Palmer v. Bradley

• Decision Date: 16 April 1907
• Docket Number: 1,324.
• Citation: 154 F. 311
• Parties: PALMER v. BRADLEY et al.
• Court: U.S. Court of Appeals — Seventh Circuit

154 F. 311

PALMER v. BRADLEY et al.

No. 1,324.

United States Court of Appeals, Seventh Circuit.

April 16, 1907

F. S Winston, John Barton Payne, Silas H. Strawn, and John J Lordan, for appellant.

John P Wilson, John J. Herrick, and William B. McIlvine, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP Circuit Judge, delivered the opinion:

The will was executed by Mrs. Benedict in France on the 29th day of March, 1895, and was admitted to probate in the Probate Court of Cook County, March 26th, 1896-- purporting to dispose of real estate situated in Cook County, Illinois, of the value of about seventy-five thousand dollars, and of personal property, consisting of bonds, mortgages, and the like, in possession of appellee in Cook County, of the value of about half a million dollars.

The bill filed December 3rd, 1902, together with the amended bill filed August 4th, 1904, is to require the appellee to account to appellant for the personal property thus coming into his hands under the will.

The basis of the bill is, that though executed in conformity with the laws of Illinois, where both the personal property and the real estate was situated, the will is effective only as to the real estate, because of the fact that it did not conform to the law of France, respecting the execution of wills-- the testatrix at the time of the execution of the will being, according to the averments of the bill, domiciled in France-- and is therefore ineffective as to personal property.

To the bill appellee pleaded substantially as follows: (1) That on notice to appellant the will had been duly admitted to probate by order of the Probate Court; whereby, as between appellant and appellee, it was adjudicated, either that the testatrix, at the time the will was made, was in fact domiciled in Illinois; or, if domiciled in France, that the will was in fact executed in accordance with the laws of France; (2) That the estate has been administered and distributed through the Probate Court, running through a period from the 26th day of March, 1896, until the 12th day of June, 1902; no contest on the ground herein named having been instituted; whereby appellant is estopped from asking for the relief prayed for in the bill; and (3) The five years statute of limitations; which pleas having been sustained as being good and sufficient in law, and appellant standing by his bill, the bill was dismissed.

We do not think it necessary to go into these pleas in detail. Taken as a whole, the first two pleas set up a state of facts that bars this suit. It is well settled in Illinois, that a judgment of the Probate Court admitting a will to probate is a final and conclusive adjudication of the validity of the will, as to all questions relating to its validity as a testamentary instrument, until set aside by a direct proceeding brought in the manner, and within the time, provided by the law of Illinois. Chicago Title & Trust Company v. Brown, 183 Ill. 42, 55 N.E. 632, 47 L.R.A. 798. No appeal was taken from the judgment probating the will, and no proceeding was brought to contest its validity upon the ground taken in this bill, within the time fixed by the statute. This attempt, therefore, to invalidate the will, so far as it relates to personal property, is barred by the lapse of time, unless it can be successfully maintained that the right that appellant is attempting now to exercise, and the remedy he is invoking, were not within the remedial proceeding afforded him by the seventh section of the Illinois statute of wills (Hurd's Rev. St. 1905, p. 2051, c. 148), wherein it is provided, that unless contested within one year, the will as probated, is forever binding and conclusive on all of the parties concerned.

That an heir may contest the will under this provision of the statute, not only on account of the incapacity or duress of the testator or testatrix, but also because the will is not executed, in matter of formality, in conformity to the law of the place where executed, is not denied by counsel for appellant. The insistence of counsel in that respect is, that because the will is not wholly invalid (is valid as to the real estate disposed of), there can be no challenge under that provision, of its validity as to personal property-- that so far as this provision for contest goes the will must stand wholly, or fall wholly.

We cannot concur in this view. The seventh section of the Illinois statute of wills, taken in connection with all the provisions of the Illinois law relating to the probate of wills, is a statute of repose. It embodies the public policy of Illinois that the ownership of property derived through...