Senn v. Greundling
| Decision Date | 20 December 1905 |
| Citation | 75 N.E. 1020,218 Ill. 458 |
| Parties | SENN et al. v. GREUNDLING. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Clair County; R. D. W. Holder, Judge.
Petition for the probate of a will by Gustav A. Greundling against Rudolph Senn and others. From a judgment of the circuit court, admitting the will to probate on appeal from the county court, contestants appeal. Affirmed.
George C. Rebhan, for appellants.
H. R. Heimberger, guardian ad litem, for unknown heirs.
Webb & Webb, for appellee.
John Senn, of St. Clair county, died on March 6, 1904, leaving no widow or child, and his heirs at law were his brothers and sisters, nieces and nephews. On March 9, 1904, the appellee, who was named as executor in an instrument purporting to be the last will of John Senn, filed his petition in the county court for the probate of said instrument as such will. Probate was denied, and petitioner appealed to the circuit court. After the evidence was heard in the circuit court, but before judgment, the court, on motion of the petitioner, dismissed the proceeding, and granted leave to withdraw the petition. On November 21, 1904, the public administrator of said county applied for letters of administration, alleging in his petition that the deceased died seised and possessed of a farm in Perry county and personal property, and letters were thereupon issued to the public administrator. On December 16, 1904, appellee filed a new petition and made a second application for the probate of the will. Appellants, who were heirs at law and contestants in the proceeding, moved the court to dismiss the petition, on the ground that the former judgment refusing probate was still in force. The motion does not seem to have been acted upon, and the cause was again heard in the county court, and probate of the will was refused. From that judgment, the petitioner again appealed to the circuit court. In the circuit court the contestants renewed their motion to dismiss the petition, on the ground that the question of probate was res judicata, but the motion was denied. A hearing was had, and the will was admitted to probate. From that judgment, an appeal was taken to this court.
Appellee asks us to dismiss the appeal, on the ground that no freehold is involved. The will does not, in terms, devise real estate, but it sufficiently appears from the record that the decedent owned real estate which was devised by the residuary clause, and that a freehold is involved.
It is first contended by appellants that the circuit court erred in refusing to dismiss the petition, on the ground that the judgment of the probate court was still in force, and the question of the validity of the will was res judicata. Any person interested in the probate of a will may exhibit the same in the county court, and petition the court for the probate thereof, and the person instituting such proceeding becomes the proponent of the will. Any party interested in the alleged will may appear and resist the probate, and he thereby becomes a contestant. The petitioner has a right to control his own petition, and to dismiss it whenever he chooses. When there is a decision by the county court, any person interested in the will may appeal to the circuit court. The party taking an appeal has a right to control his appeal and to dismiss it at his pleasure, and in that event the judgment of the probate court is left in full force and effect. In re Storey, 120 Ill. 244, 11 N. E. 209. The judgment of the county court is superseded by an appeal, and if the petition is dismissed in the circuit court, the whole proceeding is at an end, and there is no bar to a new proceeding. Thompson v. Owen, 174 Ill. 229, 51 N. E. 1046,45 L. R. A. 682. The petitioner has the same right to dismiss the petition in the circuit court as in the county court. In this case the petitioner did not dismiss his appeal, but did dismiss his petition, as he had a right to do. The proceeding was thereby ended, and the circuit court did not err in refusing to dismiss the second petition.
It is next contended that the evidence produced did not warrant the circuit court in admitting the will to probate. The requisites to a valid will of a person competent to make a will are that it shall be reduced to...
To continue reading
Request your trial
-
Montague v. Street
...must be in accordance with the statutory requirements. Re Walcott, 180 P. 169, 40 Cyc. 1097; Re Benner, 155 Cal. 153, 99 P. 715; Senn v. Gruendling, 218 Ill. 458; Clay v. Layton, 134 Mich. 317, 96 N.W. 458; Tobin v. Haack, 79 Minn. 101, 81 N.W. 758; Re Noyes, 40 Mont. 178, 105 P. 1013; Re O......
-
McCreery v. Bartholf, 14730.
...because Louis McCreery has done what appellant himself had an equal right to do. To the same effect is our holding in Senn v. Gurendling, 218 Ill. 458, 75 N. E. 1020, and Hitchcock v. Green, 235 Ill. 298, 85 N. E. 238. In the latter case the question was whether a petitioner for the probate......
-
King v. Westervelt
...85 N. E. 238. This court has treated the executor as having such an interest as authorized him to appeal in Senn v. Gruendling, 218 Ill. 458, 75 N. E. 1020,13 L. R. A. (N. S.) 745, In the Matter of Page, 118 Ill. 576, 8 N. E. 852,59 Am. Rep. 395, and Doran v. Mullen, 78 Ill. 342, though in ......
-
Beck v. Lash
...will in chancery. Hill v. Kehr, 228 Ill. 204, 81 N. E. 848,119 Am. St. Rep. 425;In re Will of Barry, 219 Ill. 391, 76 N. E. 577;Senn v. Gruendling, 218 Ill. 458.1 The mere failure of the executrix to appeal to the circuit court is not sufficient ground for setting aside the order of the cou......