Smith v. Wood

LANGDON, J.

This is an appeal by plaintiff from a judgment of the Superior Court of Orange County in favor of defendants in an action for an accounting and other equitable relief.

On March 2, 1885, at Warren County, Illinois, Mary B. Huston made her will. She was apparently a widow. Among her near relatives were one child, defendant Texanna Huston Wood, then unmarried; a sister, Ellen A. Penny, now deceased; and the children of Ellen A. Penny. The testatrix died in June, 1908, defendant daughter, who was still single, being appointed executrix. In October, 1910, she married Allen D. Wood, and lived with him until his death on March 2, 1930. No children were born of said marriage.

The will of Mary B. Huston was admitted to probate in Warren County on July 6, 1908. By it the deceased gave real and personal property in Illinois to her daughter, de

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fendant Texanna Huston. On October 18, 1909, the court made and entered an order reciting that the final account had been filed, due notice given and no objections made thereto; that Texanna Huston had tendered her receipt for all of the property as legatee and devisee, and concluded as follows: “ ... it is therefore ordered that this her final report be approved and that she be discharged as Executrix of the Last Will and Testament of Mary B. Huston, deceased, and that the administration of said estate be closed.” No appeal or other contest of said order was made until this action was commenced.

Upon her marriage to Allen D. Wood, defendant Texanna B. Huston transferred to him all the real and personal property distributed to her under said will. By his will, he devised and bequeathed it to defendant bank, in trust for his wife and son (issue of a prior marriage), and provided that upon his wife’s death a fund of $11,000 should be retained in the trust and the net income therefrom paid to his son for life. It "was further provided in said will that upon termination of the trust the

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should be distributed to various relatives of the testator and his wife, including plaintiff.

The claim of plaintiff is that the will, of Mary B. Huston gave her daughter—defendant Texanna Huston Wood—only a life estate in the property, and that she held the same in trust for the heirs of Ellen C. Penny, of whom plaintiff seems to be the sole survivor. It would follow from this that Allen D. Wood had no power to dispose of the property by will, and the court is asked to set the transfer aside, decree a life estate in defendant Texanna Huston Wood, and further decree that in the event of her death without issue, plaintiff is entitled to share in the estate. The lower court sustained a general demurrer to the complaint and thereafter rendered judgment for the defendants. We are of the opinion that this judgment must be sustained upon either of two grounds.