47 N.E.2d 710 | Ill. | 1943
The present appeal is a sequel to Shelby Loan and Trust Co. v.Milligan,
William G. Blyman, a resident of Shelby county, died April 8, 1937. An instrument, dated February 5, 1937, purporting to be his last will and testament, named the Shelby Loan and Trust Company executor. May 17, 1937, the day set for hearing on the petition to probate this will, a second instrument, dated March 13, 1937, was filed for probate. The March will named D.A. Milligan executor. July 10, 1937, the county court admitted the February will to probate, appointed the Shelby Loan and Trust Company its executor, and denied probate of the March will. Milligan appealed from the order of the county court on each of the petitions to the circuit court. Both orders of the county court were reversed, and it was directed to admit the March will to probate and to deny the petition to probate the February will. Thereafter, in obedience to the mandate of the circuit court, on December 27, 1937, the county court entered orders admitting the March will to *522 probate and denying probate of the February will and appointment of the Shelby Loan and Trust Company as executor. Pursuant to an order of the county court of December 30, 1937, appointing him executor, Milligan qualified and letters testamentary were issued to him. In due course, the Shelby Loan and Trust Company filed its complaint in the circuit court of Shelby county to contest the March will on the ground of fraud and forgery in its execution. A jury returned a verdict finding that the March will was not the decedent's will, and a decree was entered adjudging that it was not, in fact, William G. Blyman's last will, "and the said instrument and the probate thereof in the County Court of Shelby county, Illinois, are set aside and the same are hereby declared and decreed to be null and void." Upon appeal, this court affirmed the decree of the circuit court. Shelby Loan andTrust Co. v. Milligan, supra.
The mandate of this court was filed in the circuit court and on December 21, 1939, the mandate and a certified copy of the decree of affirmance were filed with the clerk of the county court. The same day, December 21, 1939, the Shelby Loan and Trust Company, by a petition filed in the county court, narrating the facts previously recounted, sought an order confirming and enforcing the orders admitting the will of February 5, 1937, to probate and the appointment of the bank, as executor. Additional relief asked was for an order directing Milligan to forthwith turn over to the bank, as executor, all property and effects of the estate remaining in his hands, and requiring him to file a report of his accounts as executor under the will of March 13, 1937, and render an accounting of the estate. December 28, 1939, the county court entered an order vacating all prior orders with respect to the probate of the will of March 13, 1937, and restored to effect its former orders admitting the will of February 5, 1937, to probate and the appointment of the bank, as executor of *523
this will. The order of December 28, 1939, directed Milligan, the ousted executor, to forthwith pay and deliver to the bank, as executor, all the assets of the estate in his hands and to file a final report as executor on or before January 6, 1940. Letters testamentary were issued to the bank December 28, 1939. Milligan appealed from the order of December 28, 1939. Upon motion of the bank, the circuit court, on April 17, 1940, dismissed Milligan's appeal. He prosecuted a further appeal to the Appellate Court for the Third District. In its opinion filed February 25, 1941, the Appellate Court took the view that the county court went too far in ordering the assets of the estate turned over to the new executor forthwith before affording Milligan an opportunity to have his accounts passed upon. Accordingly, the order of the circuit court dismissing Milligan's appeal from the order of the county court of December 28, 1939, was reversed and the cause remanded to the circuit court for a trial de novo. (In re Estateof Blyman,
June 13, 1941, Frank "Bleyman," who apparently is the same as Frank Blyman, and Barbara Kinsella filed a motion for leave to intervene, alleging that they were first cousins of William G. Blyman, deceased, his next of kin and heirs-at-law, and that, if permitted to intervene, would, within ten days, file their intervening petition. So far as the record discloses, this motion was never acted upon by the circuit court and no intervening petition was tendered. June 14, 1941, Milligan was ordered to file his final report by July 1, 1941. Objections were interposed to his report of July 1, 1941, and he was granted permission to file an amended report by April 20, 1942. The bank filed objections to the amended report on July 27, 1942, and, on August 29, 1942, the report was ordered recast and receipts procured. September 10, 1942, Frank Blyman, Barbara *524 Kinsella, Josephine Gottwerth, Gertrude Phipps and Isadore Surges filed their motion to intervene as defendants, charging that they were the sole heirs-at-law of William G. Blyman, deceased. We observe, in this connection, that no facts were alleged supporting the statement of this legal conclusion. The permission sought was granted and an intervening petition was filed. Intervenors charged that they never received any notice pertaining to probate proceedings in either the county or circuit court of Shelby county; that no notice was given them by the court, or the bank, concerning the filing of, or hearing in reference to, the petition of December 21, 1939; that the only notice given anyone was a one-day notice to Milligan and his attorneys; that the county court lacked jurisdiction of the person, so far as they were concerned, and the subject matter of the original petition to set aside former orders of the county court or to revive other orders of the county court subsequently set aside by the county court under the mandate of the circuit court. They asked that their legal and equitable interests in the estate be protected by the order of the court. Intervenors filed a motion to consolidate this cause with a partition action instituted by them in the circuit court on January 21, 1942. Their motion to consolidate was denied. The partition action appears in this court as Blyman v. Shelby Loan and Trust Co.supra. September 26, 1942, Milligan filed his amended final report showing receipts of $42,718.23 and disbursements of $17,738.26, leaving a balance on hand of $24,079.97, together with various notes, mortgages and other papers. October 3, 1942, intervenors filed their objections to this report. They did not object to the account, as stated, but restricted their objection to the entry of any order or decree directing Milligan to turn over the remaining assets of the estate to the bank as executor. October 10, 1942, the bank answered the intervening petition, denying that intervenors were the surviving heirs-at-law of Frank G. *525 Blyman deceased and averring that the will of February 5, 1937, had been duly proved and admitted to probate by the county court; that this will was in full force and effect; that letters testamentary had been issued to it, and that it was entitled to all the assets of the estate.
The cause came on for hearing and, on the day last named, October 10, 1942, the objection of the intervenors was overruled and Milligan's amended final report approved. The circuit court, by its order, vacated and set aside the previous orders of the county court admitting the will of March 13, 1937, to probate and appointing Milligan executor, and confirmed and restored to full force and effect the previous orders of the county court admitting to probate the will of February 5, 1937, and appointing the Shelby Loan and Trust Company, as executor. It was further decreed that the letters testamentary issued to the bank were the valid letters testamentary for the administration of the estate and they were declared to be in full force and effect. Milligan's appointment as executor of the will of March 13, 1937, was vacated and set aside and his authority to act as executor forthwith terminated. This appeal by intervenors followed. Milligan has not joined in the appeal.
To obtain a reversal of the order of October 10, 1942, the intervenors make numerous contentions. Of these, the contention that the circuit court should have consolidated this cause with the partition action has been decided adversely to them in Blyman v. Shelby Loan and Trust Co. supra.
The principal contention urged in support of a reversal is that the circuit court was without authority to restore the orders of the county court admitting the will of February 5, 1937, to probate and appointing the Shelby Loan and Trust Company as executor, and, on the other hand, in setting aside the orders of the county court admitting to probate the March 13, 1937, will and appointing Milligan *526
executor. Intervenors first appear in this protracted litigation on September 10, 1942. It is true that on June 13, 1941, two of them filed a motion for leave to intervene but, for reasons best known to them, did not elect to pursue the matter until Milligan's amended final report came on for disposition. Being intervenors, they must take the record as they found it on September 10, 1942. They are bound by the record of the cause at the time of their intervention, they may neither change the issues between the parties nor raise new questions, and they may not insist upon a change in the form of procedure nor delay the trial. (Groves v. Farmers State Bank,
Intervenors' contention that the circuit court lacked jurisdiction to enter the order of October 10, 1942, is predicated upon the proposition that the earlier orders of the county court setting aside the probate of the will of February 5, 1937, and the appointment of the bank as executor were final appealable orders, and, since no appeal was prosecuted, have long since become final and immune to attack. The sole reason that probate of the will of February 5, 1937, was denied by the circuit court was the production of the spurious will of March 13, 1937. Upon the presentation of the latter will, the circuit court was without discretion to proceed differently. The second will was, in due course, determined to be fraudulent. An order of the probate court (county court of Shelby county) allowing or disallowing probate of a will is final and conclusive unless reversed on appeal, (In re Will of Storey,
We are of the opinion that compliance with the decree of the circuit court in the will contest case and the mandate of this court upon appeal from the decree required that the orders relating to the March 13, 1937, will be vacated and the orders originally entered with respect to the February 5, 1937, will reinstated. The order of October 10, *528
1942, for all practical purposes, merely declares the results flowing from setting aside the forged will. Conzet v. Hibben,
Reliance upon the rule that judgments cannot be set aside after the term of court has expired cannot avail intervenors. The county court exercises special and statutory jurisdiction in probate matters. It is established that a probate court, and, it follows, a county court when acting as a court of probate, exercises equitable powers. (Walker v. Cook,
William G. Blyman has been dead nearly six years. It is high time that litigation over the administration of his last will and testament terminate and that the estate be closed. The ends of justice have been satisfied, and the litigation should now terminate. This is the terminus.
The order of the circuit court is affirmed.
Order affirmed.