Appeal from the Circuit Court of Cook County, County
Department; the Hon. DONALD J. O'BRIEN, Judge, presiding. Decree
affirmed in part and reversed in part and cause remanded with
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from a decree which impressed a trust on the assets of Samuel D. Cates, deceased, in favor of the beneficiaries named in a reciprocal will executed by him in accordance with an agreement with his first wife. The defendants Sandra A. Cates deceased's second wife, and Title Insurance and Trust Company (a California corporation) as executor and trustee under decedent's last will, appeal. Their principal contentions are that the court did not have jurisdiction over them, that a necessary party was not joined, and that the agreement to execute reciprocal wills was unenforceable against the second wife by reason of public policy.
Samuel and Juel Cates were married in 1921 and lived together in Chicago until Juel's death in 1958. In 1944 they consulted Samuel's attorney who prepared a written agreement for reciprocal wills, to which copies of the proposed wills were attached as exhibits. The agreement and wills were executed on June 6, 1944. The agreement provided:
"Each of the parties hereto covenants and agrees with the other party hereto not to revoke, annul, cancel, modify, amend or change his or her said Last Will and Testament either in whole or in part, without the consent in writing of the other party hereto."
The ultimate beneficiaries of their wills were Samuel's and Juel's relatives.
Thereafter Samuel and Juel executed supplemental agreements, and codicils to Samuel's will were executed by him pursuant to those agreements. The basic plan of distribution however remained unchanged. After Juel's death her will of June 6, 1944, made pursuant to the reciprocal agreement, was filed by Samuel in the Probate Court of Cook County. It was not offered in probate.
Samuel then moved to California, was introduced to Sandra in August 1959, and married her on February 7, 1960. Samuel and Sandra had discussed the execution of antenuptial property agreements and although one was prepared, it was never executed. Samuel did, however, execute a new will on June 2, 1960, which specifically revoked the will of June 6, 1944, and the codicils thereto. In his new will he devised $10,000 to Sandra and placed the balance of his estate in trust with the Title Insurance and Trust Company. Sandra was to receive the net income of the trust for life with liberal provisions for invasion of the corpus and the balance was to be distributed to Samuel's and Juel's relatives, although not in the same proportions as had been provided in the previous will made pursuant to the agreement with his deceased wife. Samuel died on January 18, 1961.
At the time of his death, Samuel's assets consisted of personal property having a situs in California and a parcel of commercial real estate in Chicago which had formerly been held in joint tenancy between him and Juel Cates. His will was admitted to probate in California and his personal estate administered there. The will was also admitted to probate in Cook County and an administrator with the will annexed appointed. This suit was filed shortly after Samuel's death by the beneficiaries named in the 1944 will.
Defendants Sandra Cates and the Title Insurance and Trust Company were served with summons in California and filed special appearances and motions to quash service of process. Those motions were supported by affidavits denying any connection with the State of Illinois which would make them amenable to process pursuant to the provisions of the "long-arm" statute, Ill Rev Stats, c 110, § 17 (1967). These motions were denied. Sandra then answered the complaint and proceeded to a hearing on the merits. The trust company did not answer and a default judgment was entered against it.
When the jurisdiction of a court over the person of a defendant is challenged and the court determines that it does have jurisdiction, the party affected may proceed to a hearing on the merits of the case and still preserve for review the contention that he is not amenable to process issued by a court of this state. Koplin v. Thomas, Haab & Botts, 73 Ill. App.2d 242, 219 N.E.2d 646. This is distinct from the situation in which a defendant couples a jurisdictional objection with an invitation to the court to exercise its jurisdiction, in which case the objection is contradictory to the conduct of the affected party and is deemed to be waived. Widicus v. Southwestern Co-op., 26 Ill. App.2d 102, 167 N.E.2d 799; O'Flaherty v. Osborn, 26 Ill. App.2d 152, 167 N.E.2d 563; Spencer v. American United Cab Ass'n, 59 Ill. App.2d 165, 208 N.E.2d 118. In the instant case both Sandra Cates and the trust company properly objected to the jurisdiction of the court and we are, therefore, free to consider the question on this appeal.
The affidavit filed by the trust company in support of its motion to quash service stated that it was not licensed or qualified to do business in Illinois and had no agent here; that it had not transacted business here; nor had it "any knowledge of any acts performed by it or arising out of such ownership, use or possession of real property in the State of Illinois, as it may have in its capacity as executor" which would give rise to any cause of action.
[3-6] There can be no question that Illinois courts have jurisdiction over Chicago real estate. As the state of the situs of the property, Illinois courts have jurisdiction not only to determine the ownership of Illinois real estate, but may also impose obligations upon persons in an action in personam arising from the ownership, use or possession of property within the state. Ill Rev Stats, c 110, § 17 (1967). The trust company, as trustee under Samuel's will, became the holder of the legal title to the premises by virtue of the admission of the will of Samuel Cates to probate in Cook County. Ill Rev Stats, c 3, § 53 (1967). Insofar as the beneficiaries under the 1944 will sought to assert an equitable interest in the premises owned by Samuel Cates at the time of his death and to remove the 1960 will as a cloud upon the title to the premises, the legal titleholder is a necessary party to the adjudication of the claim and subject to the jurisdiction of the Illinois courts.
Appellants argue that the 1960 will directed the executor to effect the sale of the Illinois real estate; that this direction to sell worked an equitable conversion of the real estate into personal property and hence should be treated as having situs in ...