Hedlund v. Miner

• Decision Date: 20 November 1946
• Docket Number: No. 29574.,29574.
• Citation: 395 Ill. 217,69 N.E.2d 862
• Parties: HEDLUND et al. v. MINER et al.
• Court: Illinois Supreme Court

395 Ill. 217

69 N.E.2d 862

HEDLUND et al.

v.MINER et al.

No. 29574.

Supreme Court of Illinois.

Nov. 20, 1946.

Appeal from Circuit Court, Ford County; Frank S. Bevan, Judge.

Suit by Carl A. Hedlund and another against Lois Sweet Miner and another for partition of land. From an adverse decree, named defendant appeals.

Affirmed.

Berger & Newmark, of Chicago (H. J. Rosenberg and Marvin S. Fenchel, both of Chicago, of counsel), for appellant.

Middleton & Middleton, of Gibson City, and Claude M. Swason, of Paxton, for appellees.

THOMPSON, Justice.

This case comes to us on direct appeal from a partition decree entered in the circuit court of Ford county. The complaint for partition was filed by Carl A. Hedlund and Allen G. Miner, each of whom is the owner of an undivided one-third of the premises sought to be partitioned. The other one-third interest was owned by Leslie E. Miner, who died seized thereof on February 22, 1943, leaving a widow, Lois Sweet Miner, and one child, Sandra Louise Miner, aged 1 year, 3 months and 19 days, at the time of her father's death.

It appears from the record that on October 11, 1941, Leslie E. Miner, who then had no children, but was shortly expecting the birth of a child, made and executed a last will and testament, which, omitting the formal parts, is as follows: ‘I devise and bequeath all the estate and effects whatsoever and wheresoever, both real and personal, to which I may be entitled, or which I may have power to dispose of at my decease, unto my dear wife, Lois Sweet Miner, absolutely; and I appoint her sole executrix of this my will, and I direct that she be exempt from giving any surety or sureties on her official bond as executrix.’ Afterward, on November 3, 1941, the appellee, Sandra Louise, was born, and approximatly two weeks later Miner delivered the executed will to his wife. Thereafter he died testate, leaving his will as originally made, and leaving him surviving his said widow and child as his only heirs-at-law.

The will was admitted to probate and letters testamentary issued to the widow, as executrix, by the probate court of Cook county, on April 22, 1943. At the hearing on the petition to probate the will, the child was represented by a guardian ad litem, appointed by the court. The estate of the testator, in addition to his interest in the real estate here sought to be partitioned, consisted of approximately $18,000 in cash and other personal property of considerable value. The widow filed her final account and report as executrix in the probate court of Cook county on February 3, 1944, showing payment in full of all claims and costs of administration and distribution of all the remainder of the property to herself, individually, as sole beneficiary and legatee, and an order was entered by the probate court on the same day approving the final report of distribution, declaring the estate settled and discharging the executrix. This order was entered without notice to the child, Sandra Louise, and she was not represented by guardian ad litem nor in any other manner at the hearing on the final report. No appeal or other proceedings for review were taken concerning the action of the probate court.

The complaint for partition, to which both the mother, Lois, and the child, Sandra Louise, were made parties defendant, set forth the death and heirship of Leslie E. Miner. It also set forth the execution by him of his last will and testament, the subsequent birth of his daughter, Sandra Louise, twenty-two days later, the admission of the will to probate in Cook county, the issuing of letters testamentary to the widow, as executrix, and the final settlement of the estate in that court on a report of distribution of all the property of the estate to the widow as sole legatee and beneficiary. The complaint then alleged that because of the birth of the daughter after the execution of the will, a construction of the will was necessary to determine whether said child possessed any rights in the realty under section 48 of the Probate Act. The complaint concluded with a prayer that the court construe the will of Leslie E. Miner, deceased, determine the rights of the parties in the real estate, and enter a decree for partition of said lands based on such determination. Appellant answered, denying that the daughter, Sandra Louise Miner, was entitled to any interest in the real estate, and claiming that the said Sandra Louise Miner was disinherited by the will of her father, Leslie E. Miner. The guardian ad litem appointed for Sandra Louise filed an answer and counterclaim by which it was alleged that Sandra Lousie, because of her birth after the execution of the will of Leslie E. Miner, and because it did not appear by said will that it was the intention of the testator to disinherit her, was entitled to receive two-thirds of the interest which her father had in the real estate at the time of his death. The counterclaim further alleged that the child was entitled to a two-thirds interest in the net personal estate of Leslie E. Miner; that Lois Sweet Miner was wrongfully withholding the said two-thirds share, and that the said Lois Sweet Miner holds, on a constructive trust for the benefit of the minor, two thirds of the net personal estate.

The matter was referred to a master in chancery, who, after hearings, reported that the plaintiffs were entitled to a partition; that the child, Sandra Louise, was entitled to a two-ninths interest in the real estate and a two-thirds interest in the net personal estate of Leslie E. Miner; that Lois Sweet Miner, the mother, holds in constructive trust, for the benefit of Sandra Louise Miner, the portion of the real estate involved and also two thirds of the personal property of Leslie E. Miner; that a decree of partition should be entered in accordance with the interests of the parties therein and that appellant should be directed to pay and deliver to Sandra Louise Miner two thirds of the money and personal property distributed under the order of the probate court. In arriving at this conclusion, the master held that there was no intention expressed in the will to disinherit Sandra Louise and that the provisions of section 48 of the Probate Act apply to give to the child that portion to which she would be entitled had there been no will. Objections were filed by the widow to the master's report, which were overruled by the aster. The circuit court, after a hearing on the master's report and the objections thereto, which were ordered to stand as exceptions, approved the report and entered a decree in accordance with its conclusions.

To obtain a reversal of the decree, appellant makes the contention, among others, that the child, Sandra Louise Miner, (hereinafter referred to as the appellee,) was intentionally disinherited by the will of her father and therefore section 48 of the Probate Act has no application and does not operate to entitle the child to any portion of the father's estate. Section 48 of the Probate Act reads as follows: ‘Unless provision is made in the will for a child of the testator born after the will is made or unless it appears by the will that it was the intention of the testator to disinherit the child, the child is entitled to receive the portion of the estate to which he would be entitled if the testator had died intestate, and all devises and legacies shall be abated proportionately therefor.’ Ill.Rev.Stat.1945, chap. 3, par. 199. This section, which was enacted as a part of the Probate Act of 1939, is a restatement, with verbal changes only, of that part of section 10 of the Descent Act concerning the effect upon a parent's will of the subsequent birth of a child, which, prior to its repeal by said Probate Act, had been in effect for many years. This provision of section 10 of the former statute was as follows: ‘If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate.’ Ill.Rev.Stat.1937, chap. 39, par. 10.

Under the express provisions of both section 48 of the present Probate Act and section 10 of the former Descent Act, a will, making no provision for an after-born child, is not effective as regards such child unless it appears by the will that it was the intention of the testator to disinherit the child. It is evident, from the wording of the statute in both instances, that the controlling factor in determining its applicability is the testamentary intent of the parent, and that in order to remove the will from the operation of the statute, the intention to disinherit must appear by the will. The requirement that the testator's intention to disinherit any after-born child or children must appear by the will is no different, however, from the requirement necessary to render effective any other intention of the testator, since it is well established that in all cases the intention of the testator which the courts will carry into effect is that expressed by the language of the will when interpreted in view of the facts and circumstances surrounding the testator at the time of its execution.

The object of the statute is not to control the intention of the parent or to restrict his absolute power to disinherit any child, whether living or subsequently born, but only to provide for such after-born children as were neither provided for nor disinherited in the will. The rule laid down in the cases involving the application of the statute is, that although the testator's intention to disinherit after-born children must be...