Appeal from the Circuit Court of Morgan county; the Hon. CREEL
DOUGLASS, Judge, presiding. Affirmed.
PRESIDING JUSTICE ROETH DELIVERED THE OPINION OF THE COURT. On September 7, 1955, Bruce Thomson, as Trustee under the last will and testament of Emma L. Batz, filed an amended complaint for accounting against W.H. Ricks as administrator with the will annexed of the estate of Lillian Batz Stice. This amended complaint discloses that Emma L. Batz died in 1936 leaving a last will and testament which was duly probated. Lillian Batz Stice was a daughter of Emma L. Batz and by clause 4 of her will Emma L. Batz made provision for her daughter as follows:
"FOURTH: All the rest and residue of my estate, of every kind and description I give, devise and bequeath unto my said Daughter Lillian Batz Stice to have and to hold the same for and during her natural life only. My said daughter shall have full power to manage and control the same as she shall deem best. She may sell any real estate whenever in her judgment it is advisable so to do, without any order of court, at either public or private sale as she shall deem best, and on such terms as she shall see fit and may invest the proceeds of such sale either in other real estate or in such securities as she may deem advisable. She shall pay all taxes and assessments levied against such real estate, keep up the repairs and insurance. The net annual income from my said estate, after payment of such taxes, assessments, repairs, insurance and all other proper costs and expenses connected with the management of said estate, my said daughter shall have and retain for her own use and benefit so long as she shall live, using the same for her care and maintenance and for such purposes as she sees fit. It is my wish and desire that my said daughter shall be properly cared for and supported. If the net income from my said estate is sufficient for her care and support, and as to what amount is necessary for her proper care and support my said daughter shall decide and determine alone and for herself, without accounting to any one, then the net income alone shall be used; if however, she, my said daughter, shall deem said net income not sufficient then and in that event, she shall have full power, right and authority, to use any part of the principal of my said estate for her care, and support and for her needs, and what part of the principal she so uses she alone may decide, I wish my said daughter to be careful and prudent in the management of said estate and I hope she may not use all of the principal. However, my first wish is for my daughter, and for her care and comfort. Upon the death of my said daughter I direct the Elliott State Bank, of Jacksonville, Illinois, to take charge of whatever of my said estate may then remain, as Trustee and said Trustee shall reduce what then remains of my estate and such cash shall then be paid out and distributed as follows: . . ."
Then follows a comprehensive plan for division of the remainder by the Trustee which is not material to this controversy. From the amended complaint it appears that Emma L. Batz at her death owned a number of parcels of real estate which Lillian Batz Stice took possession of, under clause 4 of her mother's will. Three of these parcels of real estate were sold by Lillian Batz Stice during her lifetime. The amended complaint then alleged that moneys received from the sale of this real estate, together with other securities and investments received by Lillian Batz Stice from her mother's estate, were not used by Lillian Batz Stice for her care and support, since the income from all properties was sufficient to properly care for and support her without the use of the principal; that the moneys from the sale of the real estate and other securities were traceable and that Bruce Thomson, successor Trustee, was entitled to an accounting for and payment of these moneys and securities from the administrator with the will annexed of the Lillian Batz Stice estate, to be distributed under the remainder provisions of the Emma L. Batz will.
The defendant administrator with the will annexed filed an answer to the amended complaint and on January 18, 1956, the Circuit Court referred the cause to the Master to take evidence and report his conclusions. Extended hearings were held by the Master, at the conclusion of which the Master found the facts as alleged in the amended complaint and that the proceeds from the sale by Lillian Batz Stice of the three parcels of real estate had been invested by Lillian Batz Stice in certain government bonds, savings and loan stock and a bond of Kingdom of Norway, all of which were in the possession of Lillian Batz Stice at her death, and concluded that:
"I find, therefore, that the defendant, William H. Ricks, as Administrator with the Will annexed of the estate of Lillian Wilhelmina Batz Stice, is in possession and control of the securities above described in paragraphs 11, 12 and 13, and, that the said defendant is accountable to the plaintiff for the said securities above described in accordance with the terms of the Will of Emma L. Batz, deceased."
On June 5, 1957, a final decree was entered, following the findings and conclusions of the Master. This decree found that defendant administrator with the will annexed, had, during the pendency of the proceedings and the estate, cashed the government bonds, so that the decree directed him to turn over the cash proceeds instead of the bonds, together with the savings and loan stock and the Kingdom of Norway bond.
Following the entry of this decree the defendant administrator with the will annexed filed a petition in the County Court for an order authorizing him to comply with the decree of the Circuit Court and on June 6, 1957, such an order was entered. On June 28, 1957, Robert G. Hemphill as Guardian Ad Litem for certain minor legatees under the will of Lillian Batz Stice, filed a petition in the County Court in the probate proceedings of the Lillian Batz Stice will, to vacate the order authorizing the administrator with the will annexed to comply with the decree of the Circuit Court and to direct said administrator with the will annexed:
". . . to petition said Morgan County Circuit Court to open up and vacate the said decree of 5 June 1957 as entered by said court, for the reason that there appears to be reasonable grounds for making the defense that Lillian Wilhelmina Batz Stice owned more than a mere life estate, which would thereby have entitled her to keep the proceeds of all property, both real and personal, sold by her during her lifetime, which defense was not properly made in any way, either in the answer filed by said administrator with the will annexed or otherwise."
On June 29, 1957, a similar petition was filed in the County Court by Lawrence Crawford, Jr., and Carol Crawford (who are appellants here) as beneficiaries under the Lillian Batz Stice will to require the administrator with the will annexed to move to vacate the order of the Circuit Court of June 5, 1957, to litigate the question of the construction of the will of Emma L. Batz on the ground that:
"A reasonable doubt exists concerning the proper construction or interpretation of the terms of the will of Emma L. Batz, whether said Lillian Wilhelmina Batz Stice obtained a fee or life estate in the assets of said estate, whether said Lillian Wilhelmina Batz Stice had an absolute power of disposition over said assets, or whether the proceeds of such part of said assets as were sold by her became her sole and absolute property and a part of her estate on her death, which question should be placed in issue, fully litigated, and determined in the above action in the Circuit Court."
On July 2, 1957, both of these petitions were denied. No appeal was taken.
On June 29, 1957, Lawrence Crawford and Carol Crawford, appellants, filed a petition for leave to intervene in the suit by the Trustee and to petition the court to open up the decree of June 5, 1957, and to file answer to the amended complaint of the Trustee. This petition is supported by the affidavit of petitioners in which they allege in substance that in the original proceedings, the administrator with the will annexed in his answer to the Trustee's amended complaint did not question the construction of the will of Emma L. Batz but made only perfunctory objection to the Trustee's claim; that a reasonable doubt exists as to the proper construction or interpretation of the terms of the will of Emma L. Batz, whether said Lillian Wilhelmina Batz Stice obtained a fee or life estate in the assets of said estate, whether said Lillian Wilhelmina Batz Stice had an absolute power of disposition over said assets, or whether the proceeds of such part of said assets as were sold by her became her sole and absolute property and a part of her estate on her death, which questions should be placed in issue, fully litigated and determined in the present action; and that said intervenors as beneficiaries under the will of Emma L. Batz were not properly represented by the administrator with the will annexed. Attached to the petition was a proposed answer to the amended complaint. On July 5, 1957, appellants filed a motion asking that their petition of June 29, 1957, be taken and considered as a motion to vacate the decree of June 5, 1957, in accordance with Section 68.3 of the Civil Practice Act. They also submitted a new answer to the amended complaint of the Trustee which they proposed to file. On July 5, 1957, the Circuit Court entered the following order:
"Now on this day come the parties hereto by their respective counsel and motion to Amend Petition for leave to intervene by substituting a new answer as the proposed initial pleading of intervenor and for complete adjudication is hereby filed. Motion is by the Court allowed and petition for leave to intervene as amended is hereby granted and Lawrence Crawford, Jr. and Carol Crawford are made parties defendant to this cause and the Court will consider and take this petition as amended as a motion filed in accordance with Sec. 68.3 of the Civil Practice Act, to vacate the decree of June 5, 1957. And now all parties may file such pleadings as they deem proper within 15 days. And now answer of Defendant-Intervenors is filed herein."
On March 18, 1958, pursuant to motion of the Trustee theretofore filed, the court vacated that part of its order of July 5, 1957 showing answer of intervenors filed. On May 21, 1958, the petition of appellants to vacate the decree of June 5, 1957, was ...