Larson v. Nelson (In re Mortenson's Estate)

• Decision Date: 25 February 1911
• Citation: 248 Ill. 520,94 N.E. 120
• Parties: In re MORTENSON'S ESTATE. LARSON v. NELSON et al.
• Court: Illinois Supreme Court

248 Ill. 520

94 N.E. 120

In re MORTENSON'S ESTATE.LARSON

v.NELSON et al.

Supreme Court of Illinois.

Feb. 25, 1911.

Appeal from Probate Court, Cook County; Charles S. Cutting, Judge.

Petition by Lotta Nelson and others to the Probate Court of Cook County for an order to show cause why Evans Larson should not take out letters of trusteeship under the will of Lauritz Mortenson of which he was executor and trustee of the residue. From an order directing the executor to apply for and take out letters of trusteeship on pain of dismissal, he appeals. Reversed.

Walter Quitman and John De Grazia, for appellant.

McCabe, Cloyes & Kull and Robert C. Bennett, for appellees.

CARTWRIGHT, J.

Lauritz Mortenson died on August 24, 1908, possessed of real and personal property in Cook county and leaving a last will and testament, which was admitted to probate on August 29, 1908, by the probate court of said county. By the will appellant, Evans Larson, was nominated as executor and was also appointed trustee of the residue of the estate, after the payment of debts, funeral expenses, and a legacy, for the term of five years from the death of the testator, with power to take possession of the estate under an active trust. The will provided for compensation for the services of the trustee and directed that at the termination of the trust the trust estate should be divided equally among five named persons. Letters testamentary were issued to appellant, and on January 27, 1910, the appellees, four of the beneficiaries of the trust, presented their petition to the probate court praying that appellant should be cited to show cause why he should not take out letters of trusteeship under said will. He answered that the act purporting to authorize probate courts to supervise and control testamentary trusts was unconstitutional and void. The court heard the petition and ordered the appellant, within five days, to apply for and take out letters of trusteeship in accordance with said act, and provided that, if he did not, the court would proceed to appoint another trustee. From that order this appeal was taken.

The act under which the court proceeded is entitled ‘An act to extend the jurisdiction of probate courts and county courts having probate jurisdiction so as to include the complete administration of testate estates,’ in force July 1, 1909 (Laws 1909, p. 175). The section of the act purporting to extend the jurisdiction is the first, which is as follows: ‘That original jurisdiction is hereby conferred upon probate courts and county courts in counties where no probate courts are now, or may hereafter be established according to law, to supervise and control all testamentary trusts created by original wills of deceased persons proved and admitted to probate in such court. The jurisdiction hereby conferred shall include the appointments and removals of trustees, the issuing of letters of trusteeship to such trustees, the fixing and approving of their bonds and the settlement of their accounts; and in regard thereto said court shall have and exercise full chancery powers.’

When county courts were established, in 1849, they were given jurisdiction over various subjects and were invested with all the powers and jurisdiction of the probate courts previously existing, and the judge was given the civil and criminal jurisdiction of a justice of the peace. The county courts have never been exclusively courts of probate jurisdiction, and they have jurisdiction in matters of taxes and special assessments, in certain actions at law and some classes of criminal offenses. Section 18 of article 6 of the present Constitution fixes the jurisdiction of county courts generally, as follows: County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by a general law.' Under that provision of the Constitution the General Assembly may, by a general law, confer upon county courts any jurisdiction which may be deemed advisable. Section 20 of the same article provides for the establishment of courts, in certain localities, for the exercise of probate jurisdiction, without the authority contained in section 18 to confer other jurisdiction. Section 20 authorizes the General Assembly to provide for the establishment of a probate court in each county having a population of over 50,000, with the following jurisdiction: ‘Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts.’ These are all matters which by long usage have been under the control of courts having probate jurisdiction, and variously styled in the different states as orphans' court, court of probate, surrogate's court, ordinary's court, prefect's court, probate justice, or county court.

While the word ‘probate,’ in a technical sense, means the official proof of an instrument offered as a last will and testament, the term ‘probate matters' has acquired a much wider meaning, and the words were undoubtedly used in the Constitution in a broad and general sense. Giving to the words of the Constitution their broadest meaning, the supervision and control of testamentary trusts are not included in the settlement of the estates of deceased persons mentioned in section 20. The settlement of an estate, in legal significance and common understanding, is the process by which letters testamentary or of administration are granted, assets collected, claims allowed, debts paid, real estate sold if necessary for the payment of debts, and the property distributed to those who are entitled to it by the laws of descent or by the will. Such settlement has no relation to the management or execution of trusts, which are either entirely independent of the administration of the estate by the executor or administrator to the same extent that a devise of real estate is independent of such administration, or, if the trust is in the residue of property committed to the executor, can only become operative after the settlement of the estate is completed and the trustee receives the property from the executor.

While it is argued that the supervision and control of testamentary trusts are a part of the settlement of the estates of deceased persons, the principal argument is that such supervision and control are included in the term ‘probate matters.’ In Winch v. Tobin, 107 Ill. 212, it was considered that those words were to be given their broadest meaning, which is undoubtedly a correct rule. The case did not relate to the estate of a deceased person, but was one where the probate court of Cook county had ordered a sale of real estate of a minor on petition of his guardian, and the appointment of guardians and settlement of their accounts were specifically mentioned in the Constitution as subjects of probate jurisdiction, or, rather, subjects of the jurisdiction of a court to be styled a probate court. Some weight was given by the court to section 5 of the act of 1874 (Rev. St. 1874, c. 37, § 69), establishing county courts, which reads as follows: ‘County courts shall have jurisdiction in all matters of probate, settlements of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts; all matters relating to apprentices; proceedings for the collection of taxes and assessments; and in proceedings by executors, administrators, guardians and conservators for the sale of real estate for the purposes authorized by law, and such other jurisdiction as is or may be provided by law. All of which, except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate terms hereinafter mentioned.’ Perhaps the fact that proceedings for the collection of taxes and assessments were included among the subjects declared to be probate matters did not attract attention; but it is quite certain that the General Assembly had no intention of declaring the collection of the revenue to be a probate matter. Whatever similarity there may have been in the popular mind, in one respect, between death and taxes, it is evident that the General Assembly was not attempting to classify the collection of taxes from living persons or assessments for special benefits to their property as probate matters. The purpose of that section and those following it was to fix and separate the terms at which the law jurisdiction of county courts should be exercised, so as to have the court always open for the transaction of certain business and to have fixed terms for the trial of actions at law, appeals from justice and criminal offenses. Section 6 provides that all the matters cognizable at probate terms shall also be cognizable at law terms, while section 7 limits the...