Appeal from the Circuit Court of Cook County, Probate
Division; the Hon. ROBERT A. SWEENEY, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a proceeding under section 72 of the Civil Practice Act to set aside the admission of a will to probate and to contest its validity. The petition was filed in the estate of the decedent more than nine months after the admission of the will to probate. The petitioners appeal from an order which struck and dismissed their petition.
On March 5, 1962, Anna G. King, in a conservatorship proceeding in the Probate Court of Cook County, was adjudicated "an incompetent" and "incapable of managing her person and estate." Donald E. Nichols was appointed conservator of her estate and person. She died on December 5, 1965, in a nursing home. She had been married only once, and then to Roy D. King, who had predeceased her. No children were born to her, and her heirs at law were three nieces and a nephew. She was then eighty-nine years of age. As she had never been restored, the conservatorship proceedings were still in effect at her death.
On December 10, 1965, in the Probate Division of the Circuit Court of Cook County, an order was entered admitting to probate a purported will of Anna G. King, dated June 28, 1965. Letters testamentary were issued to the Continental Illinois National Bank and Trust Company, and it entered upon its duties as executor. The will devised and bequeathed her entire estate to her nieces and nephew, all respondents here.
Thereafter, on December 21, 1966, petitioners filed their "petition for relief pursuant to the provisions of Section 72 of the Civil Practice Act of Illinois, and Sections 5, 69, 90, 112 and 126 of the Probate Act of Illinois," in the estate proceedings which were still pending. Petitioners sought to vacate and set aside the order entered on December 10, 1965, admitting to probate the purported will of Anna G. King, deceased, dated June 28, 1965, and to have that will "decreed to be a nullity and of no legal effect"; and to have a prior will dated July 25, 1961, admitted to probate as the last will and testament of Anna G. King, deceased.
The petitioners are relatives of Anna G. King's deceased husband and are legatees under the will dated July 25, 1961. This will was never submitted for admission to probate and was filed with the Clerk of the Circuit Court of Cook County, Probate Division, on December 27, 1965. Petitioners allege that they had no notice of the death of the decedent or of the admission to probate of the will dated June 28, 1965, or of the existence of the prior will dated July 25, 1961, until after the expiration of more than nine months after the admission to probate of the will dated June 28, 1965.
In sum, the grounds alleged for relief are based on (1) fraud in the admission of the will to probate, and (2) fraud and undue influence in the execution of the will.
As to the first of these contentions, petitioners allege that respondents and their counsel fraudulently and improperly concealed and failed to disclose decedent's incompetency to the court at the time they sought the admission of the will to probate. Petitioners assert, under section 69 of the Probate Act, that if the trial court had been properly informed of decedent's incompetency at the time her will was submitted for admission to probate, it would have barred the admission to probate of the will of June 28, 1965.
As to the second of their contentions, petitioners allege that respondent's counsel were subscribing witnesses to the will of June 28, 1965, and respondents and their counsel procured the execution of the will by fraud and undue influence. Petitioners assert that the fraud and concealment of decedent's incompetency at the will hearing operated to suspend or toll the 9-month limitation period for the contesting of her will under section 90 of the Probate Act, and their petition was timely filed to contest the will.
The record includes the testimony taken at the hearing on the admission of the will to probate on December 10, 1965. The original transcript sets forth the testimony of John W. Damisch and Stephen Jurco, two of the four subscribing witnesses. Both witnesses were attorneys and members of the law firm representing the executor. Both witnesses testified as to the execution of the will on June 28, 1965, and their belief that Anna G. King "was of sound mind" when she signed the will. They stated she talked "intelligently and rationally" and "rationally and coherently," and that they believed "she knew what she was doing."
John W. Damisch also testified that when the decedent signed the will, the persons present included Harold W. Collins, Junie L. Sinson and Stephen Jurco. Stephen Jurco stated that Anna G. King "had a very keen sense of humor," and on being questioned by Harold Collins, appearing on behalf of the executor, Jurco replied affirmatively to the questions: "Did you discuss with the decedent the nature and extent of her property?" "Was she aware of the nature and extent of her property?" "Did she know the specific purpose of her business there?" "She knew she was making a will?"
At the hearing of the section 72 petition, Collins stated to the court that the transcript of the testimony of the will hearing was not complete, and after some colloquy between court and counsel, he stated, "Reading from this court record, Mr. Collins that being myself directing his remark to the attention of the Court, states that, `The decedent was a ward of this court, a conservator having been appointed in 1962. . . .'" Except for the foregoing, no reference was made of the conservatorship in the petition or in the proceedings for the admission of the will to probate.
The record further shows that at the hearing of the section 72 petition, the trial court reviewed the record at length and pertinent authorities and remarked, "It has been shown that counsel here introduced evidence to show that this person had been declared incompetent. That's been admitted. There were two people who were subscribing witnesses to a will who testified that in their opinion as read here by counsel previously and which the Court will take judicial notice of for its own record this person was of sound mind, memory, and so forth." In sustaining the motion to strike the petition for relief, the court found "that the statutory requirements for the admission of the will to probate under Section 69 of the Probate Act have been complied with."
Petitioners contend the basic issues presented for review are:
"(1) Whether the nine (9) months' period of limitations under Section 90 of the Probate Act of Illinois for filing a petition to contest the admission of a Will to probate, operates, not as a jurisdictional limitation upon the part of the Circuit Court to entertain such a petition, but only as a Statute of Limitations subject to such exceptions as would, as here by reason of fraud, bar the tolling or running of a Statute of Limitations?
"(2) Whether under the facts and circumstances here presented there was such `fraud . . . compulsion or other improper conduct' in connection with the execution by the decedent of her Will dated June 28, 1965, as well as lack of notice to the petitioners-appellants, and/or such unrebutted continued presumption of insanity upon the part of the testatrix in connection with her execution of her said Will dated June 28, 1965, as would bar the admission to probate of said Will of Anna G. King, deceased, dated June 28, 1965, under Section 69 of the Probate Act of Illinois?
"(3) Whether, under the facts and circumstances here presented, the Petitioners-Appellants as contestants to the admission to probate of said Will of Anna G. King, deceased, dated June 28, 1965, can properly submit evidence in support of their Petition for Relief under Section 72 of the Civil Practice Act of Illinois to vacate, set aside and hold for nought the Order of the trial court of December 10, 1965 admitting said Will to probate, where the subscribing witnesses and proponents of said Will are themselves parties to the ...