Appeal from the Circuit Court of Cook County, Probate
division; the Hon. JAMES M. CORCORAN, Judge, presiding. Judgment
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of the Probate Court admitting the will of Julia Roht to probate. At the same time the court revoked letters of administration previously issued to respondent-appellant Elmer J. Stefany, and appointed Henry T. Synek as executor. The court ordered Stefany to turn over the assets of the estate to the executor. From these orders Stefany and the other appellants have appealed.
The last page of the will as submitted by Stefany to the Probate Court was torn, so that the instrument does not contain the names of any attesting witnesses. The will is duly signed and an attestation clause follows, certifying that the will was signed in the presence of the attesting witnesses who subscribed their names at the request of the testator, and it then continues:
"[W]e hereby certify that at the time of the execution hereof we believe said Julia Judith Roht . . . Testatrix, to be of sound. . . ."
at which point the will is torn in a jagged line.
The question presented to us is whether the mutilated condition of the will constitutes a revocation in accordance with Section 46 of the Probate Act (Ill. Rev Stats c 3, § 46 (1963)), which provides in part as follows:
"A will may be revoked only (a) by burning, canceling, tearing, or obliterating it by the testator himself or by some person in his presence and by his direction and consent, (b) by the execution of some other will declaring the revocation, (c) by a later will to the extent that it is inconsistent with the prior will, or (d) by the execution of an instrument in writing declaring the revocation and signed and attested in the manner prescribed in this Article for the signing and attesting of a will. . . ."
The provision under item (a) of the statute, is generally designated as revocation by mutilation and, as later shown, the courts have required that its application be limited to those cases in which the mutilated will was in the possession of the testator at the time of death, and that is the principal issue in the instant case. It is a factual issue and requires an ample statement of the facts.
On April 15, 1962, Julia Roht, then aged 76, went to the hospital with a broken kneecap. The following day the Berwyn Health Department requested her nephew Elmer Stefany to go to her home in Berwyn because it was filthy and needed cleaning. On that day Stefany brought cleaning material, was let in the house, and then went to visit his aunt at the hospital. On April 17th he again went to his aunt's house. This time his wife was with him. They were admitted by Michael Eiben, Julia Roht's 74 year old brother, who spoke little or no English and who had lived with her since 1923. He had the full run of the bungalow. Brother and sister occupied separate rooms, and there were no locks on any of the doors. Michael died soon afterward, on May 4, 1962. Stefany and his wife cleaned up various parts of the house, putting bags in the pantry and merchandise in drawers. They went into Julia's bedroom to clean up the dresser. In the top drawer, among handkerchiefs, bankbooks, old letters, cards, rosaries, pictures and holy pictures was the will. LaVergne Stefany said, "I think this is a legal document of some sort. What should we do with it?" They opened and glanced at it. She said, "I don't know what we should do. We probably should have legal. . . ." Her husband took the document with him, and they both read it that night. They testified that it was in the same condition when they found it as when they presented it to the Probate Court. The following day Stefany took the will to his lawyer's office. He then took it back to his aunt's house and replaced it in the top dresser drawer where he had found it. He did not tell Julia Roht about finding her will. He said nothing to her about what he had done with it or that he had taken it to a lawyer's office, nor did he advise any of the beneficiaries or the lawyer who had written the will or the executor named therein.
Julia Roht never returned to her home. On May 28, 1962 she was transferred from the hospital to a convalescent home in Berwyn. In July 1962, she was declared incompetent and Elmer J. Stefany was appointed conservator of her estate. On August 15, 1962, she died in the convalescent home, approximately four months after her will had been found.
On August 28, 1962, Stefany filed a petition for letters of administration. Prior to his appointment as administrator, but without notice to the executor or the beneficiaries named in the will, Stefany presented the will in question to the Probate Court and requested instructions as to its disposition. The court entered an order which characterized the document as "a writing appearing to be an incompleted will or a will revoked by tearing and as such not subject to probate," and directed that it be filed with the clerk of the court. Thereafter, letters of administration were issued to Elmer J. Stefany on September 10, 1962.
On May 29, 1963, eight months after his appointment as administrator, Stefany filed a petition to deny probate of the will, giving notice for the first time to all the legatees listed therein, and to Synek, the executor subsequently named. Answer and petition for admission of the will to probate were thereafter filed by the executor. Thus was created the issue now before us.
At the hearing for probate of the will, Henry T. Synek, his wife Elizabeth, and Leonard Brockman testified in support of the will. The substance of their testimony was that Synek was a lawyer; that he had drawn the will; and that the three of them had witnessed it at Julia Roht's home on January 31, 1948; that in their opinion Julia Roht was of sound mind and disposing disposition; and that the only difference between the will at the time they signed it as witnesses and when it was presented for probate was that the last page had been torn in an irregular manner, so that part of the attestation clause and all the signatures of attesting witnesses had been removed.
Elmer Stefany and his wife testified in opposition to the admission of the will to probate. Their testimony recounted Julia Roht's hospitalization, their discovery of the will, and the events that followed, as hereinbefore set forth. No further testimony was offered. Elmer Stefany as an heir would be entitled to one-fifth of one-third, or one-fifteenth interest in the estate. As administrator he would also receive a fee. The total estate consisted of $36,655 in cash, $27,000 in bonds, and a house worth approximately $18,000, or a gross estate of over $81,000. Under the will, Elmer Stefany was left $1000 and his wife was left $1000 in ...