Wolford v. Young , 300 Ill. 320 ( 1921 )

Mr. Justice Dunn

delivered the opinion of the court:

On January 29, 1887, James H. Barkley and his wife executed their separate wills. Each gave to the other the use, for life, of the property of the testator or testatrix, with the right to sell and convey and use the proceeds at will. Each named the other as executor or executrix, and all other provisions of the wills were identical. In each the remainder after the life estate was divided into eight parts, of which two were given to the children of Bernard Preble, a deceased brother of Mrs. Barkley, one to each of the three living sisters of Barkley, and three to the children of three deceased sisters of Barkley, to be distributed' among them per capita. On March 23, 1915, the testator and testatrix executed codicils, which were identical except that each was named as executor or executrix of the other’s will, and by the eighth paragraph it was declared that the provisions contained in the first seven paragraphs of the codicil should be canceled and become null and void if the surviving spouse should qualify as executor or executrix of the will, and that in such case the surviving spouse should take the entire estate of the testator or testatrix and make provision for the legatees from the estate of the testator or testatrix, or what should remain therefrom at the time of the death of the survivor. Barkley died one month after the execution of these codicils, and his wife qualified as executrix of his will and continued such executrix until August 14, 1917, when Milton J. Wolford was appointed her successor, as provided in the codicils. On June 13, 1920, she died, and Wolford was appointed and qualified as executor of her will.

The question involved in this litigation had its origin in an application of Wolford to the probate court of Vermilion county for an order of distribution of $200,000, which, as executor of both wills, he had in his hands but because of inconsistent claims of those interested in the estate he could not safely pay out except under an order of court. Upon a hearing of this application the court made an order for the distribution of one-sixteenth of the estate to J. Frank Geddes, and certain of the parties appealed to the circuit court. Thereupon the executor filed a bill in the circuit court asking for a construction of the will of James H. Barkley. These two causes were consolidated and upon a hearing a decree was rendered construing the will, and, among other things, directing that the executor should distribute the funds that came into his hands to the persons named in the decree in the proportions named, and denying to Geddes the one-sixteenth of the testator’s estate, which he claimed by virtue of the provisions of the seventh paragraph of the codicil. Geddes appealed from this decree.

Counsel for Geddes state in their brief that the one question in this case is as to whether or not the devise of the one-sixteenth interest to Geddes in the seventh paragraph of the codicil became extinguished or was destroyed by the eighth paragraph of the codicil.

The appeal should have been taken to the Appellate Court. This court has no jurisdiction of it. The tenth paragraph of the codicil directed that all of the testator’s real ' estate be sold and the money divided as directed in his will. This was a gift of personal property and not of real estate. (Baker v. Copenbarger, 15 Ill. 103; Lash v. Lash, 209 id. 595; Bennett v. Bennett, 282 id. 266; Jansen v. Godair, 292 id. 364.) No freehold is involved in a proceeding to .construe a will to determine the interest of the beneficiaries in the proceeds of land to be sold by an executor. Nevitt v. Woodburn, 175 Ill. 376; Miller v. Miller, 264 id. 633.

Since no freehold is involved and no other ground appears authorizing an appeal direct to this court, the cause will be transferred to the Appellate Court for the Third District.

Cause transferred.