McDonald v. White , 130 Ill. 493 ( 1889 )

Mr. Justice Scholfield

delivered the opinion of the Court:

Since it is alleged in the bill that Mary White is' in possession of the premises, claiming under the will, the bill can not be sustained as a mere bill to remove a cloud from the title, (Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366; Gage v. Griffin, 103 id. 41; Gage v. Schmidt, 104 id. 106;) and therefore it only remains to determine whether the bill can be sustained as a bill to contest a will, under section 7, chapter 148, of the Revised Statutes of 1874, entitled “Wills.” We think it very clear that it can not, and that the demurrer to the bill was properly sustained by the court below.

It is provided in that section, that “when any will, testament or codicil shall be exhibited in the county court for probate, * * * it shall be the duty of the court to receive probate of the same without delay, * * * to grant letters, * * * 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, * * * appear, and by his or her bill in chancery,” etc., then an issue shall be made whether the writing produced is the will of the testator or testatrix. The section also provides: “But if no such person shall appear within the time aforesaid, the probate, as aforesaid, shall be forever binding and conclusive on all parties concerned.”

Manifestly, the words “parties concerned,” mean those upon whom the law imposes the duty of settling the estate, and the words “interested therein,” mean those interested in the settlement of the estate,—that is, those who will be directly affected, in a pecuniary sense, by its settlement; and the words, “any person interested, ” can only mean one of the same class of persons. The interest must be a direct pecuniary interest affected by the probate of the will, for the reference is to an existing interest, and not to an interest which may be subsequently acquired, since, in that event, the language would have been, “or if any one who shall, within three years, be interested, and appear, and by his or her bill in chancery, ” etc. That this is the correct meaning of the words is further manifested by reference to section 14 of the same chapter, where it is provided that “appeals may be taken from the order of the county court, allowing or disallowing any will to probate, to the circuit court of the same county, by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace,” etc. It is impossible, in the very nature of things, that others than parties interested in the will.at the time of probate can here be intended; and yet precisely the same reasons exist why the legislature should restrict the right of contest under section 7, as the right of appeal under section 14.

Appellants were not interested in the probate of this will. They were deprived of nothing by it. Their interest was derived by purchase long subsequent to the probate of the will, and is, therefore, not such as is within the contemplation of the statute. Moreover, James M. McDonald never had possession of this property. He never had any apparent title to it. At most, all that he had was the bare right to establish title by successfully contesting this will. But such a right is not assignable, and can not therefore be the subject of a conveyance. Norton v. Tuttle et al. 60 Ill. 130.

The decree is affirmed.

Decree affirmed.