Appeal from the Circuit Court of Macoupin County; the Hon.
CLEM SMITH, Judge, presiding. Affirmed in part, reversed in part
and remanded, with directions.
This is an appeal from an order of the circuit court of Macoupin County admitting a destroyed will of Alvin Gabriel, deceased, to probate and from an order setting forth the terms and conditions of said will.
Alvin Gabriel, a resident of Macoupin County, died on October 1, 1962, leaving surviving as his only heir his brother, Frank Gabriel, the respondent. After the death of Alvin Gabriel a search was made of his residence by the respondent, his wife, Mae Gabriel, and his daughter, La Verne Knecht. No will was found.
Respondent and his daughter then went to the State Bank of Shipman, Illinois, and requested to examine the contents of the decedent's safety deposit box to ascertain the existence of a will. A will was found in the box and examined by the respondent, his daughter, La Verne Knecht, and Mr. Joyce Hunt, assistant cashier of said bank. The record then indicates that the respondent delivered the will to his attorney. Later the attorney advised that the will was ineffective in that the entire estate of the deceased was devised to a predeceased sister, Lottie Gabriel. The will was returned to the respondent and subsequently was destroyed, together with other papers thought to be worthless.
The testimony of the respondent on this point was: "The way I understand it, it didn't have to be probated. The will was no good and after I got it back there was other old papers there that were no good and with that we burned it." The respondent petitioned for letters of administration and was appointed administrator. Thereafter Florence Bilderbeck filed a petition for letters testamentary, seeking probate of the destroyed will, alleging that she was therein nominated executor. The cause then proceeded on that petition, the will was admitted to probate, and Florence Bilderbeck was appointed executor.
An order was entered setting forth the terms and conditions of the destroyed will. This order found that the will was duly executed before two witnesses, Frances Stadelman and D.A. McGrady, sometime after 1957; that the testator was competent. The terms of the will were found to be: that Florence Bilderbeck was given a bequest of $5,000; three bequests of $500 each to Emma Gabriel, Lula Gabriel and Lillian Bierbaum; and the balance of the estate, by a residuary provision, to Frank Gabriel.
For a determination of the issues presented, it is necessary that the evidence be examined in some detail.
D.A. McGrady, when first called as a witness for the petitioner, stated that he was acquainted with Alvin Gabriel during his lifetime, that he had done legal work for him on many occasions, and was acquainted with his sister and with three cousins who live in the Woodburn area. This witness further testified that he prepared a will for the deceased, which will was executed in the office of the witness in Bunker Hill, Illinois; Frances Stadelman and the witness attested to the will. He further testified that Florence Bilderbeck was named executor for the reason that she had taken care of the deceased's invalid sister, Lottie Gabriel. The witness was unable to supply the approximate date of execution and testified that as a matter of practice he did not make any copies of a will but only the original. He further testified that he did not see the will after the same was executed and delivered to the testator. As to the content of the will, he was only certain that Florence Bilderbeck was named executor. He expressed the opinion that his recollection could be refreshed as soon as he could find some records for which he was still searching.
Frank Gabriel testified as to his relationship to the deceased; his search for the will at the residence of the deceased; his trip to the Shipman bank and the finding of the will in the lockbox; the reading of the will at that time and his subsequent delivery of the will to his attorney, Mr. W.P. Cuthbertson; the return to him of the will and its subsequent destruction as related.
The respondent further testified that the will left all of the deceased's property to Lottie Gabriel, who had been dead for some eight years at the time of the death of Alvin Gabriel, and that Florence Bilderbeck was named executor. His recollection of the will was that D.A. McGrady was one of the witnesses; he was uncertain as to the other but expressed an opinion that it was not Frances Stadelman.
Joyce Hunt, assistant cashier at the Shipman State Bank, confirmed the testimony of Frank Gabriel as to the finding of the will in the safety deposit box, and testified that he read the will to Frank Gabriel and Mrs. Knecht and then delivered the will to Frank Gabriel. The witness testified that he was certain Mrs. Bilderbeck was not given a bequest but that she was named executor.
W.P. Cuthertson, called as a witness for the respondent, testified that Frank Gabriel contacted him after the death of Alvin Gabriel and on a later occasion delivered to him an instrument purporting to be the last will of Alvin Gabriel. He testified that Mrs. Bilderbeck was named executor and that otherwise the will provided only for the decedent's debts and expenses with a residuary clause which left the entire estate to Lottie Gabriel who had predeceased the testator. He further testified that he came to the conclusion that the will was ineffectual to devise any part of the estate of Alvin Gabriel; that there was no purpose in probating the will except to benefit the executor; and he returned the will to Frank Gabriel and informed him that perhaps he should file the will with the county clerk. D.A. McGrady was stated to be one of the witnesses to the will; the other witness to the will was thought to be an Emma Vlasich.
Mae Gabriel testified confirming the testimony of her husband, frank, but, in addition, related that she had read the will and that the estate "was all signed over to his sister, Lottie." La Verne Knecht offered the same testimony; in addition, she supplied the date of death of Lottie Gabriel 1955. According to her, the will named Frances Bilderbeck as executor and Lottie Gabriel as the legatee and devisee of the entire estate.
Frances Stadelman, called as a witness for the petitioner, testified that she had an insurance office in the law office of D.A. McGrady in Bunker Hill, Illinois, and had maintained such an office since 1956 or 1957; that she had witnessed a will for Alvin Gabriel after 1955. From a record book of visitors to the office, she expressed the opinion that the date was November 18, 1958, on which date Alvin Gabriel was in the office. ...