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In Re Estate of Marcucci

AUGUST 31, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. FRANK M. SIRACUSA, Judge presiding.


Mr. JUSTICE LEIGHTON delivered the opinion of the court:

This appeal involves a controversy concerning which of three wills of a testator is entitled to probate. Appellant Daniel Marcucci petitioned to admit what he claimed was a joint and mutual will. Appellee Emil Marcucci petitioned to admit the last of three wills executed by the testator. Although the parties proliferate the issues presented for review, dispositive of this appeal are two questions. 1. Whether in the first of three testamentary documents, the testator made a joint, mutual and irrevocable will. 2. Whether a magistrate assigned to the probate division of the circuit court can decide that of three testamentary documents of a testator, the first was a joint, mutual and irrevocable will. The facts which give rise to this controversy are not in dispute.

On May 12, 1950, Dominic Marcucci and Maria, his wife, executed "[o]ur joint and several last wills and testaments," which gave to the survivor "[t]o have and to hold unto his or her heirs, executors, administrators and assigns forever" all the property left by the one who predeceases. In the third paragraph, the joint testators provided that in the event their deaths were in a common disaster or contemporaneous, then their four sons Daniel (a/k/a Donato), John, Matthew and Emil were to take the estate in equal shares. Maria Marcucci died before Dominic; and on November 13, 1952, the joint will was admitted to probate as her will. Her estate was administered and in its entirety, it devolved to Dominic Marcucci.

On December 10, 1957, Dominic, in the office of a lawyer executed "[t]his my Last Will and Testament." After directing payment of his debts and funeral expenses, he devised and bequeathed all of his property, share and share alike, to the four sons named in the joint will. Then on January 15, 1958, he executed another will in which he devised and bequeathed "[u]nto my beloved children namely: Daniel (a/k/a Donato) Marcucci, the sum of Ten ($10.00) Dollars; John Marcucci, the sum of One Hundred ($100.00) Dollars; Matthew Marcucci, the sum of One Hundred ($100.00) Dollars." He devised and bequeathed "[u]nto my beloved son, Emil Marcucci, the balance of all my property, both real and personal, wherever situated and whatever kind of which I may die possessed." Dominic Marcucci died on November 27, 1967. His heirs were his sons, Daniel, Matthew, Emil and two children of John who had predeceased him.

On February 14, 1968, a petition was filed to probate the will dated December 10, 1957. Later, in the same proceeding, appellant petitioned to admit the joint will. Appellee petitioned to admit the last of Dominic Marcucci's three wills. Hearing of the petitions was set; and pursuant to statute, all interested parties were notified. On October 9, 1968, with a magistrate of the circuit court presiding, the petitions were called. When the hearing began, the following colloquy ensued:

"The Court: Are all the attorneys present and in court? Do they all have their appearances on file? Let the record show all attorneys responding yes.

Gentlemen, in view of the fact that this is a contest, do you wish the Court to proceed with the ordinary questions that we ask of the witnesses as far as the execution of the documents are concerned, or do you want to put on your own cases concerning the execution of whatever wills we're going to testify to?

Mr. Cummingham (Attorney for appellee): I would prefer to have the Court do it.

The Court: Does anyone have any objection?"

No objection was made. Evidence was heard and after one continuance the hearing was completed. The magistrate heard arguments of the parties. Appellant argued that from the proof, the will dated May 12, 1950, was the prior, joint, mutual and irrevocable will of Dominic Marcucci; and that it, over the others, was entitled to probate. Appellee, on the other hand, argued that the question before the court was which of the proposed wills was last executed in accordance with section 69 of the Probate Act, Ill. Rev. Stat. 1967, ch. 3, § 69. After hearing the arguments, the magistrate announced "[t]he finding of this court is that the document dated May 12, 1950, being a valid joint will, will be admitted to probate as to Dominic Marcucci; and the petitions for admission to probate for letters testamentary of documents [sic] dated December 10, 1957, and January 15, 1958, will be denied." On October 24, 1968, appellant was appointed executor of the estate of Dominic Marcucci under the will of May 12, 1950.

Within 30 days, appellee filed a post-hearing motion contending that the magistrate erred in admitting the joint will because the court had only the jurisdiction to determine which of Dominic Marcucci's wills was last executed in compliance with the statute; that the will the magistrate admitted was not irrevocable; and that the order appointing appellant executor of Dominic Marcucci's estate was void for want of jurisdiction of the subject matter. Appellant answered the post-hearing motion. The cause was continued from time to time and on April 24, 1969, the magistrate (a) set aside the orders of October 24, 1968, (b) dismissed the petitions to admit the joint will and the will dated December 10, 1957, (c) revoked the letters testamentary issued to appellant, (d) admitted as the last will and testament of Dominic Marcucci the will dated January 15, 1958, with letters testamentary to appellee appointing him executor of the estate and (e) ruled on appellant to file his first and final account and report.

Appellant contends that it was error to vacate the orders which admitted the joint will and appointed him executor because it was a will that became irrevocable after the death of Maria Marcucci in 1952. To meet this contention, appellee argues that the joint will was revocable because it did not contain a contract not to revoke, either express or implied; therefore, Dominic Marcucci was free to execute the will dated January 15, 1958.

• 1, 2 A will that is both joint and mutual is one executed jointly by two or more persons, with provisions which are reciprocal and show that they are made one in consideration of the other. (Frazier v. Patterson, 243 Ill. 80, 84, 90 N.E. 216.) A joint and mutual will may be executed pursuant to a contract or may itself constitute a contract, which, after the death of one maker will, under appropriate circumstances, be enforced by a court applying principles of equity. (In re Estate of Baughman, 20 Ill.2d 593, 170 N.E.2d 557.) When a joint will is executed by husband and wife, there will arise a presumption that the execution was the result of mutual trust and confidence. When evidence proves that the joint will was mutual, and one dies leaving the other to benefit from its provisions, the will is irrevocable; the survivor is bound to convey the property he acquired through the will in accordance with its terms. Helms v. Darmstatter, 56 Ill. App.2d 176, 205 N.E.2d 478.

• 3 Whether the joint will of May 12, 1950, was a mutual will, whether there was a contract that bound the surviving testator to its terms so as to make it irrevocable, were questions for a trial court to decide from examination of the will itself and consideration of evidence which could disclose such an arrangement. (See In re Briick's Estate, 24 Ill. App.2d 77, 100, 164 N.E.2d 82.) In the hearing conducted by the magistrate, the parties offered evidence. The record contained the proofs of heirship. The magistrate had before him the three wills. In addition, he heard the testimony of a lawyer, Phillip L. Howard, who at Dominic Marcucci's request, prepared the will of December 10, 1957. This witness testified that Dominic Marcucci told him he had received the assets of his wife's estate and that he made an agreement with his wife that assets he may have at his death were to go to his children (the four sons named in the joint will), to be divided equally among them. Appellee, however, argues that Howard was not a competent witness because his conversation with Dominic Marcucci was covered by the lawyer-client privilege that was not waived by an authorized legal representative. This contention cannot prevail.

• 4, 5 When Howard was called as a witness, there was no objection that he was incompetent to testify. After he described the conversation with Dominic Marcucci, appellee's counsel said, "I object to that testimony. No evidence presented as to any agreement." At the conclusion of his testimony no motion was made to strike it. It is a rule of evidence that in order to preserve for review the question whether a witness was competent, objection on the ground of incompetency must be made in the trial court. (Cotter v. Sullivan, 162 Ill. App. 396.) Failure to make the objection is a waiver. People ex rel Blackmon v. Brent, 97 Ill. App.2d 438, 240 N.E.2d 255.

• 6 Therefore, the magistrate heard Howard's testimony, that of witnesses to the joint will; he examined the wills and had before him the proofs of heirship. From this evidence the magistrate correctly concluded on October 24, 1968, that the joint will was entitled to probate and that the other two were not. Implicit in the order was the conclusion that the will of May 12, 1950, was mutual and irrevocable. Helms v. Darmstatter, 34 Ill.2d 295, 215 N.E.2d 245; In re Estate of Weaver, 71 Ill. App.2d 232, 217 N.E.2d 326.

Notwithstanding these facts, appellee contends that the order was void for lack of jurisdiction because it was entered by a magistrate of the circuit court. This argument is buttressed by reference to provisions of the judicial article in our constitution, a statute governing assignment of cases to ...

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