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communication which enclosed a letter to Mrs. Dewey, dated October 21, 1905, written by her brother, the contents of which showed that Mrs. Dewey had not been in Chicago for more than a month previous to its writing. That letter led to an investigation which turned up almost a bushel of Mrs. Dewey's correspondence. From this was gleaned a series of epistles that had passed between Mrs. Dewey and a southern member of Congress, by which her whereabouts and movements during the entire year of 1905 were traced. She left Chicago in the summer and did not return until weeks after Mr. King was buried—and when recalled for examination was forced to admit it.
On behalf of the contestants, two witnesses testified against the disputed document when in so doing they were testifying against their own interests. Means needed information and assistance from the private secretary to Byron L. Smith and from Gubbins, King's confidential employee. This he hoped to secure by raising the amount of the bequests that they had received under the probated will. But he approached them adroitly, drawing from them all the information that he could under the pretext of writing a history of King's life. Later he told Gubbins of his "discovery," but found Gubbins skeptical. Finally, in early July, 1917, he brought the instrument to Gubbins, pointing out that he was in the new will for $100,000. But Means found there were some men money could not buy. Gubbins examined the instrument, declared it a forgery, and told Means that he would do nothing to hurt the Old Men's Home, even for a million dollars. Upon Means's departure, Gubbins immediately telephoned the Northern Trust Company, giving the first inkling of the claim of a later will.
II. THE QUESTIONS OF Law 1. The decision of the Supreme Court, affirming the judgment of the Circuit Court, was based upon a simple proposition. It held that before the probate of the will of 1901 could be set aside by Mrs. King, or her privy, Mrs. Melvin, because of the discovery of a later will, it would be necessary to show that the probate of the earlier will had been procured by fraud or mistake. The court properly found that there was not a word of competent evidence in the record that Mrs. King did not know of the existence of the alleged later will when she participated in the probate of and accepted the benefits under the 1901 will. The alleged statements of Mrs. King to Mrs. Melvin and Mrs. Dewey that Mr. Smith had told Mrs. King he had seen the will destroyed the night before King died were pure hearsay.
3. In re Estate of James C. King 310 Ill. 90.
There remain, however, many other important and interesting questions of law raised in the proceedings which are left unsettled by the decision of the Supreme Court.
2. It will be remembered that, as a matter of procedure, this was a proceeding to probate the 1905 will, and was not a chancery proceeding to contest a will already admitted to probate. It was the contention of the respondents, however, that in reality this was a proceeding to contest the probated will of 1901. Necessarily, in such a situation as was presented, the probating of the later will required the revocation of the prior probating of the earlier will. The Supreme Court, in Conzet v. Hibben 272 Ill. 508, had decided that both of these results must be sought in one proceeding, and could not be reached in separate proceedings. It was not expressly held in that case, however, that such a proceeding was, in fact, a contest of the earlier will or of its probate.
If respondents' position in that regard was correct, it was of far-reaching legal consequences. In the first place, it settled the question of the scope of respondents' proof. Sec. 15 of the Wills Act provides that on an appeal from the judgment of the Probate Court either denying or admitting a will to probate, the proponent may introduce any proof admissible to prove a will in chancery. The contestant, nevertheless, is limited in his proof. Exactly where that limit lies is difficult to say. The theory of that rule of law of course is understandable. It is to prevent the contestant from having two days in court, for if he could fully contest a will in the proceeding to probate it, he would still have another opportunity to present his case, if defeated and the will admitted to probate, by filing a bill in chancery to contest the will, under Sec. 7 of the Wills Act.
The applications of that rule, however, have not been wholly consistent. On the one hand, a contestant may contradict the testimony of the attesting witnesses by showing that the testator was in such physical condition that he could not have signed the will, as alleged, because his hands were so swollen that he could not hold a pen. On the other hand, a contestant may not show, in contradiction of the testimony of attesting witnesses, that the testator could not have signed the will because he was in a comatose condition. Such evidence is not admissible, according to the ruling in Stuke v. Glaser 223 Ill. 316, because it goes to the testamentary capacity of the testator, upon which question the contestant is limited to the testimony of the attesting witnesses.
4. Craig v. Trotter 252 Ill. 228.
In the King will case, both Judge Horner and Judge Baldwin allowed considerable latitude in the scope of contestant's proof. And that would seem only reasonable, since it would be an illogical rule that would have prevented proof that the signatures of the purported testator and attending witnesses were forgeries. Furthermore, Mrs. Melvin was the only living attesting witness, and she made the additional proof necessary for a prima facie case by identifying the signature of her husband as the second attesting witness. How absurd it would be to make that dead attesting witness testify merely through the proof of his signature, and still not permit it to be shown that such signature itself was spurious. Nevertheless, it was the proponent's contention that all of contestant's evidence, except that which might directly and strictly impeach Mrs. Melvin, was inadmissible. In the opinion which the Supreme Court first handed down it decided that such was the law. The published opinion, however, omitted such ruling.
But irrespective of all these considerations, if the contention was sound that this was a proceeding, in fact, to contest the probated will, then the position of the parties with relation to the scope of proof was changed. For then the Northern Trust Company and the King Home for Old Men became the proponents of the 1901 will, with the widest possible latitude of proof, and Mrs. Melvin was its contestant.
3. From another viewpoint, it was even more important to determine whether or not this proceeding was strictly a contest of the probated will of 1901. For if it were, then it would seem that the proponent was barred by the lapse of time, under Sec. 7 of the Wills Act.
That section provides for a chancery suit to contest a will to be brought by any person interested, within one year after probate thereof, "but if no such person shall appear within the time aforesaid, the probating .. shall be forever binding and conclusive on all parties concerned.
The exact question has never been decided in Illinois, but in other states, with statutes similar to Sec. 7, where it has been presented, it has uniformly been held that a later will could not be probated after the period had elapsed for contesting a probated will.
The general rule is stated in Page on Wills, Sec. 322, as follows:
"When one will is probated, another will inconsistent with the first cannot be probated at a later time as a codicil, since this in effect operates as a revocation of the earlier will. The earlier will should be contested. Hence, an application to substitute a will discovered after an earlier will has been admitted to probate necessarily involves a contest of the will probated, and must be made within the time limited for contest. It follows that where a will is discovered so long after the earlier will was admitted to probate that the limit fixed by statute for contest has elapsed, such will cannot be probated."
Even if it could be said that the 1901 will was probated through mistake, in the belief that the later will had been destroyed, nevertheless it would seem that the proceeding for the establishment of the disputed will was barred by lapse of time. In the leading Indiana case on this subject," the later will was claimed to have been fraudulently concealed for more than the period within which a will contest in chancery might be brought. Nevertheless it was held that the statute was one of repose, and since the legislature had made no exception of fraud tolling the statute the courts were powerless to supply it.
And in Illinois, proceedings in the Probate Court to exercise its inherent jurisdiction of setting aside the probate of a will entered by fraud or mistake must be brought within the time provided in Sec. 7, since that statute is one of repose.
If the statutory period would not commence to run until the discovery of the later will, still Mrs. Melvin's petition was barred. For, according to the testimony of Means and Mrs. Melvin, the will was discovered more than two years before proceedings were instituted. Certainly it could not be contended that the statute should be tolled beyond the date of the discovery of the will.
4. That the proceeding was a contest of the probated will of 1901 raised another conclusive legal objection to Mrs. Melvin's right to maintain her petition. Mrs. Melvin, it will be remembered, had no rights whatsoever under the disputed will of James C. King. Had her rights arisen under that will, she would not have been a competent attesting witness thereto. All her rights were derived under Mrs. King's will, giving her testamentary succession to Mrs. King's estate.
5. Bartlett v. Manor 146 Ind. 621, 45 N. E. 1060. 6. Chicago Title & Trust Co. v. Brown 183 Ill. 42.
As the law of this state stood at the time that Mrs. Melvin's petition was filed, the right given by Sec. 7 of the Wills Act to contest a will in chancery could not pass by succession or inheritance. Applying that rule to the instant case, it would follow that the right to contest the probated will of 1901 by seeking to probate the later will was personal to Mrs. King, and did not survive her.
It is interesting to note that after the rendition of the opinion in the case just cited, the legislature, in evident response to the suggestion of the court therein, amended Sec. 7 of the Wills Act, so that now such cause of action does survive, within the time limitations of that statute.
One of the most interesting questions of evidence involved in the proceedings has been the subject of a sharp conflict of opinion among the courts of this country. Were statements of the testator admissible, the effect of which was to disprove the execution of the disputed will? On the one hand, in the famous case of Throckmorton v. Holt 180 U. S. 552, the Supreme Court of the United States held that such statements are not admissible. Opposed stands Sugden v. Lord St. Leonards, decided in 1876 by some of the most famous English judges of the last century, and followed by courts of last resort in many of our states.
The exact question has never been settled in Illinois, although in In re Page 118 Ill. 576, our Supreme Court did expressly adopt the holding of the Sugden case in deciding that the contents of a lost will might be proved by parol evidence.
As has been said, none of these or the many other legal questions argued in the King will case were decided by the Supreme Court, since the case was decided on the rather minor ground before indicated. One cannot help but feel that with the time, money and energy expended in this litigation, it is regrettable that its final decision could not have contributed something more to our body of law. These legal questions are yet unsettled, awaiting the time when they will again be raised, perhaps in another King will case.
7. Selden v. Illinois Trust & Savings Bank 239 Ill. 67. 8. L. R., 1 Prob. D. 154.