Wright v. Simpson
| Decision Date | 16 December 1902 |
| Citation | 65 N.E. 628,200 Ill. 56 |
| Parties | WRIGHT et al. v. SIMPSON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, McDonough county; Jno. A. Gray, Judge.
Proceedings in the county court by Ida Simpson against Frances A. Wright and others to set aside the probate of a will. From a judgment of the circuit court affirming a judgment of the county court in favor of plaintiff, defendants appeal. Affirmed.Charles J. Scofield and Clarence S. Townley, for appellants.
Switzer & Meloan, for appellee.
This is a petition filed on May 9, 1901, in the county court of McDonough county by the appellee, Ida Simpson, against the appellants Frances A. Wright, Willis P. Wright, Carley E. Wright, Angie R. Hickman, and Sadie B. Wright, praying that an order entered by that court on May 1, 1900, probating the last will and testament of Thomas R. Wright, deceased, be set aside, and that a time and place might be fixed when and where the question of the probate of said will might be heard, and that due notice thereof might be given to all the heirs of Thomas R. Wright, as by statute provided. The appellants filed a demurrer to the petition. No evidence was heard, but by stipulation it was agreed that, upon the hearing of the cause upon petition and demurrer, there should be considered without objection the matter of jurisdiction, and the fact that on May 1, 1901, appellee filed her bill in chancery in the circuit court of McDonough county to set aside said will. The county court overruled the demurrer of appellants, and set aside the order probating the will, and revoked the letters testamentary issued to the appellants Frances A. Wright, Willis P. Wright, and Carley E. Wright as executors of the will, and ordered that the respondents below should pay the costs, and in default thereof that execution should issue. Upon appeal to the circuit court from this order of the county court, the circuit court overruled the demurrer of appellants; and, the appellants abiding by their demurrer, judgment was rendered against them in favor of appellee, awarding costs and execution therefor. The present appeal is prosecuted from such judgment of the circuit court.
The facts alleged in the petition filed on May 9, 1901, are substantially as follows: The petition states that appellee, Ida Simpson, is a daughter and heir of Thomas R. Wright, late of McDonough county; that he died on or about March 25, 1900; that on April 9, 1900, an instrument in writing, purporting to be his will, was filed in the office of the county clerk of said county, and upon the same day, to wit, April 9, 1900, a petition was filed in said court for the probate of said will by the appellants Frances A., Willis P., and Carley E. Wright. The petition for the probate of the will so filed on April 9, 1900, alleges that Thomas R. Wright died in Arkansas on March 25, 1900, leaving a will and codicil thereto, duly signed; that said will is subscribed by James H. Grigsby, S. C. Barlow, and Frank W. Brooks, as witnesses; that therein said Frances A., Willis P., and Carley E. Wright are named as executors, and are willing to accept the office and trust confided to them; that Thomas R. Wright died seised of real estate valued at about $70,000, and personal property estimated to be worth about $12,000; that he left, him surviving, Frances A. Wright, his widow, and the following named persons as his only heirs at law and legatees, and that their respective places of residence, so far as known, are as follows: Frances A. Wright, widow; Willis P. Wright, son; Carley E. Wright, son; Sadie B. Wright, daughter, Blandinsville, Ill.; and Angie R. Hickman, daughter, Sciota, Ill. The petition then prayed that the subscribing witnesses be summoned to appear, and that probate be granted, and the will ordered for record, and that letters testamentary be issued to said executors. The petition filed by the appellee on May 9, 1901, after thus setting forth the contents of the petition filed for the probate of the will on May 9, 1901, sets forth that at the latter date appellee was not resident of Illinois, and had no notice of the time and place when and where it was proposed to present said will for probate; that her name was not inserted in the petition for the probate of the will; that the said Willis P., Carley E., and Frances A. Wright, who signed said petition and verified the same with their affidavit, then and there well knew that appellee was a daughter and heir of Thomas R. Wright, deceased; and the petition charges the fact to be that they knowingly and designedly left appellee's name out of the petition, in order that she might have no notice of the time and place when and where it was proposed to present the same for probate. The petition of May 9, 1901, also avers that the clerk of the county court only mailed notices of the time and place when and where it was proposed to present the will for probate to the persons named in the petition, and did not mail any notice of such time and place to the petitioner, appellee; that said instrument was not, to the best of appellee's knowledge and belief, the last will of Thomas R. Wright, deceased; that appellee verily believes that, if she had had notice of the time and place when and where the same was to be presented for probate, she could have made a good defense to the petition asking for the probate thereof; that the said instrument in writing was admitted to probate by said county court on May 1, 1900, without a contest; and that appellee did not learn of the fact of such probate until it was too late to take an appeal from said order.
MAGRUDER, J. (after stating the facts).
The petition filed in this case on May 9, 1901, for the purpose of setting aside the probate of the will of Thomas R. Wright, deceased, was specially demurred to upon the alleged ground that the county court had no jurisdiction to entertain such petition or to set aside the probate of the will, but was only clothed with jurisdiction to hear and determine the application for probate, and that the only was to avoid the effect of the order of the probate court entered on May 1, 1900, admitting the will to probate, was to pursue the remedies prescribed by the statute for that purpose; that is to say, that appeals may be taken from the order of the county court, allowing any will to be probated, to the circuit court of the same county, by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace, except that the appeal bond and security may be approved by the clerk of the county court, and that, if any person interested shall, within two years after the probate of any such will in the county court, appear, and by bill in chancery contest the validity of the same, an issue at law shall be made up,-whether the will produced be the will of the testator or not. In other words, it is insisted by the appellants that, if the probate of the will by the county court was wrong, the only remedy of the appellee was by appeal to the circuit court within 20 days from the date of the probate thereof, or by filing a bill in chancery under section 7 of the act in regard to wills.
On June 3, 1897, the legislature passed an act in relation to the probate of wills, which went into force on July 1, 1897, and provides Sess. Laws 1897, p. 304.
The demurrer filed to the petition admitted the truth of the allegations in the petition. It appears from the petition that the appellee, Ida...
To continue reading
Request your trial
-
Petta v. Host, 32748
...326 Ill. 425, 158 N.E. 127; Walker v. Cook, 294 Ill. 294, 128 N.E. 584; Floto v. Floto, 213 Ill. 438, 72 N.E. 1092; Wright v. Simpson, 200 Ill. 56, 65 N.E. 628. In the cited cases, which were proceedings to set aside the probate of a will, it was held that an order of probate is binding on ......
-
City of Chicago v. Nodeck
...Society v. Haas, 111 Ill. 176;Ward v. Durham, 134 Ill. 195, 25 N. E. 745;Mitchell v. Shaneberg, 149 Ill. 420, 37 N. E. 576;Wright v. Simpson, 200 Ill. 56, 65 N. E. 628. The question then arises whether the vacation at a subsequent term of the judgment of confirmation here set up as a bar co......
-
Nash v. Park Castles Apartment Bldg. Corp.
...until the receivership was finally concluded. Heppe v. Szczepanski, 209 Ill. 88, 70 N.E. 737,101 Am.St.Rep. 221;Wright v. Simpson, 200 Ill. 56, 65 N.E. 628. It was alleged in the petition that Park Castles Apartment Building Corporation had been dissolved as a corporation, at the suit of th......
-
Heppe v. Szczepanski
...to and approved. See, also, Marshall v. Coleman, 187 Ill. 556, 58 N. E. 628;Tanton v. Keller, 167 Ill. 144, 47 N. E. 376;Wright v. Simpson, 200 Ill. 56, 65 N. E. 628. It is a matter of doubt, however, although the probate court may have had jurisdiction to enter the order of vacation at a s......