Weegens v. Freasman (In re Reemts' Estate)

• Citation: 383 Ill. 447,50 N.E.2d 514
• Decision Date: 16 September 1943
• Docket Number: No. 27099.,27099.
• Parties: In re REEMTS' ESTATE. WEEGENS v. FREASMAN et al.
• Court: Supreme Court of Illinois

383 Ill. 447

50 N.E.2d 514

In re REEMTS' ESTATE.

WEEGENS

v.FREASMAN et al.

No. 27099.

Supreme Court of Illinois.

May 20, 1943.

Rehearing Denied Sept. 16, 1943.

Proceeding in the matter of the estate of William W. Reemts, deceased. William Weegens filed two petitions against John H. Freasman and others, the first to probate a purported will of decedent dated May 28, 1936, and the other petition seeking to vacate an order of county court approving final report of the executor of the 1938 will and for an accounting. From an order striking and dismissing the petition, William Weegens appeals.

Affirmed.

GUNN, J., dissenting.Appeal from Circuit Court, Stephenson County; Leon A. Zick, judge.

Burrell & Burrell, of Freeport, and Frank Kerr, of Oregon (David M. Burrell, of Freeport, of counsel), for appellants.

Manus & Manus, of Freeport, Seyster & Fearer, of Oregon, and L. A. Jayne, of Freeport, for appellees.

THOMPSON, Justice.

This is the second time the parties involved in this appeal have been before this court in a dispute concerning the estate of William W. Reemts, deceased. The first was a chancery proceeding originally brought to contest decedent's will dated November 3, 1938, and our decision in that case is reported in Freasman v. Smith, 379 Ill. 79, 39 N.E.2d 367. The present appeal is from an order striking and dismissing two petitions filed by appellant in the county court of Stephenson county on December 11, 1940, one of the petitions filed on that date being to probate a purported will of decedent dated May 28, 1936, and the other petition seeking to vacate an order of that court approving the final report of the executor of the 1938 will and for an accounting.

A statement of the pertinent facts and a brief history of the previous litigation is as follows: William W. Reemts died on January 7, 1939, leaving no widow or descendants, but leaving certain collateral kindred as his only heirs-at-law. He left an instrument dated November 3, 1938, purporting to be his last will and testament, in which appellee Alice Smith is named as sole beneficiary, and appellee M. L. Karels as executor. This will was admitted to probate by the county court of Stephenson county on February 15, 1939. Decedent, prior to the date of the will admitted to probate, had on May 28, 1936, executed a will, in which, after making one special bequest of $1,000 to another, all the remainder of his property was given to appellant, William Weegens, who was also named as executor. This prior will was in the possession of appellant at the time of decedent's death, although they were then involved in litigation, there being a suit pending in which Weegens was claiming title to certain real estate of Reemts, which suit was subsequently decided by this court adversely to Weegens. Weegens v. Karels, 374 Ill. 273, 29 N.E.2d 248.

October 18, 1939, the heirs-at-law of Reemts filed in the circuit court of Stephenson county a complaint in chancery against appellees Alice Smith and M. L. Karels to contest and set aside the will dated November 3, 1938, which had been admitted to probate; and on November 1, 1940, a decree was entered in the case declaring the will and the probate proceedings null and void and ordering the estate distributed among the heirs-at-law of the decedent according to their respective interests. It recites that a jury trial was waived and that the findings therein are based upon the evidence and proofs heard by the court; and, as stated in Freasman v. Smith, supra, it purports to have been entered upon a hearing and trial of the issues by the court. After the entry of this decree, Karels resigned as executor. Appellee John H. Freasman, one of the heirs, was appointed administrator de bonis non. Karels filed his final report as executor, setting up that he had paid to Mrs. Smith $2500 for ‘claim per stipulation,’ that he had paid attorneys fees ‘per stipulation,’ and had paid the remainder of the estate funds, amounting to $3,817.45, to appellee John H. Freasman, ‘for heirs per stipulation.’ This report was, by consent of the heirs and Mrs. Smith, approved by the county court on November 12, 1940.

On December 2, 1940, all the plaintiffs in the chancery suit, except Annie Diehl, filed a motion in the circuit court to vacate and set aside the decree of November 1, 1940. The reason assigned in the motion was that Annie Diehl, who lived in Nebraska, had died intestate January 16, 1940, that her heirs were not parties to the suit and had not consented to the decree of November 1, 1940. The defendants, Alice Smith and M. L. Karels, entered their appearance in writing and consented to the entry of an order vacating the decree. The court then, on the same day, entered an order vacating the decree. The plaintiffs amended the complaint by joining the heirs of Annie Diehl as parties plaintiff, and on the same day, December 2, 1940, another decree was entered by the consent of all parties to that suit. This decree found the will dated November 3, 1938, to be the last will and testament of the deceased, and the probate of the same to be valid, but instead of ordering the property distributed according to the terms of that will, it provided that the final report of Karels filed in the county court was ratified and approved, that neither he nor Alice Smith should have any further interest in the estate, and that the property should go to the heirs-at-law of the testator.

On December 11, 1940, appellant filed in the cause in the circuit court a petition for leave to intervene, setting up that the decree of December 2, 1940, was in fraud of his rights and was void, and asking that the same be vacated and set aside. The petition for leave to intervene was, on motion of all the parties to the suit both plaintiff and defendant, stricken by the circuit court. Weegens appealed to this court. Freasman v. Smith, supra. Upon that appeal we held that inasmuch as the decree of December 2, 1940, was entered by consent and binding only on those who consented to its entry, Weegens was in no sense affected thereby and his rights were in nowise prejudiced or injuriously affected by its entry. He therefore had no standing in court to complain of the decree, and we accordingly affirmed the judgment of the circuit court denying his petition...