Keister v. Keister

• Decision Date: 17 February 1899
• Citation: 52 N.E. 946,178 Ill. 103
• Parties: KEISTER v. KEISTER et al.
• Court: Illinois Supreme Court

178 Ill. 103

52 N.E. 946

KEISTER

v.KEISTER et al.

Supreme Court of Illinois.

Feb. 17, 1899.

Error to circuit court, Macon county; Edward P. Vail, Judge.

Bill for partition by Julius Keister against John F. Keister and others. From an order sustaining a demurrer to the bill, plaintiff brings error. Affirmed.Le Forgee & Lee, for plaintiff in error.

Johns & Housum, for defendants in error.

WILKIN, J.

At the January term, 1897, of the circuit court of Macon county, Julius Keister, plaintiff in error, filed his bill for the partition of certain lands in that county; alleging that by reason of the death of his father, Peter Keister, on November 5, 1891, he became the owner of the lands in question as tenant in common with his brother, John F. Keister, subject to the dower and homestead rights of Susan Keister, the surviving widow. The bill charges that, by means of fraud and undue influence on the part of John F. Keister and Susan Keister over the mind of the deceased, they induced him to make a will which practically disinherited plaintiff in error, and that in pursuance of their fraudulent designs the purported will was on the 10th day of November, 1891, presented for probate in the county court of Macon county, and was improperly admitted to record, and that letters testamentary were granted thereunder. It is alleged that the will thus obtained and improperly probated constitutes a cloud upon complainant's title, which he asks to have removed, and that partition of the premises be decreed. To this bill the defendants filed a general demurrer, which was sustained. From that ruling complainant brings the cause to this court on writ of error.

While this is called a ‘bill for partition,’ it clearly shows on its face that the complainant can only have that relief upon an order setting aside the will of his father, Peter Keister. Therefore, unless sufficient facts are properly alleged to entitle him to the latter relief, the demurrer was properly sustained, and the decree below must be affirmed. On this branch of the case the bill is plainly one to contest said will by bill in chancery. The right to that relief is purely a statutory right and can only be availed of under the provisions of section 7 of the statute of wills (Rev. St. c. 148). Luther v. Luther, 122 Ill. 558, 13 N. E. 166;Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588;Jele v. Lemberger, 163 Ill. 338, 45 N. E. 279.

It is alleged in the bill that the will was presented for probate to the county court of Macon county November 10, 1891, and letters testamentary in the estate were issued to the executors named in the will. The bill, however, was not filed until the 22d day of May, 1897. One of the requirements of section 7, supra, is that a bill to contest a will in chancery must be filed within three years after the probate of any such will. Here more than six years have intervened, and, as held in Luther v. Luther and Wheeler v. Wheeler, supra, the court was without jurisdiction to entertain the bill. It is not shown by allegations, nor is it even claimed in the argument, that the complainantwas at any time under either of the disabilities named in section 7 of the statute.

An attempt is made to escape the foregoing conclusion by insisting that it is shown by the bill that the will was not properly admitted to probate. The allegations in that regard are as follows: ‘That upon the 11th day of November, 1891, John F. Keister and Jacob S. Keller filed their certain petition in the county court of Macon county for letters testamentary in the estate of Peter Keister, deceased; that, the said cause coming on to be heard, letters testamentary were improperly granted to the said John F. Keister and Jacob S. Keller as executors of the last will and testament of the said Peter Keister, deceased; that upon the 10th day of November, 1891, the said will, purporting to be the last will and testament of the said Peter Keister, deceased, was presented for probate in the county court of Macon county, Illinois; that at the time said alleged will...