McGovern v. McGovern

• Decision Date: 10 June 1915
• Docket Number: No. 9679.,9679.
• Parties: McGOVERN et al. v. McGOVERN et al.
• Court: Illinois Supreme Court

268 Ill. 135

108 N.E. 1024

McGOVERN et al.

v.McGOVERN et al.

No. 9679.

Supreme Court of Illinois.

April 22, 1915.

Rehearing Denied June 10, 1915.

Appeal from Circuit Court, Knox County; R. J. Grier, Judge.

Suit by T. B. McGovern and others against Stephen McGovern and others. Bill dismissed, and plaintiffs appeal. Affirmed.

R. D. Robinson, of Galesburg, Raymond W. Beach, of Chicago, J. E. Maley, of Galesburg and B. J. Cavanagh, of Des Moines, Iowa, for appellants.

Hardy, Welsh & Hardy, Roy M. Marsh, and Moreland & Moreland, all of Galesburg, for appellees.

CARTER, J.

This was a bill filed in July, 1913, in the circuit court of Knox county by appellants against appellees to set aside various deeds purporting to convey certain real estate from James McGovern to some of appellees, on the ground of the mental incapacity of the grantor, and that the execution was procured by undue influence. By leave of court an amended bill was filed at the February term, 1914. After answers were filed by appellees and the issues made up, a hearing was had before the chancellor, and the bill dismissed for want of equity, for the reason that appellants were not in position to maintain this suit because it was shown on the hearing they had no interest in the lands described in the deeds sought to be set aside, and for the further reason that the record failed to show that James McGovern was mentally incompetent to execute said deeds, or that their execution had been procured by undue influence. From that decree this appeal was taken.

In the view we take of this case it will be necessary for us to consider only the first reason above specified.

The decree, among other things, states:

That on July 15, 1913, James McGovern died testate in Galesburg, in said county, ‘leaving a last will and testament, consisting of one original will dated May 24, 1910, and two codicials, dated July 27, 1912, and August 28, 1912, respectively, which last will and testament, with said two codicils attached thereto, were duly probated in the county court of Knox county, Ill., on August 11, 1913; that said last will and testament and said codicils, and the said order probating the same, remain in full force and effect; that, under and by virtue of the provisions contained in said last will and testament and said codicils, the complainants, nor either of them, in this cause have any interest in the lands mentioned in the amended bill filed herein and in the deeds sought by said bill to be set aside in this cause.’

The two deeds here sought to be set aside were dated and executed August 26, 1912. The original will, dated May 24, 1910, devised the real estate mentioned in the bill here to the same grantees substantially as specified in the respective deeds, and the second codicil, dated August 28, 1912, two days after said deeds were executed, specifically stated that the testator had disposed of all of his real estate except his home in Galesburg; clause 2 therein providing, among other things: ‘I ratify and confirm the deeds of conveyance heretofore made by me.’ The pleadings in the case made no reference of any kind to said will or codicils. On the trial of the case appellants introduced said will and codicils, along with the certificate of probate thereof.

Counsel for appellees insist that appellants, in order to show their interest in the land in question purporting to be conveyed by said two deeds under the circumstances above shown, must, in the same proceeding asking to have said deeds set aside, have also asked to have the will and codicils set aside. Counsel for appellants insist that it is not, and cannot be, the law that they are bound to bring suit to set aside the will and the deeds in one and the same action, arguing that the two issues cannot be properly joined in the same trial: First, because in the suit concerning the deeds certain persons may be competent as witnesses who are not competent in a suit concerning the will; second, because in a suit to set aside a will either side is entitled, as a matter of right, to a jury, while in a bill to set aside deeds neither side is entitled to a jury, and one can be obtained only by leave of court; third, the tests of mental capacity in order to enable the grantor to make a valid deed and to make a valid will are different; fourth, because the burden of proof on the one issue does not rest upon the same parties as it does on the other.

While all of the objections urged by counsel for appellants have not been passed upon specifically by this court, in effect they have all been answered and overruled. Wilcoxon v. Wilcoxon, 165 Ill. 454, 46 N. E. 369;Ring v. Lawless, 190 Ill. 520, 60 N. E. 881;Stone v. Salisbury, 209 Ill. 56, 70 N. E. 605;Stephens v. Collison, 249 Ill. 225, 94 N. E. 664;Yott v. Yott, 265 Ill. 364, 106 N. E. 959. In Stephens v. Collison, supra, the court reviewed and passed upon the most serious objections now raised by appellants, stating that whether both the issue as to the validity of the will and that as to the validity of the deeds should be submitted to the jury would be discretionary with the chancellor; that these objections were neither grave nor insurmountable as to the joining of those issues in the same case; that the chancellor was not required to submit the validity of the deeds to the jury, and, even if submitted the court was not bound to follow the finding of the jury; that the procedure in a court of equity was elastic, and could be adapted to the varied circumstances of each case in order to do justice. The United States court, in Williams v. Crabb, 117 Fed. 193, 54 C. C. A. 213, 59 L. R. A. 425, in construing the Illinois statutes on these points as to these very questions, held that these two issues should properly be combined in one proceeding. The rule has long been established that in equity proceedings the plaintiff must show an actual existing interest in the subject-matter of the suit, and will not be permitted to bring a bill for part of a matter only, so as to expose a defendant to be harassed by repeated litigations concerning the same thing; that the bill should be so framed as to afford ground for a decision on the whole matter at one and the same time, and, so far as possible, prevent future litigation concerning it; that courts of equity discourage, so far as practicable, unreasonable litigation. 1 Daniell's Ch. Pl. & Pr. (6th Am. Ed.) 316, 330, 331; Story's Eq. Pl. (10th Ed.) § 287; Mitford & Tyler's Pl. & Pr. in Eq. 275; Cooper's Pl. *185. One of the favorite objects of a court of equity is to do full and complete justice by avoiding multiplicity of suits. Spear v. Campbell, 4 Scam. 424.

From this record it is self-evident that the two issues-that as to the validity of the deeds, and that as to the will and codicils-involved the same subject-matter. The deeds and the second codicil were executed within two days of each other,...