Meily v. Knox

• Decision Date: 27 October 1915
• Docket Number: No. 10075.,10075.
• Citation: 269 Ill. 463,110 N.E. 56
• Parties: MEILY et al. v. KNOX et al.
• Court: Illinois Supreme Court

269 Ill. 463

110 N.E. 56

MEILY et al.

v.KNOX et al.

No. 10075.

Supreme Court of Illinois.

Oct. 27, 1915.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; M. L. McKinley, Judge.

Certiorari to review a judgment of the Appellate Court affirming the decree of the superior court, dismissing for want of equity a bill by Eugenia Meily and others against Robert S. Knox, executor, and others. Judgment affirmed.S. C. Irving, of Chicago, for plaintiffs in error.

Foreman, Levin & Robertson, of Chicago, for defendants in error.

DUNN, J.

[1] The superior court of Cook county, after a hearing, dismissed for want of equity a bill brought for the purpose of having the will and codicil of Sarah J. Tucker construed and the legacies provided in the third clause of the will and codicildeclared to be valid and directed to be paid by the executor. The complainants appealed to the Appellate Court for the First District, which affirmed the decree, and a writ of certiorari has been allowed to bring the record before this court for review.

Mrs. Sarah J. Tucker executed her will on March 2, 1909. The third clause is as follows:

‘Third.-I give and devise unto my sisters, Mary Wood, Nellie Mildren, Bessie Knox, Annie Detweiler, Lottie Poland and Emily Villa, and unto my brother, William J. Cooke, share and share alike, my property located in Lima, Allen County, Ohio, and more particularly described as follows [description of property], to be sold by them and out of the proceeds thereof of to pay the following bequests, so far as the proceeds will go, in the order indicated:

‘(a) To my stepson, Chester Tucker, of Lima, Ohio, two thousand dollars ($2,000.)

‘(b) To my stepdaughter, Mrs. George H. Meily, (née Eugenia Tucker,) of Lima, Ohio, one thousand dollars ($1,000.)

‘(c) Two thousand dollars ($2,000) for the erection of a monument on my lot in Oakwood Cemetery.

‘(d) Fifteen hundred dollars ($1,500) to be expended to place a memorial window in the Episcopal church founded by my beloved husband in said Lima, Ohio.

‘(e) One thousand dollars ($1,000) to be invested by the trustees of the Oakwood Cemetery of Chicago, Illinois, for the purpose of defraying the expenses of keping my lot in said Oakwood Cemetery in good order and condition.’

There was a residuary clause, disposing of all the residue of her property, and her nephew, Robert S. Knox, was named as executor. The next day after executing the will Mrs. Tucker executed a codicil, which is as follows:

‘Codicil.-I, Sarah J. Tucker, of Chicago, declare this to be my first codicil to my last will executed on March 2, 1909:

‘1. Devise all of the real estate of which I may die seised, and all of the shares of capital stock in, Chicago Railways, American Smelting, United States Steel owned by me at my death, to my sister Lottie Poland, as trustee, with full power to sell same or any part or any interest therein, convey perfect title to said property or any part; and I do hereby direct my said trustee to distribute the proceeds realized from the sale of any or all of said property equally between my sisters and brother named in my last will and testament, the proceeds realized from the sale of the Lima, Ohio, property, however, to be subject to the specific bequests provided in and by my said last will and testament in paragraph 3 thereof.

‘I do hereby reaffirm my last will of March 2, 1909, except only as modified and controlled by this my first codicil, dated March 3, 1909.’

On December 2, 1909, the testatrix sold the property in Lima, Ohio, and received therefor...