Wilkins v. Hukill

(after stating the facts). The learned circuit judge filed a written opinion, in which he held, substantially, that the legatees must divide the estate as heirs at law or under the will; that neither contract, assuming that there were two, is valid; that complainant ratified the first one, and thereby made it valid; held the so-called *598second agreement invalid; and rendered a decree for $11,668 for complainant

By the terms of the will, complainant would, receive nothing. The entire estate was disposed of. It was at once agreed by all that the residuary clause was void for indefiniteness. This made the residuum of the property intestate, and descendible to the heirs at law. It is and was conceded that complainant was entitled to his share in the intestate portion of the estate. The will was duly probated. It has never been annulled or set aside. The agreement and judgment rendered in pursuance of it recognize the competency of the testatrix and the validity of the will. It is changed only in one or two particulars, and confirmed in all the rest. It was entirely competent for the legatees to agree to any division of special legacies bequeathed to them as they saw fit, and no heir or residuary legatee could complain.

Some of these legatees appeared to believe that undue influence was exercised by the Rices, who were to benefit more largely by the will than were the others. The proceedings in the probate court are not before us, and the only information we have is from one of the witnesses, who testified that the will was attacked for incompetency and undue influence. These are the usual grounds for attacking such instruments. Claim is sometimes made where there is no foundation, for the purpose of effecting a compromise. Whatever the facts are in this case, we do not know, and it is not material that we should. The result establishes the fact that she was competent, and that there was no undue influence. Concessions by legatees do not establish either incompetency or undue influence. It was claimed that Charles Rice was indebted to the estate to the amount of $40,000, borrowed from Mrs. Beecher in her lifetime. The main concessions came from him. In fact, he was the only one to abandon any part of a bequest. A long and expensive litigation seemed in prospect. It was wise to compromise.

It was not intended that the amount which Charles Rice *599conceded to the others should become intestate .property. Aside from the so-called “secondagreement,”it is evident that these legatees were compromising the legacies made to them. Complainant is not thereby defrauded, unless the will is set aside. His sister Mrs. Hukill was the only one who knew his whereabouts. She did not choose to inform him of the death of Mrs. Beecher, or the provisions of her will. He ascertained the situation, however, in time to interpose a contest. By the act of all the legatees in conceding the invalidity of the residuary clause, complainant was benefited to the extent of nearly $1,000. When he ascertained the situation, two courses were open to him,— either to contest the will, or accept the provisions of the settlement made between the legatees. He chose the latter. He is therefore bound by the entire agreement, not by one part of it. In ratifying it, he confirmed the will, just as the agreement did. It is conclusively established that the children of James Wilkins, who were made legatees by the will, would not execute the agreement, which was made in Chicago, and signed by some of the other legatees at the time, until an arrangement was made among themselves, to be attached to and made a part of that agreement. They were legatees compromising with legatees. Their attorneys, Gray & Gray and Mr. Charles M. Swift, advised them that they could divide among themselves, as they chose, what belonged to them under the will, but that the residuary estate was intestate property, and would go to the heirs at law. They had no intention, or thought, even, of abandoning their legacies, and making the entire property intestate. Mrs. Ijlukill was a legatee to the extent of $10,000; the others, $1,000 each. They gained by the voluntary surrender of Mr. Rice. This surrender was not made to the heirs, but to the legatees. Complainant was entitled to no voice in that settlement, except as an actual or threatened contestant of the will. He was not a contestant, and has never placed himself in that attitude. In ratifying that agreement he ratified the probate of the will, and the *600agreement, in toto, made by the other legatees. The instrument was not delivered, and therefore not executed, until the written arrangement entered into by complainant’s brother and sisters was attached to and made a part of it.

Complainant’s counsel place great reliance upon the fact that the agreement used the word “heirs,” and described the parties to it as “the heirs of David Wilkins, the heirs of James Wilkins, Alvin Wilkins, his heirs and assigns.” These are words of description, merely, and refer to none outside the instrument. They were not used, or intended to be used, as conveying rights to these parties as heirs at law. It was a convenient expression by which to describe the different parties to the will and agreement, who were also heirs at law of the parties named. In the same way the. attorneys adopted the expression, when speaking of the different parties, “Chicago heirs” and “Pittsburg heirs;” those being the cities where several of them lived.

We-conclude that, the settlement covered only testate property, that it concerned only the legatees, and that, under the agreement, complainant obtained an interest only in the residuum of the estate.

The decree must be reversed, and bill dismissed. The defendants will recover costs of both courts.