Appeal from the Circuit Court of Will county; the Hon. JAMES
V. BARTLEY, Judge, presiding. Judgment order affirmed.
JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 23, 1960.
On March 16, 1955, Otto Briick, Sr. and Ottylie Briick, his wife, executed a joint instrument which they declared was their last will and testament. On October 13, 1956, Otto Briick, Sr. died and thereafter this will was lodged in the office of the Clerk of the Probate Court. On December 10, 1956, Ottylie Briick, his widow, executed another will and thereafter, on May 11, 1957, died.
The joint will dated March 16, 1955, named Otto Briick, Jr. and Helen Walter, a daughter of the testators, executors thereof and on May 21, 1957, Otto Briick, Jr. filed his petition in the probate court of Will County praying for an order admitting this will to probate as the last will of Ottylie Briick deceased. On May 24, 1957, Bruno Briick and Mary Briick, who were named executors of the will dated December 10, 1956, filed in the probate court of Will County their petition praying for an order admitting this will to probate. These petitions were heard by the probate court resulting in an order admitting the 1955 will to probate and denying probate to the instrument dated December 10, 1956.
Upon appeal to the circuit court, the cause, by stipulation of the parties, was submitted to the court for determination and decision upon the record made in the Probate Court. The circuit court held that the instrument dated March 16, 1955, should not be admitted to probate as the will of Ottylie Briick as it was thereafter revoked by her will of December 10, 1956, and that her later will should be admitted to probate. The circuit court remanded the cause to the probate court with directions to enter such an order. To reverse this order of the circuit court Otto Briick, Jr. appeals.
The record discloses that Otto Briick, Sr., at the time of the execution of the joint will in 1955 was past eighty years of age and his wife a few years younger. They had been married many years and were the parents of six children, four sons and two daughters, all adults and no one was under any disability. All the children are beneficiaries under the provisions of each will. In the will of March 16, 1955, the name Briick was spelled Bruck. At the time each will was executed all the statutory requirements were complied with.
Upon this hearing James J. Ley testified that he was a practicing lawyer living in Joliet and was acquainted with Mr. and Mrs. Briick and had represented them as their attorney; that Mr. Briick conducted a meat market in the City of Joliet for many years but at the time the 1955 will was prepared he had retired and was living on a farm near Lockport. Mr. Ley further testified that he had prepared many wills in the course of his practice and had drawn a joint will for Mr. and Mrs. Briick dated May 24, 1947, a copy of which he had retained in his files and which he produced upon this hearing. Mr. Ley further testified that he prepared the will dated March 16, 1955, and that its provisions were essentially the same as the 1947 will; that both Mr. and Mrs. Briick read the 1955 will and that he read it to them, explained the paragraphs as he did so and before he signed as a witness thereto he asked them if they declared this to be their last will and testament and they both answered in the affirmative and stated that was the way they wanted it. Mr. Ley further testified that at the time the 1955 will was prepared and executed no other documents or instruments were prepared or executed by either Mr. or Mrs. Briick. The other witness to the 1955 will was John J. Wellnitz, who predeceased Mrs. Briick, and the only other witness who testified upon this hearing on behalf of appellant was a deputy probate clerk who identified the signature of Mr. Wellnitz.
Albert H. Krusemark was called as a witness for appellees and testified that he was a practicing lawyer in Joliet and that about December 5, 1956, Mrs. Briick came to his office to discuss her estate and her will; that she advised him that she and her deceased husband had previously executed a will and gave Mr. Krusemark a copy thereof and stated she desired to make some changes in that will. Mr. Krusemark then testified that he inquired of her what had been done with the joint will and she said she thought it was filed in the probate court. As abstracted this witness then testified: "I asked her whether or not she had ever signed any contract with her husband at that time or prior to the joint and mutual will that would be binding on her. She said `No, no such contract.' I asked her: `Did you ever agree that was to be the will?' And in reply she said she never made any agreement but that Otto (her husband) went to the law office and told him (presumably Mr. Ley) what he wanted and it was fixed up that way." Mr. Krusemark further testified that Mrs. Briick told him that her husband had been the boss in their family and what he said held. "I went along. We talked it over. His wishes were my wishes and he was the boss."
Mr. Krusemark then testified that upon this occasion he asked Mrs. Briick why she wanted to change the former will and that Mrs. Briick stated that she felt the property was worth more than she then realized and that the daughters were not getting as much as they should under the old will. Mr. Krusemark then asked her if she wanted to revoke the old will and she said she did, that she didn't want to be bound by it and that she did not understand she could not change it. On cross-examination Mr. Krusemark stated that the first will was filed but that nothing was done to have it admitted to probate; that Mrs. Briick took no benefits under the will as the property was held by her and her husband in joint tenancy and as surviving joint tenant she could have deeded the property to anyone.
Lucille Miller and Ruthe Blood, secretaries in the office of Mr. Krusemark and attesting witnesses, with Mr. Krusemark, to the 1956 will of Mrs. Briick each testified on behalf of appellees. These witnesses corroborated the testimony of Mr. Krusemark to the effect that Mrs. Briick stated that she did not feel that the former will was binding on her and that she had no agreement that she would never change it.
The jointly executed will dated March 16, 1955, omitting the attestation clause, is as follows:
"Last Will and Testament.
"Know all men by these presents, that we, OTTO BRUCK, and OTTYLIE BRUCK, wife of OTTO BRUCK, being of sound and disposing mind and memory, and desirous of disposing of our wordly estate after our deaths, respectively, do make, publish and declare this to be our Last Will and Testament, hereby revoking all Wills and Codicils by us, or either of us at any time heretofore made.
"FIRST: It is our wish that all our just debts, joint or several, together with funeral expenses, be paid after our deaths, respectively, as soon as possible, by our Executors, hereinafter named.
"SECOND: We give, devise and bequeath to each other, respectively all real, personal or mixed property that we may possess at the time of the death of each, his or her part, and severally hereby bequeath and devise said property of the one of us, who may die first to the survivor thereof.
"THIRD: After the decease of both of us, we bequeath and devise all of said property, we or either, may own at death, in the following manner:
"FOURTH: After the death of both of us, we give, devise and bequeath to Herbert Bruck, Eugene Bruck and Otto Bruck, Jr., the property known as the North Chicago Street property, (describing it) and also the property known as the Scott Street property (describing it) with the proviso, that in the event either one of my above named sons are dissatisfied with the property, then in that event the other son or sons will pay to the one that is dissatisfied, the sum of $8,000.00 and he will forfeit all right, title or interest in the said property; that the said Herbert Bruck, Eugene Bruck and Otto Bruck Jr., pay the sum of $4,000.00 to Helen Walter and that they pay the sum of $4,000.00 to Ella Bruck; we direct that said above designated amounts to be paid by the said Herbert Bruck, Eugene Bruck and Otto Bruck, Jr., from said above described property within 6 months after the death of both of us, and the said above designated amounts are to be a lien upon the above described real estate until paid.
"FIFTH: We give, devise and bequeath, after the death of both of us, to Bruno Bruck, and his wife, Mary Bruck, the farm consisting of 40.8 acres, (describing it) and also all the farm machinery and fixtures, and the said Bruno Bruck and his wife, Mary Bruck, are to pay to Ella Bruck, the sum of $2,000.00 and are to pay to Helen Walter the sum of $2,000.00 and we direct that the above designated amounts to be paid by the said Bruno Bruck and Mary Bruck, from said above described property, within one (1) year after the death of both of us, and the said above designated amounts are to be a lien upon the said above described real estate until paid.
"SIXTH: We give and bequeath all the household goods and furnishings to our daughter, Helen Walter, and we give and bequeath to our daughter, Ella Bruck, the automobile that is on the premises at the time of our death.
"SEVENTH: We give and bequeath all the livestock that we own at the time of our death, to Herbert Bruck, Eugene Bruck, and Otto Bruck, Jr., to be divided among them, but it is our wish and desire that the livestock be appraised and will be divided ...