Quirk v. Pierson

• Decision Date: 02 April 1919
• Docket Number: No. 12328.,12328.
• Citation: 122 N.E. 518,287 Ill. 176
• Parties: QUIRK v. PIERSON et al.
• Court: Illinois Supreme Court

287 Ill. 176

122 N.E. 518

QUIRK

v.PIERSON et al.

No. 12328.

Supreme Court of Illinois.

Feb. 20, 1919.

Rehearing Denied April 2, 1919.

Appeal from Circuit Court, Coles County; Walter Brewer, Judge.

Petition for probate of the will of Patrick Burgess by M. T. Quirk, contested by Elizabeth Burgess Pierson and others. From an order admitting the will to probate, contestants appeal. Reversed and remanded, with directions.

Vause, Hughes & Kiger, of Mattoon, and Herrick & Herrick, of Farmer City, for appellants.

T. E. Lyons, of Champaign, and Edward C. Craig, Donald B. Craig, and James W. Craig, Jr., all of Mattoon, for appellee.

CARTWRIGHT, J.

The appellee, M. T. Quirk, presented to the county court of Coles county his petition for the probate of an instrument alleged to be the will of Patrick Burgess, deceased, in which the petitioner was named as executor. On a hearing of the petition the county court denied probate, and the petitioner appealed to the circuit court. The appellants, who are heirs at law of Patrick Burgess, moved the circuit court to dismiss the appeal on the ground that the statute gave the petitioner no right to appeal. The motion was denied, and there was a hearing, and the will was admitted to probate. From the order admitting the will to probate, the heirs at law have appealed to this court.

Section 14 of the act in regard to wills (Hurd's Rev. St. 1917, c. 148) provides that appeals may be taken from the order of the county court allowing or disallowing any will to probate to the circuit court of the same county by any person interested in such will. The person named as executor in a will has a direct financial interest in it. Jones v. Grieser, 238 Ill. 183, 87 N. E. 295,15 Ann. Cas. 787;Fearn v. Postlethwaite, 240 Ill. 626, 88 N. E. 1057;Scott v. O'Connor-Couch, 271 Ill. 395, 111 N. E. 272, L. R. A. 1916D, 179. By statute the powers of an executor before probate of the will are limited to certain specific things, and unless a will is admitted to probate there can be no letters testamentary; but these facts do not affect the question whether the person named as executor is interested in the will and the probate of it. No devisee or legatee will receive anything unless the will is admitted to probate, and so far as that matter is concerned the executor stands in the same relation, but he also has some powers before the will is admitted to probate, and his acts in the exercise of such powers are validated by the subsequent grant of letters. Neither does the fact that commissions given by law are for services rendered prove that the executor has no interest in the will, since the same condition exists as to every right of employment in any business or service. Statutory provisions for an appeal are not the same in all jurisdictions, and a statute authorizing an appeal to one interested in the estate, which is the basis of some decisions relied upon, does not apply to a statute giving such right of appeal to one interested in the will. One named as executor has such an interest, and the court did not err in overruling the motion to dismiss. King v. Westervelt, 284 Ill. 401, 120 N. E. 241.

The controverted question of fact at the hearing was whether the will was executed and attested in conformity to the requirements of the statute, and this is what occurred: Patrick Burgess lived at Humboldt, in Coles county. On November 17, 1917, an automobile containing M. T. Quirk, Thos. T. Monahan, John H. Sullivan, and a chauffeur came to the house from Arcola, in Douglas county. Nothing in relation to the preparation of a draft of a will appears in the evidence, but Quirk, Monahan, and Sullivan came into the bedroom where Burgess was lying in bed, and Quirk produced a draft of the will and said to Burgess they had come to fix up his will and the others were to witness it, and Burgess replied that he was glad to see them. The draft of the will was incomplete, in not giving the names of three married sisters of Burgess nor the description of the lot on which the residence was located. Burgess could not give those particulars, and the names of the sisters were obtained from Anna Moore, a sister of Burgess who was present, and the description of the lot was obtained by telephoning another party, and the names and description were written in the will. There was a conflict in the evidence as to whether the will was read to Burgess, but there was testimony that it was read without the names and description, and, after the names and description were written in, those parts were read to Burgess by Quirk. Wilbur Moore, son of Anna Moore, raised Burgess up in bed and gave him a cup of milk, and Quirk said that would be a good time to have him sign the will. It was placed before him and he signed it. He said nothing about the paper or that it was his will or about witnessing it; but Quirk took the paper and went into an adjoining room, where Monahan and Sullivan signed the attestation clause. The house faced west, and Burgess was in a bed in the northwest corner of a bedroom, so that the bed was in the northwest corner of the house and he was lying with his head to the west. The living room was south of the bedroom, and there was a doorway about five feet wide in which there was a portiere parted in the center and hanging on each side. It is uncertain just how far the portiere extended from the casing on each side. There was a dresser in the southeast corner of the living room,...