APPEAL from the County Court of Christian County; the Hon.
GAIL E. McWARD, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The Preachers' Aid Society of the Illinois Conference of the Methodist Church, hereafter called the Aid Society, appeals directly to this court from an order of the county court of Christian County which (a) struck the motion of the Aid Society to set aside an order admitting to probate a will of Laura Baughman, deceased, dated April 22, 1959, (b) dismissed the petition of the Aid Society to admit to probate as the last will of Laura Baughman, deceased, the joint will of Samuel S. Baughman and Laura Baughman, husband and wife, and (c) denied the petition of the Aid Society for issuance of a dedimus for taking the deposition of a witness to the joint will.
This appeal is directly from the county court pursuant to the provisions of section 329 of the Probate Act, as amended in 1959. (Ill. Rev. Stat. 1959, chap. 3, par. 483.) The appeal is taken to this court directly because Laura Baughman, deceased, owned real estate at the time of her death which was devised by both of the wills in question, and thus a freehold is involved.
On January 4, 1951, Samuel S. Baughman and Laura Baughman, his wife, executed a joint will in which each left their entire estate to the other and provided that the estate of the last survivor of them was to be distributed as follows: (a) $22,000 in trust for their granddaughter and certain nieces, (b) their home to the Board of Trustees of the First Methodist Church of Taylorville, and (c) the residue to the Aid Society.
Samuel S. Baughman died on August 29, 1953, and on the petition of Laura Baughman the joint will was admitted to probate on October 14, 1953, as the last will of Samuel S. Baughman, deceased, in the county court of Christian County. Laura Baughman received the entire estate of Samuel S. Baughman in accordance with the terms of the joint will and the executor of the estate of Samuel S. Baughman, deceased, was discharged on January 13, 1956.
On April 22, 1959, Laura Baughman executed a will which revoked all prior wills by her made, gave her entire estate to the granddaughter, Laura Frances Adkinson in fee simple, and appointed Carrie L. Williams as executor without surety on her bond.
On May 2, 1959, Laura Baughman died. On May 4, 1959, there was filed in the county court of Christian County, and duly noted on the docket, a last will of Laura Baughman dated January 14, 1953, a codicil thereto dated December 18, 1953, and the last will dated April 22, 1959, together with a notation to see the joint will with Samuel S. Baughman, deceased, proved and admitted to probate on October 14, 1953.
On May 6, 1959, Carrie Williams filed her petition in the county court of Christian County to admit to probate the last will of Laura Baughman, deceased, dated April 22, 1959, and for issuance of letters testamentary to her, and on May 11, 1959, it was so admitted to probate and letters issued. Inventory listing real estate and personal property was duly filed on May 29, 1959.
On June 9, 1959, the Aid Society filed its petition to admit to probate as the last will of Laura Baughman, deceased, the joint will of January 4, 1951, and also filed its motion to set aside the prior order admitting to probate the will of April 22, 1959, and to revoke the letters testamentary issued thereunder.
A similar motion was filed by the First Methodist Church of Taylorville on the same date. On November 25, 1959, an amendment to such motion to set aside probate was filed, together with a petition for issuance of dedimus to take depositions of witnesses of the joint will. On December 1, 1959, objections were filed to suing out of the dedimus for taking depositions of witnesses to the will.
On January 6, 1960, the appellee, Carrie Williams, as executrix filed her motion to strike the motion of the Aid Society to set aside the order admitting the will of April 22, 1959, to probate and to dismiss the petition of the Aid Society to probate the joint will of January 4, 1951, as the will of Laura Baughman. A similar motion was filed directed to the motion of the First Methodist Church. After hearing on the appellee's motion, the order appealed from was entered.
The theory of the Aid Society in this appeal is that when Laura Baughman received the entire estate of her deceased husband by virtue of their joint will dated January 4, 1951, she became bound by the terms of that joint will and it became irrevocable, and consequently that it is entitled to be admitted to probate as the last will of Laura Baughman, rather than the instrument which she executed after her husband's death.
Appellee's theory is that any will, including a joint will, is revocable, that the will of April 22, 1959, revoked the joint will, that the county court had no jurisdiction other than to admit to probate as the will of Laura Baughman the document dated April 22, 1959, after the court determined that it was the last will of Laura Baughman properly signed and attested, and that the jurisdiction of the county court sitting in probate does not extend to determining the validity or construction of a prior, revoked joint will as a contract not to revoke between Laura Baughman and Samuel Baughman.
The basic underlying issue in this case is the nature and extent of the so-called irrevocability of a joint or joint and mutual last will and testament. This problem has received consideration in the case of In re Estate of Briick, 24 Ill. App.2d 77. In that case a husband and wife had executed a joint last will and testament. Upon the death of the husband the will was filed in probate court and thereafter the surviving spouse executed another will and died. Subsequent to the death of the surviving widow, petitions were filed in the probate court of Will County for the admission to probate of each. On a hearing on both petitions the probate court admitted to probate the joint will and denied probate to the later will. Upon appeal to the circuit court, the circuit court held that the later instrument revoked the prior joint will, that the later will should be admitted to probate, and remanded the cause to the probate court with instructions to enter such an order. The joint will had never been offered for probate as the will of the husband who ...