Oettinger v. Karlsson

Appellate Court of Illinois

Oettinger v. Karlsson

42 N.E.2d 326, 314 Ill. App. 668, 1942 Ill. App. LEXIS 1071

CourtAppellate Court of Illinois

DecidedMay 27, 1942

DocketGen. No. 41,838

StatusPublished

This text of 42 N.E.2d 326 (Oettinger v. Karlsson) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oettinger v. Karlsson, 42 N.E.2d 326, 314 Ill. App. 668, 1942 Ill. App. LEXIS 1071 (Ill. Ct. App. 1942).

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Opinion

Mr. Justice Kiley

delivered the opinion of the court.

Plaintiff has appealed from a decree, striking his complaint and dismissing his action to contest a will; and from orders denying his subsequent motions.

On December 30, 1938, a will of Charles Anderson, deceased, dated January 30,1935, was admitted to probate in the probate court of Cook county. Neither plaintiff nor his wife were named as beneficiaries in that will. An alleged will of Charles Anderson, same decedent, dated September 23, 1936, in which plaintiff’s wife was named sole beneficiary, was denied probate in the probate court on June 14, 1939. An appeal was taken to the circuit court of Cook county from the order of denial by plaintiff who was named executor in the latter document. That appeal was pending when plaintiff filed the instant proceeding in the superior court on December 28, 1939, to contest the will which had been admitted to probate.

One of the reasons alleged in defendant’s motion to dismiss in the trial court was that plaintiff was not entitled to bring the suit. If defendant’s contention is correct we need consider no other point.

Section 7, chapter 148, Ill. Rev. Stat., in force when the proceeding was filed, limits the right to contest a will to persons interested therein. A “person interested” means one who is affected detrimentally by being deprived in the will of a right he would otherwise have had in the absence of a will. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67. At the time the will was admitted to probate, plaintiff was not an heir of the testator nor was he in anywise deprived by that will, therefore, he is not qualified to maintain this proceeding.

The decree of the superior court was properly entered and is, therefore, affirmed.

Decree affirmed.

Burke, P. J., and Hebel, J., concur.

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Mr. Justice Kiley

delivered the opinion of the court.

Plaintiff has appealed from a decree, striking his complaint and dismissing his action to contest a will; and from orders denying his subsequent motions.

On December 30, 1938, a will of Charles Anderson, deceased, dated January 30,1935, was admitted to probate in the probate court of Cook county. Neither plaintiff nor his wife were named as beneficiaries in that will. An alleged will of Charles Anderson, same decedent, dated September 23, 1936, in which plaintiff’s wife was named sole beneficiary, was denied probate in the probate court on June 14, 1939. An appeal was taken to the circuit court of Cook county from the order of denial by plaintiff who was named executor in the latter document. That appeal was pending when plaintiff filed the instant proceeding in the superior court on December 28, 1939, to contest the will which had been admitted to probate.

One of the reasons alleged in defendant’s motion to dismiss in the trial court was that plaintiff was not entitled to bring the suit. If defendant’s contention is correct we need consider no other point.

Section 7, chapter 148, Ill. Rev. Stat., in force when the proceeding was filed, limits the right to contest a will to persons interested therein. A “person interested” means one who is affected detrimentally by being deprived in the will of a right he would otherwise have had in the absence of a will. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67. At the time the will was admitted to probate, plaintiff was not an heir of the testator nor was he in anywise deprived by that will, therefore, he is not qualified to maintain this proceeding.

The decree of the superior court was properly entered and is, therefore, affirmed.

Decree affirmed.

Burke, P. J., and Hebel, J., concur.

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42 N.E.2d 326, 314 Ill. App. 668, 1942 Ill. App. LEXIS 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oettinger-v-karlsson-illappct-1942.

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