Lang v. Friesenecker
| Decision Date | 21 February 1905 |
| Parties | LANG v. FRIESENECKER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Jo Daviess County Court; Wm. Rippin, Judge.
Petition by Caroline Lang and another for an order granting letters of administration with the will annexed to M. H. Cleary on the estate of Wilhelmina Kettler, deceased. From an order denying the petition, and directing that decedent's conservator, Matthew Friesenecker, proceed with the administration of the estate, petitioner Lsng appeals. Affirmed.M. H. Cleary, for appellant.
Jones & Kerz and Sheean & Sheean, for appellee.
This is an appeal from an order of the county court of Jo Daviess ounty, entered on September 3, 1904, dismissing the petition of the appellant, Caroline Lang, and one Grant M. Heiserman, for the granting of letters of administration with the will annexed to M. H. Cleary on the estate of WilhelminaKettler, deceased, and ordering that the said Matthew Friesenecker proceed with the administration of said estate, as by law empowered. Wilhelmina Kettler, who had been insance for several years, died testate on May 2, 1904, leaving a will, in which she appointed Louis A. Rowley executor. Rowley, the executor, had been dead for several years when this proceeding was instituted. Wilhelmina Kettler, deceased, left surviving her neither husband nor children, nor descendants of children, but left surviving her, as next of kin and heirs at law, Caroline Lang, the appellant, her sister; Gottlieb Heiserman, a brother; and John F. Heiserman, Louis J. Heiserman, and Grant M. Heiserman, nephews, being the children of a deceased brother, named John Jacob Heiserman. The will of Wilhelmina Kettler was executed on February 23, 1895, more than nine years before her death. By its terms she left all her estate, real, personal, or mixed, and of every nature and kind, share and share alike, to her sister, the appellant, Caroline Lang, of Montana, and her brother Jacob Heiserman, of St. Louis, Mo. She left personal estate, consisting chiefly of moneys, notes, credits, and securities, being estimated to be worth about $20,000. The will of the deceased testatrix was admitted to probate according to law. The appellee, Friesenecker, was on August 30, 1897, appointed conservator of Wilhelmina Kettler, insane, by order of said county court. On June 20, 1904, Caroline Lang, by George L. Blum, her attorney in fact, and Grant M. Heiserman, above named, being the sister and nephew of the deceased, by M. H. Cleary, their attorney, presented to the county court their petition, praying that letters of administration with the will annexed upon the estate of the deceased, Wilheimina Kettler, might be issued to M. H. Cleary. The appellee, Friesenecker, by his attorneys, entered his appearance, and objected to the granting of letters as prayed for in said petition, and claimed the right, as such conservator, to settle up the estate in question, as provided by section 9 of chapter 86 of the Revised Statutes of Illinois of 1874. A power of attorney, executed by Caroline Lang to George L. Blum, dated May 31, 1904, was presented to the court, and it is conceded that such power of attorney authorized the said Blum to file the petition for the appellant, and to take such steps as might be necessary in the administration of the estate. Wilhelmina Kettler was insane at the time of her death.
MAGRUDER, J. (after stating the facts).
The question in this case is whether the appellant, Caroline Lang, as next of kin to Wilhelmina Kettler, deceased, had a right to nominate M. H. Cleary to be administrator with the will annexed of the estate of the deceased, under section 18 of the administration act, or whether the appellee, Friesenecker, having been duly appointed conservator of the estate of Mrs. Kettler, and acting as such at the time of her death, had a right to administer on such estate. The court denied the prayer of the petition of the appellant to grant letters of administration to Cleary, and dismissed the same, and directed the appellee, Friesenecker, as conservator, to settle up the estate, and to that end exercise all the powers of administrator.
Section 1 of the act in regard to the administration of estates provides ‘that when a will has been duly proved and allowed, the county court shall issue letters testamentary thereon to the executor named in such will, if he is legally competent and accepts the trust, and gives bonds to discharge the same; and when * * * the executor named therin dies, * * * the court shall commit the administration of the estate unto the widow, surviving husband, next of kin, or creditor, the same as if the testate had died intestate.’ 1 Starr & C. Ann. St. 1896 (2d Ed.) p. 269. In the case at bar, Rowley, the executor named in Mrs. Kettler's will had died; and, under the provisions of section 1 of the administration act, as above quoted, the estate is to be regarded as intestate, so far as the selection of the administrator thereof is concerned.
Section 9 of chapter 86 of the Revised Statutes of 1874, being ‘An act to revise the law in relation to idiots, lunatics, drunkards and spendthrifts,’ approved March 26, 1874, provided as follows: ‘Such conservator shall at the expiration of his trust, pay and deliver to those entitled thereto all the money, estate and title papers in his hands as conservator, or with which he is chargeable as such, in such manner as shall be directed by the order or decree of any court having jurisdiction thereof.’ 2 Starr & C. Ann. St. 1896 (2d Ed.) p. 2665. By act of June 7, 1895, entitled ‘An act to amend section 9 of chapter 86 of an act entitled ‘An act to revise the law in relation to idiots, lunatics, drunkards and spendthrifts,’ approved March 26, 1874, in force July 1, 1874,' said section 9 was amended by adding thereto the following: ‘Whenever any lunatic, idiot, drunkard or spendthrift shall die, seized or possessed of any real or personal estate, then such conservator shall have full power and authority under the letters issued to him or her to make final settlement and distribution of the estate of said deceased ward without further letters of administration, in such time and manner as is required by law of administrators of the estate of deceased persons: provided, this shall not apply to non-resident conservators.’ Sess. Laws Ill. 1895, p. 244. The object of this amendment was evidently to save the expense of administering upon the estates of deceased insane persons, whose estates were already under the control of conservators and undergoing settlement by the latter. The amendatory act set forth the whole of section 9, including the same as it was under the act of 1874 and the amendment thereto passed in [213 Ill. 602]1895. Section 9 now appears in the Revised Statutes as containing the provision of 1874, and also the provision of 1895. Vide 2 Starr & C. Ann. St. 1896 (2d Ed.) p. 2665.
1. It is first contended on the part of the appellant that the amendment of said section 9, as passed in 1895, is unconstitutional. The provision of the Constitution which it is said to contravene is that part of section 13 of article 4 of the Constitution of 1870 which reads as follows: ‘No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.’ 1 Starr & C. Ann. St. 1896 (2d Ed.) p. 125.
The position of counsel for appellant is, that section 9, as passed in 1874, simply required the conservator to pay and deliver over to those entitled thereto all money, estate, and title papers in his hands as conservator, or with which he was chargeable as such, in such manner as should be directed by order or decree of court, at the expiration of his trust. The section, as it thus originally stood in 1874, does not designate when the trust of the conservator shall terminate; but other sections of chapter 86 refer to the determination of the trust by removal, resignation, or death. It is said that, inasmuch as the original section was confined to a simple direction to the conservator to turn over the property in his possession as the court should direct, the subject-matter of the amendment to the section cannot e regarded as germane to the duty of so turning over the property in his possession, as directed by the section before it was amended. Therefore it is insisted that the amendment specifies other matter than that which is contained in the title. In other words, the original section is said to confer upon the conservator the sole duty of turning over the property in his possession, while the amendment confers on the conservator the powers and duties of administration in addition to such duty. The power to make final settlement and distribution of the estate of the deceased ward, without further letters of administration, in such time and manner as is required by law of the administratorsof the estate of deceased persons, as conferred by the amendment, is said to be not germane to the duty conferred by the original section, and therefore not to be embraced within the title of the act, which is ‘An act to amend section 9 of chapter 86 of an act entitled ‘An act to revise the law in relation to idiots, lunatics, drunkards and spendthrifts,’ approved March 26, 1874,' etc. In support of the contention of the appellant the case of Dolese v. Pierce, 124 Ill. 140, 16 N. E. 218, is referred to. In that case the amendatory act under consideration was an act entitled ‘An act to amend sections 2, 4, 6, 7, 10, 11 and 12 of article 3, of an act entitled ‘An act to revise the law in relation to township organization,’ approved and in force March 4, 1874.' Laws 1887, p. 300. The act, after providing that the county board of each county should have full power and jurisdiction to unite two or more contiguous towns into one, added a proviso that ‘where said town, to which such territory is annexed, is wholly within the limits of an incorporated city, the limits of said city shall thereupon be extended...
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