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Breault v. Feigenholtz





APPEAL from the Circuit Court of Cook County; the Hon. ALVIN J. KVISTAD, Judge, presiding.


This case involves a contest in the circuit court of Cook County seeking to set aside the will of Oscar J. Breault, deceased, alleging that it was a product of undue influence. At the close of the petitioners' evidence, the trial court directed a verdict in favor of respondents, and petitioners appeal to this court contending: (1) the evidence presented did not warrant a directed verdict for respondents; (2) this court should enter judgment for petitioners because undue influence was established as a matter of law; and (3) the trial court erred in the exclusion of certain evidence and in denying their requests that respondents admit certain facts in accordance with Rule 216. (Ill. Rev. Stat. 1969, ch. 110A, par. 216.) No issue of testamentary capacity is raised.

This is a part of protracted litigation which has prevailed over many years. In re Estate of Breault (1963), 29 Ill.2d 165; Breault v. Feigenholtz (1965), 250 F. Supp. 551, aff'd (7th cir. 1966), 358 F.2d 39, cert. denied (1966), 385 U.S. 824; In re Estate of Breault (1965), 63 Ill. App.2d 246; Breault v. Feigenholtz (7th cir. 1967), 380 F.2d 90; People ex rel. Dahm v. Corcoran (1968), 39 Ill.2d 233; In re Estate of Breault (1969), 113 Ill. App.2d 356; Breault v. Feigenholtz (1970), 128 Ill. App.2d 1, rev'd (1973), 54 Ill.2d 185; and In re Estate of Breault (1971), 1 Ill. App.3d 899.

A short resume of events preliminary to discussion of the issues here involved is in order. Kathryn M. Breault died August 3, 1952, leaving a last will and testament which devised and bequeathed the bulk of a substantial estate to Harold L. Feigenholtz and Richard Dahm, as trustees, for the benefit of her son Oscar, during his lifetime. The assets primarily consisted of stock in the Brolite Company, Inc., a family business. Dahm, it appears, had been a long-time employee of the company; and Feigenholtz, who was retained as her attorney shortly before she executed her will, became the company president one year after her death. Under the provisions of the trust created by the will, Oscar was to receive the income with a discretionary power in the trustees to invade the corpus if and when they felt it necessary. It further provided that if after three years from the trust's inception the trustees believed Oscar was competent to handle the business, the corpus could be turned over to him. Oscar also received a general testamentary power of appointment over the assets, and if this power was not properly exercised, the estate was to be distributed among three specified charities.

Oscar married three times. Kenneth Breault, a respondent in this action, was the only issue of the first marriage that ended in divorce. On May 6, 1942, Oscar married Florence Breault. This marriage was apparently unhappy and ended in divorce in October, 1954. William Joseph and Bonnie Jo Ellen Breault, who are petitioners herein, were born of this marriage. On November 9, 1954, Oscar married the respondent, Estelle, and on November 18, 1954, he executed his last will and testament which is now in issue.

Petitioners claim that this will was a product of undue influence which Harold Feigenholtz and his nephew, Eugene Busch, exerted upon Oscar during the time he was the income beneficiary under Kathryn's trust. They also say that at the time Oscar executed his will (November 18, 1954) he was acting wholly under the undue influence of Feigenholtz and Busch. Therefore they say that the instrument is invalid.

At trial, petitioners testified that the last time they saw their father was in Chicago in 1955, although both stated they had several telephone conversations with him after this meeting and had corresponded with him. Florence Breault, Oscar's second wife and petitioners' mother, testified that from approximately 1951 or 1952 until his death, Oscar had visited them and sent gifts on two occasions.

Estelle Breault, the surviving wife and income beneficiary under his will, testified that she and Oscar lived in Illinois from the date of their marriage (November 9, 1954) until September, 1956, when they moved to Florida, where they resided until his death (July 16, 1959). While in Florida, she stated that he managed an automobile shop, which was owned by the trust, and raced automobiles. He had three different boats during this period and several motor vehicles for his personal use.

The sole witness to testify to the circumstances occurring at the time Oscar executed his will was Eugene A. Busch, the attorney who drafted the contested document and who represented the Brolite Company as its attorney in various matters. Called as an adverse witness (Ill. Rev. Stat. 1969, ch. 110, par. 60), he stated that on November 15, 1954, Oscar telephoned and informed him that he had remarried and wished to execute a will similar to that of his mother's. Oscar arrived at Busch's office with a copy of her will and instructed Busch as to the disposition of his estate. The powers of the trustees contained in his mother's will were adopted in his will with only minor variations. He made his wife Estelle the income beneficiary of the trust during her lifetime, and upon her death this income was to be paid to his three children. The trust, of which Feigenholtz was designated as sole trustee, was to continue until the youngest child reached age 40, then to terminate and each to receive 5% of the estate; the 85% balance was to be paid to Wesley Memorial Hospital (a respondent).

Busch denied that he told Oscar what provisions to put in the instrument, and when Busch inquired as to the size of the bequest to Oscar's children, i.e., 5% each, Oscar replied that he had not seen Kenneth for years, and Florence, his second wife, had just concluded a bitter divorce action which he claimed had resulted in a judgment against him for $250,000. Upon Busch's further inquiry as to the reasons why Oscar wanted to have his children wait until the youngest reached the age of 40 before the corpus was to be distributed to them, Oscar replied, "I know whatever money I give to the kids will find its way into her (Florence) hands * * *." Oscar then stated that he wanted Feigenholtz to be the trustee because he and Feigenholtz had worked well together and the latter had managed the Brolite Company. Oscar also believed that Feigenholtz, a business consultant, was a former professor at a Chicago area law school.

A copy of the prepared will was given to Oscar on November 16, and two days later he visited Busch's office and executed the document. Before Oscar signed, Busch advised him to reconsider raising the percentage of his bequests to the children but he, after reading the will, signed it and requested that Busch retain the original. During this period (November 15-18, 1954) Busch said that Feigenholtz was not in Chicago.

Busch further testified that he informed Oscar that the will could be amended or revoked by codicil and any attorney could help him to do so. On two subsequent inquiries by Busch, Oscar indicated no desire to execute a new will.

Harold L. Feigenholtz, a co-trustee under Kathryn's will and the sole trustee under Oscar's will, was called as an adverse witness by petitioners. He testified that Oscar received anything he wanted during the six years he was the income beneficiary under Kathryn's will and approximately $300,000 was distributed from the trust income for his benefit. Feigenholtz also said that Oscar examined the provisions of his mother's will and the accountings which were prepared in relation to the income disbursed from the trust and any time he questioned any of the trustees' actions he was always given a full explanation. He further stated that he and Dahm had, as trustees under Kathryn's will, inquired of Oscar whether he desired to terminate the trust and acquire the corpus and he said he did not so desire. Richard Dahm testified at trial that he and Feigenholtz agreed that Oscar was competent to acquire the assets of the trust but, after discussing the matter with Oscar, the offer was refused.

Petitioners made several offers of proof which they claimed were relevant to the issue of undue influence. This evidence primarily involved matters occurring prior to July 1, 1953, the date on which Kathryn's trust commenced, and after July 16, 1959, the date of Oscar's death. It was also asserted that the purpose of these offers was to establish Feigenholtz's undue influence over Oscar and to indicate the benefits which Feigenholtz received from the Brolite Company, i.e., his salary as company president, several bonuses, his interest in a company profit-sharing plan, and legal fees for services rendered on behalf of the company. The trial court excluded this evidence and at the close of petitioners' case granted respondents' motion for a directed verdict, ruling that the petitioners failed to prove that Feigenholtz and ...

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