Koelling v. Foster

150 Ill. App. 130 | Ill. App. Ct. | 1909

Mr. Justice Holdom

delivered the opinion of the court.

Counsel for appellee challenge the jurisdiction of this court to entertain this appeal, because they contend that a freehold is involved. But in appeals of this character we do not understand our province to be to determine the rights of the parties in the subject-matter of the litigation, but simply to determine whether from the averments of the bill the party is entitled to the injunction obtained from the chancellor. Thus where an injunction is improvidently granted, without notice, in a case where notice should have been given, aside from any other question raised by the bill, this court will reverse such injunctional order. So, where the statute requires a bond to be given as a condition precedent to granting the injunction prayed, and none has been given, the injunctional order so improvidently granted will be reversed without reference to the merits of the cause made by the averments of the bill. The contention, therefore, that this court is without jurisdiction to entertain this appeal is not well taken.

A court of equity will not enjoin a trespass unless facts and circumstances are alleged in the bill from which it can be seen that irreparable injury will result from the act complained of, and that there is no adequate remedy at law, or that a multiplicity of suits will result unless equity intervenes and restrains the threatened trespass; or that the trespassers are financially irresponsible and unable to respond in damages to the injured party for the result of the unlawful action threatened. Taylor v. Pearce, 71 Ill. App. 525; Thornton v. Roll, 118 Ill. 350; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372.

Concerning appellee’s being entitled to a restraining order, from what we shall hereafter say it will clearly appear that from no averment of her bill is she entitled to any relief whatever, either at law or in equity. If appellee can have no ultimate relief on a hearing, she can have no interlocutory injunction. Hovnanian v. Bedessern, 63 Ill. App. 353.

From the time of the death of appellee’s husband to the time of the filing of her bill, a period of eight-years, minus a few days, elapsed. She propounded the will and caused letters testamentary to be issued thereon to herself, and proceeded to administer the estate until removed from her office by the Probate Court for disobedience of its orders. The estate was settled November 15, 1906, and during all of this time her actions and conduct were in effect an affirmance of the will and an acceptance of its provisions. During no part of this time did she make any protest or seek to avoid the provisions of the will made for her benefit. On the contrary she continued to occupy and cultivate the Northfield farm for the whole term of the estate created by the will in. her favor, and not until the remainder men asserted their rights and attempted to oust her from possession did she make it known that she had any desire or intention to renounce her husband’s will and take her share of his estate, according to the statutes governing the distribution of the estates of those dying intestate. The only attempt made to avoid the legal consequences flowing from her conduct is her plea of ignorance and illiteracy. But such plea is unavailing. That ignorance of the law is no defense, is axiomatic. This is a necessary rule of law, for were it otherwise no rights would be safe from such a plea, which in the natural course of events could hardly ever be disproved.

Warren v. Warren, 148 Ill. 641, we think decisive of appellee’s claims, contrary to her contention. The statute makes it imperative on the part of the widow to renounce the will within a year of the death of the husband if she does not wish to be concluded by its provisions. A failure to do so is by construction an acceptance of its terms and obligatory for all time. As said in the Warren case, “But, under the peculiar terms of the Illinois statute, the provision in the will is declared to be a bar, unless the intention that it shall not be a bar is expressed in the will. The statute makes the silence of the testator the conclusive index to his intention, and it also makes the failure to renounce within a specified time conclusive evidence that the surviving husband or wife has elected to take under the will.” Again the court says in the Warren case, “If the widow deems such devise or bequest an inadequate compensation for dower, she can file her renunciation within the time specified, and thereby take what she is entitled to under the statute.” Not only is there nothing in Koelling’s will from which it can be said that the provisión made for appellee was intended to be in addition to her statutory right of dower and homestead, but, on the contrary, section 7 of the will in express terms provides that the bequests to her are in lieu of all such rights and widow’s award; therefore her rights are limited by the conditions of the will. ReQua v. Graham, 187 Ill. 67.

The case at bar is in no respect akin to Laurence v. Balch, 195 Ill. 626, because in that case no provision at all was made in the will of the wife for her surviving husband. Consequently, as the court held, there was nothing to renounce. His rights, not being at all involved by the will, rested in those given by the statute. It may be that the bequests to appellee were inadequate and not of the value which, but for the will, she would have been entitled to receive under the statute; but according to the terms of the will she took under it property of appreciable value, and she enjoyed it, such as it was, for eight years, and not having renounced the will within the statutory time, she is concluded by the will, and her attempt at so late a day to renounce it is abortive.

Appellee is not entitled, under the averments of her bill, to any of the relief prayed, and the Circuit Court erred in ordering a preliminary injunction, and that order is therefore reversed.

Reversed.