Appeal from the Circuit Court for the 20th Judicial Circuit,
St. Clair County; the Hon. QUINTEN SPIVEY, Judge, presiding.
Rehearing denied April 7, 1965.
Elias W. Darmstatter and Ida Mae Skaer appeal from a decree of the Circuit Court of St. Clair County, entered on June 23, 1964, ordering Homer Lortz, Executor of the Estate of Lena Lortz, deceased, to distribute the proceeds and estate of Lena Lortz in accordance with the provisions of the joint will of George and Lena Lortz executed on the 17th day of September, 1947 and without regard to a codicil executed by Lena Lortz on the 20th day of April, 1951.
During their lifetimes, George and Lena Lortz acquired a substantial amount of property, both real and personal. Some of the properties were held in their joint names and some of the property in their individual names. They had no children. On the 17th day of September, 1947, George and Lena Lortz executed what they called the "Joint Last Will and Testament of George and Lena Lortz, his wife." By the terms of this will they revoked all former wills made "by us or either of us"; they directed the executors to discharge all debts or liabilities existing against "us or either of us." They made bequests providing for the upkeep of the burial lots of John and Esther Lortz, parents of George Lortz; for the upkeep of the burial lots of John and Alvina Schaller, parents of Lena Lortz; and for the upkeep of their own burial lot. They provided that the remainder of their estate should go to the survivor of them, and that upon the death of that survivor "the residue of our estate should be merged into one corpus" and reduced to cash. They then ordered the cash to be distributed in varying shares to eighteen relatives of George Lortz, to nineteen relatives of Lena Lortz, and to a foster child reared by George and Lena Lortz. They named two executors of their joint will, one a relative of George Lortz, and the other a relative of Lena Lortz. The will also provided that after the specific bequests to these relatives were satisfied, the remainder of the estate was to be divided among the same legatees in the same proportion.
George Lortz predeceased his wife and his will was admitted to probate in the Probate Court of St. Clair County. The total amount of the estate of George and Lena Lortz was more than $200,000, $70,000 being in joint tenancy. Three years after the death of George Lortz his wife executed a codicil to the joint will, increasing the shares of four of her relatives, but in all other respects confirming the joint will.
One of the relatives benefiting by the codicil was Elias Darmstatter, who was to receive stock of the value of $10,000 by the terms of the codicil. Elias Darmstatter had, commencing in 1936, given investment advice and counseling to George and Lena Lortz during their respective lifetimes. Mr. Darmstatter, a defendant in this action, was employed by a stock brokerage firm in St. Louis, Missouri and received a salary from the brokerage firm. The brokerage firm received a commission on each stock transaction which the firm handled for George and Lena Lortz. Their stock portfolio amounted to over $200,000 at the time of the death of Lena Lortz.
Lena Lortz died on the 2nd day of December, 1959, and the Probate Court admitted the joint will to probate. Certain legatees filed objections to the admission of the codicil to the will to probate. The Probate Court denied the codicil admission to probate and ruled that the joint will of George and Lena Lortz became irrevocable after the death of George Lortz, since it was a joint, mutual and reciprocal will, which was drawn pursuant to a contract entered into by and between George and Lena Lortz.
Elias W. Darmstatter, the defendant and appellant herein, appealed to the Fourth District Appellate Court from the Probate Court's order denying the codicil admission to probate. The Appellate Court affirmed the judgment of the Probate Court, holding that the will was irrevocable after the death of George Lortz, since it was drawn pursuant to a contract and was joint, mutual and reciprocal. Darmstetter appealed to the Supreme Court of Illinois, contending that the Probate Court did not have jurisdiction to deny the codicil admission to probate, since, admittedly, it was properly executed with the statutory number of witnesses. The Supreme Court reversed the Appellate Court and ruled that the issue of whether the will was executed pursuant to an agreement not to revoke or was itself a contract not to revoke, should not have been considered by the Probate Court and should be determined in a contract action or in a chancery proceeding. Upon remandment to the Probate Court, forty-six legatees under the joint will of George and Lena Lortz filed a chancery action against the executor of the estate of Lena Lortz, praying for specific performance of the joint will and for an order upon the executor not to give effect to the codicil of Lena Lortz. All four of the Legatees under the codicil were also named as defendants.
The Circuit Court found in favor of the forty-six plaintiffs on June 23, 1964 and made the following findings:
"The Court further finds that on the 17th day of September, 1947, George Lortz and Lena Lortz, his wife, in the City of Belleville, Illinois, entered into an agreement providing for the disposition of their several and joint estates upon the demise of each of them, and upon the death of the survivor of them; that on said date George and Lena Lortz, pursuant to this agreement, executed a will entitled `Joint Last Will and Testament of George Lortz and Lena Lortz, his wife,' the intention of the testators being that the relatives of each of them were to take nearly equal shares from the several and joint estates of each testator upon the death of the survivor of them; That said Will was a joint, mutual and reciprocal Will, and contained the terms and provisions of their said agreement; that the plaintiffs herein, among others, are the beneficiaries of the said agreement and Will; that on the 13th day of March, 1948, George Lortz became deceased, and his estate, properties and moneys, passed to Lena Lortz by virtue of the said Will and by virtue of joint tenancy provisions contained in some of the securities owned by George Lortz; that upon the death of George Lortz the said agreement became binding upon Lena Lortz and she became thereby estopped from disposing of the estate of George and Lena Lortz in any manner other than that set out in said agreement and said Will, the said George Lortz having performed his part of said agreement; that on the 20th day of April, 1951, Lena Lortz, contrary to said agreement and Will, executed a Codicil to the said Will in which she materially changed the ultimate disposition of the properties of her estate, of the estate of George Lortz, and of their joint estates; that said Codicil is null, void and unenforcible; that Lena Lortz became deceased on the 2nd day of December, 1959; that Homer Lortz is the Executor of the Estate of Lena Lortz; that as such Executor, the said Homer Lortz is bound by the terms of the said agreement and Will without reference to the said Codicil; and that plaintiffs herein are entitled to a decree of specific performance of the agreement and Will of September 17, 1947, without reference to or effect given to the codicil of April 20, 1951.
The Court further finds that the Affirmative Defenses and counterclaim filed herein are without merit; that neither George nor Lena Lortz were indebted to Elias Darmstatter for services rendered either of them during their lifetimes; that the complaint brought herein is not barred by the Statutes of Limitations, said complaint having been filed in apt time; and that the defendants, Elias Darmstatter, Ida Mae Skaer and Herman Schaller, are entitled to no relief whatsoever.
It is, Therefore, Ordered, Adjudged and Decreed that the defendant, Homer Lortz, Executor of the Estate of Lena Lortz, deceased, be and he is hereby, ordered to specifically perform the contract entered into on September 17, 1947, by Lena Lortz; that he be, and hereby is, ordered to distribute the proceeds and estate of Lena Lortz in accordance with the provisions of the Joint Will of George and Lena Lortz, executed on the 17th day of September, 1947, without reference to or effect given to the Codicil thereto executed by Lena Lortz on the 20th day of April, 1951, said Codicil being hereby declared null and void; It is Further Ordered that the defendants, Elias Darmstatter, Ida Mae Skaer and Herman Schaller, go hence without day; and that plaintiffs shall have their costs.
The court expressly finds that there is no just reason for delaying the enforcement of this Decree, or an appeal therefrom."
The facts and contentions before the trial court and now before this court were already considered by this court, In re Lortz Will, 28 Ill. App.2d 287, 171 N.E.2d 244, when this court determined that the will in question was drawn pursuant to a contract. The Supreme Court reversed this case, In re Will of Lena Lortz, 23 Ill.2d 344, 178 N.E.2d 298, on the ground that the inquiry in the Probate Court should have been limited to whether or not the codicil was executed according to the statutory requirements. The court also stated that the issue of whether a joint will was executed pursuant to an agreement not to revoke, or is itself a contract not to revoke, ...