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In Re Estate of Guinane

DECEMBER 13, 1965.




Appeal from the Circuit Court of Cook County, Probate Division; the Hon. HELEN J. KELLEHER, Judge, presiding. Affirmed.


The Probate Division of the Circuit Court admitted to probate the will of Margaret F. Guinane, deceased, dated November 27, 1959, and codicil dated September 24, 1964. The executrix of the estate appeals from part of that order. It is her contention that the court erred in allowing "the purported codicil" to be admitted to probate.

The will executed in 1959 disposed of certain furniture, bedding, linens and personally to specific legatees and then directed the executrix to sell all the remaining assets and divide the same by percentages to numerous persons and charities. Of the twelve bequests only one was made to a relative — a nephew.

The facts and circumstances relating to the execution of the document, referred to as the codicil, are as follows: On September 24, 1964, decedent entered a hospital for surgery. She was prepared for the operation and tubes were inserted in her mouth, one leading to the stomach, the other to her bowel. Judy Claus, a private nurse on the case, reported for duty at about 3:00 p.m. and said the decedent was in bed in a semi-Fowler's *fn1 position — on her back and her body was at a 45-degree angle. Mrs. Idell, mother of Jimmy and Katy Idell, who were named in the codicil, was in the room at the time. Shortly thereafter, decedent indicated and made motions which Claus "gathered" to be a request for paper and pencil. Mrs. Idell left and returned with paper and pencil. Decedent then wrote the following:


Our little secret. I want $15,000 to be given to Jimmy Idel and Katy Idell to help in educationing them _____________________ Aunt Margaret

Get a couple of witnesses to sign. M.

It was written using two pens and a pencil. When the first pen failed to function properly, Mrs. Idell had Claus give decedent a red pen and when that failed to operate fully, decedent finished with a pencil. Decedent handed the paper to Mrs. Idell who gave it to Claus. She said that although decedent did not ask her to sign, decedent "wrote down here about a couple of witnesses and I was then asked by Mrs. Idell to sign it, which I did." Claus was in the room at all times, had seen the decedent sign and signed in decedent's presence. She believed decedent was of sound mind and disposing memory at the time.

Kenneth Bridge, a registered nurse, in charge of the "shift" at the hospital, testified he knew decedent by the title of "Aunt Margaret." On the day in question, as he came down the hall, Mrs. Idell called him saying, "Aunt Margaret wants this piece of paper signed." He read the document. Present were Judy Claus, Mrs. Idell and the decedent. He signed it "at the request of Mrs. Idell, after reading the last paragraph of the piece of paper here." He signed on a table that was half way in the doorway of the room. It was from 12 to 15 feet from decedent's bed. He could see her and she could have seen him. ". . . She could have seen me sign, in the position I was standing. She could have seen me sign it." He believed her to be of sound mind and disposing memory. Decedent died at the hospital on October 6, 1964. *fn2

It is the contention of the executrix that the document admitted to probate as testatrix's codicil was without words of devise or bequest and did not manifest an intent to make a testamentary disposition of property; that the name signed to it was not the full name of the decedent; that the document was not witnessed in her presence by two or more witnesses; and the execution by deceased was not witnessed by two or more witnesses as "was mandatory under the statute relating to wills."

Courts entertain liberal views as to the form and contents of wills and codicils and hold that an instrument executed with a testamentary purpose and the requisite formalities may operate as a will or codicil. Any writing, however informal it may be, made with the express intent of giving posthumous destination to the maker's property, if executed in accordance with the statutory requirements, will be a good testamentary disposition. Austin v. First Trust & Savings Bank, 343 Ill. 406, 413, 175 N.E. 554 (1931).

The instrument before us clearly expresses a desire of the decedent to give to certain persons a definite sum of money and was not in conflict with any of the provisions of her will. After personalty was specifically bequeathed the remainder was to be reduced to cash and distributed percentage-wise. The later instrument would only add an additional $15,000 legacy to Jimmy and Katy Idell without any inconsistency with the terms of the will. The circumstances of the execution and the substance thereof, we believe, clearly indicated an intent to make a testamentary disposition by decedent of some of her property without affecting the validity of her prior will. The intent of the decedent, not militating against any prior actions, can and should be given effect if otherwise made in compliance with statutory provisions regarding the execution of wills and codicils.

Passing to the question of whether the instrument was executed with the requisite formalities, we note that no issue was raised as to whether the will and the purported codicil were signed by the decedent, Margaret F. Guinane. The complaint is that she did not use her full name in the latter document. It is well established that, in cases of this kind, the name used is not important as long as the person to whom it applies is identified as being the one having authority to act. In applying this principle, In re Will of Westerman, 401 Ill. 489, 82 N.E.2d 474 (1948) on pp 492, 493, held that ". . . it is not necessarily the name used by the testator in the execution of his will, but it is the person to whom that name applies, that determines whose will it is." The use of the name "Aunt Margaret" was sufficient and effective.

We find no merit to the contention that the document was not witnessed in decedent's presence, as required by statute (Ill Rev Stats 1963, c 3, § 43). Judy Claus was present at all times, when the document was written and when she signed. Kenneth Bridge signed on a table in the doorway of the decedent's room some 12 to 15 feet from her bed where she was propped up. The decedent had an opportunity to see for herself, without a change of position, that Bridge was signing his name to the instrument in accordance with her written request for witnesses. The attestation which the law requires is that the testator have the opportunity of seeing the very act of attestation. "All authorities declare that the object of the law is to prevent fraud and imposition upon the testator or the substitution of a surreptitious will, and to effect that object it is necessary that the testator shall be able to see and know that the ...

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