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In Re Estate of Francoeur

NOVEMBER 29, 1972.

IN RE ESTATE OF DIANA FRANCOEUR, DECEASED — (DULCENIE MERCIER ET AL., PETITIONERS-APPELLANTS,

v.

EVA L. MINOR ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Kankakee County; the Hon. VICTOR N. CARDOSI, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Kankakee County denying a motion to vacate and petition to admit a second will. An order had previously been entered admitting the first will and appointing co-executors.

The record in the case indicates that the testatrix died on July 23, 1971, at the age of 91 years. On August 21, 1971, a petition to probate a will dated November 23, 1965, was filed by Arbella LaReau, a niece who was named as co-executor in that will. The will had been drafted for the testatrix by an attorney who had represented her for many years. The attorney was also named as co-executor. Under the provisions of that will, there were bequests of money to individuals, and bequests of money for masses were also made to two churches. The co-executors were directed to convert all property into cash, which was to be divided equally between the children of the deceased brothers and sisters who survived testatrix, after payment of the specific bequests, funeral expenses, debts, taxes, and costs of administration. There were 22 nieces and nephews who survived the testatrix. The estate consisted entirely of personal property. Notice of the hearing on the petition to probate the first will was given to all heirs and legatees, including Dulcenie Mercier and Parmille R. Hubert, who are the petitioners-appellants in this case. These petitioners were also present at the hearing on September 9, 1971, at which time the 1965 will was admitted to probate without objection and letters testamentary were issued.

On October 5, 1971, Parmille Hubert, filed a petition as an heir and legatee, in which she prayed that the co-executors be directed to deliver to her a savings account passbook allegedly evidencing funds belonging to Parmille Hubert and to the decedent, as joint tenants. A week later the co-executors filed a petition alleging belief that Parmille had certain moneys and stock of the decedent in her possession and had knowledge relating to other property of the decedent. The co-executors prayed that Parmille be directed to appear and answer under oath questions relating to such matters. Prior to a hearing on these petitions, on December 9, 1971, appellants filed a motion to vacate the order admitting the November 23, 1965, will to probate, and petitioned the court to admit to probate a purported will of decedent dated October 9, 1970. There was attached to the motion a document in the handwriting of Parmille R. Hubert which was in the words and form as follows:

"Oct 9th 1970.

After my death,

To Leah Crabbe, I give my complete bedroom set and little rocker.

To Lorena Lareau, I give her my cocktail table by the fireplace and davenport.

To Dulcenie Mercier I give my gateleg table and one needlework straight chair & one large chair.

To Parmille Hubert I give the desk & one needlepoint straight chair. Painting over davenport, small table by the front door, and the white statue on the pedestal & all silverware, & white rug.

The rest of my personal property to be divided between Parmille Hubert, Leah Crabbe, Dulcenie Mercier, and Lorena Lareau.

/S/ Diana Francoeur

/S/ Beulah Fortier /S/ Lillian Santschi"

At the hearing on the motion and petition to admit the purported will of the decedent dated October 9, 1970, Parmille Hubert testified that the document of October 9, 1970, was intended to be a will; that her aunt had not wanted an attorney to prepare it because of the expense; and that she, Parmille, had written down what her aunt told her to write. It was shown that a few days prior thereto, presumably at her aunt's request, Parmille had gone to a bank and had removed from her aunt's safety deposit box a will, described by Parmille as an "old will" bearing a date in the year 1954. The will of November 23, 1965, which expressly revoked all prior wills, was not in the safety deposit box. After the drafting and execution of the October 9, 1970 document, Parmille stated, she kept the original at her aunt's request, but had a photocopy of it made which she placed with the 1954 will and returned both to the safety deposit box. In her testimony, the witness Parmille also stated that her aunt was bedfast on October 9, 1970, at the time the document was written and executed in her aunt's bedroom, and that Beulah Fortier and Lillian Santschi were present when her aunt dictated the document and signed it. It appears that Beulah Fortier was a lifelong friend and neighbor ...


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