Havill v. Havill

• Decision Date: 25 October 1928
• Docket Number: No. 18770.,18770.
• Citation: 332 Ill. 11,163 N.E. 428
• Parties: HAVILL et al. v. HAVILL et al.
• Court: Illinois Supreme Court

332 Ill. 11

163 N.E. 428

HAVILL et al.

v.HAVILL et al.

No. 18770.

Supreme Court of Illinois.

Oct. 25, 1928.

Error to Circuit Court, Cook County; Ira Ryner, Judge.

Bill by George Havill and another to contest the will of George B. Havill, deceased, opposed by Theresa E. Havill and others. On the death of complainant George Havill, Katherine Havill and another moved the court that they be substituted as complainants in his stead. This motion was overruled, and that suit was dismissed on motion of the surviving complainant, and Katherine Havill and another bring error.

Decree affirmed.

Edward Maher and Jacob G. Grossberg, both of Chicago, for plaintiffs in error.

McCulloch & McCulloch and Timothy J. Fell, all of Chicago, for defendants in error.

DUNN, J.

A bill was filed on May 8, 1919, in the circuit court of Cook county, to contest the will of George B. Havill, who died March 29, 1913, and whose will was admitted to probate on December 11, 1918. He left a widow, Theresa E. Havill, and his heirs were his children, George Havill and Mary Havill Karl, who were the contestants of his will. The complainant George Havill died on October 9, 1924, intestate, leaving Katherine Havill, his widow, and one son, George, his heir. The death of the complainant George Havill was suggested, and his widow and heir moved the court to substitute them as complainants in his stead. The court overruled his motion, and sustained a motion made by Mary Havill Karl, the surviving co-complainant, to dismiss the suit at her costs. The widow and heir of the deceased complainant have sued out this writ of error.

The question for decision is whether the proviso added to section 7 of the Statute of Wills by the amendment of 1919 (Smith-Hurd Rev. St. 1927, c. 148), in a case where a testator died before the amendment took effect and an heir began a suit to contest the will, but died before its final determination, authorized the substitution of the heirs of the contestant and the prosecution of the suit by them. The amendment, which became effective July 1, 1919, added the following proviso to the section:

‘And provided further, that in case any person interested in any will, testament or codicil shall begin a suit to contest any such will, testament or codicil, and shall die before the final determination of such suit or contest, the cause of action, suit or contest shall not on that account abate, but such suit, cause of action or contest shall survive and descend to the heir, legatee, devisee, executor, administrator, grantee or assignee of such deceased interested person; and the death of such interested person may be suggested on the record and such heir, legatee, devisee, executor, administrator, grantee or assignee of such deceased interested person, may be substituted as complainant, plaintiff, petitioner or as defendant in such suit, contest or action, and the cause of action, suit or contest proceed as though such substituted parties had been originally joined as complainants, plaintiffs, petitioners or defendants as the case may be. And in all such trials by jury as aforesaid the oath of the subscribing witnesses taken, reduced to writing and filed in court at the time of the first probate, properly certified to, shall be admitted as evidence and have such weight as the jury shall think it may deserve.’ Laws 1919, p. 992.

[1][2] The plaintiffs in error contend that the changes effected by this amendment were changes in procedure, affecting the remedy only, and therefore applied to actions pending, which should proceed in the manner provided in the new law. If the premise is true, the conclusion will follow; but there is no basis for the premise. No change in procedure is suggested. In the cases to which the amendment relates there is no change of procedure, but it is directed that:

‘The cause of action, suit or contest proceed as though such substituted parties had been originally joined as complainants, petitioners or defendants as the case may be.’

The right to contest a will is not cognizable by a court of chancery in the exercise of its ordinary equitable jurisdiction. The right is purely statutory. Section 7 of the Statute of Wills created the right, which exists only by virtue of the statute, to be exercised only in the time prescribed and by the persons authorized by the statute. It was a personal privilege extended to those interested pecuniarily, to be exercised in the manner and time fixed. It was not assignable by deed or otherwise, did not pass by inheritance or devise, and could not be maintained by any one except a person interested at the time the will was admitted to probate. Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185,72 Am. St. Rep. 211;Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860,130 Am. St. Rep. 80. By the amendment it was provided that, in case any such person should begin a suit to contest a will and die before its final determination, the cause of action and the suit should not abate, but should servive to the heir or other representative of the deceased person, and might be revived in the name of such heir or other representative. This was the creation of a new cause of action in favor of the heir or other representative of the deceased person, who had begun a suit in his lifetime to contest a will.

[3] The survival of a cause of action and the revival of a suit are different things. The survival of a cause of action is a matter of substance-not of procedure. Ex parte Schreiber, 110 U. S. 76, 3 S. Ct. 423, 28 L. Ed. 65. The right to proceed against the representatives of a deceased person depends, not on forms and modes of proceeding in a suit, but on the nature of the cause of action for which the suit is brought. The survival of a cause of action is a property right; the revivalof a suit upon the death of a party is a matter of procedure. Warren v. Furstenheim (C. C.) 35 F. 691, 1 L. R. A. 40. There can be no revival of an action, suit, or proceeding after the death of a plaintiff, petitio...