McComb v. Morford

• Decision Date: 05 June 1918
• Docket Number: No. 11907.,11907.
• Citation: 119 N.E. 601,283 Ill. 584
• Parties: McCOMB et al. v. MORFORD et al.
• Court: Illinois Supreme Court

283 Ill. 584

119 N.E. 601

McCOMB et al.

v.MORFORD et al.

No. 11907.

Supreme Court of Illinois.

April 17, 1918.

Rehearing Denied June 5, 1918.

Error to Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Sain Welty, Judge.

In the matter of the estate of Flossie Dunbar, deceased. Petition in county court by C. W. McComb, administrator, and others, for an order directing payment of money in distribution of the estate. An order directing payment to R. H. Morford and Charles R. Dunbar, claiming adversely to the petitioners, was affirmed on appeal to the circuit court. Petitioners then appealed to the Appellate Court, where the judgment of the circuit court was affirmed, and petitioners bring certiorari. Judgments of the Appellate, circuit and county courts reversed, with directions.

Odlai H. Rust, of Bloomington, for plaintiffs in error.

Sterling, Livingston & Whitmore, of Bloomington, for defendants in error.

FARMER, J.

This case comes to this court by writ of certiorari to the Appellate Court for the Third District. The litigation arose over the disposition of the one-fifth part of an estate which Almira Dunbar would have received if she had been alive at the time of her father's death. Robert H. Baker, the father of Almira Dunbar, executed a will on March 4, 1902, and died May 24th following. He left a widow, Mary Baker, and three children, Joseph P. Baker, Christie Ann Critchfield, and Leathe Scott, surviving him. Two daughters, Almira Dunbar and Kittie Samuels, predeceased him; both leaving children surviving. Almira Dunbar died before her father executed his will and left three children, who were alive at the time the testator made the will and at the time of his death. They were Flossie Dunbar, Charles R. Dunbar, and Robert H. Morford. The will of Robert H. Baker was as follows:

‘In the name of God, Amen.

‘I, Robert H. Baker, of the town of Heyworth, in the county of McLean and state of Illinois, being of sound mind and memory, hereby make, publish and declare this to be my last will and testament, hereby revoking all former wills made by me.

‘First-I direct that all my debts, of whatever nature, be fully paid and discharged, including funeral expenses.

‘Second-To my wife, Mary Baker, I bequeath absolutely and in fee simple the following real estate: Lots 5, 8 and 9, in block 5, in Frisby's addition to the town of Heyworth, being the place we now reside; also all the household goods therein. On addition I bequeath to her full statutory dower in all my property, real and personal or mixed.

‘third-After the death of my wife, Mary Baker, I direct that all of my property, real and personal, shall be converted into cash as soon as the same can be done without loss to my estate, and be divided, share and share alike, between my children, as follows: Joseph P. Baker, Christie Ann Critchfield, Leathe Scott, the heirs of Almira Dunbar and the heirs of Kittie Samuels-that is to say, that my entire estate shall be divided into five equal shares, each of my before enumerated children to receive one share and the heirs of my children now deceased shall receive, collectively, the share their deceased parent would have received, or if any of my children now living shall have died before the time of settlement, then their heirs shall receive, collectively, the share designated for their parents. For the purpose of carrying out the provisions of this my last will and testament, I here nominate and appoint my son, Joseph P. Baker, to be executor of my will, and hereby empower him and especially invest him with full authority to sell all of my real estate at public or private sale, as he may deem best, and to make deeds and conveyances for the same, with full power to sign all deeds, etc., necessary for the carrying out of these provisions. In case of his refusal to qualify, or of his death, then I invest my administrator de bonis non with the will annexed with the same authority.

‘I direct that all my estate situated in the county of McLean and state of Illinois shall be held by my estate during the lefe of my wife.

‘As I own at the present time certain lands in the county of Adair, in the state of Iowa, which I desire to dispose of, in case I should still own said lands at the time of my decease it is my last will that said lands in the county of Adair, in the state of Iowa, be sold as soon as the same can be done without loss to my estate and the proceeds to be divided at once among my children or their heirs as before directed, my wife reserving her statutory dower.

‘In witness whereof I have affixed my signature and seal this 4th day of March, A. D. 1902.

Robert H. Baker. [Seal.]'

The Iowa land referred to in the will was sold after the death of the testator and the proceeds distributed according to the directions of paragraph 3 of the will; each of the children of Almira Dunbar receiving his share. After the death of the testator, but about five years before the death of the widow, Flossie Dunbar, who was never married died intestate, leaving as her heirs her brother, Charles R. Dunbar, half-brother, Robert H. Morford, a half-sister, Dolores Dunbar, and her father, Benjamin G. Dunbar. Soon after the widow's death the land was sold and partial distribution of the proceeds made. The executor having died, the administrator with the will annexed reported that the share of Flossie Dunbar, had she lived, would have been $3,117.82; that he had paid one-fifth of that sum to R. H. Morford and one-fifth to Charles R. Dunbar, and was in doubt as to whether the balance ($1,870.68) should be paid to the same parties, or to Benjamin G. Dunbar, father, and Dolores Dunbar, half-sister of Flossie, or to C. W. McComb, administrator of the estate of Flossie Dunbar, and asked an order of the county court directing to whom the money should be paid. The father and half-sister, Dolores, joined the administrator in the petition to the county court. Charles R. Dunbar and Robert H. Morford claimed the entire one-fifth part of the proceeds of the sale, to the exclusion of Flossie Dunbar's father and half-sister, Dolores, while the administrator of her estate and her father and...