Calkins v. Calkins
82 N.E. 242
Ill.
1907
Check Treatment
Mr. Justice Vickers

delivered the opinion of the court:

Conceding that the instrument probated as the will of Cyrus Calkins is invalid as a will for the reasons pointed out by this court when this case was here before, appellants now claim the same interest in the estate on the ground that the invalid will should be held to operate as an equitable assignment. In the view we take of the case as now presented it will not be necessary to decide whether the facts stated in the cross-bill are sufficient to entitle appellants to the relief sought, since whatever equities appellants may have, if any, cannot be adjudicated in the proceeding to contest the will. The jurisdiction of courts of equity to entertain bills to contest wills is exclusively derived from statute, and can only be exercised in the mode and within the limitations prescribed by the statute. (Luther v. Luther, 122 Ill. 558; Jele v. Lemberger, 163 id. 338.) Cases are to be found in some of our sister States which hold that the power of courts of chancery to entertain bills of this character is embraced in the general equity jurisdiction of these courts, but this rule has never been recognized in this State and it is opposed by the great weight of authority both in England and America. Broderick’s will, 21 Wall. 503; Gould v. Gould, 3 Story, 516; Tarver v. Tarver, 9 Pet. 174; Archer v. Meadows, 33 Wis. 166; 2 Pomeroy’s Eq. sec. 913; Kendrick v. Braushy, 3 Bro. P. C. 358; Webb v. Cleverden, 2 Atk. 424; Gaines v. Fuentes, 92 U. S. 10; Luther v. Luther, supra.

This court has decided that a bill to set aside a will under section 7 of our Wills statute, and for partition, is multifarious, and that the court will, suo sponte, enforce the objection. (Hollenbeck v. Cook, 180 Ill. 65.) In disposing of that question in the Hollenbeck case this court, on page 71, said: “It is now claimed by appellant that the court erred in refusing to retain the bill after overruling a motion for a new trial, for the purpose of dividing the lots owned by the parties as tenants in common. We do not concur in that view. We do not think that the partition of lands is a proper matter to be incorporated in a bill in chancery, brought under section 7 of our Statute of Wills, to contest the validity of a will. Where a bill is brought to contest a will the statute requires an issue of law to be made up whether the writing produced be the will of the testator or not, which shall be tried by a jury. Whether the instrument produced is the will of the testator or not is the question, and the only question, properly involved in a bill brought under the statute to contest a will. On a bill in chancery or petition for partition of lands the question presented is usually one of title to lands,—a question to be determined by the court from the evidence introduced by the respective parties. The latter proceeding is one in no manner connected with a bill brought under the statute to contest a will.”

When a bill is filed to contest a will under the statute, the jurisdiction invoked is not the general equity powers of the court but the special statutory jurisdiction, and so far as the scope or extent of the jurisdiction extends it is to be determined by the same rules that would apply if the jurisdiction was conferred upon some particular tribunal created to exercise this special jurisdiction and no other. A court of general jurisdiction may have a special statutory jurisdiction conferred upon it not exercised according to the course of the common law and which does not belong to it as a court of general jurisdiction. In such cases its decisions are treated like those of courts of special jurisdiction. (Brown on Jurisdiction, sec. 13; Haywood v. Collins, 60 Ill. 328; Johnson v. VonKettler, 84 id. 315; Watts v. Dull, 184 id. 86.) Appellants’ cross-bill brought forward matters which could only be adjudicated by the exercise of the general equity powers of the court, and were therefore not germane to the original bill-.

The demurrer was therefore properly sustained, and the decree will be affirmed. Decree affirmed.