APPEAL from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 29, 1962.
Plaintiffs filed in the superior court of Cook County a complaint to construe a purported joint will of Apolinaras Grigas and Pauline Grigas, husband and wife. Apolinaras Grigas, individually and as administrator with the will annexed of the estate of Pauline Grigas, deceased, John Bartkus, Charles Gasiunas, American Lithuanian Literature Association, Panevezis Hospital, Antanina Juteliene, and Ona Jarmalaviciene were made defendants as heir, administrator, devisees and legatees, respectively. The superior court sustained the motion of the principal defendant, Apolinaras Grigas, to strike the amended complaint, and ordered the cause dismissed at plaintiffs' costs. From such order the appeal here is taken. A freehold being involved, this court has jurisdiction on direct appeal.
The facts alleged in the complaint are that on February 28, 1947, Apolinaras Grigas and Pauline Grigas, husband and wife, executed a purported joint will. On March 6, 1959, Pauline Grigas died. The instrument was admitted to probate on August 27, 1959, by the probate court of Cook County as the last will of Pauline Grigas. Apolinaras Grigas, the husband, survived and was appointed administrator with the will annexed. The sole heirs of Pauline Grigas were her husband, Apolinaras, and her son, Charles Gasiunas, who are defendants.
The will, attached as an exhibit to the complaint, is a single instrument consisting of six typewritten pages, the last of which bears the signatures under seal of Apolinaras Grigas and Pauline Grigas "as husband and wife," and is attested by four witnesses. The preamble of the will in substance recites that Apolinaras Grigas and Pauline Grigas as husband and wife make, publish and declare the purported will here in question to be "jointly as well as severally" their last will and testament.
Provision V of the will states "our joint estate consists" of two parcels of real estate on Troy Street in Chicago and of acreage in Lemont, Illinois, of certain general personal property which is not detailed in the pleadings, and of "any other interest to which we may be entitled to at our decease."
Provision VI provides that "The above property, both real and personal, at the time of the death of either of us, shall be held by the survivor during his or her lifetime, the use and income thereof to be enjoyed by such survivor as he or she shall deem best, during the remainder of the life of such survivor."
Provision VII provides that "At the death of the survivor * * * we give, devise and bequeath * * * An undivided one-half (1/2) share of our entire estate * * * of which we may die seized, or to which we may be entitled to at the date of our decease * * * to our beloved stepson and son, Charles Gasiunas * * * or to his children share and share alike. In the event that the said Charles Gasiunas should predecease us without any living issue, then his share is to be distributed by the executrix among all of the legatees hereinafter named in addition to their specific bequests provided in this Will."
Provision VIII bequeaths $1000 to the American Lithuanian Literature Association and $1000 to the Panevezis Hospital.
Provision IX provides that "All the rest, residue and remainder of the estate * * * of which we may die seized, or to which we may be entitled to at the date of our decease * * * we give, devise and bequeath * * * An undivided one-sixteenth (1/16) share to * * * Sophie Jusko * * * or to her children; * * * An undivided one-sixteenth (1/16) share to * * * Violet Schultz Sisko * * * or to her children; * * * An undivided one-sixteenth (1/16) share to * * * Eleanor Schultz * * * or to her children." The above three residuary beneficiaries are plaintiffs in this case. Three other shares were devised and bequeathed by provision IX, two each for 3/8 share and one 1/16 share. Provision IX further provided that "In the event that either of the legatees should predecease us without any living issue, then his or her share is to be distributed equally among all of the legatees and devisees named herewith in addition to their specific bequests provided in this Will."
Stella Palonis was named executor and Charles P. Kal as successor executor.
The complaint in chancery filed here by Sophie Jusko, Violet Schultz Sisko (Novick) and Eleanor Schultz, three of the residuary legatees, set forth in substance the above facts. It further alleged that at the death of Pauline Grigas, she and her husband were the owners jointly of real estate on Bell Avenue, Chicago; that after her death, the defendant husband, Apolinaras Grigas, the survivor, wrongfully and fraudulently and in violation of the will, sold the real estate for a sum believed to be $58,000; that the husband threatens to sell the Troy Street real estate and another parcel of real estate in Chicago on Clark Street; that the husband claims he has a right to sell all of the real and personal property and do what he pleases with the proceeds.
The plaintiffs contend and allege that the interests of the husband are limited by said will to the use and income of the real estate during the remainder of his life without any right of inter vivos disposition. The complaint prays for a construction of the will, the imposition of a constructive trust to prevent waste and to manage and invest the property during the life of Apolinaras Grigas, and for an accounting by Apolinaras Grigas and Charles Gasiunas of the proceeds of sale of the one parcel of real estate sold.
The amended complaint filed herein was substantially the same as the original complaint except that the amended complaint alleged that the will entered into embodied a contract between the husband and wife which ...