St. Mary's Home for Children & Dispensary for Poor of Chicago v. Dodge

• Citation: 101 N.E. 46,257 Ill. 518
• Court: Illinois Supreme Court
• Decision Date: 20 February 1913
• Parties: ST. MARY'S HOME FOR CHILDREN & DISPENSARY FOR POOR OF CHICAGO et al. v. DODGE.

257 Ill. 518

101 N.E. 46

ST. MARY'S HOME FOR CHILDREN & DISPENSARY FOR POOR OF CHICAGO et al.

v.DODGE.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Circuit Court, Cook County; Thomas G. Windes, Judge.

Petition by St. Mary's Home for Children and Dispensary for the Poor of Chicago and others for probate of the alleged lost will of Isabella L. Dodge, deceased. The Probate Court having denied the petition, appeal was prayed to the Circuit Court, where the will was established and the judgment rendered ordering it admitted to probate, from which William McLardy Dodge brings error. Reversed.Tatge & Koepke and S. G. Abbott, both of Chicago, and E. A. Ray, of Oregon, Ill. (Oscar M. Wolff, of Chicago, of counsel), for plaintiff in error.

Delos P. Phelps, of Chicago, for defendants in error.

COOKE, J.

Isabella L. Dodge died at her home in Chicago on June 19, 1905, presumably intestate. She left no children or descendant, but left surviving her plaintiff in error, her husband, and various nephews and nieces, who have all been made defendants in error herein as her heirs at law and next of kin. She died seised of real estate in Cook county, valued at about $5,000, and left about $10,000 worth of personal property. Shortly after her death, upon the petition of plaintiff in error, Thomas H. Gault was appointed administrator of her estate. Thereafter, in October, 1906, the defendant in error St. Mary's Home for Children and Dispensary for the Poor of Chicago, Ill. (hereinafter referred to as the St. Mary's Home), filed its petition in the probate court of Cook county, alleging that Isabella L. Dodge died testate, and that petitioner believed her last will and testament had been lost or destroyed. A copy of her alleged last will and testament was attached to the petition; and the prayer of the petition was that the will be restored and admitted to probate. The copy of the purported will attached to the petition, after providing for the payment of her debts and funeral expenses, bequeathed to plaintiff in error the sum of $1, and, after making two other small bequests, devised all the remainder and residue of her property, real and personal, to the St. Mary's Home. The probate court refused to admit the alleged will to probate, and an appeal was prayed and allowed to the circuit court of Cook county. Upon the hearing in the circuit court, a jury was impaneled, and in answer to special interrogatories, and by its general verdict, found that Mrs. Dodge died leaving a last will and testament, and that the same had been in the possession of plaintiff in error after her death. The circuit court made an order finding that Mrs. Dodge had died leaving a valid last will and testament in the words and figures of the copy attached to the petition of the St. Mary's Home, and ordered that the same be admitted to probate. This writ of error has been sued out to review that order.

[1] It is first suggested that the circuit court erred in impaneling a jury and submitting to it the questions of fact involved; and plaintiff in error relies on Moody v. Found, 208 Ill. 78, 69 N. E. 831, and Schofield v. Thomas, 231 Ill. 114, 83 N. E. 121, in support of this proposition. It is sufficient to say, in answer to this contention, that plaintiff in error not only did not object to the impaneling of a jury, but the record clearly discloses that he acquiesced therein, and he will not now be permitted to raise this question.

[2] It is next urged that the entry of this order was erroneous for the reason that the St. Mary's Home failed to produce as witnesses both of the subscribing witnesses to the alleged will or to show a valid excuse for its failure to do so. Thomas H. Gault, who was called as a witness on behalf of the St. Mary's Home, testified that he was a practicing attorney, and had known Mrs. Dodge for many years, and during all that time had acted as attorney for both her and her former husband; that on the 7th or 8th of October, 1904, he was employed by Mrs. Dodge to draft her will, and he produced what he testified was a carbon copy of the same, being identical with the copy attached to the petition of the St. Mary's Home. According to his testimony, this will was executed by Mrs. Dodge at her home in Chicago on the last-named date, and was witnessed by A. G. Bald and a Mr. Rogerson, an undertaker, who resided in that vicinity. Gault testified that, after the instrument was executed and witnessed, he folded it up and left it with Mrs. Dodge, and never saw it afterwards. Bald was called as a witness and testified to the execution of the instrument. Rogerson was not called; and, although it appeared from the testimony that he was still engaged in business as an undertaker in the city of Chicago, no explanation was offered as to why he was not produced as a witness, except that Gault testified that Rogerson was not in the city at the time of the trial. Whether he was within Cook county or the state of Illinois, or whether he was temporarily absent from the city or state, did not appear. Under section 2 of the statute of wills (Hurd's Rev. St. 1911, c. 148), a party seeking to procure a will to be admitted to probate must produce the subscribing witnesses as witnesses in the probate court, if they are still living and sane and are within the jurisdiction of the court; and, on appeal from an order of the probate court refusing to so admit the alleged will, the party seeking the probate is not relieved by the provisions of section 13 of the same act from the duty of submitting to the circuit court the testimony of the subscribing witnesses. Thompson v. Owen, 174 Ill. 229, 51 N. E. 1046,45 L. R. A. 682;In re Will of Barry, 219 Ill. 391, 76 N. E. 577.

[3] Defendants in error urge that plaintiff in error, by his conduct on the trial of the cause, waived the production of the testimony of the witness Rogerson. There is no foundation for this contention; but, in any event, plaintiff in error could not waive this requirement.

[4] It is also contended that the production of the attesting witnesses was not necessary, as this was simply a proceeding in equity to establish the will, which, if successful, would be followed by the statutory proceeding to admit the will to probate. In this counsel is mistaken, as this was a petition to admit the will to probate, and differed from the ordinary application only in that here it was alleged that the will had been lost or destroyed after the death of the testatrix, and it was sought to have the will, when proven, admitted as in any other case.

[5] The St. Mary's Home was required, under its petition, to make the same proof as in any other case under the statute, and in addition, in order to overcome the legal presumption that the testatrix had revoked the will in her lifetime, to show that it was in existence at the time of her death, and that it had been lost or destroyed since that time. Beatty v. Clegg, 214 Ill. 34, 73 N. E. 383.

[6] In the light of a further consideration of the facts presented by this record, this error becomes unimportant, as we are of the opinion that the petitioner below failed to establish the fact that Mrs. Dodge left a last will and testament. But one witness was produced by whom it was attempted to show that the will said to have been executed by Mrs. Dodge in October, 1904, was still in existence after her death. Shortly before the death of Mrs. Dodge, which occurred on the morning of June 19, 1905, plaintiff in error went to the home of Mrs. Alice Boyle, a neighbor and a woman who had frequently been employed by Mrs. Dodge, and summoned her to...