Liesman v. Liesman

• Decision Date: 06 October 1928
• Docket Number: No. 18435.,18435.
• Parties: LIESMAN et al. v. LIESMAN et al.
• Court: Illinois Supreme Court

331 Ill. 287
162 N.E. 855

LIESMAN et al.
v.
LIESMAN et al.

No. 18435.

Supreme Court of Illinois.

June 23, 1928.
Rehearing Denied Oct. 6, 1928.

Error to Circuit Court, Logan County; Frank Lindley, Judge.

Suit by Mary A. Liesman, individually and as executrix, against Florence Liesman and others. From the decree, plaintiff and certain defendants bring error.

Affirmed.

[162 N.E. 856]

[331 Ill. 288]Fred I. Edgell and Peter Murphy, both of Lincoln, and Charles H. Woods, of Chicago, for plaintiffs in error.

Lyman S. Mangas, of Lincoln, for defendants in error.

DE YOUNG, C. J.

Brown Liesman, a resident of the city of Lincoln, in Logan county, died testate on November 29, 1925, leaving him surviving Mary A. Liesman, his widow, and nine children, his only heirs at law. His estate consisted of his residence in the city of Lincoln, 441 acres of land in Logan county, 640 acres of land in the state of Oklahoma, and securities valued at approximately $44,000. His will was admitted to record by the county court of Logan county. Mary A. Liesman, the widow, was appointed executrix of [331 Ill. 289]the will and qualified as such. By the second, third, and fourth sections of the will, the testator disposed of all his property, and these sections are, respectively, as follows:

‘Second-After the payment of such debts and funeral expenses, I give, devise and bequeath unto my beloved wife Mary Liesman, all such part or share of the estate I may die seized of, to which she is entitled under and by virtue of the now existing laws of the state of Illinois.

‘Third-I give, devise and bequeath to my son Frank Liesman the sum of ($1,000) one thousand dollars, to be paid to him out of my estate so soon after my decease as may be practicable and convenient; that said sum of one thousand dollars so bequeathed to my said son Frank Liesman to be in full of his share as one of the heirs to my estate, unless otherwise provided herein.

‘Fourth-All the rest and residue of my estate, after the payment of the aforementioned expenses and bequests and debts, I give, devise and bequeath to the following of my children: Emma Liesman, Louisa Liesman, Grover Liesman, Daniel Liesman, Reynold Liesman, Maude Liesman, Anna Pearl Liesman, Edward Liesman, Harold Leroy Liesman, share and share alike, to be theirs in fee simple absolute and forever. Upon the death of any and either of my aforesaid children, the children of such deceased child, if any there be, shall take the share of the parent so deceased. And should any of my children die, leaving no issue, then the share of such deceased child shall be divided among all of my surviving children share and share alike.’

Prior to the testator's death, Maude Liesman, a daughter, one of the devisees and legatees mentioned in the fourth section of the will, died without a child or descendant of a child surviving her.

On May 27, 1926, Mary A. Liesman, the widow, renounced the will, and in lieu of its provisions in her behalf elected to take her legal share of the estate. By a second instrument dated the same day she waived her right of [331 Ill. 290]dower and elected to take one-third of each parcel of real estate in fee simple. The first instrument was filed in the office of the county clerk and the second in the office of the circuit clerk and ex officio recorder of deeds of Logan county. Subsequently Mary A. Liesman, individually and as executrix, filed a bill of complaint in the circuit court of Logan county against the surviving descendants of the testator for a construction of the will, declaring that each of his children, except Frank Liesman, became seized in fee simple, upon the testator's death, of an undivided one-eighth of his real estate, subject to the interests of the complainant, and

[162 N.E. 857]

that the residue of the personal property should be likewise distributed. Daniel Liesman, one of the adult defendants, filed an answer to the bill. Certain grandchildren of the testator, parties defendant, were minors, and a guardian ad litem interposed an answer to the bill in their behalf. Replications were filed to the answers. The bill was taken as confessed by the adult defendants, who failed to answer. The cause was referred to a master in chancery, who, after taking evidence, reported his...