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wills. By the act of 1911 the time limit was set at three years. 81 This whittling process was continued, until at the present time one under disability has only one year in which to file a complaint to contest a will, after the removal of the disability. 82

As to the right of those under legal disabilities to contest foreign wills, the law of Illinois and Indiana differ. In Illinois the right of contest is the same whether the will is a domestic one or a foreign one. In Indiana infants and persons non compos mentis, where a foreign will is involved, have no greater rights than persons laboring under no disabilities. This difference between the treatment of infants and persons non compos mentis under domestic and foreign wills is based upon historical grounds. At the time the original section of the Indiana statute was passed in 1852, no provision was made for the admission to probate of foreign wills. The section of the Indiana statute covering foreign wills was passed three years later in 1855.83 The court in Evansville Co. v. Winsor in construing the statute of 1859 held it was not the intention of the legislature to give those under legal disabilities the same rights under foreign wills as they had under domestic wills.

"If the provision (referring to the saving clause in favor of infants, etc.) had not been omitted from said section, it would clearly have given infants the same time wherein to commence an action to contest a foreign will, filed and recorded ... under sections 2761-63 as is allowed by sections 2771 for the contest of domestic wills.”84

In the light of the legislative history of the will contest sections of the Illinois and Indiana statutes it is clear that the legislative intent has been to confer upon an infant or one non compos mentis a right of contest separate and distinct from any rights which any executor or other party whose legal interests are adverse to those under disabilities may have by will or by statutory enactment. The judicial decisions give support to this legislative intent.

In Cohen v. Cohen, the question of law was whether a minor by his next friend could during the period of his minority contest the validity of a will, or must the minor wait until he attains his majority, and then within one year therefrom file his bill to contest. The court held that considering the language used in Section 7 of the Statute of Wills, and the subject and purpose of the enactment, it could not be attributed to the legislature an intent to provide that

81. (1911) Ind. Laws p. 325 Sec. 3158. 82. Ind. Acts of 1921 p. 384. 83. (1859) Ind. Laws Sec. 2761 p. 246. 84. 148 Ind. 682.


if a minor, or someone in his behalf does not file a bill to contest a will within one year after its probate, the minor should be precluded from contest the will until he attained his majority. Justice Farmer stated :

"It seems clear to us that the true intent and construction of the statute is that as to all persons interested who are under no disabilities, the probate of the will, after the lapse of one year is binding and conclusive, but not so as to persons who are infants. They may contest it at any time up to and within one year after obtaining their majority. The language of the statute is easily capable of that construction, and considering the object and purpose of the statute we have no doubt such was the meaning and intention of the enactment."85

In a rather recent Indiana case, the Supreme Court, construing the contest clause of the statute of wills sustains the right of those under disability to question the validity of a testator's will. The rights of one claiming through a deceased minor against whom the statute had not fully run were involved. The petitioner brought his proceeding under the former two-year statute of wills. The minor, through whom the petitioner claimed, had died one year prior to obtaining his majority. The bill was filed some two and one-half years after the decease of the minor. The court sustained the petitioner's right to file the bill.86

In the Dodd case the effect of a minor's right to contest a will upon the interests of other beneficiaries whose right to contest had terminated was in issue. A minor heir of a deceased person by his next friend filed a bill to contest the will of the deceased, after the expiration of one year after the probate of the will; there was another minor heir, and also an adult heir who did not join in the petition. The question presented to the court was whether the provision in section 7 of the Statute of Wills, as to contesting wills, gave the court a right to set aside the will entirely at the suit of one within the saving clause after the year had passed so as to wholly destroy the interest of all the beneficiaries named in the instrument, or only to set it aside as it affected the interest of the heir who was an infant or non compos mentis at the time the will was probated, and who filed such a contest before the expiration of one year after becoming of age or becoming insane as the case may be. The trial court ruled it held the power to set aside the will absolutely as to all beneficiaries.

85. 287 111. 269. In this case the will was probated April 17, 1916, and the bill to contest filed Feb. 27, 1918, by the next friend of the seven-year-old infant. The court quoted from Milliken v. Marlin 66 111. 13 where the construction of a statute of 1839 limiting the time within which an action might be brought for the recovery of land was involved. This statute permitted femes covert minors, etc., sue within three years after the removal of their respective disabilities : “If a person within the saving clause may perform the act within a given time after the disability ceases, no reason is perceived why he may not, by those who can legally act for him, during the continuation of the disability. In fact, it would operate unjustly to hold that such a person could not sue to recover his property until after the disability terminates. It would in many cases operate as a deprivation of the party owning the property of its use and enjoyment during life.

86. Kretzer v. Gross ... Ind. ..., 128 N. E. 355.

On this point the Supreme Court says:

"It is urged by counsel for appellees that it is unreasonable to construe the statute so that a will can be valid as to certain heirs or parties and invalid as to others; that the will should be annulled in its entirety or not at all. We see no difficulty in avoiding the probate so far as concerns the interest of the contesting heirs then or formerly under disability, and permitting it to stand so far as it concerns the heirs who have lost their rights by lapse of time. It is purely a question as to what the legislature intended. One of the great objects of the law is to quiet title to property and render it certain. If section 7 is to be construed as contended for by counsel for the appellants, there would be a chance that twenty years or more after the will was probated the whole title under which the beneficiaries claimed might be overthrown and the property given the heirs. This would render it very difficult, if not impossible, to dispose of the property or improve it to any considerable extent during all that time. It is the policy of the law to limit uncertainties, such as the one under consideration, as much as is commensurate with other rights which the law cannot overlook. It is clear that the policy of the law has been for many years in this country and especially in this state since 1829 to limit the time in which a will contest could be brought. It would be absolutely contrary to the trend of public policy in this regard to construe the statute as holding the rights of beneficiaries, not only with respect to those heirs who are under disability, but also with respect to those under no disability, shall remain unsettled until such time as the disability of all the heirs are removed. In our judgment a fair construction of the statute, is in the light of the history of legislation upon this subject, is that after the year, the probate is, as the provision says, forever binding and conclusive on all parties concerned, except infants and persons non compos mentis. The circuit court erred in holding otherwise.”87

The exercise of a right to contest a will by one party does not impair the exercise of a similar right held by another beneficiary. And the estoppel of one party to contest a testamentary instrument -as where one has accepted valuable benefits under a will—does not estop other parties from contesting the same instrument.88 Nor are infants estopped, as adults are, from attacking a transaction because the minors have accepted benefits arising therefrom.89

87. Lewark v. Dodd 288 I11. 80. The italics are the author's. 88. Floyd v. Floyd 98 Ind. 130; Leach v. Prebster 39 Ind. 492.

Before drawing any conclusion as to the effect of the particular section of the Illinois and Indiana statutes under discussion, one may consider the United States Supreme Court case of Davies v. Gaines, and one or two analogous state cases which pass upon the question of the effect of the revocation of the probate of a will has upon an executor's sale. In the Gaines decision, one Gaines, testator, had made two instruments purporting to be his last will and testament. The earlier instrument, which by the terms of the latter instrument was rendered null and void, was duly admitted to probate in 1813, shortly after the death of the testator. The executor of the first testamentary paper knew of the existence of the later paper. As the universal legatee of the probated paper was absent from the state of Louisiana, the Louisiana court, on application of the executor, ordered the lands of the testator to be sold. The purchaser at the sale had no knowledge of the existence of the true undisclosed will of Gaines. And in all respects the vendee was a bona fide purchaser. In 1834 the true will of the testator was admitted to probate. Thereafter a series of suits based upon the will probated in 1834 were carried to the Supreme Court of the United States. Finally, the highest court of the land held:

“Upon the doctrines and authorities above referred to we are of the opinion that a sale of land duly made by order of the probate court having jurisdiction, and a conveyance thereof, by the executor of a will duly admitted to probate, while its functions were in full force, to a bona fida purchaser for value, 90 vested the purchaser with a good and valid title which was not affected by the discovery of a later will and its admission to probate and record.”91

In the Davies v. Gaines case we have a clear cut decision upholding the validity of an executor's sale of land under an invalid will. There were no irregularities attendant upon the sale and conveyance. If there were such irregularities, these had been cured by the five-year Louisiana statute which provided that, "All informalities connected with or growing out of any public sale made by a sheriff, auctioneer, or other public officer shall, after the lapse of five years from the time of making the same, be prescribed against those claiming under such sale, whether they be minors, married women or persons interdicted."92

It will be noticed that the Supreme Court based its decision in the Gaines case primarily upon two grounds: First, that the Louisiana court had jurisdiction; and secondly, that the vendee of the executor was a bona fide purchaser. As to the first point, the court found the Louisiana court had authority to order the executor's sale, not as a result of any jurisdiction conferred by the invalid will itself, but on the basis of a state statute which authorized the probate court to order a sale where the beneficiary was absent from the state. The court said: “It was competent for the court (Louisiana) to order the sale by reason of the absence from the state of the universal legatee named in the will of 1811."93 And as to the second point: the vendee's good faith was established. The vendee has no notice nor knowledge of the existence of the later will. The Supreme Court by its decision in reference to certain personal property (slaves) sold by the executor to a colluding purchaser makes it evident that there must be an absence of fraud on the part of the vendee, or the conveyance will not stand when attacked on the basis of the second and true will.94

89. Willis v. Brooks 45 Miss. 542.; Valle v. Flemming 19 Mo. 454. 90. Italics are the author's. 91. Davies v. Gaines 104 U. S. 386f. 92. 104 U. S. 399.

The highest court of Texas sustained the validity of an executor's sale which was made pursuant to the terms of a forged will, stating that

"An application for the probate of a will is a proceeding in rem, and the judgment of the court upon it is binding upon all the world until revoked or set aside

The heirs being bound by the judgment, they occupy the position of one who has voluntarily parted with or been divested of his title, and then stands by and sees it sold to a bona fide purchaser without word of complaint ... That he afterwards assert title does not mend the matter. The purchase has been consummated.”95

In the Kentucky case of Reed v. Reed, the decedent by his will had given his three infant children his estate which was to be divided into equal portions after the payment of his debts. The executors were empowered to convey the real estate without applying to the court. A portion of the real property was sold to S. S. Reed by the executors. The vendee, in the words of the court"refuses to accept a deed for the land, and pay therefor, upon the sole ground that as the heirs have five years from the probate in the county court within which they may appeal to the circuit court and annul the will, the conveyance from the executor will not invest the vendee with a good title. In other words, he will during that period stand in the attitude of a lis pendens purchaser holding a title subject to be defeated by the setting aside of the will." The court in a brief discussion and decision said


93. 104 U. S. 377. 94. 194 U. S. 397. 95. Steele v. Renn 50 Texas 457.

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