Sternberg v. St. Louis Union Trust Co.

• Decision Date: 18 September 1946
• Docket Number: No. 29558.,29558.
• Citation: 394 Ill. 452,68 N.E.2d 892
• Parties: STERNBERG et al. v. ST. LOUIS UNION TRUST CO.
• Court: Illinois Supreme Court

394 Ill. 452

68 N.E.2d 892

STERNBERG et al.

v.ST. LOUIS UNION TRUST CO.

No. 29558.

Supreme Court of Illinois.

Sept. 18, 1946.

Appeal from Circuit Court, Fulton County; Burton A. Roeth, judge.

Suit by William F. Sternberg and others, heirs at law of Herman J. Sternberg, deceased, except deceased's widow, and all beneficial devisees and legatees under deceased's will, against the St. Louis Union Trust Company, individually and as executor and trustee under deceased's will, and Edna W. Sternberg, deceased's widow, to contest the deceased's will. From a decree holding that the will was valid insofar as it operated on personalty but invalid insofar as it purported or attempted to devise realty located within the state, the St. Louis Union Trust Company appeals.

Decree affirmed.

Bryan, Cave, McPheeters & McRoberts, of St. Louis, Mo., Taff & Putnam, of Canton, and H. S. Boyd, of Lewistown, for appellant.

S. Mayner Wallace, of St. Louis, Mo., and Ratcliff & Proctor, of Lewistown, for appellees.

SMITH, Justice.

This is an appeal by St. Louis Union Trust Company from a decree of the circuit court of Fulton county. The facts alleged in the pleadings and established by the evidence are not in dispute. The case is here solely on a question of law.

On September 14, 1937, Herman J. Sternberg, who was then a resident of St. Louis County, Missouri, executed his last will and testament. At that time he was unmarried. By the will he provided first for the distribution of certain personal property. He then devised the remainder of his estate, both real and personal, in trust, to his brother Emil O. Sternberg and St. Louis Union Trust Company, as cotrustees. Upon the death of his brother Emil O. Sternberg, the individual trustee, or his inability to act for any reason, he named his brothers William F. Sternberg and Louis E. Sternberg, and his sisters Emma A. Walthers and Minnie S. Hilbrant, as successors cotrustee, in the order named. He also named St. Louis Union Trust Company as executor of his will.

After the will had been executed and published by the testator, he was married to appellee Edna W. Sternberg. This marriage took place July 31, 1943, at Collinsville, Illinois. The parties here all properly concede that the fact that the marriage occurred in the State of Illinois is wholly without significance. After his marriage he continued to reside with his wife in St. Louis County, Missouri, until his death on January 10, 1944. He left surviving as his only heirs-at-law, his widow, two brothers and two sisters. His brother Emil O. Sternberg, named as cotrustee in the will, predeceased the testator. The will was admitted to probate by the probate court of St. Louis County, Missouri. St. Louis Union Trust Company was appointed executor. At the time of his death he owned substantial property in the State of Missouri and also valuable real estate and personal property located in Fulton county, and in other counties in the State of Illinois.

On March 28, 1944, an authenticated copy of said will with statutory certificates attached, was presented to the county court of Fulton county, Illinois, by St. Louis Union Trust Company. On petition of said trust company it was admitted to probate under section 87 of the Probate Act (Ill.Rev.Stat.1945, chap. 3, par. 239). Letters testamentary were issued to St. Louis Union Trust Company, as executor. There was no appeal from the order admitting said will to probate. St. Louis Union Trust Company did not at the time said copy of the will was admitted to probate, disclose to the county court of Fulton county that the testator had married subsequent to the execution of the will, and that court had no knowledge of such marriage.

Within nine months from the date said will was admitted to probate by the county court of Fulton county, this suit was filed by all the heirs-at-law of the testator, except his widow, and all the beneficial devisees and legatees under said will, to contest the same. St. Louis Union Trust Company, individual and as executor and trustee, and the widow of the testator, Edna W. Sternberg, were named as defendants in the suit. After the will as admitted to probate by the county court of Fulton county, the widow filed her renunciation. She, therefore, has no further interest in the will or in this suit. She did not join in this appeal and was served with notice of appeal as an appellee.

The ground upon which plaintiffs contested the will is that the marriage of the testator after the execution of the will constituted a revocation of the will under the statutes of Illinois. To meet and obviate this objection, St. Louis Union Trust Company pleaded and relied upon sections 521 and 522 of Article XX, chap. 1, of the Revised Statutes of the State of Missouri, Mo.R.S.A. which are as follows:

‘Sec. 521. Revocation of wills, what will be, and how effected. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, except by a subsequent will, in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction. R.S. 1929, s 520.

‘Sec. 522. Revocation of will by the marriage of testator and his leaving issue. If, after making a will, disposing of the whole estate of the testator, such testator shall marry and die, leaving issue by such marriage living at the time of his death, or shall leave issue of such marriage, born to him after his death, such will shall be deemed revoked, unless provisions shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will; and no evidence shall be received to rebut the presumption of such revocation. R.S.1929, s 521.’

Under the above sections of the Missouri statute, the testator having left no issue of his marriage with Edna W. Sternberg, his will was not revoked by such marriage. The sole question, therefore, presented by this record, is whether the will, which is valid under the laws of Missouri, was revoked by the marriage of the testator, in so far as it purports to pass title to real estate located within the State of Illinois. The chancellor held that the will, in so far as it attempted to devise real estate located in Illinois, was revoked by the marriage of the testator subsequent to the execution of the will. He further held that it was held valid and effective as to personal property located within this State for the reason that the situs of such personal property was the domicile of the testator. The order of the county court admitting the will to probate was held valid in so far as the will operated upon such personal property, but invalid in so far as it purported or attempted to devise the real estate located within this State.

From that decree St. Louis Union Trust Company perfected the appeal. It concedes that at the common law and in the absence of a statute to the contrary all questions concerning the execution and revocation of a will affecting the title to real property, as well as all questions concerning its validity and construction, are governed by the law of the State in which the land is located. It contends, however, that this rule has been modified by statute in Illinois, and as so modified, a foreign will, if valid in the State in which the testator was domiciled, is sufficient to pass title to real estate located in Illinois, notwithstanding it may not have been executed in the manner required or had been revoked under the laws of Illinois. Its specific contention here is that the will not having been revoked by the subsequent marriage of the testator under the laws of his domicile, is valid in Illinois, notwithstanding the provision of our statute which declares that such marriage shall be deemed a revocation of any existing will executed by the testator prior to such marriage.

The rule is established in this State and, we believe, in all States, that the validity and construction, as well as the force and effect of all instruments affecting the title to land, depend upon the laws of the State or country where the land is situated. In the late case of Fuhrhop v. Austin, 385 Ill. 149, 52 N.E.2d 267, 270, we said: ‘This court has many times announced that the descent of real estate is governed by the law of the situs. In Hall v. Gabbert, 213 Ill. 208, 72 N.E. 806, 808, this court quoting from United States v. Fox, 94 U.S. 315, 24 L.Ed. 192, said: ‘It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or in any other mode, is exclusively subject to the government within whose jurisdiction the property is situated.’ In Stoltz v. Doering, 112 Ill. 234, quoting from Story on Conflict of Laws, we held: ‘The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situated. No person can take except those who are recognized as legitimate heirs by the laws of that country.‘‘

The same rule was announced and followed in Plenderleith v. Edwards, 328 Ill. 431, 159 N.E. 780;Dibble v. Winter, 247 Ill. 243, 93 N.E. 145;Peet v. Peet, 229 Ill. 341, 82 N.E. 376, 13 L.R.A.,N.S., 780, 11 Ann.Cas. 492;Harrison v. Weatherby, 180 Ill. 418, 54 N.E. 237, and in many other decisions of this court. The rule was well stated by the Supreme Court of Missouri in Dobschutz v. Dobschutz, 279 Mo. 120, 213 S.W. 843, 844, as follows: ‘The rule prevails, not only in this state, but is of universal application, that the title to land can be acquired only according to the law of the place where it is situate. Land may be devised in this state by a nonresident testator, but his will will take effect and be interpreted according to the law of this state. Section 567, R.S. 1909 (Mo.R.S.A. s 550); Hughes v. Winkleman, 243 Mo. 81, loc. cit. 92, 147 S.W. 994, L.R.A.1916A, 1007; Keith v. Keith, 97 Mo. 223, loc....