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In Re Estate of Weaver

MAY 31, 1966.

IN THE MATTER OF THE ESTATE OF MAMIE WEAVER, DECEASED. LENA RUCKER, ET AL., PETITIONERS BELOW-APPELLANTS,

v.

GEORGE K. HARRIS, RESPONDENT BELOW-APPELLEE.



Appeal from the Circuit Court of Cook County, Probate Division; the Hon. JOHN E. PAVLIK, Judge, presiding. Order reversed and cause remanded with directions.

MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order in the Circuit Court of Cook County, the Probate Division, whereby the alleged joint will of Archie Weaver and Mamie Weaver was refused probate and a subsequent will of Mamie Weaver was admitted to probate. The will was properly executed and witnessed by both parties.

The joint will recites that both are of sound mind and disposing memory, and

"being mindful of the uncertainties of this frail and transitory existence, and being desirous of placing our worldly house of goods in order, do make, publish and declare the following to be our joint last will and testament hereby revoking any and all prior wills made by us, either jointly or severally:

"7. In the event that our deaths be not simultaneous, I Archie L. Weaver above named hereby give, devise and bequeath to my very dear and faithful wife who has stood by my side with love and devotion thruout all of our happy years together all of my entire estate of every description whatsoever for the period of her natural life to use as she sees fit without restriction or limitation, and upon her death said unused portion I give, devise and bequeath share and share alike to my well-beloved daughters, Catherine Dixon, Helen Ford and Lena Rucker."

It is to be noted that Catherine Dixon, Helen Ford and Lena Rucker are the daughters of Archie L. Weaver, by a previous marriage.

Paragraph 9 of the will reads:

"9. I, Mamie Weaver, above named, in the event that my dear and faithful husband, Archie L. Weaver, should survive me, give, devise and bequeath to my dear and faithful husband, Archie L. Weaver, all of my estate, real personal and mixed for the period of his natural life, and at his death all of the estate as immediately above described I give, devise and bequeath in remainder to my step-daughters, Catherine Dixon, Helen Ford and Lina [sic] Rucker and to their hears [sic] forever share and share alike."

It is clear from these above quotations that it was the intention of the parties to make a joint will, and repeatedly declared it to be a joint will in the will itself. This joint declaration is sufficient to make a joint will.

[2-5] The first question which we face is, is this document such a joint will that it cannot be revoked. The courts in Illinois early described a joint will and what constitued one as far as revocability was concerned.

"When joint wills first came before the English courts they were held invalid. (Earl of Darlington v. Pulteney, 11 Cowp 260; Hobson v. Blackburn, 1 Add Ecc 277; Clayton v. Liverman, 2 Dev & B 558) Such was also the ruling of the earlier decisions of the courts of this country. In more modern times such wills are generally recognized by our courts. Gerbrich v. Freitag, 213 Ill. 552; Frazier v. Patterson, supra; Lewis v. Scofield, 27 Conn. 452, 68 Am Dec 404; Evans v. Smith, 28 Ga. 98, 73 Am Dec 751, Carle v. Miles, 89 Kan. 540, Ann Cas 1915 — A, 363; In the Matter of Dietz, 50 N.Y. 88.

". . . Frazier v. Patterson, supra, is one of the leading cases in this State on the subject of joint Wills. The case of Dufour v. Pereira, supra, was there reviewed by this court, and the doctrine announced on the subject of notice and revocation in the Dufour case was approved by this court. Buehrle v. Buehrle, 291 Ill. 589, involved the question of mutual wills made pursuant to a contract. The court there held that the terms of the contract made the mutual wills of the parties their joint will, irrevocable by either without notice to the other, and cited Frazier v. Patterson in support of that holding. The rule announced in the Dufour case has received recognition and approval in Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 176, Allen v. Boomer, 86 Wis. 364, and Edson v. Parsons, 155 N.Y. 555.

"The rule of law that a joint will is irrevocable without notice is particularly applicable in those instances where the joint will is that of the husband and wife. On account of the relationship of mutual trust and confidence imposed by such status, it may be presumed that the provisions made are induced by the mutual love, respect for and faith which the parties have in each other. Neither should be permitted to violate such fiduciary relation by publishing a separate will subsequent to the execution of a joint will by the parties without full disclosure of such fact by the one making such separate will to the other testator of the joint will.

". . . If the joint will is made pursuant to the terms of a contract written into the will or a contract made dehors the will, whether such joint will may be revoked even upon notice to the other testator would depend upon the circumstances. If the contract is for a legal consideration and the one testator has fulfilled his part of it, generally speaking such joint will could not be revoked ...


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