Noble v. Fickes

Citation230 Ill. 594,82 N.E. 950
PartiesNOBLE v. FICKES et al.
Decision Date05 December 1907
CourtSupreme Court of Illinois

230 Ill. 594
82 N.E. 950

NOBLE
v.
FICKES et al.

Supreme Court of Illinois.

Oct. 23, 1907.
Rehearing Denied Dec. 5, 1907.


Appeal from Circuit Court, Carroll County; O. E. Heard, Judge.

Thomas Noble appeals adversely to Maggie Fickes and others, from a judgment denying probate of an alleged will. Affirmed.

Cartwright and Carter, JJ., dissenting.


[230 Ill. 597]

[82 N.E. 951]

Skinner & Coe and C. L. Hostetter, for appellant.

230 Ill. 599]Ralph E. Eaton, for appellees.

[230 Ill. 594]This is an appeal from the circuit court of Carroll county from a judgment denying probate of an instrument alleged to be a will of John Noble. The instrument offered for probate is in the form of a statutory warranty deed, and purports to convey, in consideration of natural love and affection,[230 Ill. 595]503 1/2 acres of land in Carroll county to Thomas Noble, son of John Noble. The instrument was executed on August 24, 1897, and was duly acknowledged by John Noble and attested by two credible witnesses, Jacob Slayman and Don R. Fraser. On June 10, 1898, John Noble executed a last will, the fifth clause of which is as follows: ‘Fifth-The remainder of my estate, both real and personal, excepting the home farm, containing 503 1/2 acres, which I have heretofore deeded to my son Thomas Noble, I give, devise and bequeath to my sons, Robert Noble, Thomas Noble and John W. Noble, share and share alike.’ This will was duly admitted to probate on the 11th day of July, 1904, and properly recorded in Carroll county. At the time of his death John Noble left nine surviving children, the three sons mentioned in clause 5 of his will, and six daughters, Elizabeth Tipton, Ada Ostandere, Isabelle Summerville, Anna Herrington, Maggie Fickes, and Lydia McPeak. Two of the daughters, Elizabeth Tipton and Ada Ostandere, filed a bill in partition against the other children, alleging that the instrument involved in this suit was null and void as a conveyance, for the reason that it had not been delivered in the lifetime of their father. Thomas Noble, the appellant in the case at bar, answered the bill, alleging that the deed was executed and delivered on the day of its date; that it was deposited with Joseph S. Miles, the cashier of the First National Bank of Mt. Carroll, to be delivered to him upon the death of his father; and that, relying upon the deed, he had made large expenditures and improvements in the erection of valuable buildings on the premises. Thomas Noble filed a cross-bill in that case, alleging the substance of the matter set up in his answer, and praying for a decree establishing his title under the deed. Upon a hearing the cross-bill was dismissed, the deed in question was declared of no effect for want of delivery, and Thomas Noble was allowed a credit of $3,000 on notes due his father's estate, on account of expenditures [230 Ill. 596]made by him in improvements upon the farm. Thomas Noble appealed from that decree to this court, and the decree was affirmed in all respects except as to the allowance of the $3,000 credit, and the decree was reversed, and the cause remanded for further proceedings in accordance with the views there expressed. See Noble v. Tipton, 219 Ill. 182, 76 N. E. 151,3 L. R. A. (N. S.) 1645. Upon reinstatement of the cause in the circuit court, Thomas Noble asked leave to withdraw from the files the deed in question and for leave to file a supplemental answer, for leave to strike out of the cross-bill all averments in regard to delivery of the deed, and to amend by inserting in his answer and cross-bill, in lieu of such averments, that said deed was a testamentary disposition of said lands by John Noble to him, and asked the court to continue the hearing until said deed could be admitted to probate. The court denied these several motions of Thomas Noble and proceeded to enter a decree in conformity with the previous decision of this court. Thomas Noble again brought the case to this court, assigning error upon the refusal of the court to allow his motions to amend and to continue. The decree was again affirmed, and the opinion of this court on the last appeal is reported as Noble v. Tipton, 222 Ill. 639, 78 N. E. 927. In neither of the former appeals to this court was the question presented or determined that is involved in this appeal. In the first appeal it was determined that the instrument in question could not be sustained as a deed for want of delivery in the lifetime of John Noble. In the second appeal it was decided that upon the reversal of a decree and remandment of a cause by this court, with directions to proceed in conformity with the views expressed in the opinion, it is the duty of the trial court to be governed by the views expressed in entering its decree, and if the questions involved, or any of them, have been decided upon their merits, that the trial court has no power to permit amendments to the pleadings so as to change the issues involved and make a retrial necessary of the questions so determined. The sole question presented for determination in the present case is whether the instrument offered for probate can be sustained as a testamentary disposition.

[230 Ill. 600]VICKERS, J. (after stating the facts as above).

A will is an instrument by which a person makes a disposition of his property to take effect after his death. 1 Jarman on Wills, 26; Schouler on Wills, p. 1; 1 Redfield on the Law of Wills [4th Ed.] c. 2, § 2, par. 1; Robinson v. Brewster, 140 Ill. 649, 30 N. E. 683,33 Am. St. Rep. 265. Under section 2 of our statute of wills (Hurd's Rev. St. 1905, c. 148) to entitle a will to probate four things must concur: First, it must be in writing and signed by the testator, or in his presence by some one under his direction; second, it must be attested by at least two or more credible witnesses; third, two witnesses must prove that they saw the testator sign the will in their presence, or that he acknowledged the same to be his act and deed; fourth, the witnesses must...

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32 cases
  • Montague v. Street
    • United States
    • United States State Supreme Court of North Dakota
    • 30 Julio 1930
    ......That the writing is inartistic and informal is beside the question, since her testamentary intent thus appears. See Noble...That the writing is inartistic and informal is beside the question, since her testamentary intent thus appears. See Noble v. Fickes......
  • Montague v. Street
    • United States
    • United States State Supreme Court of North Dakota
    • 25 Febrero 1930
    ...... after her death. That the writing is inartistic and informal. is beside the question since her testamentary intent thus. appears. See Noble...That the writing is inartistic and informal. is beside the question since her testamentary intent thus. appears. See Noble v. Fickes......
  • Dahmer v. Wensler
    • United States
    • Supreme Court of Illinois
    • 22 Octubre 1932
    ......30]Noble v. Fickes, 230 Ill. 594, 82 N. E. 950,13 L. R. A. (N. S.) 1203,12 Ann. Cas. 282. However clearly an intention not expressed in the will may be proved ......
  • Oglesby v. Springfield Marine Bank
    • United States
    • Supreme Court of Illinois
    • 14 Noviembre 1946
    ......Nehls, 233 Ill. 438, 84 N.E. 619.         Noble v. Metcalf, 157 Ala. 295, 47 So. 1007, was an action brought in the life of the promisor by a promisee to enjoin waste on the lands which the ...But oral evidence cannot be introduced to vary the terms of the contract or to contradict its plain provisions. Noble v. Fickes, 230 Ill. 594, 82 N.E. 950, 13 L.R.A.,N.S., A.N.S., 1203, 12 Ann.Cas. 282. Such offer of proof was properly rejected. The contract applies to ‘each ......
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1 books & journal articles
  • Legislative Lapses: Some Suggestions for Probate Code Reform in Washington
    • United States
    • Seattle University School of Law Seattle University Law Review No. 10-02, January 1987
    • Invalid date
    ...2d at 846-47, 176 P.2d at 288. 237. One is reminded of the Virginia cases of Noble v. Tipton, 76 N.E. 151 (Va. 1905), and Noble v. Fickes, 82 N.E. 950 (Va. 1907), in which an instrument (an undelivered deed) was first denied effect as a deed because it was intended as a testamentary disposi......

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