Elmore v. Carter

• Decision Date: 27 October 1919
• Docket Number: No. 12570.,12570.
• Citation: 124 N.E. 582,289 Ill. 560
• Parties: ELMORE et al. v. CARTER et al.
• Court: Illinois Supreme Court

289 Ill. 560

124 N.E. 582

ELMORE et al.

v.CARTER et al.

No. 12570.

Supreme Court of Illinois.

Oct. 27, 1919.

Error to Circuit Court, Clinton County; Thomas M. Jett, Judge.

Bill by Jesse T. Elmore and others against the Transit & Building Fund Society of Bishop William Taylor's Self-Supporting Missions, in which Philip Carter and others intervened and filed a cross-bill. There was a decree in favor of complainants against the defendant, and in favor of the interveners, and complainants bring error. Affirmed.

Jarvis Dinsmoor, of Sterling, and H. A. Brooks, of Dixon, for plaintiffs in error.

Maurice B. Johnston and Hugh V. Murray, both of Carlyle (Thomas E. Ford and William Johnston, both of Carlyle, and R. H. Flannigan, of East St. Louis, of counsel), for defendants in error.

CARTWRIGHT, J.

By the writ of error in this case the court is called upon to decide rights of inheritance in 178 acres of land in Clinton county between the heirs of Walton Elmore, who died childless, and the heirs of his widow, Susan Elmore, who after his death was married to Thomas J. Ritchie. Walton Elmore made his will on April 7, 1893, and died on April 10, 1893. By the will he devised a life estate to his wife, Susan Elmore, with remainder in fee to the Transit & Building Fund Society of Bishop William Taylor's Self-Supporting Missions. On September 1, 1916, two sisters and the heirs at law of a deceased brother of the testator, who together constituted his heirs at law, filed their bill against the mission society, alleging that it was a New York corporation incapable of taking the land by devise, and praying that the devise to it be set aside and declared void and the land be partitioned among the heirs at law. Upon a joinder of issue and evidence heard by the chancellor, the prayer of the bill was granted, on the grounds that by the provisions of the charter and the law of New York such a devise must be made and executed at least 60 days previous to the death of the testator, and because the mission society had become civilly dead and ceased to exist before the death of the testator. On June 30, 1917, the defendants in error, collateral relatives and heirs at law of Susan Elmore Ritchie, who died March 8, 1916, intervened in the case, answered the original bill, and filed a cross-bill, alleging that, the devise to the New York corporation being invalid, Susan Elmore, widow of Walton Elmore, on his death became seized in fee of the undivided one-half of the lands, which descended at her death to her heirs at law. The cause was heard upon a stipulation of facts. The widow, Susan Elmore, accepted the devise to her, acted as administratrix with the will annexed, and administered the estate of her deceased husband, and the names of the heirs of Walton Elmore and Susan Elmore Ritchie were properly set forth in the proceedings. The chancellor entered a decree on May 14, 1917, finding the respective interests as set forth in the amended cross-bill, and ordered partition accordingly.

One who accepts the benefit of a provision in his favor under a will is precluded from attacking and defeating a bequest or devise to another by the same will, if his acceptance is with full knowledge of the facts, or, otherwise stated, one cannot take under a will and against its terms. Wilbanks v. Wilbanks, 18 Ill. 17;Brown v. Pitney, 39 Ill. 468;Lessley v. Lessley, 44 Ill. 527;Gorham v. Dodge, 122 Ill. 528, 14 N. E. 44;Fry v. Morrison, 159 Ill. 244, 42 N. E. 774;Madison v. Larmon, 170 Ill. 65, 48 N. E. 556,62 Am. St. Rep. 356;Buchanan v. McLennan, 192 Ill. 480, 61 N. E. 448;Richardson v. Trubey, 250 Ill. 577, 95 N. E. 971;Koelling v. Foster, 254 Ill. 494, 98 N. E. 952;Palenske v. Palenske, 281 Ill. 574, 118 N. E. 46. While that is true, one who accepts a benefit under a will, and thereby admits...