Luther v. Luther

• Decision Date: 26 September 1887
• Citation: 13 N.E. 166,122 Ill. 558
• Parties: LUTHER and others v. LUTHER and others.
• Court: Illinois Supreme Court

122 Ill. 558

13 N.E. 166

LUTHER and others

v.LUTHER and others.

Supreme Court of Illinois.

September 26, 1887.

Appeal from circuit court, Cook county; J. C. BAGBY, Judge.

Merritt Starr and J. P. W. Brown, for appellants.

S. W. Osgood and M. F. Riggle, for appellees.

MAGRUDER, J.

Christian Luther, Sr., died testate, on September 4, 1875, leaving him surviving a widow,-the appellee Charlotte Luther,-and three children,-the appellant Christian Luther, and the appellees John Luther, and Sophia Luther, since married to William Nieberg. On September 3, 1875, he made a will, leaving his furniture and personal property to his widow, and also giving her a life-estate in all his other property, including lots 4, 5, and 6 of Assessor's subdivision of N. E. 1/4, and part of the N. W. 1/4, of section 5, township 40 N., range 13 E., etc., in Cook county. He devised these lots to John, to be taken possession of by him after the widow's death. He gave appellant Christian Luther $50, and Sophia $1,000; these sums to be paid after the widow's death, and, if the money should not then he on hand for their payment, they were to be liens on the land until John should pay them. The will was admitted to probate in the county court of Cook county on September 27, 1875, and letters testamentary were then issued to the appellee Wende, as executor.

This bill was filed in the circuit court of Cook county on September 1, 1885, for the purpose of setting aside the will, and the probate thereof, on the grounds that the testator was not of sound mind and memory when he made the will, and that he was induced to make it by the fraud, falsehood, and misrepresentation of said Wende, and of said Charlotte, John, and Sophia. The bill alleges that appellants did not learn of the testator's unsoundness of mind and memory, nor of the fraud and undue influence used in obtaining the will, until March, 1884, and that the cause of action set up in the bill was fraudulently concealed by the defendants therein from the complainants until within three years before filing the bill. The defendants, on November 9, 1885, filed an answer denying all the allegations of the bill, but making no reference to the fact of its being filed after the three years prescribed by the statute. Complainants filed a replication to the answer. The cause came on the be heard. A jury was impaneled to try the issue whether the writing produced was the will of the deceased or not. Two witnesses were sworn and testified for defendants. The circuit judge then, having inquired of the solicitor for complainants, and being informed by him that complainants did not come within the saving clause of the statute as to infants, femes covert, persons absent from the state, or non compos mentis, dismissed the bill on the ground that, upon the face of it, he had no jurisdiction to try the cause.

It will be noted that the will was admitted to probate on September 27, 1875, and that this bill to contest its validity was not filed until nearly 10 years afterwards; to-wit, on September 1, 1885. The main question presented by the record is whether a court of chancery in this state can, under our statute, entertain a bill to set aside the probate of a will when more than three years after such probate have elapsed before the bill is filed. The statute is as follows:

‘Sec. 7. When any will, testament, or codicil shall be exhibited in the county court for probate thereof, as aforesaid, it shall be the duty of the court to receive probate of the same without delay, and to grant letters testamentary thereon to the person or persons entitled; and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early a day as shall be consistent with the rights of the respective persons interested therein: provided, however, that if any person interested shall, within three years 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 as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants, femes covert, persons absent from the state, or non compos mentis, the like period, after the removal of their respective disabilities. And in all such trials by jury as aforesaid, the certificate of the oath of the witnesses at the time of the first probate shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.’ Section 7 of ‘An act in regard to wills,’ approved March 20, 1872, (Rev. St. c. 148.)

The act of January 23, 1829, in force July 1, 1829, (Rev. Laws 1829, p. 193, § 5,) and the act of 1845, (Rev. St. 1845, c. 109, § 6, p. 537,) were the same as the act of [122 Ill. 563]1872, except that in the former the period was five years, instead of three years. Section 7 is, in substance, a transcript of the eleventh and fifteenth sections of a statute of Kentucky passed February 24, 1797. Rigg v. Wilton, 13 Ill. 15. The Kentucky statute was taken from the Virginia act of 1785, which was a remodeling of an earlier Virginia act, passed in 1748. Well's Will, 5 Litt. (Ky.) 273; 12 Hen. St. at Large, p. 142; 5 Hen. St. at Large, 454, 455; 1 Litt. Laws Ky. p. 611, § 293, and note. The Virginia statute was construed in Coalter's Ex'r v. Bryan, 1 Grat. 18, and in Connolly v. Connolly, 32 Grat. 657. The Kentucky statute was construed in Rogers v. Thomas, 1 B. Mon. 390.

In England, the probate of wills of personal property was exclusively vested in the ecclesiastical courts. There were two modes of probate,-one, ex parte; the other, inter partes. One was proof of the will ‘in common form;’ the other was proof thereof ‘in solemn form,’ or ‘ per testes.’ When a will was proven ‘in common form,’ it was taken before the judge of the proper court of probate, and the executor produced witnesses to prove it to be the will of the deceased, without citing or giving notice to the parties interested. It was admitted to probate in the absence of such parties. When, however, a will was proven ‘in solemn form,’ it was done upon petition of the proponent for a hearing, and all such persons as had an interest, such as the widow, heirs, next of kin etc., were notified and cited to be present at the probating of the testament. Interrogatories were propounded to the witnesses by those producing the will, and by the adverse party. The executor of the will proved ‘in common form’ might, at any time within 30 years, be compelled, by a person having an interest, to prove it per testes,-‘in solemn form.’ 1 Williams, Ex'rs, (6th Amer. Ed.) foot pp. 325, 333, 334; Waters v. Stickney, 12 Allen, 1; Redmond v. Collins, 4 Dev. 430; Etheridge v. Corprew, 3 Jones, (N. C) 14. But in England there was no court for the probate of wills of realty. The validity of the will was decided incidentally, in controversies concerning rights of property claimed under or against it. These controversies were settled in the appropriate jurisdictions. The title of the heir was in its nature legal, and might be asserted in an action of ejectment.

The statute of Virginia, upon which our own and that of Kentucky are based, provided for the probate ‘in common form,’ or ex parte, of wills of both personalty and realty, and also extended the privilege of acquiring a reprobate ‘in solemn form’ to wills of realty, as well as to those of personalty. Such re-probate was to be asked within seven years, instead of three years, as under the Illinois statute. Those to be cited were the persons interested in sustaining, rather than those interested in setting aside, the will. The contest was to be decided in a court...