Shaw v. Moderwell

• Decision Date: 30 September 1882
• Citation: 104 Ill. 64,1882 WL 10374
• Parties: GEORGE W. SHAWv.ERASTUS C. MODERWELL.
• Court: Illinois Supreme Court

104 Ill. 64

1882 WL 10374 (Ill.)

GEORGE W. SHAW

v.ERASTUS C. MODERWELL.

Supreme Court of Illinois.

Filed at Ottawa June 21, 1882.Rehearing denied September Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Henry county; the Hon. JOHN J. GLENN, Judge, presiding.

Mr. GEORGE W. SHAW, pro se:

The circuit court which set aside the will of Mrs. Nandain had no jurisdiction of the subject matter, and all its proceedings were void, notwithstanding this objection was not raised. Where a court has no jurisdiction of the subject matter, no consent, implied or express, can give it. Hoagland v. Creed, 81 Ill. 506; Fleischman v. Walker, 91 Id. 321.

If the circuit court was without jurisdiction, an appeal to this court could confer none. Mills v. Brown, 16 Pet. 527; Ginn v. Rogers, 4 Gilm. 131; Williams v. Blankenship, 12 Ill. 122; Peak v. People, 71 Id. 278.

I maintain, first, that in passing upon this will the circuit court exercised original probate jurisdiction; second, that the constitution neither confers nor authorizes the legislature to confer original probate jurisdiction on circuit courts; third, that it bestows exclusive original probate jurisdiction upon county courts, save in certain counties where probate courts may be established; and fourth, that the statute in question deprives the county courts of probate jurisdiction, and leaves them only ministerial power. In Potter v. Potter, 41 Ill. 85, the court remarks: “In a bill of this character it is necessary the will must be probated anew, as though it was presented the first time for proof.” The jurisdiction of the circuit court is then probate jurisdiction.

The constitution provides that circuit courts shall have original jurisdiction of all cases in law and in equity. The words cases in equity must be held to mean cases in which relief is sought according to the principles and practice of equity jurisdiction established in English jurisprudence. 2 Story's Const. sec. 1645; 1 Story's Eq. Jur. sec. 58; Livingston v. Story, 9 Pet. 656; Maher v. O'Hara, 4 Gilm. 427.

The court of chancery in England had no jurisdiction of the probate of wills. 2 Story's Eq. Jur. sec. 1466; Wild v. Sweeney, 84 Ill. 214; 1 Williams on Executors, 476, 484; 2 Redfield on Wills, 47; 1 Story's Eq. Jur. sec. 440; Gaines v. Chew, 2 How. 619; Fauvergne v. New Orleans, 18 Id. 470; Adams' Equity, sec. 248.

County and probate courts have exclusive original jurisdiction of the probate of wills, etc. Constitution of 1870, art. 5, sec. 18.

Mr. CHARLES DUNHAM, for the appellee:

The constitution does not give county courts exclusive original jurisdiction in matters of probate, but only original jurisdiction. If the circuit courts have not jurisdiction of bills to contest the validity of wills under the present constitution, they did not under the constitution of 1848, and all the adjudications under this statute for the last thirty-four years on this question will be overthrown, and the titles to property of vast value destroyed or made uncertain.

A State constitution is not a grant of power to the legislative department, but a limitation of their powers, which would otherwise be plenary. It has all powers not denied it, expressly or by necessary implication. A proceeding by bill in chancery to contest a will is not a matter of probate of such will. It is rather a proceeding to set aside its probate. The record of the proceedings in the county court makes out a prima facie case for the proponent. If the contestant does not succeed in overthrowing the will, the probate of the county court stands. It is not re-probated.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

In the original petition filed herein it was represented to the county court that Erastus C. Moderwell had been duly appointed administrator of the estate of Lydia W. Nandain, deceased; that George W. Shaw, before that time, had what purported to be the last will and testament of decedent probated in that court, and thereupon letters testamentary were issued to him, under which he took possession of the estate, and still retains it. It was further represented, that afterwards, in a proceeding instituted for that purpose, the circuit court declared the will admitted to probate was not the will of decedent, which decree was affirmed in the Supreme Court, and in and by which decree all proceedings had in the county court concerning the probate of such will were declared void. Petitioner represented also that he had demanded the estate of defendant, but he peremptorily refused to deliver any part of it to him, and asks for a citation to defendant to appear and report what he had received of such estate, and for an order upon him to pay the same over to petitioner as the rightful administrator of the estate. On appearing, defendant made answer to the petition exhibited against him. The principal matter alleged in defence is, that the decree of the circuit court, which was afterwards affirmed by the Supreme Court, setting aside and annulling the will of the decedent, inasmuch as it was commenced under section 7 of the “Act in regard to wills,” in force July 1, 1872, was null and void, for want of jurisdiction in the circuit court to pronounce the decree it did. As was his duty, defendant made a report of his receipts as such executor, and of his disbursements on account of the estate. Most of the items of disbursements were on account of expenses incurred in and about the defence of the suit instituted by the heir of the decedent to contest the will. All funeral expenses, and some items of expense other than taxable costs, were allowed on the trial, and were by the court deducted as proper credits from the amounts of receipts, but by far the largest portions of the items of expense included in the account of disbursements on behalf of the estate were disallowed, and that is a matter of complaint on this appeal.

Elaborate arguments have been made on the constitutionality of the section of the Statute of Wills, under which the bill was filed by the heir to...