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Estate of Meskimen

JUNE 26, 1967.

ESTATE OF OLIVE CLINE MESKIMEN, A/K/A OLIVE CLINE, DECEASED. LAWRENCE L. MESKIMEN, RESPONDENT-APPELLANT,

v.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, PETITIONER-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. HELEN J. KELLEHER, Judge, presiding. Affirmed. MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 24, 1967.

Respondent, Lawrence L. Meskimen, appeals from the admission to probate of the will of Olive Cline Meskimen, his deceased wife, who died December 23, 1965, without descendants. A so-called "pour-over" will and a separate trust agreement were both executed by the decedent on September 8, 1965. The will was admitted to probate over respondent's objections that the will should not be admitted without the admission of the trust agreement.

On appeal, respondent contends that (1) the purported will should not have been admitted to probate without admission of the trust agreement because the trust agreement was incorporated into the will by reference and contains part of the terms of the testamentary disposition of decedent; (2) admission of the purported will without admission of the trust agreement effectively deprived respondent of his statutory marital rights under the Probate Act; (3) construction of section 69 of the Probate Act so as to effectively deprive respondent of his statutory marital rights was an unconstitutional application of that section, contrary to the Illinois Constitution, article II, sections 1 and 2, article III and article IV, section 1; (4) petitioner-appellee failed to prove the purported will by two or more credible attesting witnesses; and (5) the court failed to notify beneficiaries of a testamentary trust imposed by the purported will of the hearing on and objections to admission of the will to probate pursuant to section 64 of the Probate Act.

The will was admitted to probate on March 23, 1966, and letters testamentary were issued to the Continental Illinois National Bank and Trust Company, the named executor. The will was witnessed by three persons, who testified at the hearing — James J. Kilgallon, who drafted the will; Edna H. Long, who typed it; and Joseph J. Berzin, an attorney. Kilgallon and Berzin were office associates of J. Glenn Bonnefoi, who had been decedent's attorney prior to the date of the will. During the hearing, the court ruled that the trust agreement executed by decedent under date of September 8, 1965, "has no part of this proceedings." Respondent's attorney then made an offer of proof of the trust agreement and objected to the admission of the will to probate, stating, "Well, I object to it, in the first place, to admitting this will to probate without also admitting to probate the trust instrument referred to in Article 6 of the will, as a trust instrument is a part of the will, and the instrument which is offered for probate is an incomplete instrument."

The provisions of the will included:

"Article IV: I give and bequeath to my husband, Lawrence Lee Meskimen, my library books and music records, and the sum of Five Thousand ($5,000.00) Dollars in cash.

"This provision for my said husband in no wise affects the operation or effect of an antenuptial agreement heretofore entered into by me with my said husband."

and

"Article VI: All the rest, residue and remainder, real, personal and mixed and wherever situated, I give, devise and bequeath to the trustee under a Trust Agreement dated September 8th, 1965, between me as Grantor and Continental Illinois National Bank and Trust Company of Chicago, as Trustee, to be added to and commingled with the trust property of that trust and held, managed and distributed by the Trustee thereof in accordance with the terms and provisions of that Trust Agreement and any amendment made to it pursuant to its terms before my death."

Respondent's initial contenton is that the will should not have been admitted without admitting the trust agreement — "The document admitted to probate was not the entire `will' of decedent; all documents which together constitute the testamentary disposition by decedent must be admitted." Respondent asserts that "the `will' to be admitted under Section 69 is the document or documents which show the entire testamentary disposition made by decedent," and "If the entire testamentary disposition is embodied in more than one document, all must be admitted to probate. The court then regards all the documents as one instrument disclosing the entire testamentary disposition." (Abdill v. Abdill, 295 Ill. 40, 45, 128 N.E. 741 (1920).) Respondent also cites Bottrell v. Spengler, 343 Ill. 476, 175 N.E. 781 (1931), where it is said (p 478):

"The law is well settled in this State that a will may by reference incorporate into itself, as completely as if copied in full, some other paper which in itself is not a will for lack of execution."

Respondent argues, "The purported will itself contains only part of the requisites for a valid express testamentary trust. It designates the trustee, identifies the trust property and transfers it to the trustee. In order to ascertain the beneficiaries of the trust and the method of distribution, it is necessary to refer to another document, the trust agreement. Since the trust agreement purports to have been executed on the same day as the purported will, is clearly identified therein, and contains part of the terms of the testamentary trust created in the purported will, it complies with the requisites of the cases cited above. It contains part of the terms of decedent's testamentary disposition and therefore must be admitted to probate as part of the `will' of decedent." Also, "The purported will admitted here is incomplete on its face. As was said in Wagner v. Clauson, 399 Ill. 403, at 411: `. . . It [the purported will] is one instrument if the memorandum is a part of it, and quite another instrument if the memorandum is no part thereof.'"

Respondent further asserts that "in other jurisdictions, it is the rule that documents incorporated into a will must be filed for probate." Citations include Newton v. Seaman's Friend Society, 130 Mass. 91, 93 (1881); In re Dreisbach's Estate, 384 Pa. 535, 121 A.2d 74, 77 (1956); In re Dimmitt's Estate, 141 Neb. 413, 3 N.W.2d 752, 758 (1942); Merrill v. Boal, 47 R.I. 274, 132 A 721, 725 (1926).

Respondent next contends that as surviving spouse, he has several important marital rights under the Probate Act, which cannot be effectively exercised by him "unless the entire testamentary disposition of decedent is before the probate court where they must be exercised. Here, only $75,000 worth of personalty passed under the purported will. The remaining estate, valued at roughly $280,000 was included in the purported trust agreement executed on the same day the will was executed. Decedent obviously attempted to put four-fifths of her estate beyond the ...


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