Peet v. Peet

• Citation: 229 Ill. 341,82 N.E. 376
• Parties: PEET v. PEET et al.
• Decision Date: 23 June 1907
• Court: Illinois Supreme Court

229 Ill. 341

82 N.E. 376

PEET

v.PEET et al.

Supreme Court of Illinois.

June 23, 1907.

Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Bill for partition by Henry J. Peet, as guardian ad litem of Telfair B. Peet, a minor, against Jane Creighton Peet and others. From a judgment dismissing the bill, complainant appeals. Affirmed.

Cartwright, Farmer, and Dunn, JJ., dissenting.

De Forest M. Neice, for appellant.

H. S. & F. S. Osborne, (R. F. Pettibone and Harold S. Osborne, of counsel), for appellees.

This is a bill for partition filed in the circuit court of Cook county by Henry J. Peet, who claims to be the owner of an undivided half of the premises sought to be partitioned. The other half interest was owned by William Creighton Peet, who died at his home in the city of New York July 23, 1906. William Creighton Peet left a widow, Jane Creighton Peet, and two sons, Creighton Peet and Telfair B. Peet, aged about 7 and 2 1/2 years, respectively, at the time of their father's death. On May 28, 1902, William Creighton Peet made and executed a last will and testament, which, omitting the formal parts thereof, is as follows: ‘I give, devise and bequeath all my property, wherever situated, to my wife, Jane Creighton Peet.’ The youngest son of the testator, Telfair B. Peet, was born about 1 1/2 years after the execution of the will. The other son, Creighton Peet, was about 3 years old at the date of the will. Jane Creighton Peet claims the entirehalf interest in the testator's land in question, while the guardian ad litem of Telfair B. Peet claims that the devise under the will should be abated to raise for the after-born child such a portion of the testator's estate as he would have been entitled to receive if the testator had died intestate.

On the hearing before the master evidence was received, over the objection of Telfair B. Peet, that the testator resided with his family in the city of New York prior to his death; that he was very devoted to his family, and especially to Creighton, the older son, who is described as a very lovable and affectionate child, and the father's constant admiration of him was very noticeable; that the testator and his wife lived very happily together and were both very devoted to their children. It was proven that the testator had implicit confidence in the integrity and business ability of his wife. It was also testified to that the testator on one occasion expressed the belief that a man ought to leave all of his property to his wife; that he did not believe in leaving a young man a lot of money; that it was not fair to him; that it did not give him a chance to bring out what was in him, his own ingenuity; that after the execution of the will, and a few months after the birth of Telfair, the testator said he had made his will and left everything to his wife, as he had always intended. It was further shown that substantially all of the real estate belonging to the testator, including that involved in this suit, was heavily incumbered at the time the will was executed. Complainant, Henry J. Peet, the owner of one-half of the real estate involved in this proceeding, testified that this property was incumbered, as well as all of the residue of his brother's estate, for about one-third to one-half of its value, and that, in his opinion, if the testator's real estate was held until the youngest son became of age, it would mean bankruptcy to the estate.

The following from Heydecker's Gen. Laws N. Y. p. 4888, c. 53, § 49, was received in evidence: ‘Whenever a testator shall have a child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after-born, unprovided for by any settlement and neither provided for nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent's real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.’

George J. Peet, a brother of the testator and a lawyer, testifies that he was the legal adviser of the testator, and that he prepared and attended to the execution of the will. He testifies that he was the sole legal adviser of the testator, and that he never spoke to his brother regarding the statutory provisions in Illinois and New York, to the effect that where a child is born after the testator has made his will such child shall be given a share of the testator's estate under certain circumstances, and the witness expresses a belief that the testator had no knowledge as to the existence of such statutes.

The circuit court found that Jane Creighton Peet was the owner in fee, under the will, of the real estate of which the testator died seised, and that Telfair B. Peet had no interest whatever in the premises. Telfair B. Peet, by his guardian ad litem, appeals to this court, and insists that the court erred in refusing to hold that Telfair B. Peet was the owner of an undivided one-fourth interest in the premises described in the bill.

VICKERS, J. (after stating the facts as above).

Section 10 of chapter 39, Hurd's Rev. St. 1905, provides as follows: ‘If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate, and a marriage shall be deemed a revocation of a prior will.’

The sole question for determination in this case is whether the devise under the will should be abated to raise a portion for appellant equal to that which he would have been entitled to receive had the testator died intestate. Appellant's contention may be reduced to two principal propositions: First, whether the testator intended by his will to disinherit his after-born child must be determined by the laws of the state of New York, where the testator was domiciled; second, under section 10 of chapter 39 of our statutes, above set out, no evidence outside of the will itself is admissible, and under said section and the words of the will appellant is entitled to a one-fourth interest in the real estate involved. If either of the foregoing propositions is sustained, then that the decree below is erroneous would seem to follow as a necessary conclusion. We will consider these two propositions in the order in which they are stated.

First. Appellant concedes that the devolution of real property is governed by the law of the place where the real estate is situated, but he insists that in determining the testator's intention the law of New York must govern. To say that the intention of the testator must be determined under the laws of his domicile is equivalent to saying that the construction of a will is governed by the laws of the testator's domicile. There is no perceivable difference between the construction of a will and determining the intention of the testator, unless it may be said that ascertaining the intention of the testator is the object to be sought, and construction is the means of attaining that object. Whatever may be the rule with respect to movable property, we regard the law as firmly established in this state that all instruments affecting the title of real estate situated in this state must be governed, as to their execution, construction, and legal sufficiency, exclusively by the laws of Illinois, and not by the laws of a foreign country or sister state wherein the maker may reside at the time of their execution.

In Redfield on Wills (volume 1, p. 398), it is said: ‘It is scarcely necessary to state that in regard to real property the mode of execution, the construction, and the validity of a will must be governed exclusively by the lex rei sitae. The descent of real estate, as well as the devise of it, is governed exclusively by the law of the place where the property is situated. It would not comport with the dignity, the independence, or the security of any independent state or nation that these incidents should be liable to be affected, in any manner, by the legislation or the decisions of the courts of any state or nation besides itself. This has been a universally recognized rule of the English law from the earliest time, and is so unquestionable that we should scarcely feel justified in occupying much space in reviewing the cases.’ In City Ins. Co. v. Commercial Bank, 68 Ill. 348, this court, on page 353, said: ‘Mr. Story concedes that the courts of England and the United States have arrived at opposite conclusions as to the effect of statutable transfers of movable property under the bankrupt or insolvent laws of the debtor's domicile, but he adds: ‘All the authorities in both countries, so far as they go, recognize the principle, to its fullest extent, that real estate or immovable property is exclusively subject to the laws of the government within whose territory it is situated. Indeed, so firmly is this principle established that in cases of bankruptcy the real estate of the bankrupt situated in foreign countries is universally admitted not to pass under the assignment, although, as we have seen, there is great diversity of opinion as to movables.’ Story on Conflict of Laws, § 428.' See, also, West v. Fitz, 109 Ill. 425. In Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195,19 L. R. A. 84, this court, on page 53 of 144 Ill.,page 197 of 33 N. E. (19 L. R. A. 84), said: It is a general rule of the common law that the...