Wheeler v. Wheeler

Appellate Court of Illinois

Wheeler v. Wheeler

35 Ill. App. 123, 1889 Ill. App. LEXIS 510

CourtAppellate Court of Illinois

DecidedDecember 24, 1889

StatusPublished

Cited by2 cases

This text of 35 Ill. App. 123 (Wheeler v. Wheeler) 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

Wheeler v. Wheeler, 35 Ill. App. 123, 1889 Ill. App. LEXIS 510 (Ill. Ct. App. 1889).

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Opinion

Gary, P. J.

This was a bill in chancery, filed under Sec. 7, Ch. 148, R. S., by non-residents of this State, to set aside the probate of a will, and the only question is whether they have eternity to do it in. The statute provides that such a bill may be filed within three years after probate, and that persons “ absent from the State ” have the like period after the removal of their disabilities. Generally in statutes of limitation similar language has been held to include non-residents, as well as residents temporarily absent; but this statute is not a limitation law. It creates a remedy not before existing, and the lapse of time need not be pleaded to make it a bar. Luther v. Luther, 122 Ill. 558. The word “ absent ” conveys the idea of a temporary condition, a cessation of, and probability or possibility of returning, presence. Very little authority should be required to prevent a strained construction that might lead to serious consequences from too long delay in settling estates (Ibid. 566); but that little is found in Snoddy v. Cage, 5 Texas, 106, and Buchanan v. Rucker, 9 East. 192, holding that “absent” must be taken only to apply to persons who had been present. And see Hyman v. Bayne, 83 Ill. 256.

The bill in this case was filed more than fifteen years after the probate. The demurrer to it was properly sustained, and the decree dismissing the bill is affirmed.

Decree affirmed.

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Gary, P. J.

This was a bill in chancery, filed under Sec. 7, Ch. 148, R. S., by non-residents of this State, to set aside the probate of a will, and the only question is whether they have eternity to do it in. The statute provides that such a bill may be filed within three years after probate, and that persons “ absent from the State ” have the like period after the removal of their disabilities. Generally in statutes of limitation similar language has been held to include non-residents, as well as residents temporarily absent; but this statute is not a limitation law. It creates a remedy not before existing, and the lapse of time need not be pleaded to make it a bar. Luther v. Luther, 122 Ill. 558. The word “ absent ” conveys the idea of a temporary condition, a cessation of, and probability or possibility of returning, presence. Very little authority should be required to prevent a strained construction that might lead to serious consequences from too long delay in settling estates (Ibid. 566); but that little is found in Snoddy v. Cage, 5 Texas, 106, and Buchanan v. Rucker, 9 East. 192, holding that “absent” must be taken only to apply to persons who had been present. And see Hyman v. Bayne, 83 Ill. 256.

The bill in this case was filed more than fifteen years after the probate. The demurrer to it was properly sustained, and the decree dismissing the bill is affirmed.

Decree affirmed.

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35 Ill. App. 123, 1889 Ill. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-wheeler-illappct-1889.

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