171 Ill. App. 123 | Ill. App. Ct. | 1912
delivered the opinion of the court.
Appellant insists that it was immaterial whether the County Court had jurisdiction of the person of appellee at the time the court made the order of distribution and the order that appellee give a bond, for the reason that by afterwards appearing in the County Court and moving to vacate that part of the order for a bond and making no objection to the remainder of the order concerning the report, the court thereby acquired jurisdiction of appellee. She also contends that by inserting in her report that there was due “Electa Cort to have, use and enjoy for and during her natural life with remainder at her death to Virgil C. Massie or his heirs at law,” she exercised the power given to her by the ninth clause of the will to make final decision as to the meaning and effect of the provisions of the will, and that appellee, having* entered her appearance in the County Court and made no objection to the final report, is bound thereby. Appellant further insists it was her duty as executrix to require a bond and to see that the remainder-man was protected. Appellee contends that the use of the "vyord “have” in the seventh clause indicates that possession was to accompany the use and enjoyment of the fund; and that no express trust having been created and no evidence of non-residence or insolvency adduced and no bond required by the will no bond could be required by the court.
The statute, section 112, chapter 3, title, administrators, provides: “that no final settlement shall be made and approved by the court unless the heirs of the decedent have been notified thereof in such manner as the court may direct.” While there is no evidence in the record either that there was or was not any special order of the County Court directing what notice should be given the heirs and legatees or any general order in that regard, yet it is not necessary to consider the question as to whether the County Court being a court of general jurisdiction in the .matter of estates, the presumption will prevail that it had jurisdiction over the person of Mary Electa Cort, for the reason that she subsequently entered her appearance. By making the motion to vacate so much of the order as required her to give bond, before the legacy should be paid to her, she gave the court full jurisdiction over her person, and the court had unquestioned jurisdiction over the subject-matter. Her appeal, from the order of the County Court refusing to vacate that part of the order requiring her to give bond, gave the Circuit Court jurisdiction over her and the subject of the appeal. The order that she should give a bond for the repayment of the legacy at her death to the remainder-man is so connected with the order that the executrix pay the legacy to her that the appeal from the order that she give bond involved her right to and the entire order concerning the legacy.
The Circuit Court did not render a final judgment, but vacated the last paragraph of the order and set aside and reversed the order of the County Court refusing to vacate that part of the order concerning the bond. The judgment of the Circuit Court was improper for the reason it reverses and vacates the order of the Probate Court as if the Circuit Court were a court of review, exercising functions similar to those of the Supreme or Appellate Courts. Pavlicek v. Roessler, 222 Ill. 83.
The trial was de novo. The practice on appeals from the Probate Court to the Circuit Court is the same as on appeals from justices of the peace to- the Circuit Court. There being no question raised as to the accuracy of the account, the Circuit Court should have rendered a final judgment directing the payment of the legacy to the legatee on such terms and conditions as would protect the remainder-man and carry out the terms of the will. The record shows the legatee Mary Electa Cort is a non-resident of Illinois, her residence being in Missouri as appears from the bond executed by her on her appeal.
The terms of the will only give to Mary Electa Cort the use of the legacy for her life. Trogdon v. Murphy, 85 Ill. 119; Dickinson v. Griggsville Nat. Bank, 209 Ill. 355. While the testatrix did not by her will require that the life tenant should give a bond, yet when the remainder-man asked that he be protected and it appeared in any way that the legacy of which appellee had the use for her life was about to be taken out of the state, the court should have required her to give a bond for its payment to the remainder-man at her death. The case is reversed and remanded with instructions to the Circuit Court to enter such an order as will secure to the life tenant the use of the legacy and also secure to the remainder-man the payment of the legacy, after the death of the life tenant.
jReversed and remanded with directions. ■