Sharp v. Sharp

• Decision Date: 22 December 1904
• Citation: 213 Ill. 332,72 N.E. 1058
• Parties: SHARP v. SHARP et al.
• Court: Illinois Supreme Court

213 Ill. 332
72 N.E. 1058

SHARP
v.
SHARP et al. ^*

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Circuit Court, Bureau County; R. M. Skinner, Judge.

Bill by Blanch Sharp against Robert Sharp and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

[213 Ill. 334]Charles F. Davies (Sol Rosenblatt, of counsel), for appellant.

Watts A. Johnson, for appellees.

[213 Ill. 333]This was a bill in chancery filed on the 9th day of January, 1904, in the circuit court of Bureau county, by the appellant, against the appellees, to set aside the will, and the probate thereof, of Robert Sharp, deceased, on the ground of mental incapacity and undue influence. The bill alleged that Robert Sharp executed said will on the 4th day of January, 1902; that he died on the 13th day of the same month; that the will was admitted to probate on the 24th day of February, 1902; that he left, him surviving, the complainant. and Robert Pearl Sharp and Martha Sharp, his children and sole heirs at law; that by the terms of the will he gave to the complainant $5, to Martha Sharp the use of the remainder of his estate during her natural life, and upon her death the fee thereof to Robert Pearl Sharp; that he nominated John E. Pickering executor of his will, who qualified as such, and that Martha Sharp died unmarried and without issue on December 4, 1902; also the mental incapacity of the testator, and that the execution of the will was brought about by the undue influence of Robert Pearl Sharp and Martha Sharp. A demurrer was interposed to the bill on the ground that it was filed more than one year after the probate thereof, and for that reason it appeared from the face of the bill that the court was without jurisdiction to hear and determine the case. The demurrer was sustained, and the bill dismissed, and, the testator having died seised of real estate the title to which was disposed of by said will, an appeal has been prosecuted by the complainant direct to this court.

HAND, J. (after stating the facts).

The bill was filed 1 year, 10 months, and 15 days after the will was admitted to probate, and the sole question presented to this court for determination is, was the bill filed in time? It has been repeatedly held by this court that a bill in chancery to contest a will and to set aside the probate thereof can only be maintained in this state by virtue of the proviso to section 7 of the statute of wills (2 Starr & C. Ann. St. 1885 [1st Ed.] p. 2470). Luther v. Luther, 122...