Bliss v. Seeley

Mr. Justice Magruder delivered the opinion of the court: First—The first question, presented by the record in this case, relates to the validity or invalidity of the deed, executed to the appellant, Bliss, on July 3, 1900, and recorded on August 12, 1900, as affected by the will of David William Hall, alleged to have been admitted to probate' in Hitchcock county, Nebraska, on March 12, 1900. Upon the assumption that David William Hall died intestate, his heirs were his brothers and sisters named in the statement preceding this opinion, as he died unmarried and without children; and, by the deed of July 3, 1900, all the interest, which David William Hall had in the premises when he died, except the interests which passed at his death to his brother, Newton W. Hall, and his sister, Mary Jane Hall, was conveyed to the appellant, Bliss. In other words, upon the assumption of intestacy, Bliss obtained by his deed whatever interest in the property, owned by David William Hall at the time of his death, passed to his heirs, except that which was inherited by the brother and sister last above named. If, however,-the will of David W. Hall, alleged to have been made in Nebraska, is a valid instrument and is in force as against the deed made to Bliss, then whatever interest David William Hall owned in the land at the time of his death passed to Annie E. Hall, the devisee in bis will; and the deed to Bliss conveyed to him none of the interest, which may have been owned by David William Hall when he died. The material inquiry, therefore, is, whether any interest, that may have been owned by David William Hall at the time of his death, passed by the deed in question to Bliss, or whether the will of David William Hall is so far valid as to make such deed of no effect so far as it attempted to convey such interest. There is nothing in the alleged will of David William Hall or in the proceedings for its probate in Nebraska, which appeals to our favorable consideration. • The will, as presented at one time, purports to bear date on April 10, 1885, and, as presented at another time, purports to bear date on April 10, 1887. David William Hall died in Colorado on or about April 25,1887. But the will claimed to have been left by him was not presented for probate until the 16th day of February, 1900, nearly thirteen years after the death of David William Hall. No explanation is given of this long delay, or of the whereabouts of the will in the meantime. The proof tends to show that David William Hall resided in the State of Kansas, and yet the proceedings for the probate of his will were taken in the State of Nebraska. The petition to the county court of Hitchcock county in Nebraska, asking for the probate of the will, was signed and presented by Newton W. Hall, the husband of Annie Hall, who was the sole devisee in the will. Upon the trial of the cause, sections 140, 141, 142 and 143 of the laws of the State of Nebraska, relating to the probate of wills, were introduced in evidence. Said section 141 provides that “if no person shall appear to contest the probate of a will at the time appointed for that purpose, the court may, in its discretion, grant probate thereof on the testimony of one of the subscribing witnesses only, if such a witness shall testify that such will was executed in all the particulars as required in this chapter,'and that the testator was of a sound mind at the time of the. execution thereof.” Said section 142 provides as follows: “If none of the subscribing witnesses shall reside in this State at the time appointed for proving the will, the court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will, and, as evidence of the execution of the will, may admit proof of the handwriting of the testator, and of the subscribing witnesses.” It appears from the order entered on March 12, 1900, ■admitting the will to probate, that Newton W. Hall made affidavit that both of the subscribing witnesses to the will who, in their lifetime, had lived in Hitchcock county, Nebraska, were dead; and Newton W. Hall, although the husband of the 'sole devisee in the will, swore that the signature thereto was the signature of David William ' Hall. His signature was also sworn to by one other witness, named Edwin Wilson. Wilson and Newton W. Hall swore that David William Hall was of sound mind and memory in the fall of 1885, and also in the fall of 1886, although the will was made before either of those dates, to-wit, on April 10, 1885. Neither Wilson nor Newton Hall, the only witnesses sworn upon the probate of the will, testified to the handwriting of the subscribing witnesses to the will, nor was there any testimony as to the signatures of the subscribing witnesses. While the circumstances thus referred to justly subject the will and the proceedings for its probate to suspicion, we are not prepared to say that it should be rejected as a valid will on account of these suspicious circumstances alone. But we are of the opinion for the reason hereinafter stated, that such will should not prevail against the deed made to the appellant, Bliss, so far as such deed purported to convey the interests of the brothers and sisters of David William Hall, and others holding under them, who signed said deed. Section 9 of the statute of this State in regard to wills provides that “all wills, testaments and codicils, or authenticated copies thereof, proven according to the laws of any of the United States, or the territories thereof, or of any country out of the limits of the United States, and touching or concerning estates within this State, accompanied with a certificate of the proper officer or officers that said will, testament, codicil or copy thereof was duly executed and proved, agreeably to the laws and usages of that State or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in law, in like manner as wills made and executed in this State.” (3 Starr & Curt. Ann. Stat.—2d ed.—p. 4040). The words in the last quoted section, “shall be recorded as aforesaid,” evidently refer to the recording by the clerk of the county court in a book to be provided by him, as stated in section 2 of the Statute of Wills. (Ibid. p. 4026). Section 9 of the Statute of Wills, as above quoted, is the same as was section 8 in the Revised Statutes of 1845. On February 14, 1857, an act of the legislature was passed which, with slight changes and additions, appears now in the Revised Statutes as section 33 of the act in regard to conveyances. Said section 33 of the act in regard to conveyances is as follows: “All original- wills duly proved, or copies thereof duly certified, according to law, and exemplifications of the record of foreign wills made in pursuance of the law of Congress in relation to records in foreign States, may be recorded in the same office where deeds and other instruments concerning real estate may be required to be recorded; and the same shall be notice from the date of filing the same for record as in other cases, and certified copies of the record thereof shall be evidenced to the same extent as the certified copies of the record of deeds.” (1 Starr & Curt. Ann. St at.—2d ed.—p. 954). Certainly the following words in section 33, to-wit: “the same shall be notice from the date of filing the same for record as in other cases,” were intended to have some meaning. If “exemplifications of the record of foreign wills made in pursuance of the law of Congress in relation to records in foreign States,” operate as notice from the date of filing the same for record in the recorder’s office of a county in this State, then third persons, acquiring interests in land adverse to the devisees in such wills, cannot be said to have constructive notice of such wills when such exemplifications are not so recorded. In the case at bar, it is not claimed that the appellant, Bliss, had any actual notice of the existence of the will of David William Hall when he obtained his deed, dated July 3, 1900, and recorded August 12, 1900. There was nothing upon record in the recorder’s office of Shelby county, or elsewhere in this State, which would give him constructive notice of the existence of the will of David William Hall when he obtained or recorded his deed. It is true that, on December 17,1900, what purported to be a certified copy of the will of David William Hall, and of the proceedings for the probate thereof, was recorded in the recorder’s office of Shelby county. If the certificate to the copy, so recorded on December 17, 1900, had been regular and in proper form, the record of it on that day would have been no notice, as the appellant, Bliss, had obtained and recorded his deed theretofore on August 12, 1900. But the record of the copy on December 17, 1900, was no notice, because the certificate attached thereto was not in proper form. Section 9 above quoted provides that the authenticated copy of a foreign will must be accompanied by a certificate that the will was “duly executed and proved, agreeably to the laws and usages of that State or country in which the same was executed.” The certificate, attached to the copy recorded on December 17, 1900, did not state that the will of David William Hall was duly executed and proved agreeably to the laws and usages of Nebraska. Its record was, therefore, no notice to the appellant, Bliss. (Lewis v. Barnhart, 145 U. S. 79; Harrison v. Weatherby, 180 Ill. 418). This precise question was passed upon by the Supreme Court of the United States in the case of Lewis v. Barnhart, supra. There, section 9 of the act in regard to wills and section 33 of the act in regard to conveyances are quoted, and the following views are expressed by the Federal Supreme Court, to-wit: “It is clear from these statutes that the will of Romeo Lewis, or an authenticated copy thereof, proven according to the laws of Ohio, if accompanied with a certificate of the proper officers that the will was duly executed and proven agreeably to the laws and usages of that State, could, at any time after it took effect, have been recorded in Illinois, and thereby become good and available in that State in like manner as wills there made and executed; and that, from at least the passage of the act of 1857, it would have become, after the filing of the same for record, and in respect to the real estate devised by it, notice as in the cases of deeds conveying real estate. But it is equally clear that the copy of the testator’s will, filed and recorded in 1866 in the office of the recorder of Woodford county, was not authenticated or certified so as to entitle it to record under the above statutes in Illinois. It was not certified to have been executed and proven according to the laws and usages of the State of Ohio, where it was made. * * * It results that the recording in Illinois in 1866 of what purported to be the will of Romeo Lewis was without leg'al effect, and was not, in law, notice that the lands in dispute were part of those referred to in that will.” As to the copy of the will dated April 10, 1887, the certificate was defective in the same respect as that attached to the copy of the will dated April 10, 1885; and no copy of the will of 1887 was ever recorded in the county court or recorder’s office of Shelby county. Upon the trial, however, of this cause in the court below, the solicitors of Annie E. Hall introduced in evidence an authenticated copy of the will of David William Hall and of the proceedings for the probate thereof in Hitchcock county, Nebraska, accompanied by a certificate which certified that the will was duly executed and proven in said court agreeably to the laws and usages of the State of Nebraska. But this exemplified copy, which bore date February 16, 1901, after the special commissioner to whom the cause had been referred had taken all the testimony in the case and submitted his report, was not recorded at all in the recorder’s office of Shelby county, Illinois. It is contended on behalf of Annie Hall, that it was properly admitted in evidence, and established the validity of the will of David William Hall, notwithstanding it had never been recorded. This contention is supposed to receive some support from the cases of Shephard v. Carriel, 19 Ill. 313, and Newman v. Willetts, 52 id. 98. In the Shephard case it appeared that the exemplified copy of the foreign will and the proceedings for its probate therein introduced were filed for record in the county court and in the recorder’s office before the act of February 14, 1857, was passed; and that the suit there detided was begun in 1856 before the passage of the latter act. In addition to this, what was said in the Shephard case, to the effect that it was immaterial when the papers in question were filed, had reference to the filing of the same, in the probate court, and not in the recorder’s office, so that, there, the act of February 14,1857, was not considered or passed upon. In- the Newman case there was no question as to the effect of the record of a foreign will as against an interest in land acquired by third persons holding adversely to the devisees under the will. The simple question in the Neioman case was whether Mrs. Newman took an interest in the land in Illinois under a will, made by her deceased husband in Louisiana; but no point was made as to her right to hold that interest as against third persons. Therefore, the Shephard and Newman cases are not authority for the position, that a foreign will is valid and of effect, as against third persons without actual notice holding land adversely to it in this State, where no exemplified or properly certified copy of such will has been recorded in this State. Such, substantially, was the holding of this court in Harrison v. Weatherby, supra, and of the Supreme Court of the United States in Lewis v. Barnhart, supra. In Lewis v. Barnhart, supra, the same contention was made as is made here, namely, that a properly authenticated copy of a valid will was effective when introduced in evidence even though not recorded in this State; and, in that case, the Supreme Court of the United States held as follows: “The contention of the plaintiffs is that, even if this will was not properly recorded in Illinois, it was, nevertheless, evidence as to the title to the lands. (Shephard v. Carriel, 19 Ill. 313; Newman v. Willetts, 52 id. 98; Safford v. Stubbs, 117 id. 389). But this view does not meet the question before ns as to whether the record of the will in Woodford county, from and after it was made, was itself notice to those who purchased from Mrs. Lewis., A duly certified copy of the will in ay be competent evidence upon the issue as to paramount title, but it could not operate as constructive notice of its contents from the date of the insufficient record of it made in 1866 in Woodford county.” We are, therefore, of the opinion that the court improperly held that Annie Hall took all the interest of David William Hall in the premises in question under and by virtue of the will made in Nebraska; and that the appellant, Bliss, under his deed, became possessed of all the interest in the land in question formerly owned by David William Hall, except the interests of Newton W. Hall and Mary Jane Hall, afterwards Mary Jane Pollock, who did not sign that deed. Second—The next question relates to the solicitor’s fee allowed to the complainant below, the present appellee, Silas E. Seeley, and taxed as costs against all the parties in the case. We think that this fee was improperly taxed as costs. (Habberton v. Habberton, 156 Ill. 444; Hartwell v. DeVault, 159 id. 325; Metheny v. Bohn, 164 id. 495; Dunn v. Berkshire, 175 id. 243; Gehrke v. Gehrke, 190 id. 166). In the first place, there is no evidence, properly presented by the record, as to the value of the services rendered by the solicitor of the complainant below. It is true that a paper is inserted in the record which states that, on the hearing of the cause on March 7, 1901, two attorneys testified that the sum of $500.00 was a reasonable fee for the services of said solicitor. But there is no evidence upon this subject embodied in the certificate of evidence, nor are there any facts in relation thereto recited in the decree of the court below. In Davis Paint Co. v. Metzger Oil Co. 188 Ill. 295, we said (p. 298): “Where, as here, no facts are found in the decree, and there is no certificate of evidence, there is nothing in the record to sustain the decree, and, hence, there is error which requires a reversal of the decree.” In Metheny v. Bohn, supra, we also said (p. 497): “No evidence is preserved in the record showing what services the complainant’s solicitors rendered or the value of such services. * * * The rule that the evidence to sustain an allowance of this character must be preserved in the record has been repeatedly stated by this court.” In the second place, the rights and interests of all the parties do not appear to have been correctly set forth in the bill as originally filed; as the bill was demurred to several times, and several times amended, before the allegations in regard to such interests were correctly made. In Metheny v. Bohn, supra, we held that, under the statute, by which the court is directed to apportion the fees when the rights and interests of the parties are properly set forth in the bill unless some defendant shall interpose a good and substantial defense to the bill or petition, the good and substantial defense which may be interposed, and which will prevent the allowance of the fee, is a defense of a good and substantial character. Speaking of this statute, we there said (p. 501): “We think it should be construed as meaning that a defense, valid and substantial in character, made in good faith and on reasonable ground, should exempt a defendant from paying a solicitor of his adversary, not for services rendered to him, but for a hostile attack upon what he in good faith believes to be his substantial right. If the bill states the rights and interests of the parties correctly, a defense which is merely formal, frivolous or vexatious, or which is not undertaken in good faith, would not be regarded as good or substantial. The defense in this case was of a good and substantial' character and was not undertaken without reasonable grounds, although it was overcome by evidence on the part of complainant and proved unsuccessful. In such a case it would not be equitable for the defendant to pay a part of a solicitor’s fee solely earned as his adversary.” In the case at bar, the defense based upon the alleged validity of the foreign will, made in Nebraska, was held to be good in the court below, but is here held to be bad. It was, however, not formal, frivolous or vexatious, but was a defense of a substantial character. The question as to the effect of the foreign will, when set up against the deed executed in Illinois, was a debatable question and not altogether free from doubt. Hence, this is not a case where, under the statute, the solicitor, filing the bill of complaint for partition, can tax his fee as costs against all the parties; but, in view of the considerations already stated, each party should be allowed to pay only his own or her own solicitor’s fees. For the reasons above stated, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.