conveyance after the death of the other joint testator. E.g.,
Tontz v. Heath, supra.
The statement in Frazier v. Patterson, 243 Ill. 80,
90 N.E. 216, 27 L.R.A.,N.S., 508, that a contractual arrangement is
presumed from the fact that a joint will was made is not followed
by later Illinois cases. The determinative factors are the
provisions of the will itself and other proof bearing upon the
intent of the parties in making a joint will. E.g., Bonczkowski
v. Kucharski, supra, 13 Ill.2d at 453, 150 N.E.2d 144.
In the Heath case the gift in the will was, first, to the one
of us who survives "for and during" his natural life. In
Kucharski, the will contained no provision for the surviving
testator but simply gave property to named beneficiaries after
the death of both "of us." In Edwards, there was an express
provision that the property be held by the survivor testator
during his lifetime, then to be given to the named beneficiary.
The will also contained an express restriction precluding the
survivor from selling the property during his lifetime. The joint
testators in Curry v. Cotton, 356 Ill. 538, 191 N.E. 307,
"covenanted" with each other for the scheme of distribution
contained in the joint will.
In each of those cases the court held that a contractual scheme
of distribution was shown by the face of the will and other
evidence of record.
I think it apparent that there is lacking here any indicia of
the intent of Mr. and Mrs. Dekker in executing this will to
effectuate a contractual disposition of property to their
children, thus limiting the interest of Mrs. Dekker, as the
survivor of them, to a life interest only. The principal gift of
the will gives all property to "whomsoever shall be the survivor
of us." Clause Third provides that upon "the death of the
survivor of us * * * if there be anything left" all property is
given to the children of the parties in equal shares. Clearly,
the Dekkers intended a testamentary disposition of property to
the survivor of them, without restriction upon the survivor's
title thereto, with an alternative gift to children at the time
when the survivor shall die.
In that regard the government argues that the wife has a life
interest, but that she has the right under the will to invade the
corpus of the property "for her needs." It must be noted that
that quoted phrase comes from the government's brief, not from
the language of the will. Taking the events as fate has decreed
them, one of the joint testators is gone, but in leaving he left
all property to the other joint testator, his wife. He left
behind the written monument of his intention saying that upon the
death the survivor of he and his wife, if there was any property
left, then he desired that property to descend to his children.
The words which he used placed no restriction upon the wife's use
of the property in her lifetime. It is only by reading something
into the will which is not there that it can be said that the
will precludes the wife from selling the property without
restraint and without regard to her needs.
Plaintiff was entitled to claim the marital deduction, McGehee
v. Commissioner, 5 Cir., 260 F.2d 818; Awtry's Estate v.
Commissioner, 8 Cir., 221 F.2d 749; Newman v. United States,
S.D.Ill. 176 F. Supp. 364; First Nat. Bank v. Nelson, E.D.Wis.,
233 F. Supp. 860; Nettz v. Phillips, S.D.Iowa, 202 F. Supp. 270,
and is entitled to a judgment in this suit for reimbursement for
the estate taxes and interest paid pursuant to the erroneous
deficiency determination by the District Director.
The above opinion includes the court's findings of fact and
conclusions of law.
Plaintiff's motion for summary judgment in her favor is
allowed. Defendant's motion for summary judgment in its favor is
denied. Judgment is entered for the plaintiff against the
defendant in the sum of $2,053.71, together with interest thereon
at the rate of 6% per annum from April 28, 1964, and costs.