Dunham v. Estate of Stephens, 205 Ill. App. 27 (1917)

April 16, 1917 · Illinois Appellate Court

205 Ill. App. 27

Polly Dunham, Plaintiff in Error, v. Estate of Abraham Stephens, Deceased, Defendant in Error.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal and error, § 1818 ^* —when decision on appeal is conclusive on second trial. The holdings of the Appellate Court on facts admitted by a demurrer are conclusive on the Circuit Court on a trial of the same case on the merits if the same facts are established' by the evidence.

Error to the Circuit Court of McLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1916.

Reversed and remanded with directions.

Opinion filed April 16, 1917.

Statement of the Case.

Petition by Polly Dunham, plaintiff, against the estate of Abraham Stephens, deceased, defendant, to establish plaintiff’s right as half-sister and heir at law of the decedent to one-quarter of a certain fund saved to the defendant from the amount devised to Mary Ella Chapman and Anna D. 0 ’Harra by the decedent, by the settlement and compromise of a certain suit to contest the decedent’s will. From a decree dismissing the petition, plaintiff brings error. For case on prior hearing decided by the Appellate Court, see Dunham v. Stephens’ Estate, 190 Ill. App. 554, reversing a decree dismissing the petition on demurrer and remanding.

Thurman, Hume & Kennedy and Livingston & Bach, for plaintiff in error.

Sterling & Whitmore and De Mange, Gillespie & De Mange, for defendant in error.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic ana section number.

* See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Graves

delivered the opinion of the court.

2. Appeal and ebrob, § 1726*—vjhen decision on former appeal conclusive on Appellate Court. The holding of the Appellate Court on facts admitted by a demurrer are conclusive on that court on a review of the record on a trial of the same case on the merits if the same facts are established by the evidence, notwithstanding there has been a change in the- personnel of the court.

3. Appeal and ebrob, § 1152 ^* —how Appellate Court may review its own holdings. The only way the Appellate Court can sit in review of its own holdings is on a petition for a rehearing filed in the proper time.

4. Executors and administrators—when evidence sufficient to show existence of funds subject to distribution. Evidence held sufficient to show that there was saved by the settlement of a certain will contest from certain legacies a certain amount of intestate funds subject to distribution, in a suit by an heir at law to establish a right to a portion of such funds.