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In Re Estate of Atwood

JUNE 10, 1968.




Appeal from the Circuit Court of Cook County, County Department, Probate Division; the Hon. JOHN E. PAVLIK, Judge, presiding. Affirmed in part; appeals dismissed in part.


Rehearing denied July 8, 1968.

Thomas Hart Fisher appeals from the dismissal of a petition filed by him to contest the Will of Alice B. Atwood as well as from various other orders entered in the supplemental Will contest proceedings. In addition, he appeals from certain orders entered in Citation Proceedings to Discover Assets and Information brought by Continental Illinois National Bank and Trust Company of Chicago, the Executor of the Will. The issues on this appeal arise solely on the pleadings and on the aforementioned orders entered thereon and in relation thereto.

Alice B. Atwood, deceased, executed a Will on December 2, 1964, and it was admitted to probate on April 4, 1966. Letters Testamentary were issued on that date to Continental Illinois National Bank and Trust Company of Chicago, the named Executor. By the terms of the Will the testatrix bequeathed her entire estate to one Michael De Bella. Citation proceedings were instituted in the Probate Division of the Circuit Court by the Executor against Fisher, among others. In an effort to locate the decedent's assets sworn testimony of Fisher was taken on May 20th, August 8th, August 22nd, September 6th, and September 26th. On October 20, 1966, an order was entered in the Citation proceedings (nunc pro tunc as of October 18th) by Magistrate Kogut, instructing Fisher generally to produce "All books, papers and records in his possession or control which may contain information concerning the property of Alice B. Atwood, deceased, as required under the Citation heretofore served upon him." The order further recited that Fisher was to produce certain specified documents which pertained to financial transactions involving the decedent's assets during her lifetime. The matter was then continued to November 23, 1966.

On November 14, 1966, Fisher, referring to himself as "Petitioner and Complainant," filed a supplementary proceeding to contest the Will of Alice B. Atwood in the Probate Division of the Circuit Court. In his petition, Fisher alleged that the previously probated Atwood Will was the product of a conspiracy between Michael De Bella and the two witnesses to the Will, as well as various other persons named as respondents, and he further alleged that the decedent was subjected to undue influence by them and lacked mental capacity to make the Will at the time she supposedly executed it. The decedent's three heirs, Edwin K. Atwood, Richard W. Atwood and Elise Atwood Baldwin were made respondents as "interested persons" under sections 90 and 91 of the Probate Act (Ill Rev Stats 1963, c 3 §§ 90, 91). The petitioner stated that he too was an "interested person" within the intendment of the act.

On November 15th, the Executor served Fisher with a notice for the taking of his discovery deposition in the Will contest proceedings on December 15, 1966. Three days before the latter date the Executor served Fisher with a notice rescheduling the deposition to January 18, 1967.

On November 23, 1966, in the Citation proceedings, Magistrate Kogut entered an order which recited that Fisher had been "evasive and dilatory" and had failed to produce certain documents set forth in the order of October 18th. The order further recited that Fisher was in contempt of court, and he was given until November 25th to purge himself of said contempt. On November 25th, Fisher failed to appear in court and his attorney explained that Fisher's absence was due to illness. The magistrate entered an order instructing Fisher's attorney to present to the court on November 29th (the cause being continued until that date) an affidavit from Fisher's physician to substantiate the alleged illness. On November 29th, Fisher's attorney failed to produce the affidavit requested by the court, whereupon Magistrate Kogut entered an order "that a capias issue forthwith for the attachment of Thomas Hart Fisher."

In late December of 1966 and early January of 1967, various respondents named by Fisher in the Will contest moved to strike Fisher's petition. These respondents alleged that Fisher's allegation that he was an "interested person" was a mere legal conclusion unsupported by fact, and therefore, it was insufficient to afford him the necessary standing under section 90 of the Probate Act to challenge the validity of the decedent's Will. Certain of the respondents further alleged that they were not proper parties and should be dismissed. On April 24, 1967, Fisher, with leave of court, amended and supplemented his petition. He alleged therein that he was entitled to "a large part, if not all" of the estate of Alice B. Atwood under the terms of an earlier Will executed by her on July 15, 1948. Due to the alleged invalidity of the probated instrument and the existence of a prior valid will, Fisher claimed to be an "interested person." On the same date, Edwin K. Atwood, another respondent in the Will contest, filed his motion to dismiss pursuant to section 48 of the Civil Practice Act. Edwin K. Atwood's motion, in which he alleged that Fisher was not an "interested person" under section 90, was supported by affidavits of the movant and his attorney and by the deposition of one, Norman Crawford. The motion to dismiss and the affidavits and deposition in support thereof tended to show that the basis for Fisher's purported interest, the 1948 Will, was executed as the result of Fisher's undue influence upon Alice Atwood.

Further proceedings were had before Judge Pavlik in the Will contest action on April 27, 1967, when the Executor moved the trial court to impose appropriate sanctions under Supreme Court Rule 219 (Ill Rev Stats 1967, c 110A, § 219) on the ground that Fisher had inexcusably refused and failed to appear for the deposition scheduled for January 18th. Following a hearing on the motion, Judge Pavlik entered an order requiring Fisher to appear for the taking of his deposition at a specified time and place on May 3rd. The order further recited that if Fisher should fail to appear on that date he would have until May 24th to answer or otherwise plead in response to the Executor's motion. The Executor was given until June 1 to file its response to any papers filed by Fisher, and a hearing on the motion was set for June 5th.

Fisher did not appear on May 3rd. Instead he filed his verified response to the Executor's motion on May 24th. In his response Fisher alleged, inter alia: (1) that at the time he filed his Will contest he was a resident of Florida and not of Illinois, and therefore, the court, under Supreme Court Rule 203, only had the authority to order Fisher to give his deposition outside of Illinois because Fisher was a defendant for the purposes of said rule; and (2) that he was willing to give his deposition in Washington, D.C., Ocala, Florida, or at any other place outside of Illinois reasonably determined by the court in the exercise of its discretion. In addition, Fisher filed a motion asking the court, among other things, to terminate the Citation proceedings, or, in the alternative, to stay, vacate or enjoin the order for his arrest in said proceedings.

On June 5th, the aforementioned motions by various respondents that they be dismissed as parties and the petition stricken as to them was granted by Judge Pavlik. The motion of Edwin K. Atwood to dismiss Fisher's petition was continued until June 21st.

On June 6th, Fisher filed a motion before Magistrate Kogut for a suspension of all further citation proceedings and for an order staying his detention or attachment under the previously issued capias until ten days after a final judgment had been reached in the Will contest proceedings. The motion was denied.

On June 30th, following a hearing, Judge Pavlik entered an order finding, inter alia: (1) that Fisher had "unreasonably and inexcusably" failed to appear for the taking of his deposition on both January 18th and May 3rd, and that "at no time . . . has Thomas Hart Fisher appeared for said deposition, but has instead failed, without valid excuse, to pay heed to either the discovery rules or the Order of this court"; (2) that Edwin K. Atwood's motion to dismiss the petition and its supporting affidavits and deposition stood uncontradicted because of the failure of Fisher to present any responsive pleading or evidence; and (3) that said uncontradicted motion, affidavits, and deposition showed conduct by Fisher which rendered the Will relied on by him legally void, thereby rendering Fisher not an "interested person" as defined in Section 90 of the Probate Act. The order further recited:

The Court having found herein that Thomas Hart Fisher is not an interested person as defined in section 90 in the Illinois Probate Act . . . and the Court having further found that the motion of Edwin K. Atwood, pursuant to section 48 of the Civil Practice Act, was well taken and the Court having further found that Thomas Hart Fisher has unreasonably and inexcusably failed to attend and give the depositions as required, each of the said findings being in itself a sufficient basis for the entry of an order dismissing, with prejudice, . . . the supplemental proceedings filed by Thomas Hart Fisher . . . It is, therefore, ordered, that the Supplemental Proceedings filed by Thomas ...

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