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In Re Estate of Carr

JUNE 26, 1970.

IN THE ESTATE OF ROSINA MERLE CARR, DECEASED. EDWARD A. LOSS, JR., PETITIONER-APPELLEE,

v.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS SUCCESSOR EXECUTOR OF THE WILL OF ROSINA MERLE CARR, DECEASED, MABEL MERLE CURRAN, INDIVIDUALLY AND AS EXECUTOR OF THE WILL OF HENRY J. MERLE, DECEASED, JOHN M. BOYLE, AND HENRY JOSEPH ROACH, RESPONDENTS-APPELLANTS, BARBARA ANN LOSS, A MINOR, RESPONDENT-APPELLEE.



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

ALLOY, J.

The record in this cause indicates that the decedent, Rosina Merle Carr, executed a will on September 7, 1949. After her death on June 5, 1966, no last will could be located. A copy of the 1949 will was then admitted to probate on November 18, 1966, as a lost will, on a petition for probate of such will. Petitioner, one of 17 heirs of Rosina Merle Carr, thereafter filed a petition to contest the will on the theory that the 1949 will had been revoked and destroyed by the testator. Appellant-respondents filed a motion to dismiss on the ground that the question of revocation of the 1949 will had already been passed upon at the hearing held in connection with its admission to probate, and that the question of revocation of the 1949 will was thus res judicata. The trial judge denied the motion to dismiss. The court thereafter heard the petition to contest the will, sitting without a jury, and found that the will of September 7, 1949, was not the will of the decedent Rosina Merle Carr. The trial court order thereupon set aside the previous order admitting the will to probate and declared that the decedent died intestate. The trial court had appointed as the successor executor Continental Illinois National Bank and Trust Company (following the death of the executor first named). The court also fixed the fees of said bank at $750.

On appeal in this Court, appellants contend that the order admitting the copy of the will to probate on November 18, 1966, was res judicata and that the trial court erred in permitting the second hearing on the merits on the issue of admission of the carbon copy of such will. Appellants also contend that the trial court's decision was contrary to the manifest weight of the evidence and that the trial court erred in specifying the fees and expenses of the executor.

In considering matters relating to will contests, it is vital to give careful attention to the facts of the case under consideration. In the cause before us the decedent, Rosina Merle Carr, was not survived by a husband or any descendants, but her heirs were brothers and sisters and children of deceased brothers and sisters. She left as heirs a brother, Henry J. Merle; a sister, Bertha Merle Boyle; one niece (a daughter of a deceased brother, William); two nephews (sons of a deceased sister, Maude Henn); five nephews (children of a deceased sister, Annie Roach); a niece and a nephew (children of a deceased sister, Mary Loss); and five grandnieces (children of a deceased nephew, William Loss). The heirship, therefore, if decedent died intestate involves a division into six shares, one to a brother, one to a sister, one to one niece, one to two nephews, one to five nephews, and one share to the Loss family (a niece, a nephew and five children of a deceased nephew being involved).

The significant facts are not in dispute but the parties differ in inferences and emphasis on such matters of fact. It was shown of record that decedent made a will in 1929, and then again in 1939, and that both times she sent a copy of the will to her brother Henry J. Merle. On September 7, 1949, Mrs. Carr executed a will in the law office of Daniel S. Jerka in Chicago. Her brother Henry Merle had talked with her about the will when she was planning it. Mrs. Carr took the original will with her and she also mailed a copy the same day. The chief asset of Mrs. Carr's estate was a 4/12 interest in the William F. Merle, Sr. Trust. This trust owned a little over 1/3 of the stock in Riverview Park Company, which allowed such trust to elect two directors to the Riverview Park Board. By the terms of the 1949 will, decedent bequeathed her interest in the Trust and the residue of her property 1/6 to Mabel Curran (a daughter of Mrs. Carr's brother, Henry Merle), 1/6 to John Boyle (son of decedent's sister, Bertha), 1/6 to Henry Roach (a nephew), and 1/2 in trust for William O'Toole, Jr. (a nephew). There was a provision in the will that if any of the four beneficiaries were to predecease the testatrix, the will provided that the share of the person so dying was to pass to the remaining designated beneficiaries. Since William O'Toole, Jr. died in 1955, the property under the terms of the will would go 1/3 each to Mabel, John, and Henry, and all of Mrs. Carr's other nephews and nieces would be disinherited.

The record indicated that Mrs. Carr had a close relationship with her brother, Henry J. Merle, and that she discussed her will and financial affairs with him on numerous occasions. The testimony also indicated that Mrs. Carr was close to her sister, Bertha, and to Bertha's son, and that she also had a close relationship with Mabel Curran. There was also testimony that Mrs. Carr had a close relationship with all of her relatives with the possible exception of Edward Loss, Jr., a nephew. Edward Loss had objected to William O'Toole being buried in the Merle family cemetery lot and had also instituted an action to have a conservator appointed for his mother. Mrs. Carr, however, was on good terms with the rest of the Loss family and had sent four of William Loss's daughters to high school and helped other Loss children in college. The record indicates that Mrs. Carr had never said a bad word about any of the heirs and helped all members of the various families.

After the death of William O'Toole in 1955, Mrs. Carr talked with her brother, Mr. Merle, about her will. She stated according to the testimony of Mr. Merle, "Now, Billy is dead and there need be no provision for him in my new will." She also mentioned at this time that she wanted to make some provisions in regard to the Merle Trust. Mr. Merle took her to see an attorney and although the attorney even wrote to Mrs. Carr offering his assistance, Mrs. Carr appeared never to have written a new will. At one time, Mrs. Carr talked to the attorney and told him that one day she was going to see him about a will. Her brother, Mr. Merle, saw the original 1949 will in 1955 when he sent a carbon copy of the will to an attorney in California. He also saw the will in December of 1959 when Mrs. Carr brought the will to Mrs. Boyle's apartment.

Mr. Merle testified (and also his daughter Mabel Curran) that Mrs. Carr once stated that she wished the Riverview stock to be held as a unit and not to get into the hands of strangers or any disgruntled people or the Loss family. Mr. Merle and Mabel Curran were the only parties testifying to this statement by Mrs. Carr.

In 1963, Mr. Merle asked the attorney to call Mrs. Carr about making a new will. The attorney did call Mrs. Carr and she stated she still had some things to think about and would let him know. In that same year of 1963, Mrs. Carr showed Mr. Merle a letter from the attorney and she told Mr. Merle, "I've got to do something about my will."

In February 1966, just a couple of days before she was to go to the hospital, she talked with her brother, Mr. Merle, in her apartment. After discussing the Merle Trust and the stock in the Riverview Corporation, Mrs. Carr went to her desk and got the original will and brought it over to Mr. Merle. She stated that she was going to leave her interest in the Trust to Mr. Merle. She also asked him what disposition she should make of her estate. Mr. Merle testified that he could not do this as someone might accuse him of influencing her. Mrs. Carr then asked Mr. Merle (February 1966) if he would check to see if the witnesses on the 1949 will were still alive in case something should happen to her between then and the time she might make a new will. She then placed the 1949 will back in her desk drawer. This was the last time Mr. Merle or anyone saw the 1949 will. After the trip to the hospital at that time, Mrs. Carr returned to her apartment. The record indicates that Mrs. Carr kept the will in her apartment, where she also kept a few securities. She was extremely careful with her papers and even used receipts when giving someone a copy of her will. It was clear from the record, also, that Mrs. Carr was in possession of all her faculties until the time of her death, although she was 76 years old in 1966. Mr. Merle also testified that on June 1, 1966, Mrs. Carr said to him, "If you won't help me with my will I'll tell you what I'm going to do. I'm going to leave it all to you and let you worry." On June 2, 1966, Mrs. Carr became ill. She called Barbara Loss, widow of the deceased nephew of Mrs. Carr, and told Barbara that if she could not make it to the graduation for Mrs. Loss's daughter, she would call her. She also mentioned that she put money in an envelope for the grandniece as a graduation gift. When Mrs. Carr was directed to go to the hospital on the morning of June 2, 1966, she had the hotel bellman plug her apartment door as she was leaving for the hospital. Her maid saw the door plugged when she came to work the next day. Mr. Merle saw Mrs. Carr in the hospital but she never mentioned her will. She died on June 5, 1966. About four or five hours after her death, Mr. Merle, decedent's brother and his daughter, Mabel Curran, went to Mrs. Carr's apartment to pick up some clothes to take to the undertaker. The doorman unplugged the door for them and they remained in the apartment and plugged it again when Mr. Merle and his daughter left.

It was shown that when the door is plugged it could only be opened with a special key which is kept at the hotel desk. There was testimony that at one time when Mr. Merle was in the apartment, the hotel manager took a prospective tenant to the apartment for the purpose of showing it to the prospective tenant. The original will was never located, although a carbon copy of the will was found in a lock box in a locked closet.

As we have indicated, a petition was filed to probate the carbon copy of the lost will. The heirs and beneficiaries designated in the will were notified of the date of the hearing held on the petition to probate the carbon copy of the will. At such hearing on probate of the lost will, probate was objected to by the guardian ad litem for a minor heir, but following a hearing, the carbon copy of the presumably lost will was admitted to probate. Edward Loss, Jr., an heir of decedent, who did not appear at the probate hearing, thereafter filed a petition to contest the will of decedent Rosina Merle Carr, alleging that the instrument admitted to probate as the last will of decedent was not her will since it could not be found at her death and was revoked and annulled by the decedent destroying it with intention to revoke it.

Following a full hearing on the petition to contest the will, as we have indicated, the trial court found that the 1949 will of Rosina Merle Carr had been revoked and the order admitting it to probate was set aside and vacated. The evidence and testimony of Henry J. Merle was read into the record at the time of the will contest since he had died following the time of hearing on probate and before the trial and hearing on the will contest. The basic question before the court for determination is whether the trial court was correct in permitting a full hearing on the question of whether the 1949 will had been revoked.

On appeal in this Court, appellant-beneficiaries under the 1949 lost will contend that the probate of the lost will is a different type of probate proceeding, which makes this case the exception to the general rule governing probate of wills and will contests. It is a contention of appellants that when the lost will is offered for probate, any evidence as to its execution or revocation may be presented by either the proponents or opponents. It is contended that this warrants the application of the doctrine of res judicata. No Illinois cases have decided this precise issue so ...


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