeals were taken to the Appellate Court for the Third District by the complainants below, and also by the Belden heirs, plaintiffs in error here, and the appeals were in that court consolidated and heard and decided as one cause. The Appellate Court affirmed the holding of the circuit court as to the lapsed Loomis legacy being intestate estate of Elizabeth S. Lee, but reversed the decree on the ground the Massachusetts probate court was without jurisdiction of the defendants in error, and its alleged erroneous decision, while a protection to the ancillary executor, is not binding upon the distributees of the Lee estate and as to them is not res judicata.
By the assignments of error upon this record we are asked to determine, first, is the Loomis legacy, under a proper construction of the third and fifth clauses of the will, intestate estate; and second, are the defendants in error precluded by the order of the Massachusetts probate court, the said order not having been appealed from and being now unreversed and in full force and effect.
The amount to be returned into the estate or otherwise accounted for by the plaintiffs in error if the view taken by the Appellate Court is sustained is $4,000, but incidentally the disposition of the entire personal estate, amounting to about $60,000, depends upon the judicial settlement of this controversy. The only real estate inventoried was the home of Mrs. Lee in Athens, Ill., and that has been disposed of by the circuit court in another suit.
Under the statutes of the state of Massachusetts received in evidence the probate court of Hampshire county has, in addition to the ordinary probate jurisdiction, general jurisdiction to make the order for distribution of the ancillary assets and to construe the will upon petition filed to that end and upon notice to the parties to be affected by the order (Rev. Laws Mass. 1902, c. 143, §§ 1, 2, and chapter 162, § 5; Welch v. Adams, 152 Mass. 74, 25 N. E. 34,9 L. R. A. 244); and this upon such notice as may be ordered by the court, the statute being silent as to the form of notice (Rev. Laws Mass. c. 141, § 21). But the distribution must be made in accordance with the law of the domicile of the testator or of the intestate, as the case may be (Cooper v. Beers, 143 Ill. 25, 33 N. E. 61;Matter of Hughes, 95 N. Y. 55;Parker's Appeal, 61 Pa. 478;Rackemann v. Taylor, 204 Mass. 394, 90 N. E. 552;Osburn v. McCartney, 121 Ill. 408, 12 N. E. 72); and the courts of the ancillary jurisdiction may determine what is the lex loci domicilia (Harvey v. Richards, 1 Mason, 381, Fed. Cas. No. 6,184). The judgment of a court of general jurisdiction may not be questioned on the ground of lack of jurisdiction of the person...
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