Brack v. Boyd

Mr. Justice Carter delivered the opinion of the court: The decree is attacked on three grounds: First, the alleged invalidity of the order of adoption; second, the alleged defects in the record of the probate of the will; and third, the finding that the widow of Allen L. Ralls had waived her right to the widow’s award. The record of the probate of the will is found in will record “B,” on page 74 of records of the county court of Williamson county. The convening order is as follows: "State of Illinois, L In the Williamson County Court, Williamson County. ( ss‘ In Probate, Nov. Term, A. D. 1887. ‘ ‘On Monday, the 6th day of November, in the year of our Lord one thousand eight hundred and eighty-sev— “Present: The Hon. W. W. Duncan, judge; J. C. Mitchell, clerk; and J. H. Burnett, sheriff.” ° Then follow the title of the cause and date of probate: “In the matter of the estate of A. L. Ralls, deceased.— Wednesday, Nov. 30, 1887.” The figure “7” in the convening order is not very legibly written, and counsel for appellants claim that it is nearer a figure “3” than any other figure. But this is wholly immaterial, as further down the date is partially spelled out, “eighty-sev — ,” and the day of the probate is distinctly given as in the year 1887. It is further urged that the day of the date of the convening order, November 6, 1887, was a Sunday, and therefore a non-judicial day. This is evidently a mere clerical error of the person writing up the record, for the convening order in the regular probate record gives the correct date in full, as Monday, the 7th day of November, 1887. But the most serious objection raised as to this probate record is, that in the will as recorded there are interlineations, particularly of the word “real” in the second clause. It is contended that this word “real,” and two other words, were interlined after this suit was brought, by the person who was county clerk at the time of the probate of the will, but who at the time the interlineation was made had ceased to be such clerk. Appellants insist that the record of the. will, permanently spread upon the records of the county court in connection with the order of probate, becomes the operative form of the probated will, and that the original will is without further effect. Appellants further insist that no changes or alterations can be made in the record without due notice to the parties affected, and an order of court. The original will, together with the record of its probate, was introduced in evidence, and is identical with the will as recorded, as interlined. The last part of section 2 of the act in regard to wills (Hurd’s Stat. 1901, p. 1818,) provides: “And every will, testament or codicil, when thus proven to the satisfaction of the court, shall, together with the probate thereof, be recorded by the clerk of said court, in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby devised, granted and bequeathed.” The subject of the sentence beginning, “shall be good and available in law for the granting,” etc., is the same as that of the preceding sentence, namely, “every will, testament or codicil.” In Shephard v. Carriel, 19 Ill. 313, it was said (p. 319): “The right of the party claiming under the will arises out of the will and by the will, and when the will is probated, the proof, at the same time, is created of this right, which vested at the death of the testator, the probate not conferring- the right but being merely evidence-of the right.” (1Ex parte Fuller, 2 Story, 327.) Section 18 of the same act provides: “All original wills, together with the probate thereof, shall remain in the office of the clerk of the county court of the proper county; and copies of the record of the same, and copies of the record of exemplifications of foreign wills recorded in said office, as in this act provided, duly certified under the hand of the clerk and the seal of said court, shall be evidence in any court of law or equity in this State.” This section does not declare that the record shall become the only evidence of the will, but only that copies of the record shall be evidence in any court in this State. The copy of the record is receivable in evidence, not because it is better evidence than the original, but because it is provided that the original shall remain in the office of the' clerk. But when the original can be procured and has been duly probated it is admissible in evidence. (Stevison v. Earnest, 80 Ill. 513.) It is not pretended that any of the parties had acted on or been misled to their injury by the wording of the will as it appeared on the records. What the rule would be in such a case it is not necessary to consider. The original will, with the record of its probate, being in evidence, it clearly appears that the words interlined in the record had been omitted merely in the act of recording by the clerk. By the terms of the will the testator gave all of his property to his wife for life, remainder to his adopted daughter, Mary Jane Ralls, formerly Mary Jane Singleton. The language employed identifies the beneficiary beyond question and is sufficient to vest the estate in remainder in her. This being the case, it will be unnecessary to determine the question raised by appellants whether there was any defect, in the adoption proceedings, as it could not affect the result. Even if it were apparent, though it is not, that the proceedings were void, she would take the property under the will. The bill charges that the widow of Allen L. Ralls administered on his estate and that her final report was approved by the court January 6, 1890, and that she waived her right to the widow’s award and refused to take such award. The answer denies this. The decree finds that she elected to take all the property for life under the will, and waived her right to take any of the property under the laws of the State contravening the terms and provisions of the will. There is no evidence whatever in the record as to any action taken respecting the widow’s, award. But she did take all the property for life and settled the estate without claiming any award. The testator died, the will was probated, and the widow became executrix in 1887 and administered on the estate, and even if it were erroneously held below, as contended, that she had waived her award, still such award would not now constitute a lien on the land sought by the bill to be divided, (Furlong v. Riley, 103 Ill. 628,) and the error, if any, would be immaterial and constitute no ground for the reversal of the decree. The decree will be affirmed. Decree affirmed.