Selden v. Illinois Trust & Sav. Bank

• Decision Date: 07 April 1909
• Citation: 87 N.E. 860,239 Ill. 67
• Court: Illinois Supreme Court
• Parties: SELDEN et al. v. ILLINOIS TRUST & SAVINGS BANK et al.

239 Ill. 67

87 N.E. 860

SELDEN et al.

v.ILLINOIS TRUST & SAVINGS BANK et al.

Supreme Court of Illinois.

Feb. 19, 1909.

Rehearing Denied April 7, 1909.

Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Bill by Olive J. Cone against the Illinois Trust & Savings Bank and others to set aside the will of Daniel B. Shipman and the codicils thereto, together with the decree of probate. On the death of complainant pendente lite, her executor was substituted as a party complainant, and Hannah Rogers Jones, a legatee, was by leave of court permitted to change her position from a defendant to complainant. An application was thereupon made to strike the order making Robert L. Selden, as executor of Olive Cone, a party, which was afterwards granted, and the petition of Laura A. Champlain and others, legatees and devisees under the will of Olive J. Cone, to be permitted to join as complainants in the bill, was denied, and the bill was dismissed, from which Selden and others appeal. Affirmed.M. Henry Guerin, for appellants.

Wilson, Moore & McIlvaine, for appellees.

This is a suit in chancery to contest the will of Daniel B. Shipman, deceased. Shipman died November 22, 1906, and his will was admitted to probate January 11, 1907. After certain specific bequests to various parties, the testator devised and bequeathed the remainder of his estate to the Illinois Trust & Savings Bank of Chicago in trust, to take, possess, and manage, and pay one-fifth of the net income to the Illinois School of Agriculture and Manual Training School for Boys, one-fifth to the Chicago Home for Incurables, one-fifth to the Hahnemann Hospital of Chicago, one-fifth to the Chicago Old People's Home, and one-fifth to St. Luke's Free Hospital. As originally drawn, the will gave to Olive J. Cone, sister of the testator, the net income, during her natural life, from $15,000, to be paid to her by the trustee, but by a codicil to the will this trust fund was raised to $30,000. On the 15th of February, 1907, Olive J. Cone filed a bill to contest and set aside as null and void the will of Daniel B. Shipman, and the codicils thereto, and the probate of said will. The bill, as amended, alleged that Olive J. Cone was the sister and only heir at law of the testator; that said testator left real estate and personal property of the value of $1,500,000. The bill charges that the testator was over 80 years of age when he executed the will; that he was of unsound mind and memory; and that the attorneys, officers, and agents of the Illinois Trust & Savings Bank drew the will, and by undue influence, fraud, and misrepresentation procured the executionof the will, and that the testator never knew the real contents of said will and codicils when he executed them. After answers and replications were filed the cause was, on motion of complainant's solicitor, on the 27th day of April, 1907, placed on the trial calendar. On January 7, 1908, and before the cause was reached for trial, Olive J. Cone died leaving a will, in which Richard L. Selden was named as executor, and upon the suggestion of her death, by leave of the court, said Selden, as executor, was on January 10, 1908, substituted as a party complainant in said bill. In December, 1907, and before the death of Olive J. Cone, Hannah Rogers Jones, a legatee under the will of Shipman, and who was made a defendant to the bill, was by leave of court permitted to change her position in the case from a defendant to that of complainant. January 13, 1908, the defendants to the bill moved the court to vacate and set aside the order making Richard L. Selden, executor of the will of Olive J. Cone, a party, and to strike the amended bill from the files, on the ground that the right of action in Olive J. Cone abated at her death, and that Hannah Rogers Jones, who was not an heir of Daniel B. Shipman, was improperly made a complainant to said bill. This motion was taken under advisement by the court, and on July 16, 1908, before said motion was decided, Phebe R. Mason and Laura A. Champlain filed their petition, setting up the will of Olive J. Cone, its admission to probate, and the appointment of Selden as executor; that the petitioners were heirs, legatees, and devisees of Olive J. Cone, and as such became interested in and owners (upon her death) of the property left by Daniel B. Shipman. They prayed to be joined as parties complainant to the bill, and for the same relief prayed in said bill. This motion was denied, and thereupon Richard L. Selden, as executor, and Laura A. Champlain and Phebe R. Mason, as heirs, legatees, and devisees, of Olive J. Cone, asked leave to file a bill of revivor, which was also denied, and on July 18, 1908, the court, treating the motion to vacate the order of substitution as a demurrer to the amended bill, allowed the motion and dismissed the bill, on the ground ‘that neither the complainant, Hannah Rogers Jones, nor Richard L. Selden, suing as executor of the last will and testament of Olive J. Cone, deceased, nor the petitioners, Laura A. Champlain and Phebe R. Mason, nor any or either of them, have or has any standing to maintain or prosecute the said proceeding for the purposes alleged in said pleadings, and that the said suit abated by the death of Olive J. Cone, now deceased, the sole heir of the said Daniel B. Shipman; and the said Richard L. Selden, executor as aforesaid, and Laura A. Champlain and Phebe R. Mason, as heirs and legatees of Olive J. Cone, deceased, having moved for leave to file a bill of revivor in said cause, the court also finds that this cause cannot be revived, and therefore denies said motion for leave to file a bill of revivor; and the court finds that it has no jurisdiction to proceed further in this cause.’ From the decree dismissing the bill Richard L. Selden, Laura A. Champlain, Phebe R. Mason, and Hannah Rogers Jones have appealed to this court.

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

Olive J. Cone, as the only heir at law of Daniel B. Shipman, was a ‘person interested’ at the time of the admission of the will to probate, and as such had a right to, and did, file a bill to contest the will. The important question to be determined is whether upon her death the cause of action survived to her legal and personal representatives.

In this state the right to contest a will in chancery is a right conferred by statute, and independently of the statute no such right has ever been recognized by our courts, though a different rule has prevailed in some states. In Calkins v. Calkins, 229 Ill. 68, 73, 82 N. E. 242, 243, we said: ‘The jurisdiction of courts of equity to entertain bills to contest wills is exclusively derived from statute, and can only be exercised in the mode and within the limitations prescribed by the statute. Luther v. Luther, 122 Ill. 558, 13 N. E. 166;Jele v. Lemberger, 163 Ill. 338, 45 N. E. 279. Cases are to be found in some of our sister states which hold that the power of courts of chancery, to entertain bills of this character is embraced in the general equity jurisdiction of these courts, but this rule has never been recognized in this state, and it is opposed by the great weight of authority both in England and America. * * * When a bill is filed to contest a will under the statute, the jurisdiction invoked is not the general equity powers of the court, but the special statutory jurisdiction, and, so far as the scope or extent of the jurisdiction extends, it is to be determined by the same rules that would apply if the jurisdiction was conferred upon some particular tribunal created to exercise this special jurisdiction and no other. A court of general jurisdiction may have a special statutory jurisdiction conferred upon it not exercised according to the course of the common law and which does not belong to it as a court of general jurisdiction.’ In Waters v. Waters, 225 Ill. 559, 561, 80 N. E. 337, 338, this court said: ‘Courts of equity in this state have no jurisdiction to contest a will, except such jurisdiction as has been conferred by the statute. Indeed, the statute conferring jurisdiction is the only source of power intrusted to a court of equity in this state. Such being the case, a court of equity can only entertain a bill in the mode and within the time prescribed by the statute.’ Other cases to the same effect are Sharp v. Sharp, 213 Ill. 332, 72 N. E. 1058;Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588,10 L. R. A. 613;Sinnet v. Bowman, 151 Ill. 146, 37 N. E. 885;Keister v. Keister, 178 Ill. 103, 52 N. E. 946;Chicago Title & Trust Co. v. Brown, 183 Ill. 42, 55 N. E. 632,47 L. R. A. 798.

This court held in McDonald v. White, 130 Ill. 493, 22 N. E. 599, that the words in the statute, ‘any person interested,’ meant those having a direct pecuniary interest affected by the probate of the will, and that such interest must exist at the time of the admission of the will to probate. In that case the heir of a testatrix executed a conveyance of certain real estate which he claimed to own if the will of the testatrix was invalid. His grantee filed a bill to contest the will. It was held the bill could not be maintained; that the heir who made the conveyance had only a bare right to establish title to the property by successfully contesting the will, but that such right was not assignable and could not therefore be made the subject of a conveyance.

In Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185,72 Am. St. Rep. 211, a bill was filed by Emery A. Storrs, only heir at law of George M. Storrs, deceased, to contest the will of Caroline T. Storrs, mother of George M. Storrs and grandmother of the complainant. The bill was filed eight years after the probate of the will of Caroline T. Storrs, and to excuse the delay in filing it alleged that George M. Storrs was non compos mentis from the time of the admission of the will to probate until his death, which occurred four months before filing the bill....