Jele v. Lemberger

• Decision Date: 09 November 1896
• Parties: JELE v. LEMBERGER.
• Court: Illinois Supreme Court

163 Ill. 338

45 N.E. 279

JELE

v.LEMBERGER.

Supreme Court of Illinois.

Nov. 9, 1896.

Error to superior court, Cook county; Philip Stein, Judge.

Bill by Joseph Lemberger against Anna Jele and others to contest the probate of a will. There was a decree for complainant, and defendant Jele brings error. Reversed.A. W. Thomas and J. F. Geeting, for plaintiff in error.

Wilbur & Hauze, for defendant in error.

Joseph Lemberger, the defendant in error, filed in the circuit court of Cook county his bill of complaint, the commencement of which is as follows: ‘Your orator, Joseph Lemberger, of the empire of Germany, by Mary Lemberger, his attorney in fact, respectfully represents unto your honors that one Joseph Lemberger, also known as Joseph Lempberger, the uncle of your orator, Joseph Lemberger, late of the county of Cook and state of Illinois, but now deceased, on, to wit, the 16th day of August, 1892, executed a certain instrument of writing purporting to be his last will and testament; and afterwards, and on, to wit, the 12th day of September, 1892, said Joseph Lemberger departed this life, leaving the following named persons, besides your orator, his heirs at law and legal representatives, to wit, Walpurga Weinfurter, a niece, and George Lemberger, a nephew, defendants hereinafter named.’ The bill then states, in substance, that the said Joseph Lemberger, deceased, in and by the said instrument in writing, purporting to be his last will and testament, professedly bequeathed all his property to one Anna Jele, and that said will was probated, and Anna Jele appointed executrix under the same. It also states that the deceased was at the time of his death the owner and in possession of a certain described house and lot in Cook county, of the value of $4,000, and that since his death the said Anna Jele has been enjoying the rents and profits of said premises. The bill charges that the testator, Joseph Lemberger, deceased, at the time of making the will in question, was in his dotage; that his mind was impaired; that he was frequently intoxicated; that he was illiterate, and spoke English imperfectly; and that he was under the undue influence of said Anna Jele, to whom he was not related. Anna Jele, Walpurga Weinfurter, and George Lemberger were made defendants to the bill. The prayer of the bill is that the supposed last will and testament be declared not to be the last will and testament of Joseph Lemberger, deceased, that his estate be distributed among his heirs, and for other and further relief. The answer of Anna Jele states ‘that she does not deny the relationship existing between Joseph Lemberger, of the empire of Germany, to Joseph Lemberger, now deceased.’ It admits that she is a beneficiary under the will, denies all charges of improper influence over the deceased, and denies that he was not of sound mind and memory, at the time of making said will, or that he was incapacitated by intoxication. The co-defendants, Walpurga Weinfurter and George Lemberger, say in their answer: ‘These defendants, for answer unto said bill, say that they neither confess nor deny any of the allegations therein contained, but call for such proof in regard thereto as the said complainant desires to make.’ Replications were filed to the answers. Certain issues were at last made up and submitted to the decision of a jury. The jury in their verdict found that the writing read in evidence is not the last will and testament of Joseph Lemberger, deceased, and, further, that, at the time of the execution and attestation of said writing, said Joseph Lemberger was not of sound mind and memory.

The decree of the superior court was as follows: ‘This cause having come on to be heard upon the bill of complaint herein, the answers of the defendants thereto, and the replication of the complainant to such answers; and the court having heretofore directed an issue of law to be made up, whether the writing, referred to in the pleading, and purporting to be the last will and testament of Joseph Lemberger, deceased, was the last will and testament of said Joseph Lemberger or not, and whether said Joseph Lemberger, at the time of the execution and attestation of said writing, read in evidence, purporting to be the last will and testament of said Joseph Lemberger, was of sound mind and memory; and a jury, to wit [here follow names of jurors], having been called, elected, and sworn to try the said issues; and the said jury having heard,’ etc., and having found by their verdict that said writing was not the last will and testament of said Joseph Lemberger, deceased, and that the said Joseph Lemberger, at the time of the execution and attestation of said writing, was not of sound mind and memory; and the defendant Anna Jele having interposed a motion in this cause to set aside the said verdict and for a new trial; and the court having heard the grounds and arguments in support thereof, and, being fully advised in the premises, overruled said motion,-‘it is further ordered, adjudged, and decreed by the court that the said instrument in writing purporting to be the last will and testament of said Joseph Lemberger, deceased, and the probate of said will in the probate court of Cook county, and the proceedings thereunder, be, and the same are hereby, set aside, and be, and the same are hereby, declared null and void. It is further ordered and decreed that the costs of this proceeding be taxed against the defendants, and that execution may issue therefor in due course.’

Among the assignments of error on the record are these: That the superior court of Cook county had no jurisdiction of the subject-matter of the suit; that it was error to entertain the suit, and to enter the decree, in that the complainant is an alien, incapable of inheriting real property; that the entire record fails to show any interest of complainant in the subject-matter of the suit; that there is no finding, either in the verdict or decree, that complainant is an heir of Joseph Lemberger, deceased, or has any interest whatever in the lands set forth in the bill; that there is no finding of facts in the decree sufficient to support it.

BAKER, J. (after stating the facts).

In his bill of complaint defendant in error designates himself as ‘Joseph Lemberger, of the empire of Germany.’ The inference from such designation must be that he is a citizen or resident of such empire, and, in respect to the state of Illinois, a nonresident alien. And in her answer plaintiff in error likewise designates the complainant as ‘Joseph Lemberger, of the empire of Germany,’ and this is, in effect, an admission on the record of such nonresidence alienage. McVey v. McQuality, 97...