Fishburn v. Green

• Decision Date: 18 February 1920
• Docket Number: No. 12754.,12754.
• Citation: 291 Ill. 350,126 N.E. 115
• Parties: FISHBURN v. GREEN et al.
• Court: Illinois Supreme Court

291 Ill. 350

126 N.E. 115

FISHBURN

v.GREEN et al.

No. 12754.

Supreme Court of Illinois.

Feb. 18, 1920.

Error to Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Bill by Edward P. Fishburn against William O. Green and others to contest the will of Eugene H. Fishburn. From a decree dismissing the bill, complainant brings error.

Complainant's demurrer to plea of release of errors overruled, and decree affirmed.

E. I. Frankhauser, of Chicago, for plaintiff in error.

William Ritchie and Ira J. Geer, both of Chicago, for defendants in error William O. Green and Walter V. Aikman.

Charles Y. Freeman, of Chicago, for Vera Fowler Henrotin and Eugene Heald Fowler.

Richard H. Mather, of Chicago, for Mina La Pearle Bentley.

William Annan Taylor, of Chicago, for Louise Giffen Fishburn and Isabelle Fishburn.

DUNN, C. J.

The circuit court of Cook county having dismissed the bill filed by Edward P. Fishburn to contest the will of his brother, Eugene H. Fishburn, of whom he was the sole heir, the complainant sued out a writ of error.

Defendants in error filed a plea of release of errors, and the cause has been submitted on a demurrer to the plea. The plea alleged various acts of the plaintiff in error in connection with the probate of the will and the defense of a previous suit to contest it, brought by one who claimed to be an adopted son of the testator, which acts are claimed to be inconsistent with the claims of the plaintiff in error in this case and to be of such a character as to estop him from insisting upon such claims. Acts done before the entry of a decree cannot be the basis of a plea of release of errors. They might perhaps justify the court in rendering a decree; but if the decree, when entered, was erroneous, acts previously done would not constitute a release of the errors subsequently committed. Borah Drainage District v. Ankenbrand, 277 Ill. 132, 115 N. E. 112. A plea of release of errors must state some fact by which the errors were released, occurring after such errors were committed.

The will disposed of all of the testator's property and contained the following provision in favor of the plaintiff in error:

‘Second. I give to Roy E. Patterson, of Washburn, Illinois, in trust, the sum of $5,000, to be invested and reinvested by him in bonds and first mortgage loans on real estate, or both, the income therefrom, as it accrues, to be paid to brother, Edward P. Fishburn, and Hattie Fishburn, his wife, and the survivor of them, be invested and reinvested by him in bonds and the death of the survivor the principal sum to be divided by my trustee among the heirs at law of my said brother according to the laws of descent in the state of Illinois. In case of the death, resignation or inability of said Roy E. Patterson to perform the duties of this trust, I appoint my nieces, Frances Fishburn Patterson, of Washburn, Illinois, and Bessie Fishburn Wetzler, of Peoria, Illinois, and the survivor of them, as trustees to succeed said Patterson and with the same powers to carry out this trust, and request that neither they nor Mr. Patterson shall be required to give bonds for the true performance of their trust.’

There were several bequests and a residuary devise to persons other than the appellant.

Besides the allegations which have been mentioned, the plea averred that on May 8, 1919, long after the decree was rendered, the executors, with the knowledge and consent of the plaintiff in error, paid to Roy E. Patterson, the trustee under clause 2 of said will, for the plaintiff in error and others, the full amount of the legacy in that clause mentioned, together with interest from April 27, 1916, one year after the death of the testator, until the date of payment, such interest amounting to $756.94, and that Patterson, as trustee as aforesaid, with the knowledge and consent of the plaintiff in error, executed a written receipt and acknowledgment of payment of said legacy; that all of the money so paid has been retained and appropriated; and that said interest is still retained and appropriated by the plaintiff in error and Hattie Fishburn and Roy E. Patterson, trustee, by the common understanding, agreement, and co-operation of all of them.

[3] If a party against whom a decree has been rendered voluntarily accepts the benefits of the decree, such acceptance operates and may be pleaded as a release of errors. Langher v. Glos, 276 Ill. 342, 114 N. E. 590;Schaeffer v. Ardery, 238 Ill. 557, 87 N. E. 343. The plaintiff in error's...