Appeal from the Superior Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of the Superior Court of Cook County dismissing plaintiff's complaint to contest the will of Caroline C. Reichardt on the ground that the nine month period in which a will can be contested under Section 90 of the Probate Act (Ill Rev Stats c 3, § 90 (1961)) had expired. The pertinent part of that section is as follows:
"Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will. . . ."
The sole issue before this court is whether the nine month period was extended by virtue of an appeal taken by plaintiff from the order of the Probate court admitting the will to probate.
Caroline C. Reichardt, hereinafter referred to as the deceased, is alleged to have executed her last will and testament on January 16, 1948. The Probate Court of Cook County ordered the will admitted to probate on August 16, 1960. Plaintiff appealed directly to the Supreme Court of Illinois which on March 29, 1961 affirmed the order of the probate court. On May 24, 1961 plaintiff filed his complaint to contest the validity of the will. This was more than nine months after the probate court order admitting the will to probate, but less than nine months after the supreme court affirmance.
The right to contest a will is derived solely from statute. Luther v. Luther, 122 Ill. 558, 13 N.E. 166; Glos v. Glos, 341 Ill. 447, 173 N.E. 604; Kessler v. Martinson, 339 Ill. App. 207, 89 N.E.2d 735; Harney v. Wilson, 198 Ill. App. 477, 480; Storrs v. St. Luke's Hospital, 75 Ill. App. 152, 156. The time within which such a suit may be brought is considered to be a condition essential to the jurisdiction of the court. At the time of Luther v. Luther, supra (1887), the statutory limitation was three years, and the court said (at 566):
"The appearance within three years is a jurisdictional fact, and is necessary in order to put the machinery of the court in motion so as to test the validity of the will. The court has no power to entertain the bill after the three years have passed.
". . . The original probate of the will upon the testimony of the subscribing witnesses is allowed without delay, in order to secure an orderly settlement of the estate and to prevent the embarrassments and injurious consequences to creditors and others, which might result from the delay incident to a contest over the will. But serious consequences may also result from too long a delay to the property rights and titles of parties interested in and holding under the will, and therefore, a period should be fixed after which the original probate should be regarded as binding and conclusive."
This principle was recognized in O'Brien v. Bonfield, 220 Ill. 219, 77 N.E. 167, but the court nevertheless came to the conclusion that under the procedure which then prevailed, the order of the county court admitting the will to probate was suspended or vacated pending appeal, and the period of limitation, which was then one year, was extended accordingly. It is this case upon which plaintiff relies, and we must examine it in considerable detail.
At the time of the decision in O'Brien v. Bonfield, supra, appeals in such matters from the probate or county court were taken to the circuit court and a trial de novo was automatically granted. Under the amended acts of 1959 and 1961 it was provided that appeals from orders admitting or refusing a will to probate may be taken in the same manner as in other civil cases in courts of record. Ill Rev Stats, c 3, § 329 (1959), as amended c 3, § 329 (1961). In the O'Brien case the circuit court, on appeal, tried the issue de novo and entered an order that the will be admitted to probate, that a certified copy of the order be filed in the county court, and that the original will be transmitted to that court. From that order an appeal was taken to the supreme court, which affirmed on February 7, 1905. On March 6, 1905 certified copies of the order of the circuit court and its affirmance were filed in the county court.
That was the situation in the O'Brien case when on April 11, 1905, a bill was filed to contest the will. It alleged that the appeal to the circuit court from the order not only stayed the proceedings, but nullified the order of the county court admitting the will to probate and thereby extended the period of limitations. A demurrer was sustained and the suit was dismissed. On appeal the supreme court sustained O'Brien's contention and reversed the order of the circuit court. The court said that three sections of the statute should be construed together Section 7, the limitations section; Section 14, which provided for appeal to the circuit court and a trial de novo; and Section 18, which "requires all original wills, together with the probate thereof, to remain in the office of the clerk of the county court of the proper county, . . ." (Emphasis ours.) This latter section was considered important by the supreme court, in that it revealed that the legislature intended that the administration of estates should be had in the county court. The court held that the order of admission to probate by the county court was suspended when the appeal to the circuit court was taken and "nothing could be done in the county court by way of administering upon the estate except to appoint an administrator to collect." O'Brien v. Bonfield, supra, at 225. The county court could not assume its function of administration or probate of the estate until certified copies of the order of the circuit court were recorded in the county court.
The supreme court in O'Brien v. Bonfield, at 224, held that the appeal from the order of the circuit court admitting the will to probate "operated to stay all proceedings in the circuit court. . . ." At that time an appeal bond was required and upon the filing of a bond, the appeal constituted a supersedeas. The circuit court could not send a certified copy of its order to the county court until disposition of the appeal, and no order could be entered by the county court reviving the probate proceeding until that had been done. It follows that no order admitting the will to probate was effective until March 6, 1905, the date on which certified copies of the order of the circuit court and its affirmance by the supreme court were filed in the county court. Hence the court in O'Brien v. Bonfield, supra, found that the bill to contest the will which was filed April 11, 1905 was within the period of limitations.
It was a difficult question, and the court in the concluding paragraph of its opinion in O'Brien v. Bonfield, supra, said (at 226):
"Under the peculiar language of the statute, especially section 14, we have not found the question involved free from doubt. We think, however, that the construction here adopted carries out the intention of the legislature and ...