Fry v. Morrison

• Decision Date: 17 January 1896
• Citation: 42 N.E. 774,159 Ill. 244
• Parties: FRY v. MORRISON.
• Court: Illinois Supreme Court

159 Ill. 244

42 N.E. 774

FRY

v.MORRISON.

Supreme Court of Illinois.

Jan. 17, 1896.

Appeal from circuit court, Greene county; George W. Herdman, Judge.

Action by Prucia Morrison against William M. Fry. There was a decree for complainant, and defendant appeals. Affirmed.

On the 15th day of May, 1884, appellant's wife, Julia W. Fry, made her last will and testament, in which she gave, devised, and bequeathed unto her husband all estate, both real and personal, of every description. Afterwards, June 22, 1887, Mrs. Fry, it is claimed by the appellee, executed a codicil to her will, in which she gave, devised, and bequeathed unto the appellee the sum of $150 per year, as long as her legatee should live, to be paid to her annually out of the testatrix's estate. On December 31, 1887, the wife of appellant died, and on the 16th day of February, A. D. 1888, her will and codicil thereto were produced in the county court of Greene county, Ill. Affidavit of the death of testatrix, and the affidavit of the witnesses who attested the execution of the will and the codicil thereto were filed, which was all the proof filed and submitted in the county court. The affidavit of the witnesses discloses that ‘witnesses were present and saw the said Julia W. Fry sign said will and codicil in their presence’; also, that ‘they believed the said testatrix was of sound mind and memory, of lawful age, and under no restraint when she signed said will.’ The county judge accepted said will, proof of death, and proof of said will, and directed the evidence to be filed and entered of record, and the will to be filed. He indorsed the will as follows: ‘Last Will of Julia W. Fry. Will admitted to probate this 16th day of February, A. D. 1888.’ The judgment of the county court recites that due proof was made, to the satisfaction of the court, of the death of Julia W. Fry, and that the witnesses to the last will and testament of Julia W. Fry, deceased, testified that, at the time of the execution of said instrument, they believed said testatrix to be of sound mind and memory; and the court then ordered said testimony to be entered in full, and adjudged that said instrument be declared to be duly and sufficiently proven and authenticated as the last will and testament of Julia W. Fry, deceased, and ordered ‘that said will be entered of record.’ Appellee filed her bill in chancery in the circuit court of Greene county, Ill., January 13, 1891, in which she stated that Julia W. Fry left her last will and testament and codicil thereto, and that the will was duly probated in the county court on the 16th day of February, A. D. 1888, and that Julia W. Fry was the owner, at the time of her death, of only a small amount of personal estate, and was the owner, in fee simple, of the premises in controversy, and asked the court to compel the appellant to pay her the $150 per annum directed by the codicil to be paid, and for a decree that the same be declared to be a lien upon the real estate in controversy, etc. The appellant answered the bill, in which he denied that said Julia W. Fry ‘left the codicil in said bill set out to be her said will.’ The circuit court, on September 19, 1894, heard the cause, and, upon consideration thereof, found that the allegations of the bill were true; that Julia W. Fry departed this life, testate, on December 31, 1887, leaving a last will and testament and codicil thereto; that said last will and testament and said codicil thereto were duly probated in the county court of Greene county, Ill., on February 16, 1888; that at the time of making said codicil, and at the time of her death, Julia W. Fry had no personal estate, but at said time was seised in fee simple, and died so seised in fee, of the premises in controversy; that said tract has been occupied, since the death of Julia W. Fry, by her husband, and that the rental value amounts to $550 per year; that no part of the annuity of $150 mentioned in said codicil had been paid; that after the payment of the annual taxes, insurance, and reasonable repairs on said real estate, the net rental value annually of said real estate, ever since the death of said Julia W. Fry, has been more than enough to pay said annuity; that, up to December 31, 1893, the amount of the annuity due, and unpaid to complainant, under said codicil, is the sum of $900, and said amount is a charge upon said real estate, and upon the rents, issues, and profits thereof. The court adjudged that the defendant, William M. Fry, pay to the complainant the said sum of $900 within 40 days from the date of the decree, and, in default thereof, ordered that an execution issue against said real estate for the collection of said amounts; that the defendant, on the 31st day of December, 1894, and on the 31st day of December in each and every year thereafter, during the lifetime of the complainant, pay the sum of $150 to the complainant, and, in default thereof, and execution was ordered to be issued against said real estate; and that, in case of sale of real estate, or any part thereof, under such execution, the sale be made subject to the lien of the annuities subsequently becoming due from year to year. The defendant was also ordered to pay the costs of the suit. To which rulings, findings, and decree of said court the defendant then and there excepted, and prayed an appeal to the supreme court of Illinois.James R. Ward, for appellant.

Levi Davis, Jr., for appellee.

PHILLIPS, J. (after stating the facts).

Appellant's first contention is that the codicil upon which appellee based her claim to an annuity was not duly proved and admitted to probate. By section 2, c. 148, Rev. St. 1893, all wills, testaments, and codicils by which lands, annuities, etc., are devised, shall be reduced to writing, signed, etc., in the presence of two or more witnesses, attesting the same in the presence of the testator, two of whom, declaring on oath, before the proper court, etc., ‘shall be sufficient proof of the execution of said will, testament, or codicil to admit the same to record.’ We have held: ‘To entitle a will to probate, four things must concur: It must be in writing, and signed by the testator or testatrix, or in his or her presence, by some one, by his or her direction. It must be attested by two or more credible witnesses. Two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and...