Elmore v. Carter, 124 N.E. 582

Elmore v. Carter

124 N.E. 582

Ill.

1919

Check Treatment

Mr. Justice Cartwright

delivered the opinion of the court:

By the writ of error in this case the court is called upon to decide rights of inheritance in 178 acres of land in Clinton county between the heirs of Walton Elmore, who died childless, and the heirs of his widow, Susan Elmore, who after his death was mаrried to Thomas J. Ritchie. Walton Elmore made his will on April 7, 1893, and died on April 10, 1893. By the will he devised a life estate to his wife, Susan Elmore, with remainder in fee to the Transit and Building Fund Society of Bishop William Taylor’s Self-Supporting Missions. On September 1,1916, two sisters and the .heirs-at-law of a deceased brother of the testator, who together constituted his heirs-at-law, filed their bill against the mission society, alleging that it was a New York corporation incapable of taking the land by devise, and praying that the devise to it be set aside and declared void and the land be partitioned аmong the heirs-at-law. Upon a joinder of issue and evidence heard by the chancellor the prayer оf the bill was granted, on the grounds that by the provisions of the charter and the law of New York such a devise ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍must be madе and executed at least sixty days previous to the death of the testator, and because the mission society had become civilly dead and ceased to exist before the death of the testator. On June 30, 1917, the dеfendants in error, collateral relatives and heirs-at-law of Susan Elmore Ritchie, who died March 8, 1916, intervened in the case, answered the original bill and filed a cross-bill, alleging that the devise to the New York corporation being invalid, Susan Elmore, widow.of Walton Elmore, on his death became seized in fee of the undivided one-half of thе lands, which descended at her death to her heirs-at-law. The cause was heard upon a stipulation of fаcts. The widow, Susan Elmore, accepted the devise to her, acted as administratrix with the will annexed and administеred the estate of her deceased husband, and the names of the heirs of Walton Elmore and Susan Elmore Ritсhie were properly-set forth in the proceedings. The chancellor entered a decree on May 14, 1917, finding the respective interests as set forth in the amended cross-bill and ordered partition accordingly.

One who accepts the benefit of a provision in his favor under a will is precluded from attacking and defeаting a bequest or devise to another by the same will ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍if his acceptance is with full knowledge of the facts, or, оtherwise stated, one cannot take under a will and against its terms. (Wilbanks v. Wilbanks, 18 Ill. 17; Brown v. Pitney, 39 id. 468; Lessley v. Lessley, 44 id. 527; Gorham v. Dodge, 122 id. 528; Fry v. Mоrrison, 159 id. 244; Madison v. Larmon, 170 id. 65; Buchanan v. McLennan, 192 id. 480; Richardson v. Trubey, 250 id. 577; Koelling v. Foster, 254 id. 494; Palenske v. Palenske, 281 id. 574.) While that is true, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍one who accepts a benefit under a will, and thereby admits that its provisions constitute the will of the testator, is not precluded from questioning the validity of the will as opposed to the law or public policy, as in the casе of a provision violating the rule against perpetuities. (Matter of Walkerly, 108 Cal. 659.) This was declared to be the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍lаw in Schuknecht v. Schultz, 212 Ill. 43, in which there were devises to the testator’s son until the youngest grandchild of the testator should be twеnty-five years old, when the property was to be divided equally among the grandchildren. The complainant, J. Fred Schuknecht, was a beneficiary under the will and filed his bill to have the third- and fourth devises declared void under the rule agаinst perpetuities. It was contended that he was bound to confirm and ratify every other part of the will, but it was held thаt the doctrine, of election had no application, to the facts; that where a devisee or lеgatee takes something under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the will to which he would not be. otherwise entitled, and at the same time seeks to hold property disposed of by the will to which he would have been entitled if there had been no will, the doctrine оf election applies, but that the clauses of the. will violating the rule against perpetuities being void, must be trеated as though never made and constituting no part of the will. The same rule has been declared where а- bequest was invalid under a statute rendering bequests to charitable corporations or uses void when made within a certain time before the testator’s ’ death. (In re Schmidt, 15 Mont. 117.) The devise to the mission society was Amid, not only because of the charter of the corporation and the laws of New York but also because the corрoration was civilly dead and had no existence. There was therefore neither devise nor devisee оf the remainder after the ■ life estate, and the attempted devise of the remainder was a nullity and no pаrt of the will.

Susan Elmore AA'as not required to elect whether she would take the life estate, and thereby confirm the attempted devise, or claim her inheritance in the intestate property. In the case of Ellis v. Dumond, 259 Ill. 483, where it Avas held that the acceptance by the widow of the provision made for her in the will barred her right of dowеr not only in the estate disposed of by the will but also in intestate property which the testator acquired aftеr the will was made but did not dispose of, the provisions for the wife were “made to her in lieu of her dower and all оther rights as Avidow of my estate.” There was no condition annexed to the devise of the life estate to Susan Elmоre. The decision in the case referred to was also based on the provision of the Dower act that an acceptance of a provision made for a widow by a will bars her claim of dower in any of the lands of which the testator died seized, whether the same was devised by will or not.

The decree is affirmed.

affirmed.