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In Re Estate of Strayer

APRIL 18, 1972.

IN RE ESTATE OF NELLIE STRAYER, DECEASED — (WILLIAM J. BACH, PETITIONER-APPELLANT (JULIA BARLEY TOOL ET AL., RESPONDENTS-APPELLANTS),

v.

EARL COWDEN ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of McLean County; the Hon. WENDELL E. OLIVER, Judge, presiding.

MR. JUSTICE VERTICCHIO DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 25, 1972.

This is an appeal from an order of the Circuit Court of McLean County, Probate Division, dismissing a petition for probate of a purported Will, and an instrument alleged to be a codicil to the said Last Will and Testament of Nellie Mae Strayer, deceased.

The record in this cause indicates that the deceased, Nellie Mae Strayer, and her husband, Walter S. Strayer, on June 10, 1952, executed similar Wills. The Last Will and Testament of William S. Strayer was filed for probate in the Probate Court of McLean County on October 15, 1956.

On August 15, 1958, Nellie Mae Strayer executed a codicil to her Last Will and Testament. The codicil recited that certain alterations were necessary due to the death of her husband, Walter S. Strayer, who was nominated as executor in her Last Will and Testament. The codicil nominated the National Bank of Bloomington, Illinois, as executor and re-affirmed, re-published and re-declared her original Will in all other respects.

The similar Wills of June 10, 1952, devised and bequeathed all of the property to the survivor, and any funds remaining to be divided in nineteen parts among persons who are parties to this appeal.

Nellie Mae Strayer died on November 22, 1969. William J. Bach, on May 28, 1970, filed a petition for probate of will and letters testamentary. The petition alleged that the codicil, dated August 15, 1958, was delivered to the court, but that the Will dated June 10, 1952, was lost.

The court heard evidence directed to the petition and denied the petition.

The facts for the most part are not in dispute. The evidence establishes that the similar Wills were located in the safe deposit box in the National Bank of Bloomington, Illinois, prior to October 15, 1956. The box was inventoried on that date in connection with the estate of William S. Strayer. Arlo E. Bane of Bloomington, Illinois, the attorney who prepared the Wills of William S. Strayer and Nellie Mae Strayer, and the codicil for Nellie Mae Strayer, was present when the safe deposit box at the National Bank of Bloomington, Illinois, was inventoried. There appears to be some controversy as to the testimony of Mr. Bane regarding the said occasion. Mr. Bane's testimony was:

"Q. And you do, did testify that both of these Wills of Mr. and Mrs. Strayer were in the lock box at the National Bank of Bloomington when they were inventoried?

A. After his death, yes.

Q. And you recall at that time whether the Will of Mrs. Strayer was removed therefrom in your presence?

A. My recollection was nothing was removed at that time. We didn't have the attorney general release, and I don't even recall we removed his Will.

Q. And who else was present, if you remember ...


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