In Re Estate of Reighard , 402 Ill. 364 ( 1949 )

This is an appeal from an order of the circuit court of Henry County directing a conservator to renounce a will on behalf of his ward, the incompetent widow of the testator. The cause was heard in that court on an appeal from the county court, where a similar order was entered on theex parte petition of the conservator.

Cora Reighard was 79 when her husband, the testator, died in October, 1946. His will was made in 1943. Therein he provided in the second clause, in substance, as follows: What was left of his estate he devised to a trustee, the net income from the trust estate to be paid to his widow in quarterly installments as long as she lived. The trustee was to render to her annual statements of account showing the financial condition of the trust estate. Whenever, in the opinion of the trustee, the net income of the trust estate is not sufficient for the comfort, welfare or maintenance of the widow, he was authorized, (a) in his discretion, to expend the principal of the trust as he may deem necessary for such purposes, or, (b) in his discretion, pay to the widow, from time to time, such sums from the principal of the trust as he may deem necessary or proper for such purposes. The will further provided: "Whenever any person entitled to the payment of income hereunder shall be a minor, or shall be otherwise under disability, the Trustee is authorized and empowered to retain all monies so payable to said beneficiary and to use and apply so much thereof as the Trustee shall deem necessary or desirable to and for the comfort, proper support and maintenance of such person until such disability shall cease."

The testator left no child or children or descendants thereof, and no father or mother. Upon the termination of the trust, thecorpus thereof was willed to nieces and nephews of the testator. The will disposed of considerable real estate, and the question of the validity of the renunciation involves a freehold.

The will was admitted to probate in November, 1946. The executor, also named by the testator as the trustee thereunder, accepted and qualified as to each office. In December, 1946, on the conclusion of proceedings therefor, Cora Reighard was declared by the county court to be incompetent, and a conservator was appointed over her person and estate. In the same month the conservator filed his petition in the county court asking for an order of court directing him to renounce the will in behalf of his ward. The petition was ex parte in form, and the court ordered the conservator to notify the attorney of the executor of the hearing date set by the court. The executor and Belvo Leonhart (a niece of the testator, also a devisee under the will, and mother of the executor,) participated, with their counsel, in the hearing. The jurisdiction of the county court over the petitional matter was placed in issue, and the court reserved ruling thereon. In March, 1947, on conclusion of the hearing, the court entered an order directing the conservator to renounce the will, finding in the order it had jurisdiction of the parties and the subject matter.

The executor-trustee of the will appealed to the circuit court, and therein filed his motion to dismiss the petition of the conservator on the ground the county court, and the circuit court on appeal, each lacked jurisdiction to authorize and direct the conservator to renounce the will on behalf of his ward. He alleged such renunciation can be ordered only by a court of equity. A second reason advanced being that the entire proceeding is merely an ex parte one, insufficient to establish jurisdiction in either court over the rights and interests of the trustee, executor, or other persons interested in the land of the testator as owners of, or as beneficiaries under the will. The motion was denied, and after a hearing the conservator was ordered to renounce the will. This appeal followed.

The appellants contend that the basic error in the order appealed from is the complete absence of power of the probate court, or the circuit court on appeal, to authorize the conservator to renounce the will of Frank S. Reighard. In support of this view they submit that a probate court is not a court of general equity jurisdiction, but possesses only such chancery powers as are conferred by statute.

The appellee insists that this precise question has heretofore been considered by this court, and decided adversely to the contentions of appellants, in the case of Davis v. Mather,309 Ill. 284. That was a partition case where the plaintiff's title was based upon a renunciation executed and filed by a guardian adlitem appointed by the probate court. The facts show that Annie Davis, the deceased, was survived by her husband, legally declared feeble-minded, but she left no child or children or descendants thereof and no father or mother. By the provisions of the will her husband was devised a life estate in certain real property and the remainder given to one Belle Mather, a sister. She was named executrix under the will and qualified as such. She was also appointed conservatrix of the estate of the husband, George Davis. The probate court later entered an order finding it to be for the best interest of said ward and his estate that a renunciation of his wife's will be filed in his behalf and that Belle Mather, his conservatrix, make and file the same. The conservatrix refused to comply with the order, and thereupon the probate court appointed a guardian ad litem and next friend for the feeble-minded ward, and ordered and directed him to make such renunciation. A renunciation in the form prescribed by statute was filed on the same date. An appeal was taken from this action of the probate court, by the executrix, to the circuit court of Madison County, where the findings of the probate court were approved, and the identical orders above referred to entered in the circuit court. No appeal was taken from the order and finding of the circuit court.

In the partition suit later filed, the appellants defended on the ground that the renunciation filed in behalf of the husband was null and void, because the right of renunciation was a personal right belonging solely to the devisee, and that a renunciation based upon the facts shown in that case could be effected only in a court of general chancery jurisdiction; also that the probate court was without jurisdiction of the subject matter and without power to order a renunciation in behalf of the ward. The decree of the chancellor in the partition case held the orders of the circuit and probate courts correct and this court affirmed such findings.

In the opinion filed in the case of Davis v. Mather, 309 Ill. 284, it was stated that: "The sole question presented on this record is whether or not a renunciation of a bequest or devise may be made at the direction of the probate court by the next friend of a surviving insane husband, under section 12 of the Dower Act." That case further held that by reason of the statute conferring upon the probate court equitable jurisdiction over the estate of incompetent wards, it was peculiarly within the power of that court to pass upon transactions concerning the ward's estate, and that having determined it was not for the best interest of the ward's estate to accept the provisions of the will, it was proper for the probate court to order on behalf and in the name of the ward a renunciation thereof.

The court in that case referred partially to section 79 of the Administration Act then in force. While that section was repealed upon the passage of the new Probate Act, we believe the provisions of section 50 of the new Probate Act, (Ill. Rev. Stat. 1947, chap. 3, par. 202,) have in effect substantially renewed, re-enacted and retained the provisions of section 79 in full force since the year 1939.

Counsel for appellants, in seeking to sustain their contention that the decision in Davis v. Mather was erroneous and unduly extends the power of the probate court without any authority whatever from the legislature, cite and quote extensively from cases in other jurisdictions which indicate that in those States the probate court has been denied such power. Those authorities might be more thoroughly considered if this were a new question in Illinois. In order to thus hold, this court would be called upon to repudiate the principles announced in Davis v. Mather which have been the law of Illinois for more than a quarter of a century. We adhere to what was said in that opinion and believe it is squarely decisive of the major question in this case.

The appellants further contend that it was erroneous for the probate court to decide the matter on an ex parte application and that the proceeding should have been dismissed for want of necessary parties. We feel that the appellee here followed the usual procedure in probate courts by the conservator of an incompetent filing a petition requesting an order directing him to renounce the will. From that point the case progressed as an adversary proceeding. The title of the case indicates that certain of the beneficiaries under the trust created by the will, as well as the executor and trustee, appear as appellants. Testimony was introduced in their behalf and they were represented and heard at every stage of the proceeding.

The filing of a renunciation by one authorized to do so is a matter of right. When filed by a widow who is sane, it is an exparte proceeding, and when filed by a conservator under the authority of the court, no different procedure is required. There is no statutory requirement for making all persons interested in the will parties to the filing of such renunciation. Here, the probate court directed that notice be given the executor and trustee, and he, together with certain of the beneficiaries under the will, appeared and challenged the right of the court to order the conservator to make the renunciation in behalf of the incompetent widow. No motion was made by the appellants asking the court to make other persons parties, and the only question for the court to determine was as to what course should be taken in the best interests of the widow. We do not feel that the failure to make all persons interested under the will parties defendant to such a proceeding was error on the part of the probate court.

It is further urged by appellants that the evidence did not justify renouncing the will. Without reciting the details of the testimony, the trial court heard the witnesses and a careful examination of the testimony does not disclose that its finding was clearly or manifestly against the weight of the evidence. We feel that the probate court was warranted in finding it was for the best interests of the incompetent widow that a renunciation of the will be filed, and hold accordingly.

The order of the circuit court of Henry County is affirmed.

Order affirmed.