Storrs v. St. Luke's Hosp.

• Decision Date: 17 June 1899
• Citation: 54 N.E. 185,180 Ill. 368
• Parties: STORRS et al. v. ST. LUKE'S HOSPITAL.
• Court: Illinois Supreme Court

180 Ill. 368

54 N.E. 185

STORRS et al.

v.ST. LUKE'S HOSPITAL.

Supreme Court of Illinois.

June 17, 1899.

Appeal from appellate court, First district.

Bill by Emery A. Storrs and others against St.Luke's Hospital to contest a will. From a judgment of appellate court, affirming the St. Luke's Hospital to contest a will. From bill (75 Ill. App. 152), complainants appeal. Affirmed.

Cartwright and Boggs, JJ., dissenting.Tenney, McConnell, Coffeen & Harding, for appellants.

Lynden Evans, for appellee.

This is a bill filed on November 23, 1896, by Emery A. Storrs, by his mother and next friend, Allien F. Storrs, and the Chicago Title & Trust Company, as administrator de bonis non of the estate of George M. Storrs, deceased, who are the appellants herein, against St. Luke's Hospital, defendant below and appellee here, to set aside the will of Caroline T. Storrs, and the probate thereof in the probate court of Cook county. On December 16, 1896, the appellee, St. Luke's Hospital, filed a general and specialdemurrer to the bill. On June 9, 1897, the superior court of Cook county sustained the demurrer, and dismissed the bill, at the cost of the complainants therein. The special ground of demurrer, alleged against the bill, was that the Chicago Title & Trust Company, as administrator de bonis non of the estate of George M. Storrs, deceased, was not a proper party complainant to the bill.

An appeal was taken from the decree of the superior court, sustaining the demurrer and dismissing the bill, to the appellate court. The latter court has affirmed the decree of the superior court, and the present appeal is from said judgment of affirmance so entered by the appellate court.

The bill alleges that Caroline T. Storrs, the mother of George M. Storrs, who was the father of the appellant Emery A. Storrs, died in Chicago about June 17, 1888, leaving said George M. Storrs, her son, as her only heir at law; that in June, 1887, Caroline T. Storrs executed an instrument, purporting to be her will, by which she bequeathed her estate to Byron L. Smith and Charles L. Hutchinson, in trust to pay from the income $300 per year to Walter H. Mead during his life, and to pay the balance of the income to her son, George M. Storrs, during his life, and, upon his death, to transfer the estate in fee simple to any heir or heirs of George M. Storrs born of any marriage entered into by him subsequent to the date of said will, and, in default of such heirs, to devote the income of said estate to St. Luke's Hospital, the appellee; that Exhibit A, annexed to the bill, is a copy of the will; that at the date of said will, and for a long time prior thereto, the said George M. Storrs, the son of said Caroline T. Storrs, had been married to the mother of the complainant Emery A. Storrs, the latter being then a child about one year old; that on July 18, 1888, said will of Caroline T. Storrs was admitted to probate in the probate court of Cook county, and letters testamentary were granted to said Smith and Hutchinson; that Caroline T. Storrs, at the time of executing her will, was not of sound mind and memory, but, on the contrary, her mind and memory were so impaired as to render her wholly incapable of making any just and proper distribution of her estate; that George M. Storrs, the father of the complainant Emery A. Storrs, became, shortly after the death of his mother, Caroline T. Storrs, and within three years thereafter, mentally diseased and of unsound mind, and, on January 7, 1891, he was, by an inquisition held under an order of the supreme court of New York for the county of New York, found and declared to be a lunatic; that in the month of July, 1896, he died in the city of Chicago, where he had been residing; that, from the year 1888 to the time of his death, he was of unsound mind and non compos mentis; that, upon the probate of said will, Smith and Hutchinson, named therein as trustees and executors, qualified and took possession of the estate, which, when it came into their hands, was worth about $25,000, and continued in the possession and management thereof until some time in 1890; that thereafter one Samuel W. Allerton was appointed trustee of said estate, and took possession and managed the same; that on October 28, 1896, a bill was filed in said superior court by St. Luke's Hospital, a corporation organized under the laws of Illinois, against the said Allerton and others, and in said proceeding, on November 6, 1896, a decree was entered, directing Allerton to transfer all said estate to said St. Luke's Hospital; that said Allerton did transfer and pay over to appellee, in money and securities, the sum of $16,092, the amount of the estate then remaining in his hands as trustee under said will; that, after the death of George M. Storrs, letters of administration were granted upon his estate by the probate court of Cook county to Abraham Diefendorf; that thereafter the said Diefendorf resigned, and the said probate court appointed the appellant the Chicago Title & Trust Company, a corporation, administrator de bonis non of the estate of said George M. Storrs; and that said latter corporation is now acting as such administrator.

MAGRUDER, J. (after stating the facts).

The only question involved in this case relates to the right of the present appellants, who were complainants below, to file this bill to set aside the will of Caroline T. Storrs and the probate thereof. The will was admitted to probate on July 18, 1888, and the present bill was not filed until November 23, 1896, more than eight years after said probate. The proviso to section 7 of the act in regard to wills, as passed in 1872, is as follows: ‘Provided, however, that if any person interested shall, within three years after the probate of any such will, * * * appear and by his or her bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury; * * * but if no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants, femes covert, persons absent from the state, or non compos mentis, the like period after the removal of their respective disabilities,’ etc. 2 Starr & Curt. Ann. St. p. 2470. In 1895 the legislature amended said section 7, and, by the amendment, substituted the period of two years for the period of three years, and omitted the words, ‘femes covert, persons absent from the state.’ Sess. Laws Ill. 1895, p. 327. In Spaulding v. White, 173 Ill. 127, 50 N. E. 224, we have held that the statute in force at the time of the filing of the bill is the statute which confers jurisdiction on the court to entertain a bill to contest the validity of a will, and that such statute, and not the law in force when the will was probated, must control and govern such jurisdiction. If, therefore, any right existed in the present appellants, or either of them, to file this bill, the time within which the same should have been filed would be governed by the amendatory act of 1895. The doctrine is well established in this state that courts of equity, independently of the statute, have no jurisdiction of a bill to set aside a will or its probate. The jurisdiction of courts of chancery in this state to entertain such bills is derived exclusively from the statute, and therefore such jurisdiction can only be exercised in the mode and under the limitations prescribed by the statute. If ‘any person interested’ shall, within three years after the probate, etc., or, as the law of 1895 requires, within two years after the probate, etc., appear, and, by bill in chancery, contest the validity of the will, an issue at law shall be made up, etc.; but, if such person does not appear within the time limited, an issue at law cannot be made up. The appearance within the time limited is a jurisdictional fact, and is necessary to put the machinery of he court in motion, so as to contest the validity of the will. The proviso of section 7 is...