No. 1,698 | 7th Cir. | Jan 10, 1911
after stating the facts as above, delivered the opinion.
Section 7 of the Illinois statute of wills (Hurd's Rev. St. 1901, c. 148), as amended July 1,1903 (Raws 1903, p. 355), provides that when any will, testament or codicil is exhibited to the Court having jurisdiction of probate, it shall be the duty of the Court to probate the same without delay, provided, however, “that if any person interested shall, within one year after the probate of any such will, testament or codicil, * * * appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether
Construing this section, the Supreme Court of Illinois has held that "any person interested” does not include the appellants — that it does not mean persons who have merely an expected interest, but only persons who have an interest that has already attached in case the ancestor is held to have died intestate — and this construction of the statute we are bound to follow.
It has also frequently been ruled by the Supreme Court of Illinois that the probate of a will is an adjudication of its validity; a ruling followed by us in Palmer v. Bradley (C. C.) 112 Fed. 193. The will of Shipman, therefore, is a valid will unless and until it has been successfully contested and set aside: either in accordance with the special procedure provided by the State for that purpose, or in some Court of competent jurisdiction other than as provided in such special procedure, if such jurisdiction to so contest and set aside wills exists.
The argument of appellants is that a will is invalid, under the laws of Illinois, unless made by a sane person and without undue influence and fraud; that admittedly (the demurrer admitting the averments of the bill) this will has been made by an insane person and under undue influence and fraud; that in the absence of a valid will, appellants have an interest in the property involved as heirs at law through Olive j. Cone; that the seventh section of the Illinois statute of wills, as construed by the Supreme Court of the State, is inadequate to protect their interest; from which it follows that there must be, in Courts of general chancery jurisdiction having jurisdiction over the parties, power to protect this interest.
The difficulty with this argument lies in some of the premises assumed. It is not true, for instance, that the demurrer admits that Shipman was of unsound mind, or that the will was procured by fraud or undue influence. What the demurrer puts forward is that the probate of the will is an adjudication that Shipman was of sound mind, and that the will was his free act and deed, unless and until the same ivas set aside in the way pointed out, and that the same has not been set aside in the way pointed our. To make the admission wider than that, is to construct a false premise upon which to build the argument.
Nor was it true that, at the time the will was probated, the appellants were heirs at law or had any interest, which had already attached, in Shipman's property. The right to succeed to property of an ancestor is not an inherent natural right; it is a mere expectation that clothes the expectant with no legal right whatever. Not until the event happens, upon which the expectation is founded, does the expectant acquire any present interest in the property. Whatever rights the appellants have is under the statute of descent of the State-of Illinois. But the statute of wills, to be read in pari passu, as construed by the Illinois Supreme Court, contemplates that the interest by descent shall have already attached to the person claiming it when the will is probated, otherwise there is no interest by descent. In other words, under the Illinois law, the heirs of an heir have nothing
The decree of the Circuit Court is affirmed.