158 N.E. 706 | Ill. | 1927
This is a writ of error from the judgment of the Appellate Court affirming the order of the circuit court refusing to order the probate of the will of O.B. Grant, who died January 19, 1925. The will, after providing for the payment of funeral expenses and just debts, made certain specific bequests of money to relatives and friends and to a cemetery association and gave $500 to an old friend and neighbor and his wife. The eighth clause gave, devised and bequeathed all the balance and residue of his property, of every kind and character and wherever situated, to his daughter, Bertha Yager, defendant in error. The last clause appointed plaintiff in error, George G. Robertson, his executor. He filed a petition in the county court of Clark county for the probate of the will. Defendant in error, as the sole heir and residuary devisee and legatee, filed objections in the county court to the probate of the will, which were overruled and an order entered probating the will. On appeal the circuit court heard evidence showing that all the devisees and legatees interested in the property *348 disposed of by the will had agreed to accept the legacies; that defendant in error should pay all legacies and that there be no administration of the estate. The evidence heard by the court also showed that at the time of the hearing defendant in error had paid all the legacies and bequests required to be paid under the provisions of the will, had paid the funeral expenses and all debts and claims against the estate, including the Federal estate tax, and made arrangements to pay the State inheritance tax as soon as the amount was ascertained. The evidence also showed that prior to decedent's death he had placed his entire estate in the possession and under the control of defendant in error, and the same was in her possession and control at the time of filing the petition to probate the will. On this evidence the circuit court refused to order the probate of the will on the ground that administration was not necessary. The Appellate Court held that since it was apparent from the record that all of the provisions of the will of the deceased concerning his property had been carried into effect and all debts and claims against the estate had been paid, there was no necessity for administration of the estate or probating the will; that to do so was a useless form for the sole benefit of plaintiff in error that he might earn commissions as executor, which would be paid by the defendant in error as residuary legatee, and affirmed the order of the circuit court. The cause comes here on certiorari.
Plaintiff in error urges that it was error on the part of the circuit court to receive evidence of any agreement as to the disposition of the estate; that the subject matter of inquiry in a matter of the probate of a will on appeal from the probate or county court is confined to the validity of the will, and that whether the estate shall have been settled in any manner different from that provided by the will, so as to avoid the necessity of administration, is not a matter into which the circuit court on such hearing may inquire. *349 Objection is also raised to the competency of certain testimony in the record.
This court has held that in a case where the deceased dies intestate and there are no debts of the estate and distribution is made by the heirs there is no necessity for administration, and the court will not order one merely to see that the estate is administered. In Cotterell v. Coen,
In People v. Abbott,
While there may be necessity for an administrator even where there are no debts, as for the purpose of collection and distribution, yet where there are no debts and the property is already distributed and there are no suits to be brought there can be no necessity for an administrator. The law does not make it indispensable that every estate shall be administered merely for the sake of administration. (People v. Abbott, supra.) InMoore v. Brandenburg, *351
None of the cases cited involved the question whether a court may, upon an agreement by the heirs that a will shall not be probated, refuse to probate it. Counsel for defendant in error have cited Cole v. Cole,
In the case of VanZanten v. VanZanten,
Section 2 of the statute relating to wills (Smith's Stat. 1925, p. 2571,) provides, in part, as follows: "And every will, testament or codicil, when thus proven to the satisfaction *353 of the court, shall, together with the probate thereof, be recorded by the clerk of said court in a book to be provided by him for that purpose." Section 12 of the act requires that any person having in his custody a last will or testament of another shall immediately upon the death of the testator deliver up the will to the county court of the proper county, and provides a penalty for his failure to do so. Paragraph 23 of the Wills act (Smith's Stat. 1925, p. 2576,) provides with reference to the probate of wills, in part, as follows:"Provided, that in case such a petition is not filed and a will has been deposited in said county court for the space of ten days, then it shall be the duty of the county court to proceed to probate said will without petition being filed, but only after having caused publication and notice of the intention to probate said will to be given to the parties in interest as to the court may seem proper."
The matter of disposition of property by will is wholly statutory. The probate of wills is governed entirely by statute. When the statutory requirements are complied with no others can be prescribed. (Shepherd v. Yokum,
Counsel for defendant in error urge that the administration of this estate is wholly unnecessary; that all the legacies mentioned in the will have been paid; that there are no debts and that practically all the estate of the deceased was transferred to the defendant in error during the lifetime of the deceased; that the only one to receive any benefit from the administration of the estate is the executor, who would claim fees. These questions are not involved in this case. Were the question here one as to the right to have letters testamentary issued, or one of the right of the heir and legatees, after the probate of the will, to make an agreement among themselves which would prevent distribution by the executor, a different situation would be presented, but the issue arising in this case is whether the court can refuse to probate a will where proper proof of capacity of the testator and execution of the instrument has been made. We are of the opinion that it cannot.
The judgment of the Appellate Court and the order of the circuit court are therefore reversed and the cause is remanded to the circuit court, with directions to admit the will to probate.
Reversed and remanded, with directions. *356