Lewark v. Dodd

• Decision Date: 04 June 1919
• Docket Number: No. 12347.,12347.
• Citation: 288 Ill. 80,123 N.E. 260
• Parties: LEWARK v. DODD et al.
• Court: Illinois Supreme Court

288 Ill. 80

123 N.E. 260

LEWARK

v.DODD et al.

No. 12347.

Supreme Court of Illinois.

April 15, 1919.

Rehearing Denied June 4, 1919.

Appeal from Circuit Court, Cook County; Oscar M. Torrison, Judge.

Bill by Elmer N. Lewark against Charles Dodd and others. Decree for plaintiff, and defendants appeal. Reversed and remanded, with directions.Albert Peterson and William E. Cloyes, both of Chicago, for appellants.

Frank B. Murray, Alanson C. Noble, and Ralph F. Potter, all of Chicago, for appellee.

CARTER, J.

Appellee, Elmer N. Lewark, a minor, in June, 1917, filed a bill by his next friend in the circuit court of Cook county to contest the will of Lula G. Knorr upon the ground of the insanity of the testatrix and the undue influence of the sole devisee with reference to the same. Upon the trial of the issue in the circuit court the jury returned a verdict finding that the instrument in question was not the last will and testament of Lula G. Knorr, and the court rendered a decree adjudging the will, and the probate thereof, void. This appeal followed.

Lula G. Knorr executed the instrument here in question on September 20, 1913, leaving all of her property to Mary E. Dodd, the wife of Charles Dodd; neither of them being related in any way to her. The testatrix died October 21, 1913. She left no surviving husband, and her heirs were her mother, Mary E. Knox, and Elmer N. Lewark, the appellee, and his sister, who were her nephew and niece. The will was admitted to probate January 8, 1914. On January 7, 1915, Mrs. Knox and the appellee and his sister (both the latter then being minors, by Mrs. Knox, their next friend) field a bill to contest the will, which was afterwards dismissed for want of prosecution. The bill on which the decree here in question was entered was filed June 1, 1917. Appellants do not question the verdict, but they insist that the court erred in decreeing the will to be void in its entirety, instead of limiting the effect of the decree to the interest of the appellee, and that no issue of law was properly made up as to whether the writing produced was the last will and testament of the testatrix.

In this state the descent of property, whether by inheritance or devise, is controlled by statute. The right to make a will, and the right to take property under a will, exist only by virtue of the statutes of this state, and are entirely subject to their provisions. In re Estate of Graves, 242 Ill. 212, 89 N. E. 978;Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321,41 L. R. A. 446. The right to contest a will by a bill in chancery is purely statutory, and can be exercised only in the manner and within the limitations prescribed by the statute. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860,130 Am. St. Rep. 180;Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185,72 Am. St. Rep. 211;Spaulding v. White, 173 Ill. 127, 50 N. E. 224. The provision for the contest of wills is found in the proviso to section 7 of the Statute of Wills, as follows:

‘Provided, however, that if any person interested shall, within one (1) year after the probate of any such will, testament or codicil in the county court as aforesaid, appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate shall be forever binding and conclusive on all of the parties concerned, saving to infants or non compos mentis the like period after the removal of their respective disabilities.’ Hurd's Stat. 1917, p. 2967.

This proviso is not a statute of limitations, but is one conferring jurisdiction. Sinnet v. Bowman, 151 Ill. 146, 37 N. E. 885; Spaulding v. White, supra; Carlin v. Peerless Gas Light Co., 283 Ill. 142, 119 N. E. 66.

The question first presented here is whether, by the proviso to said section 7 as to contesting wills, the court is given the right to entirely set aside the will at the suit of one within the saving clause after the year has passed, so as to wholly destroy the interests of all the beneficiaries named by the instrument, or only to set it aside as it affects the interests of the heir, who was an infant or non compos mentis at the time the will was probated, and who filed such contest before the expiration of a year after becoming of age or becoming sane, as the case may be.

This court in Dibble v. Winter, 247 Ill. 243, 93 N. E. 145, discussed at some length the history of our statute on wills and the sources from which its various provisions were derived, stating that section 7, as to the contest of wills, was taken, in substance, in 1829 from the statute of Kentucky (1 Littell's Laws, p. 611), and that the Kentucky statute was taken, in turn, from the Virginia statute (12 Hening's St. at Large, p. 140). It is stated in that opinion, also, that under the common law there could be a contest of the will every time it was offered in evidence. The earliest Virginia statute (1748 [5 Hening's St. at Large, 454]) referred to in that case provided for the probate of wills upon due notice and contained no provision as to contests by persons under no disability, but provided that a contest by those under certain disabilities, such as being under age or non compos mentis, must be brought within ten years after their several disabilities and incapacities were removed. The later Virginia statute (1785) provided that any contest must be brought within seven years after the probate, whether brought by one under legal disability or not. The Illinois statute of 1829 provided that those under disabilities must bring the contest, if at all, within five years after their disability was removed. The statutes of Virginia and Kentucky with reference to will contests are very similar to the statute of this state.

It will thus be seen that the tendency has constantly been to shorten the time within which the contest can be brought and to narrow the classes of people for whose benefit the time is extended. Now the statute of this state provides that the contest must be brought within a year after the disabilities are removed; the last amendment in 1903 changing the limitation from three years to one. Under the authorities already cited there can be no question that the Legislature could, in terms, fix the time of contest as to all parties in any manner that it desired. In view of the history of legislation on this subject, did it intend, when it passed the proviso to section 7 as it now reads, to make the probate of the will binding and conclusive on all parties except infants and persons non compos mentis, unless a...