Pace v. Pace

Decision Date22 December 1915
Docket NumberNo. 10336.,10336.
Citation110 N.E. 878,271 Ill. 114
PartiesPACE v. PACE et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, McDonough County; Harry M. Waggoner, Judge.

Suit by Jennie Pace, individually and as executrix of Andrew J. Pace, deceased, against George W. Pace, and others. To review a decree adverse to them, certain defendants bring error. Affirmed.

Elting & Hainline, of Macomb, for plaintiffs in error.

George D. Tunnicliff, Flack & Lawyer, and E. D. Grigsby, all of Macomb, for defendant in error.

CARTWRIGHT, J.

The defendant in error Jennie Pace, in her own right and as executrix OF THE LAST WILL AND TESTAMENT OF HER DECeased husband, andrew j. pace, filed her bill in the circuit court of McDonough county, alleging that she had renounced the provision made for her in the will and surrendered to the estate the property devised to her, making the other devisees defendants, and asking for partition of the lands owned by her deceased husband at the time of his death. The defendants by their answers admitted that the widow had attempted to renounce the provision for her in the will, but denied that the renunciation was legal, on the ground that she was estopped by having qualified as executrix. The residuary devisees by their answer also claimed that if the renunciation was legal the part renounced was intended by the testator to pass under the residuary clause. Earl Ingles by his answer claimed that he and his children should be first compensated for the loss of an undivided half of the lands specifically devised to him, and his children, Donovan Brand Ingles and Emma Maxine Ingles, infant defendants, by their guardian ad litem made the same claim. Earl Ingles, Donovan Brand Ingles, and Emma Maxine Ingles filed their cross-bill, asking the court to sequester so much of the land devised to the widow as would compensate them for the loss sustained by the renunciation. The cross-bill was answered, and the residuary devisees made the same claims set forth in their answer. The cause was referred to the master in chancery to take the evidence and report the same, with his conclusions.

There was no dispute as to the facts, which are as follows: Andrew J. Pace died on August 18, 1913, possessed of three 80-acre tracts of land of the same value, located side by side and called the east 80, the middle 80, and the west 80. He had no child that would be a lawful heir. By his will he devised to his wife, Jennie Pace, the east 80-acre tract in fee, together with his horse, harness, buggy, household goods and property, including a piano. He devised a life estate in the middle 80 acres to Earl Ingles, an illegitimate son who was not a legal heir, with remainder to the heirs of his body, and in default of such heirs or descendants then to pass under the residuary clause. There was a residuary devise of the remainder of his property to his brothers and sisters and the children of his deceased brother and sister in fee, and this devise included the west 80 acres and a residence property in the city of Macomb not involved in the suit. He appointed his wife, Jennie Pace, executrix and provided that she need not give bond as such. The widow qualified as executrix without giving a bond, and she has acted as executrix. The personal property was insufficient to pay the debts and costs of administration, and the executrix took the landlord's share of the grain rent for the year in which the testator died to make up the deficiency, and she paid a legacy of $200 to Winfield Pierpont. On November 19, 1913, she renounced the will and elected to take her share of the estate under the law, which was an undivided half of all the real estate after the payment of debts.

The master reported as his conclusions that the undivided half interest in the east 80, which was devised to the widow, should be sequestered for the benefit of Earl Ingles and his children, to whom the middle 80 was devised; that in case of partition the undivided half of the middle 80 should be set off to said devisees and a sufficient amount sequestered from the real estate renounced by the widow to equal the original devise, and that the residuary devisees were entitled to the respective undivided interests set out in the bill in the west 80 and the Macomb city property. The cause was heard on exceptions filed to the legal conclusions of the master, which were not necessary or proper. The question whether a master in chancery has drawn an incorrect conclusion from the facts is heard by the chancellor without exceptions. Hurd v. Goodrich, 59 Ill. 450;Hayes v. Hammond, 162 Ill. 133, 44 N. E. 422;Von Platen v. Winterbotham, 203 Ill. 198, 67 N. E. 843. The decree adopted the conclusions of the master, gave to the widow, Jennie Pace, an undivided half interest in all the lands, and decreed that the part renounced by the widow in the east 80 should be sequestered for the benefit of Earl Ingles and his children. The middle 80 and the east 80 being of the same value, the decree ordered that if it could be done without injury or prejudice to the parties, the interest of the widow should be set off in land other than that devised to Earl Ingles and his children, and the widow makes no complaint. Earl Ingles and his children were content with the decree, but the residuary devisees sued out a writ of error from this court and have assigned errors on the record.

[2] The controversy between the plaintiffs in error and the widow is whether her attempted renunciation of the will was effective, and the ground upon which it is claimed it was not is that she was estopped by qualifying as executrix without bond. It is a well-settled rule in equity that if any person shall take any beneficial interest under a will he is thereby held to confirm and ratify every other part of the will, and cannot set up any right or claim of his own which would defeat or in any way prevent the effect and full operation of any part of the will. On the question whether a widow, by merely qualifying as executrix and undertaking the execution of the will, takes a beneficial interest under its provisions and comes within the rule the courts are not agreed. It appears to us that the cases holding that a widow is not estopped by the mere act of qualifyingas executrix are based on good reasons, and that the weight...

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30 cases
  • Shannon v. Eno
    • United States
    • Supreme Court of Connecticut
    • June 4, 1935
    ...... Gallagher's Appeal, 87 Pa. 200; In re Vance's. Estate, 141 Pa. 201, 21 A. 643, 12 L.R.A. 227, 23. Am.St.Rep. 267; Pace v. Pace, 271 Ill, 114, 120, 110. N.E. 878; Dunlap v. McCloud, 84 Ohio St. 272, 95. N.E. 774, 35 L.R.A. (N. S.) 851; Baptist Female. University ......
  • Shannon v. Eno
    • United States
    • Supreme Court of Connecticut
    • June 4, 1935
    ...Gallagher's Appeal, 87 Pa. 200; In re Vance's Estate, 141 Pa. 201, 21 A. 643, 12 L. R. A. 227, 23 Am. St. Rep. 267; Pace v. Pace, 271 Ill. 114, 120, 110 N. E. 878; Dunlap v. McCloud, 84 Ohio St. 272, 95 N. E. 774, 35 L. R. A. (N. S.) 851; Baptist Female University v. Borden, 132 N. C. 476, ......
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    • United States State Supreme Court of Missouri
    • November 17, 1917
    ...... Reaves v. Garrett's Admr., 34 Ala. 558, where. the executrix qualified in ignorance of her rights; the case. of Pace v. Pace, 271 Ill. 114, 110 N.E. 878, and. In re Proctor's Estate, 103 Iowa 232, 72 N.W. 516, where the acts done as executor were not ......
  • In re Estate of Goessling
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 1921
    ......Wilsmarth, 46 Fla. 536; In re Estate. of Proctor, 103 Iowa, 232; Milner v. Davis, 120. Iowa, 231; Williamson v. Boul, 184 N.Y. 605;. Pace v. Pace, 271 Ill. 114; Whitridge v. Parkhurst, 20 Md. 62; Taylor v. Brown, 2 Leigh. (Va.) 419; Cameron v. Cameron, Ohio Probate, . 157. (4) ......
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