239 Ill. 67 | Ill. | 1909
delivered the opinion of the court:
Olive J. Cone, as the only heir-at-law of Daniel B. Ship-man, was a “person interested” at the time of the admission of the will to probate, and as such had a right to, and did, file a bill to contest the will. The important question to be determined is whether upon her death the cause of action survived to her legal and personal representatives.
In this State the right to contest a will in chancery is a right conferred by statute, and independently of the statute no such right has ever been recognized by our courts, though a different rule has prevailed in some States. In Calkins v. Calkins, 229 Ill. 68, we said (p. 73) : “The jurisdiction of courts of equity to entertain bills to contest wills is exclusively derived from statute and can only be exercised in the mode and within the limitations prescribed by the statute. (Luther v. Luther, 122 Ill. 558; Jele v. Lemberger, 163 id. 338.) Cases are to be found in some of our sister States which hold that the power of courts of chancery to entertain bills of this character is embraced in the general equity jurisdiction of these courts, but this rule has never been recognized in this State and it is opposed by the great weight of authority both in England and America. * * * When a bill is filed to contest a will 9 under the statute, the jurisdiction invoked is not the general equity powers of the court but the special statutory jurisdiction, and, so far as the scope or extent of the jurisdiction extends, it is to be determined by the same rules that would apply if the jurisdiction was conferred upon some particular tribunal created to exercise this special jurisdiction and no other. A court of general jurisdiction may have a special statutory jurisdiction conferred upon it not exercised according to the course of the common law and which does not belong to it as a court of general jurisdiction.” In Waters v. Waters, 225 Ill. 559, this court said (p. 561) : “Courts of equity in this State have no jurisdiction to contest a will except such jurisdiction as has been conferred by the statute. Indeed, the statute conferring jurisdiction is the only source of power entrusted to a court of equity in this State. Such being the case, a court of equity can only entertain a bill in the mode and within the time prescribed by the statute.” Other cases to the same effect are Sharp v. Sharp, 213 Ill. 332; Wheeler v. Wheeler, 134 id. 522; Sinnet v. Bowman, 151 id. 146; Keister v. Keister, 178 id. 103; Chicago Title and Trust Co. v. Brown, 183 id. 42.
This court held in McDonald v. White, 130 Ill. 493, that the words in the statute, “any person interested,” meant those having a direct pecuniary interest affected by the probate of the will and that such interest must exist at the time of the admission of the will to probate. In that case the heir of a testatrix executed a conveyance of certain real estate which he claimed to own if the will of the testatrix was invalid. His grantee filed a bill to contest the will. It was held the bill could not be maintained; that the heir who made the conveyance had only a bare right to establish title to the property by successfully contesting the will, but that such right was not assignable and could not therefore be made the subject of a conveyance.
In Storrs v. St. Luke’s Hospital, 180 Ill. 368, a bill was filed by Emery A. Storrs, only heir-at-law of George M. Storrs, deceased, to contest the will of Caroline T. Storrs, mother of George M. Storrs and grandmother of the complainant. The bill was filed eight years after the probate of the will of Caroline T. Storrs, and to excuse the delay in filing it alleged that George M. Storrs was non compos mentis from the time of the admission of the will to pro-Tate until his death, which occurred four months before filing the bill. The court said (p. 375) : “The right to file the bill, which existed in George M. Storrs, did not descend to the appellant, Emery A. Storrs. George M. Storrs had the bare right to establish title by successfully contesting the will. That right was not assignable, as was held in McDonald v. White, supra. If it was not assignable by a conveyance or written transfer it could not pass by inheritance or descent. The right to dispose of property by will is always considered purely a creature of statute. (United States v. Perkins, 163 U. S. 625; Kochersperger v. Drake, 167 Ill. 122.) No statute exists in this State, so far as we are advised, which authorizes the right to file such a bill to pass by descent or to go to an heir by inheritance. The right of a widow to dower does not survive to the administrator. (Hitt v. Scammon, 82 Ill. 519.) An action to recover a statutory penalty does not survive the death of the defendant. (Diversey v. Smith, 103 Ill. 378.) We are therefore of the opinion that appellant, Emery A. Storrs, had no such interest at the time of the probate of the will as would entitle him, in view of the decisions above quoted, to file a bill to contest its validity at the date at which the present bill was filed, and that such right as his father, George M. Storrs, had to file such a bill did not pass to him by descent.”
In Staude v. Tscharner, 187 Ill. 19, the testator left two brothers as his only heirs-at-law. .The will was admitted to probate in May, 1896. One of the brothers died in January, 1898, and the other in September, 1898, without either of them filing a bill to contest the will. The heirs of the brother who died in September, 1898, filed a bill February 26, 1900, to contest the will. The court said (p. 20) : “The complainants claim an interest in the estate through Robert Staude, who was one of the heirs of Augustus Staude at the date of the probate of the will, but none of them were heirs of Augustus Staude or interested in. his' estate at the time of such probate. Robert Staude and Franz Staude, the heirs-at-law of Augustus Staude, the testator, had a right given them by statute to contest the will, but neither, of them contested it or attempted to do so. The right to file a bill to set aside the will and codicils and probate was not’assignable and did not pass by descent or inheritance to the complainants. They had no right to file the bill. (Storrs v. St. Luke’s Hospital, 180 Ill. 368.) The court was right in sustaining the demurrer.”
By the cases above referred to it is settled law (i) that it is not by virtue of the general chancery powers that courts of equity in this State are given jurisdiction of will contests, but that such jurisdiction is derived solely from the statute; (2) that no action to contest a will can be brought by anyone except a person who was interested at the time the will was admitted to probate; (3) that the cause of action is not assignable or the subject of conveyance and does not pass by inheritance or descent.
It is not contended that, under our previous decisions, if Olive J. Cone had died before commencing the suit the action would have survived to her heirs or executor, but counsel for appellants seeks to distinguish a case of the continuation of an action that has been commenced by a proper person from the survival of a right to bring the action when the same had not been begun before the death of the party entitled to bring it. The right to continue the prosecution of a suit or proceeding upon the death of a party plaintiff, as given by our statute, (section 10 of the chapter on abatement,) is limited to those cases in which the cause of action survives. We know of no instance where it has been held that a cause of action which belongs to the class of actions that does not survive either by common law or statute may be changed to an action that' survives, by the party to whom the action is given bringing suit in his lifetime. This action cannot be held to survive by the common law, for it is purely a statutory one, which can only be pursued in the mode and within the limitations prescribed by the statute, and under the construction we have given that statute there is no escape from the conclusion that the action does not survive. The tenth section of our statute on abatemeht gives the rig'ht to the heir, devisee, executor or administrator of a sole complainant in an action in equity who dies before final decree, upon the suggestion of the death, to be substituted as complainant “if the .cause of action survive to the heir, devisee, executor or administrator of such decedent.” Under this statute, where the action survives no bill of revivor is required, but the heir, devisee, executor or administrator may, on the suggestion of the death to the court, be permitted to be substituted as complainant and proceed with the suit. . But the right to do this is only conferred when the cause of action survives. It has been held that where a right of action is so entirely personal that the party in whom it exists can not by contract place it beyond his control it will not survive, (Hegerich v. Keddie, 99 N. Y. 258; 52 Am. Rep. 25;) and that, as a general rule, assignability and survivability of causes of action are convertible terms. (Brackett v. Griswold, 9 N. E. Rep. 438, (N. Y. Ct. of Appeals;) Village of Cardington v. Fredericks, (Ohio,) 21 N. E. Rep. 766.) “As a general test an executor or administrator cannot come in and prosecute a suit unless he was in a condition to commence a like suit if it had not been beguby his testator or intestate.” (1 Cyc. p. 49.)
Our conclusion is, that had Olive J. Cone died at any time after the admission of the will to probate without having filed a bill to contest it the right to institute said proceeding would not have survived to the appellants, and the fact that she did file the bill before her death gave them no greater rights than if said proceeding had not been begun and the}' were seeking to institute an original proceeding to contest said will. The justice and wisdom of the statute may be proper subjects for consideration by the legislature but not for the courts.
It is contended by appellants that Hannah Rogers Jones was a “person interested” and as such had a right to file a bill to contest the will, and having become a complainant in such bill before the expiration of one year from the date of the admission of the will to probate she has a right to maintain said bill. It is clear she was not a “person interested” in the sense meant by the statute to give the right to contest a will. The settlement of the estate of Daniel B. Shipman in accordance with the provisions of the will deprived her of no right she would have otherwise had, but, on the contrary, conferred upon her a benefit to the extent of giving her $2000 which she would have had no right to in the absence of the will. In McDonald v. White, supra, it was said that a “person interested” is one who will be directly affected, in a pecuniary sense, by the settlement of the estate under the will, and this clearly meant one who was affected detrimentally by being deprived of a right he would have otherwise had in the absence of a will. The statute cannot be construed to confer the right upon one who is deprived of nothing by the will but is given benefits he otherwise could not have had, to contest the validity of a will, and Wolf v. Bollinger, 62 Ill. 368, and Tele v. Lemberger, 163 id. 338, relied on by appellants, do not sustain their position. In Wolf v. Bollinger Catharine Bollinger was devised forty acres of land by the will. Shortly after-wards the testator caused the name of Catharine Bollinger to be canceled by drawing lines through it with a pen but leaving it still legible, and interlining above it the name of Christina Wolf. The will was not re-published and the witnesses to the will were not present when the alteration was made. After the will was admitted to probate Catharine Bollinger filed a bill setting out the manner in which Christina Wolf’s name had been substituted for hers, and prayed that the instrument as admitted to probate be declared null and void and that the will as originally drawn and executed be established as the true will. This court held that Catharine Bollinger had the right to file and maintain the bill, and said the privilege of contesting the validity of a will is given to any person interested, “which may embrace a devisee as well as an heir-at-law.” In Jele v. Lemberger the ‘right of a devisee to contest a will was in no way involved. In discussing the question who is embraced in the phrase “any person interested,” as used in the statute, the court cited Wolf v. Bollinger, that it may embrace a devisee as well as an heir. .There may be special circumstances, such as existed in Wolf v. Bollinger, where a person claiming to be a devisee must be held to be a “person interested,” but no such circumstances exist in this case.
Our construction of the statute is not, as contended by the appellants, in conflict with the constitutional provision guaranteeing the right of trial by jury. The laws of descent and the laws governing the right to dispose of property by will are statutory enactments, as is also the right to contest a will in chancery. In Sharp v. Sharp, supra, it was said: “The legislature could have, had it seen fit, entirely abrogated said proviso [to section 7 of the Statute of Wills] and thereby swept away the entire remedy provided for by said proviso.” Appellants were not interested in the property of Daniel B. Shipman at the time the will was admitted to probate and could not be heard to question its validity. They were not then even the heirs or devisees of Olive J. Cone, for she was still alive. But for the statute she could not have contested the will, and the fact that that right was given to her but not to her heirs or devisees violates no constitutional or other right of appellants. No right can be violated where none exists.
We are of opinion the decree-of the circuit court was right, and it is affirmed. & ’
jz j Decree affirmed.