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Bonczkowski v. Kucharski

OPINION FILED MARCH 20, 1958.

ANNA BONCZKOWSKI ET AL., APPELLANTS,

v.

EDMUND KUCHARSKI, REGISTRAR OF TITLES, ET AL., APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM J. TUOHY, Judge, presiding.

MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 23, 1958.

This appeal from a decree of the circuit court of Cook County raises questions of the validity of a joint will, and of its enforceability as a contract so as to estop the surviving testator from conveying real estate in a manner not provided for in the will. A freehold is involved giving us jurisdiction of the direct appeal.

On April 15, 1943, title to the real estate in controversy became vested in Anton Zmucki and his wife Mary Zmucki, as joint tenants, and such title was duly registered in the office of the registrar of titles for Cook County. Nine years later, on January 23, 1952, Anton and Mary executed an instrument captioned "Last Combined Will and Testament," the provisions of which were as follows:

"We, Anthony Zmucki and Mary Zmucki, of the City of Chicago, County of Cook and State of Illinois, being of sound and disposing minds and memories, do, therefore, make, publish and declare this to be our Last Combined Will and Testament, hereby revoking and making void all former wills by us heretofore made.

"FIRST Mary Zmucki I order and direct my husband, Anthony Zmucki, to pay all my just debts and funeral expenses as soon after my decease as conveniently may be, if he is financially able.

"In the event that my husband, Anthony Zmucki, should predecease me or be financially unable to pay my just debts and funeral expenses, I order and direct my married daughter, Anna (Madon) Baczkowski, to pay my just debts and funeral expenses as soon after my decease as conveniently may be.

"SECOND Anthony Zmucki I order and direct my married daughter, Sophie (Zmucki) Plys, to pay all my just debts and funeral expenses as soon after my decease as conveniently may be with funds made available from insurance. Should any funds be left after payment of my just debts and funeral expenses, I give the remainder to my married daughter, Sophie (Zmucki) Plys.

"Should my married daughter, Sophie (Zmucki) Plys, predecease me, I order my two sons, Stanley Zmucki and Bruno Zmucki, to pay all my just debts and funeral expenses as soon as conveniently may be with funds made available from insurance. Should any funds be left after payment of my just debts and funeral expenses, I give the remainder, share and share alike, to my two sons, Stanley Zmucki and Bruno Zmucki.

"THIRD Anthony Zmucki and Mary Zmucki. After we both decease, we give, devise and bequeath the rest, residue and remainder of our property real, personal and mixed of whatsoever kind and nature, and wheresoever situated to our children or survivors of them. The property real and personal is to be divided in the following manner:

"(A) to Anna (Madon) Baczkowski, or her survivors, undisuted one-half (1/2) ownership of personal property and undisputed one-half (1/2) ownership of real property described fully below.

"(B) To Sophie (Zmucki) Plys, Stanley Zmucki and Bruno Zmucki, or the survivors of them, undisputed one-half (1/2) ownership of personal property and undisputed one-half (1/2) ownership of real property. The one-half (1/2) ownership of the personal and real property is to be divided into three ...


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