Lasier v. Wright

• Decision Date: 10 October 1922
• Docket Number: No. 13764.,13764.
• Citation: 136 N.E. 545,304 Ill. 130
• Parties: LASIER v. WRIGHT et al.
• Court: Illinois Supreme Court

304 Ill. 130

136 N.E. 545

LASIER

v.WRIGHT et al.

No. 13764.

Supreme Court of Illinois.

June 21, 1922.

Petition for Rehearing Stricken Oct. 10, 1922.

Petition by Clarence Lasier and others for the probate of a will, opposed by J. Joseph Wright, as executor under a subsequent will, previously admitted to probate. From a decree denying the probate of the earlier will, Lasier appeals.

Affirmed.

See, also, Mercy Hospital and Mercy Orphan Asylum of Chicago v. Board of Education of Dist. No. 87, 281 Ill. 582, 117 N. E. 1005.

Dunn and Cartwright, JJ., dissenting.

Appeal from Circuit Court, Kane County; C. F. Irwin, Judge.

Charles S. Cutting and Charles S. Deneen, both of Chicago, and Robert S. Egan, of Elgin, for appellant.

R. W. Clifford, and Cooke, Sullivan & Ricks, all of Chicago (George A. Cooke, of Chicago, of counsel), for appellees.

DUNCAN, J.

On March 7, 1887, Charles H. Haines, a bachelor, executed a will giving all of his property to his mother, Harriet S. Haines, absolutely and without qualification, and nominating an executor. The will contained no further provision. On January 13, 1907, he executed another will, declaring it to be his last will, whereby, after the direction of the payment of his debts, he gave the net income of all of his estate to his mother, to be paid to her by his executor during her natural life. He gave thereby a legacy of $10,000 to each of two other persons, and devised certain real estate, after his mothers death, to another person, and the residue of his estate he gave, two-thirds to the Mercy Hospital of Chicago and one-third to the trustee of school district No. 87 in the township of St. Charles, in Kane county. J. Joseph Wright was nominated as executor, and the will contained no other provisions except with reference to the powers and duties of the executor and the trustees of the school district. It contained no express declaration revoking the previous will and did not mention or in any way refer to or in any manner indicate that the testator had ever executed a previous will. The testator died June 24, 1914, leaving no widow or descendants, and his mother was his only heir. She died, after having executed a will on January 12, 1915, which was admitted to probate May 4, 1915. By her will she gave some personal legacies and made directions of minor importance and bequeathed the residue of her estate to the board of education of St. Charles. Her known heirs were a niece and several grandnephews and grandnieces, none of whom took anything under her will. A bill was filed to contest her will, which is still pending in the circuit court of Kane county. The estate of Charles H. Haines consisted of real and personal property of the value of more than $500,000. After his death, the will of 1907 was admitted to probate on September 8, 1914, in the probate court of Kane county, and letters testamentary were issued to J. Joseph Wright, the executor named in the will. A settlement of the estate is still pending in the probate court. All claims against the estate, except two or three items, have been paid and all legacies except one of $10,000. The executor filed his final report, but, before it was heard, the will of 1887 was produced. A petition for the partition of the land of Haines was filed in the superior court of Cook county, and a decree was entered confirming the title in the Mercy Hospital and the board of education and for partition as prayed, which was affirmed by this court in 281 Ill. 582, 117 N. E. 1005. Under this decree the lots in Chicago were sold for $100,000 and the lots in St. Charles for $40,000.

The will of 1887 was discovered among the testator's papers after his death by Wright, the executor named in the will of 1907, and his attorney, John S. Huey, before the probate of the latter will, but its existence was not made known at that time to any of the other persons interested. It was preserved by Wright and kept in a safety deposit box in Chicago until February 19, 1920, when the case of Limbach v. Limbach, 290 Ill. 94, 124 N. E. 859, then recently decided, came to the attention of Huey, who then thought that the persons interested should know of the earlier will, and he informed them of its existence. The next day the will of 1887, together with a petition for its probate by Genevieve G. White, Clarence Lasier, and Josephine Lasier, who were, respectively, a niece and grandnephew and grandniece of Harriet S. Haines, and were three of her heirs and of the next of kin of Charles H. Haines, was filed in the probate court of Kane county. The petition was heard and denied, and Clarence Lasier appealed to the circuit court of Kane county and there filed a supplemental bill setting up the admission of the will of 1907 to probate and the proceedings under that will for the settlement of the estate, praying for the vacation of the order admitting that will to probate and for the admission of the will of 1887 to probate as the last will and testament of the testator. The circuit court heard the cause, denied the petition to vacate the order admitting the will of 1907 to probate, and denied probate of the will of 1887. Clarence Lasier has appealed from this decree.

There was no question raised either in the county or circuit court as to the legal competency of the testator to make either will at the times they were executed, and there was no question of undue influence or of the due observation of every formal requirement of law in the execution of the same. The sole question was whether the later will revoked the earlier will. Other questions have been raised in this court by appellees, but we do not consider it necessary to consider those questions in our decision of the case. Simply and plainly stated, the sole question for our consideration is: Does the second will, which makes a complete and entirely different disposition of all of the testator's property from that made by the first will and without the employment of any express words revoking the first will, constitute, of itself, a sufficient revocation of the first will under our present statute on wills?

From the facts appearing in the record, both wills were retained and preserved by the testator without change or mutilation of any kind, and no other will was ever made by the testator, so far as the record shows. It appears that it was a habit of the testator to preserve most all papers of every character executed by him, including even canceled checks that he had drawn on his banks. Although not material in this case, his habit of preserving papers may account for the fact that the first will was preserved and retained by him. At any rate, the two wills remain as the only evidence as to his wishes concerning the disposition of his property after his death. It cannot be, and is not, questioned that the later will disposes of all of his property and in an entirely different manner from that made by the former will. Both of these wills cannot stand together as his last will and testament, and that is conceded. One or the other of these wills must dispose of his property, and the claim of appellant is that the first will, under our statute, must be taken as his last will and testament, because the second will contains no express words referring to the first will or to former wills declaring the same to be revoked. It is the claim of appellees that the second will does declare a revocation of all former wills within the meaning of our statute, although there are no words in the second will that refer to the first or any former will or that in express terms declare a revocation of the same.

The common law of England, and all statutes of parliament in aid thereof prior to the fourth year of King James I, except certain specified statutes, has been in force in this state ever since, and even before, its organization as a state, except as it has been modified or repealed by the legislative authority. It was thus adopted at the first session of the Legislature of the state and has remained in force ever since, except as aforesaid. Laws 1819, p. 3; Hurd's Stat. 1921, c. 28. The fourth year of James I began March 24, 1606. The English statute of frauds, properly speaking, is St. Car. II, c. 3, and was enacted in that country in 1677. 25 R. C. L. 433. The sixth section of that statute provides as follows:

‘No devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four-and-twentieth day of June be revocable otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, canceled, torn or obliterated by the testator or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing, of the devisor, signed in the presence of three or four witnesses, declaring the same, any former law or usage to the contrary notwithstanding.’

Section 22 of the same statute pertained to the repeal or revocation of wills concerning goods and chattels or personal estate, but is so different from section 6 that it can have no possible bearing upon the issue in this case. It is necessary, however, to bear this difference in mind in the consideration of the English cases decided under the statute of frauds, in order to have a correct understanding of those decisions bearing upon the question of revocation of wills by later wills. These two sections will be found under note 8 on page 273 of Page on Wills. In 1837 all distinction as to the manner of the revocation of wills as to real estate and as to personal property was done away with by the enactment of St. I Vict. c. 26. Section 20 of that act provides--

‘that no will or codicil, or...