{ "id": 5391119, "name": "Christian Luther et al. v. Charlotte Luther et al.", "name_abbreviation": "Luther v. Luther", "decision_date": "1887-09-26", "docket_number": "", "first_page": "558", "last_page": "567", "citations": [ { "type": "official", "cite": "122 Ill. 558" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "46 Ill. 278", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "9 Pick. 212", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2058504 ], "opinion_index": -1, "case_paths": [ "/mass/26/0215-01" ] }, { "cite": "68 Ill. 128", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2628977 ], "opinion_index": -1, "case_paths": [ "/ill/68/0128-01" ] }, { "cite": "35 Ill. 305", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5257223 ], "opinion_index": -1, "case_paths": [ "/ill/35/0305-01" ] }, { "cite": "113 U. S. 340", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3512899 ], "opinion_index": -1, "case_paths": [ "/us/113/0340-01" ] }, { "cite": "20 Ohio St. 208", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 884329 ], "opinion_index": -1, "case_paths": [ "/ohio-st/20/0208-01" ] }, { "cite": "1 Gratt. 18", "category": "reporters:state", "reporter": "Gratt.", "case_ids": [ 4448710 ], "opinion_index": -1, "case_paths": [ "/va/42/0023-01" ] }, { "cite": "5 Litt. 273", "category": "reporters:state", "reporter": "Litt.", "case_ids": [ 4218355 ], "opinion_index": -1, "case_paths": [ "/ky/15/0273-01" ] }, { "cite": "106 Ill. 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2781631 ], "opinion_index": -1, "case_paths": [ "/ill/106/0167-01" ] }, { "cite": "7 Ore. 42", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2298058 ], "opinion_index": -1, "case_paths": [ "/or/7/0042-01" ] }, { "cite": "56 Miss. 204", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 11260299 ], "opinion_index": -1, "case_paths": [ "/miss/56/0204-01" ] }, { "cite": "5 S. & M. 82", "category": "reporters:state", "reporter": "S. & M.", "case_ids": [ 8839576 ], "opinion_index": -1, "case_paths": [ "/miss/13/0082-01" ] }, { "cite": "30 Miss. 91", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 11259963 ], "opinion_index": -1, "case_paths": [ "/miss/30/0091-01" ] }, { "cite": "4 N. H. 406", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6756546 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nh/4/0406-01" ] }, { "cite": "13 Ga. 171", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1376008 ], "opinion_index": -1, "case_paths": [ "/ga/13/0171-01" ] }, { "cite": "9 Yerg. (Tenn.) 475", "category": "reporters:state", "reporter": "Yer.", "case_ids": [ 8542936 ], "opinion_index": -1, "case_paths": [ "/tenn/17/0475-01" ] }, { "cite": "1 Barb. Ch. 302", "category": "reporters:state", "reporter": "Barb. Ch.", "case_ids": [ 1994091 ], "opinion_index": -1, "case_paths": [ "/barb-ch/1/0302-01" ] }, { "cite": "1 Bradf. 94", "category": "reporters:state", "reporter": "Bradf.", "case_ids": [ 789238 ], "opinion_index": -1, "case_paths": [ "/brad/1/0094-01" ] }, { "cite": "31 Wis. 284", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8707810 ], "opinion_index": 0, "case_paths": [ "/wis/31/0284-01" ] }, { "cite": "9 Pet. 174", "category": "reporters:scotus_early", "reporter": "Pet.", "case_ids": [ 5615146 ], "opinion_index": 0, "case_paths": [ "/us/34/0174-01" ] }, { "cite": "3 Story, 516", "category": "reporters:federal", "reporter": "Story", "case_ids": [ 6673268 ], "opinion_index": 0, "case_paths": [ "/f-cas/10/0864-01" ] }, { "cite": "2 How. 619", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3328019 ], "opinion_index": 0, "case_paths": [ "/us/43/0619-01" ] }, { "cite": "21 Wall. 503", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3410559 ], "opinion_index": 0, "case_paths": [ "/us/88/0503-01" ] }, { "cite": "92 U. S. 10", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8756 ], "opinion_index": 0, "case_paths": [ "/us/92/0010-01" ] }, { "cite": "3 Jones, 14", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2086801 ], "opinion_index": 0, "case_paths": [ "/nc/48/0014-01" ] }, { "cite": "4 Dev. 430", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276749 ], "opinion_index": 0, "case_paths": [ "/nc/15/0430-01" ] }, { "cite": "12 Allen, 1", "category": "reporters:state", "reporter": "Allen", "case_ids": [ 1197010 ], "opinion_index": 0, "case_paths": [ "/mass/94/0001-01" ] }, { "cite": "1 B. Mon. 390", "category": "reporters:state", "reporter": "B. Mon.", "case_ids": [ 4433286 ], "opinion_index": 0, "case_paths": [ "/ky/40/0390-01" ] }, { "cite": "13 Ill. 15", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2580703 ], "opinion_index": 0, "case_paths": [ "/ill/13/0015-01" ] }, { "cite": "113 U. S. 340", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3512899 ], "opinion_index": 0, "case_paths": [ "/us/113/0340-01" ] }, { "cite": "1 Gratt. 18", "category": "reporters:state", "reporter": "Gratt.", "case_ids": [ 4448710 ], "opinion_index": 0, "case_paths": [ "/va/42/0023-01" ] }, { "cite": "5 Litt. 273", "category": "reporters:state", "reporter": "Litt.", "case_ids": [ 4218355 ], "opinion_index": 0, "case_paths": [ "/ky/15/0273-01" ] } ], "analysis": { "cardinality": 912, "char_count": 18510, "ocr_confidence": 0.476, "pagerank": { "raw": 9.943288690714205e-07, "percentile": 0.9825300625634931 }, "sha256": "a18ec3d734a4cbfdfe623017f312ccee36e10de22a2493a04192a698733ac94a", "simhash": "1:c62ea265a6626e08", "word_count": 3292 }, "last_updated": "2023-07-14T21:04:49.693763+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Christian Luther et al. v. Charlotte Luther et al." ], "opinions": [ { "text": "Mr. Justice Magruder\ndelivered the opinion of the Court:\nChristian Luther Sr., died testate on September 4, 1875, leaving him surviving a widow, the appellee Charlotte Luther, and three children, the appellant Christain Luther, and the appellees John Luther and Sophia Luther, since married to William Nieberg. On September 3, 1875, he made a will, leaving his furniture and personal property to his widow, and also giving her a life estate in all his other property, including lots 4, 5 and 6 of assessor\u2019s subdivision of the north-east quarter and part of the north-west quarter of fractional section 5, town 40 north, range 13 east, etc., in Cook county. He devised these lots to John to be taken possession of by him after the widow\u2019s death. He gave appellant, Christian Luther, $50 and Sophia $1000, these sums to be paid after the widow\u2019s death, and, if-the money should not then be on hand for their payment, they were to be liens on the land until John should pay them.\nThe will was admitted to probate in the county court of Cook county on September 27,1875, and letters testamentary were then issued to the appellee Wende, as executor.\nThis bill was filed in the circuit court of Cook county on September 1, 1885, for the purpose of setting aside the will and the probate thereof on the grounds that the testator was not of sound mind and memory when he made the will, and that he was induced to make it by the fraud, falsehood and misrepresentation of said Wende and of said Charlotte, John and Sophia. The bill alleges that appellants did not learn of the testator\u2019s unsoundness of mind and memory, nor of the fraud and undue influence used in obtaining the will, until March, 1884, and that the cause of action set up in the bill was fraudulently concealed by the defendants therein from the complainants until within three years before filing the bill.\nThe defendants on November 9,1885, filed an answer denying all the allegations of the bill, but making no reference to the fact of its being filed after the three years prescribed by the statute. Complainants filed a replication to the answer.\nThe cause came on to be heard; a jury was impaneled to try the issue whether the writing produced was the will of the deceased or not; two witnesses were sworn and testified for \u25a0defendants; the circuit judge, then having inquired of the solicitor for complainants and being informed by him that complainants did not come within the saving clause of the statute as to infants, femes covert, persons absent from the State or non compos mentis, dismissed the bill on the ground that, upon the face of it, he had no jurisdiction to try the cause.\nIt will be noted that the will was admitted to probate on September 27, 1875, and that this bill to contest its validity was not filed until nearly ten years afterwards: to-wit on September 1, 1885.\nThe main question presented by the record is, whether a. court of chancery in this State can, under our statute, entertain a bill to set aside the probate of a will when more than three years after such probate have elapsed before-the bill is. filed. The statute is as follows:\n\u201cSec. 7. When any will, testament or codicil shall be exhibited in the county court for probate thereof, as aforesaid, it shall be the duty of the court to receive probate of the same' without delay, and to grant letters testamentary thereon to the-person or persons entitled, and to do all other needful acts to' enable the parties concerned to make settlement of the estate-at as early a day as shall be consistent with the rights of the-respective persons interested therein: Provided, however, that, if any person interested shall, within three years after the probate of any such will, testament or codicil, in the county court, as aforesaid, appear, and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proven and recorded, as aforesaid, according to the practice in courts of chancery in similar cases; but if no-such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the-parties concerned, saving to infants, femes covert, persons absent from the State, or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury, as aforesaid, the certificate of the oath of the-witnesses at the time of the first probate shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.\u201d Section 7 of \u201cAn act in regard to wills,\u201d' approved March 20,1872,\u2014Eev. Stat. chap. 148.\nThe act of January 23,1829, in force July 1, 1829, (Rev. Laws, 1829, p. 193, sec. 5,) and the act of 1845, (Rev. Stat. 1845, chap. 109, sec. 6, p. 537,) were the sam\u00e9 as the act of 1872, except that, in the former, the period was five years instead of three years. Section 7 is, in substance, a transcript of the 11th and 15th sections of a statute of Kentucky passed February 24,1797. (Rigg v. Wilton, 13 Ill. 15.) The Kentucky statute was taken from the Virginia act of 1785, which was a remodeling of an earlier Virginia act passed in 1748. Well\u2019s Will, 5 Litt. (Ky.) 273; 12 Hening\u2019s Va. Stat. at Large, p. 142; 5 id. pp. 454, 455; 1 Littell\u2019s Laws of Ky. p. 611, sec. 293, and note.\nThe Virginia statute was construed in Coulter\u2019s Exr. et al. v. Bryan et al. 1 Gratt. 18, and in Connolly v. Connolly et al. 32 id. 657. The Kentucky statute was construed in Rogers v. Thomas, 1 B. Mon. 390.\nIn England the probate of wills of personal property was exclusively vested in the ecclesiastical courts. There were two modes of probate one ex parte, the other inter partes. One was proof of the will \u201cin common form;\u201d the other was proof thereof \u201cin solemn form\u201d or \u201cper testes.\u201d When a will was proven \u201cin common form,\u201d it was taken before the judge of the proper court of probate, and the executor produced witnesses to prove it to be the will of the deceased without citing or giving notice to the parties interested; it was admitted to' probate in the absence of such parties. When, however, a will was proven \u201cin solemn form,\u201d it was done upon petition of the proponent for a hearing, and all such persons as had an interest, such as the widow, heirs, next of kin, etc., were notified and cited to be present at the probating of the testament; interrogatories were propounded to the witnesses by those producing the will and by the adverse party. The executor of the will, proved \u201cin common form,\u201d might, at any time within thirty years, be compelled by a person, having an interest, to prove it per testes \u201cin solemn form.\u201d 1 Williams on Executors, (6th Am. ed.) foot pp. 325, 333, 334; Waters v. Stickney, 12 Allen, 1; Redmond v. Collins, 4 Dev. 430; Etheridge v. Corprew, 3 Jones, 14.\nBut in England, there was no court for the probate of wills of realty. The validity of the will was decided incidentally in controversies concerning rights of property claimed under or against it. These controversies were settled in the appropriate jurisdictions. The title of the heir was in its nature legal, and might be asserted in an action of ejectment.\nThe statute of Virginia, upon which our own and that of Kentucky are based, provided for the probate \u201cin common form\u201d or ex -parte of wills of both personalty and realty, and also extended the privilege of requiring a re-probate \u201cin solemn form\u201d to wills of realty as well as to those of personalty. Such re-probate was to be asked within seven years, instead of three years as under the Illinois statute. Those to be cited were the persons interested in sustaining rather than those interested in setting aside the will. The contest was to be decided in a court of chancery through the instrumentality of a jury rather than in the original court of probate.\nThe words in section 7 of our act in regard to wills: \u201cWhen any will, etc., shall be exhibited in the county court for probate, as aforesaid, it shall be the duty of the court to receive probate of the same without delay,\u201d refer back to section 2 of that act. (Rev. Stat. chap. 148.) Section 2 provides for the ex parte proof of wills on the testimony of the attesting witnesses, which is analogous to the probate in England \u201cin common form.\u201d The subsequent proceeding by bill in equity, under section 7, to contest the validity of the will, is analogous to the probate \u201cin solemn form\u201d by the executor upon being cited in by the next of kin. Both stages of the proceedings, however, differ from the former English probates in that they \u25a0extend to the real estate as well as to the personal property. McArthur v. Scott, 113 U. S. 340.\nCounsel for appellants claim, that the provision in section 7 for filing the bill within three years is a mere statute of limitations, and that, inasmuch as appellees did not plead the bar of the statute in their answer, they waived it. This position is based upon the theory, that the right to contest the validity of the will was not a new right conferred by the statute, but a right, which existed at common law before the statute, and that, therefore, the statute merely- limits the time within which such right may he asserted.\nOutside of the statute, however, no right existed in favor of the heir to go into a court of chancery to contest the validity of the will. He could not go into equity for any other purpose than to remove impediments to a full and fair trial at law. The power to entertain bills of this character is not embraced among the general equity powers of a court of chancery.\nIn Gaines v. Fuentes, 92 U. S. 10, the Supreme Court of the United States say: \u201cIn the case in Broderick\u2019s Will the doctrine is approved, which is established both in England and in ' this country that by the general jurisdiction of courts of equity, independent of statutes, a bill tvill not lie to set aside a will or its probate, and whatever the cause of the establishment of this doctrine originally, there is ample reason for its maintenance in this country, from the full jurisdiction over the subject of wills vested in the probate courts and the revisory power over their adjudications in the appellate courts.\u201d [Broderick\u2019s Will, 21 Wall. 503; Gaines v. Chew, 2 How. 619; Gould v. Gould, 3 Story, 516; Tarver v. Tarver, 9 Pet. 174; Holden v. Meadows, 31 Wis. 284; Archer v. Meadows, 33 id. 166; 2 Pomeroy\u2019s Eq. sec. 913.) Since the decisions of Kendrick v. Braushy, 3 Bro. P. C. 358, and Webb v. Cleverden, 2 Atk. 424, it has been held in England that equity will not set aside a will for fraud and imposition. The same rule has been generally adopted, in the United States. Under the common law system the validity of wills of real estate could only he tested in an action at law; that of wills of personal property was established by the decree of the ecclesiastical court in the proceedings for probate. 2 Pomeroy, 913.\nTherefore, as the jurisdiction of courts of chancery in this State to entertain bills to set aside the probate of wills is derived exclusively from the statute, such jurisdiction can only be exercised in the mode and under the limitations prescribed by the statute. \u201cIf any person interested shall, within three years after the probate, etc., appear and by * * * bill in chancery, contest the validity of the\u201d will, \u201can issue at law shall be made up, \u201d etc. If such person does not appear within three years, an issue at law can not be made up. The appearance within three years is a jurisdictional fact, and is necessary in order to put the machinery of the court in motion so as to test the validity of the will. The court has no power to entertain the bill after the three years have passed.\nThe reason of this is apparent from the words, \u201cif no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants,\u201d etc. The original probate of the mil upon the testimony of the subscribing witnesses is allowed without delay, in order to secure an orderly settlement of the estate and to prevent the embarrassments and injurious consequences to creditors and others, which might result from the delay incident to a contest over the will. But serious consequences may also result from too long a delay to the property rights and titles of parties interested in and holding under the will, and, therefore, a period should be fixed after which the original probate should be regarded as binding and conclusive.\nIt is urged however that the jurisdiction of the court of chancery, in this proceeding, is merely that of a court of probate. Its jurisdiction can not be a mere extension and continuation of the \u201csolemn form\u201d powers of the probate court so far as the realty is concerned, because at common law the probate court exercised no control either in common or solemn form over real estate, but only over personalty. But while the court of chancery is not empowered to give general relief, it may exert its powers to secure the specific relief designed by the statute. Though limited in its functions, it is still a court of equity. The proceeding is commenced by bill, framed as any other bill in equity would be framed, except that it is confined to the relief contemplated by the statute, namely, the determination by a jury, on an issue to be directed and tried, of the validity or invalidity of the will. The court, by decree, settles and directs the issue. Connolly v. Connolly, supra.\nThe decree of the circuit court is affirmed.\nDecree affirmed.", "type": "majority", "author": "Mr. Justice Magruder" } ], "attorneys": [ "Mr. Merritt Starr, and Mr. J. P. W. Brown, for the appellants :", "Mr. A. W. Osgood, and Mr. M. F. Higgle, for the appellees:" ], "corrections": "", "head_matter": "Christian Luther et al. v. Charlotte Luther et al.\nFiled at Ottawa September 26, 1887.\n1. Wills\u2014probate and contesting of wills\u2014time within which to exhibit a to contest. Section 2 of chapter 148 of the Revised Statutes, entitled provides for the ex parte proof of wills on the testimony of the attesting witnesses, which corresponds with the probate, in England, \u201cin common form,\u201d while the subsequent proceeding by bill in equity, under section 7, to contest the validity of the will, is analogous to the probate \u201cin solemn form,\u201d by the executor, upon being cited in by the next of kin. Both stages differ from the English probates in extending to the real as well as personal estate.\n2. The provision in the statute that if anv person interested shall, within ^lee yeal's after the probate of any will, by bill in chancery, contest the validity of the same, etc., is not a limitation law. The filing of the bill within three years is a jurisdictional fact, and is necessary to put the court in motion. The court has no power to entertain such a bill which has been filed after the three years have expired, except in the cases of disability named in the statute.\nAppeal from the Circuit Court of Cook county; the Hon. John C. Bagby, Judge, presiding.\nMr. Merritt Starr, and Mr. J. P. W. Brown, for the appellants :\nThe statute prescribing the time within which a will may be contested in chancery is a Statute of Limitations.\nThe hen has always the right to contest the will. He can not he deprived of property or he disinherited without a hearing. Stat. 28 Edw. III, chap. 53; Cooley\u2019s Blackstone, (3d ed.) 138, 139, and notes.\nThis remedy has existed from the beginning of the English law of wills. 1 Williams on Executors, (6th Am. ed.) foot pp. 325, 333, 334; 4 Burn\u2019s Ecclesiastical Law, (Philliman\u2019s ed.) 316, 318.\nThe following cases, in addition to those above cited, are particularly instructive in showing that the American courts retained the practice of the English court in requiring probate and re-probate in common form and solemn form. Collier v. Idley, 1 Bradf. 94; Campbell v. Logan, 2 id. 90; Proctor v. Wanamaker, 1 Barb. Ch. 302; Gibson v. Lane, 9 Yerg. (Tenn.) 475; Townsend v. Townsend, 4 Coldw. (Tenn.) 70; Brown v. Anderson, 13 Ga. 171; Kinnard v. Riddlehoover, 3 Rich. (S. C.) 258; Noyes v. Barber, 4 N. H. 406; George v. George, 47 id. 44; Wall v. Wall, 30 Miss. 91; Hamberlin v. Terry, 7 How. (Miss.) 148; Cowden v. Dobyns, 5 S. & M. 82; Martin v. Perkins, 56 Miss. 204; Tucker v. Whitehead, 58 id. 762; Barksdale v. Hopkins, 23 Gra. 332; Walker v. Perryman, 23 id. 309; Hubbard v. Hubbard, 7 Ore. 42.\nThe nature of the remedy shows that the statute is a statute of limitations.\nThe statute has been construed a statute of limitations. Heirs of Critz v. Pierce, 106 Ill. 167; Brown v. Riggin, 94 id. 560; Wells\u2019 Will, 5 Litt. 273; Coalters v. Bryan, 1 Gratt. 18 ; Connolly v. Connolly, 32 id. 657; Rogers v. Thomas, 1B. Mon. 390; Bradford v. Andrews, 20 Ohio St. 208; Mears v. Mears, 15 id. 96; McArthur v. Scott, 113 U. S. 340; Noyes v. Barber, 4 N. H. 406.\nThe limitation, not being pleaded, is waived. Brill v. Stiles, 35 Ill. 305; Borders v. Murphy, 78 id. 81; Trustees v. Wright, 12 id. 441.\nThe fraudulent concealment by the defendants, of the complainant\u2019s cause of action to contest the alleged will, brings the ease within the special statute on fraudulent concealment, viz., Bev. Stat. chap. 83, sec. 22.\nThe limitation will commence to run only from the time of the discovery of the fraud. McIntosh v. Saunders, 68 Ill. 128; Campbell v. Vining, 23 id. 525; Henry County v. Winnebago County, 52 id. 299.\nMr. A. W. Osgood, and Mr. M. F. Higgle, for the appellees:\nThere is no connection between the statute of wills and limitations.\nUpon the death of Christian Luther Sr., complainant was placed upon his inquiry as to the manner of the execution of the will, and having slept for a period of ten years, he is barred by his own laches. Farnam v. Brodke, 9 Pick. 212.\nIf section 22 of limitations applied to section 7 of wills, then with equal force could it be applied to section 19 of the Chancery Code, a bill of review or writ of error, \u201cbecause this statute by which parties are brought into court upon constructive notice, though undoubtedly necessary for the administration of justice, may be made the means of perpetrating very great wrong.\u201d Lyon v. Robbins, 46 Ill. 278.) And yet if any of the parties do not appear within the time therein limited, no matter what injustice may have been perpetrated, they can not allege an execuse for not having acted within the time limited by statute. This probate, like a decree in chancery, can not be annulled, vacated or set aside, except within the time limited by the law." }, "file_name": "0558-01", "first_page_order": 564, "last_page_order": 573 }