114 Ill. 539 | Ill. | 1885
delivered the opinion of the Court:
Stress is laid upon the language of the act in regard to-wills, in section 2, chapter 148, of the Revised Statutes of' 1874, that when any will shall be exhibited for probate, it shall be the duty of the court to receive probate of the sameloithout delay, as being peremptory on the court to proceed at once in receiving probate of a will which is offered for that, purpose. No doubt it is the j>olicy of the act that there should be made settlement of the estates of deceased persons at as-early a day as practicable. But the language referred to is-not to be taken in the sense so literal that the court, on presentation of a will for probate, must immediately proceed in the probate thereof. The meaning is no more than that the court shall proceed without unreasonable delay. The courts-are vested with more or less discretion as to the order of business before them, and as to advancing or postponing causes. This is recognized in the provision of our Practice act for the keeping of a docket of all the causes pending, and that the causes shall be tried or otherwise disposed in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct. And it must be the-rule that ordinarily there will not be interference by mandamus-to direct when another court shall proceed with the hearing-of any particular cause.
In the present case- there were two writings, of different dates, before the probate court at ‘the same time, each purporting to be the last will and testament of Wilbur F. Storey,, the one last in date revoking all former wills. Which one-should the court proceed to receive probate of first P Suppose-the relatrix had insisted that the one first in date,—that of August 16, 1879,—should be first acted upon. There would be a case for the exercise of discretion. • And in proceeding first to receive probate of the last writing, and postponing until afterward the probating of the first writing, must be admitted would be a most fit exercise of discretion. Had the refusal of probate of the last will remained the final order of the probate court, then the probating of the first would have been proceeded with without hindrance. But such refusal of probate did not remain a final order, but it was appealed from, and the matter of probating the last will was still pending and undetermined. But, notwithstanding that, the probate court might have the power to go on now and receive probate of the first will. Yet is there not a fair question as to the propriety of so doing ? It may be thought that • the same reason of fitness which dictated the course of first receiving probate of the last will and postponing thereto the probate of the first will, still operates to continue such postponement until there be had a determination of the controversy pending whether the paper last in date be a will or not. If that shall be found to be the will of the decedent, then the first will is annulled, and the probating thereof would be-nugatory. The motion to postpone the hearing as to the first will, under the circumstances, called for the exercise of the court’s discretion. It was exercised in making a postponement until the further order of the court, for the reason of the pending appeal from the order refusing probate of the-last will. This is such an exercise of a court’s discretion as. we do not feel called upon to interfere with. There does not. appear to have been any abuse of discretion. This court has repeatedly held, that where the exercise of a discretion is involved, a writ of mandamus will not be allowed. (The People v. Pearson, 2 Scam. 204; Village of Glencoe v. The People, 78 Ill. 383; County of St. Clair v. The People, 85 id. 396; The People v. Williams, 55 id. 178.) In High on Ex. Leg. Rem. sec. 260, it is laid down: “The existence of other litigation in another forum, affecting the matter which is the foundation of the proceedings in mandamus, may sometimes operate as a bar to relief by this extraordinary writ. And it has been refused where it was sought to compel the granting of administration, it being shown that a contest was already pending as to a pretended will of the deceased. ” And see The People v. Superior Court, etc. 19 Wend. 701; Stewart v. Eddy, 7 Mod. 143; Sir Richard Raines’ case, 5 id. 374; Lovegrove v. Bethell, 1 Blackstone, 668; Rex v. Hay, 4 Burr. 2295; Rex v. Bettesworth, 2 Strange, 1111.
On the part of the relatrix, reference is made to the statement of the law as made in 3 Bedfield on Wills, 54: “Where the probate court declines to proceed in the probate of a will, or to give the executor letters testamentary, having no justifiable excuse therefor, the Superior Court, by mandamus, will compel the probate court to proceed in the matter. ” There is here no declining absolutely to proceed, but only at the present time, for what the court deems the justifiable reason, —that there is a proceeding pending for the establishment of a later will,—amounting but to a continuance on motion made therefor. The authority cited should not control in such a case.
A point is made by the relatrix that the probate of a will is a ministerial act, and reference is made to Ferguson v. Hunter, 2 Gilm. 657, and Ayers v. Clinefelter, 20 Ill. 473, as so holding. These decisions were under former statutes, and previous to 1849. The statute of 1819 authorized probate of a will to be made before the county commissioners. In 1837 a probate court was created, presided over by a justice of the peace, and the statute declared the probating of a will to be a ministerial act. The present statute has no such provision. A change was made in 1849, establishing the county court a court of record to be held by one judge, the court being vested with all the powers and jurisdiction of the probate court as then established,—the act declaring that granting letters testamentary or of administration, determining who are entitled to said letters, should be considered as general judicial powers under the act. The constitution of 1870 provided for a county court to be a court of record to be held by one judge, and conferred upon it original jurisdiction in all matters of probate. The constitution also provided for the establishment of a probate court in certain counties, and under this section the probate court of Cook county has been created with an original jurisdiction of all probate matters. In Duncan v. Duncan, 23 Ill. 364, it was held that parties in interest might contest the validity of a will before the probate court as well as by bill in chancery, and should be allowed to examine the attesting witnesses as well as others. We have no doubt that the court, here, in acting upon the motion for postponement, should be regarded as in the exercise of judicial functions, and that the same doctrine is to be applied as in a case of such kind.
The similarity of the provisions of the two wills, and the fact that the same person is appointed executrix in each, is remarked upon as removing the objection to the immediate probate of the earlier will. This would diminish the inconveniences which would result from the probating of two wills of different dates, but would not entirely obviate the same.
It is insisted that there is a want of good faith on the part of Mrs. Farr and in the prosecution of her appeal from the older refusing probate of the later will,—that it is for her interest that the order should stand and the will not be established, as in the case of intestacy she would come into immediate possession of one-third of the estate. On the hearing before the probate court, on the motion for postponement, such want of good faith was averred on the one side and denied on the other, and in view thereof the court made its decision. The motive for taking the appeal hardly seems to be a proper subject of inquiry. There was the right to take the appeal, and it was taken, which left the question of the validity of the later will undisposed of and still pending for decision. That there was ground for the taking of an appeal, there is the evidence furnished by the relatrix’s action in herself taking an appeal. We can see that it appears to be for the interest of Mrs. Farrand that there should be a case of intestacy,—that there should be no will whatever established; yet, as between the two wills, it is for her interest that the one later in date should be established, rather than the earlier one. She has, at any rate, exercised her right to take an appeal, and her motive in so doing seems hardly inquirable into to do away with the effect of the appeal in its bearing upon the decision of the probate court.
Upon consideration of the whole matter, there is not made to appear, here, the clear right to the writ of mandamus which must be shown in order to its allowance, and we are of opinion the demurrer to the answer should be overruled, and that there should be judgment in favor of the defendant, denying the writ.
Mandamus denied.
