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Merrick v. Continental Ill. Nat. Bk. & T. Co.

FEBRUARY 2, 1973.

JOHN P. MERRICK, PETITIONER-APPELLANT,

v.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS EXR. OF THE ESTATE OF MAY AGNES MERRICK, DECEASED, ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding.

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

John P. Merrick, hereinafter petitioner, filed suit to set aside the will of his sister, May Agnes Merrick, hereinafter the decedent. The respondents are the corporate executor, Continental Illinois National Bank and Trust Company, and the beneficiaries of decedent's estate. Many of the beneficiaries are Catholic Church affiliated organizations and their religious leaders.

Four allegations in the petition charged the Catholic Church and the religious leaders of its various organizations with undue influence and fraud in procuring their bequests. They were stricken for being insufficient in law. The other three allegations were to the effect that the will was improperly executed due to the lack of proper attestation and that the decedent lacked the requisite testamentary capacity at the time of execution. Summary judgment was entered in favor of the respondents as to these allegations.

On appeal petitioner contends that (1) the court erred in striking the allegations of fraud and undue influence; (2) the court erred in granting summary judgment in favor of respondents as to the allegations of improper execution and lack of testamentary capacity; (3) the petitioner was denied his right to adequate discovery; (4) the court erred in failing to construe Article IV of the will; and (5) the court erred in failing to enter an order of default as to certain respondents for failing to enter an appearance.

The facts follow:

The decedent died testate on January 20, 1970, at the age of 76. Her will, dated March 26, 1965, was admitted to probate on May 19, 1970. It first provided for the payment of debts, funeral expenses, costs of administration and estate taxes. Then, specific legacies totaling $12,000 were left to four Catholic organizations. A specific legacy of common stock was given to six other Catholic religious organizations, and specific legacies totaling $25,000 were given to seven lay individuals. This latter bequest included a $10,000 bequest to petitioner and $5,000 to his wife. All the decedent's personal effects were given to decedent's cousin and the residue to petitioner with substitute takers if he predeceased her.

The petition to set aside the will was filed on July 24, 1970. The subparagraphs which were stricken are as follows:

"(d) That at the time of the alleged * * * execution * * *, [the decedent] was under the influence, domination and control of certain priests and confessors, including Respondents, ARCHBISHOP OF CHICAGO, * * * REV. JAMES F. CUNNINGHAM, PASTOR OF ST. MARY'S CHAPEL AND PASTOR OF OLD SAINT MARY'S CHURCH; REV. EDWARD T. O'MEARA, NATIONAL DIRECTOR OF THE SOCIETY FOR THE PROPOGATION OF THE FAITH; REV. ROBERT YOUNGS, PASTOR OF ST. JOACHIM'S CHURCH; and BISHOP FULTON J. SHEEN, which deprived her of her free agency and the freedom of her will.

[This subparagraph was subsequently amended on June 15, 1971, to include: `And that influence, domination and control was accomplished in part by Bishop Fulton J. Sheen while appearing on his and other television programs.']

(e) That the Catholic Church and [the respondents named in subparagraph (d)], teach * * * members of the Catholic Faith, including the decedent, that a testator would personally benefit after her death if bequests are made to the Catholic Church, or any Catholic religious group, and [the decedent] was under said delusion at the time of the alleged execution * * *. [This subparagraph was subsequently amended on June 15, 1971, to include: `And that said teachings include bequests for masses.']

(f) That the Catholic Church [and the respondents named in subparagraph (d)] are and were using bequests for purposes unrelated to religious efforts * * * and said Respondents have fraudulently concealed these purposes from the members of the Catholic Faith, including the decedent, and the decedent would not have executed [the will] * * * if the said Respondents had not fraudulently failed to disclose these purposes.

[This subparagraph was subsequently amended on June 15, 1971, to include: `And that such purposes included the promotion of racial integration, anti-war activities, anti-abortion law activites and civil rights activites.']

(g) That the Catholic Church [and the respondents named in subparagraph (d)] have misrepresented to members of the Catholic Faith, including the decedent their true financial position and by so doing have fraudulently induced the decedent to make certain bequests which would not have been made by [her] if this financial information had not been fraudulently withheld from her."

On February 8 a hearing was held wherein the attorney for the executor moved to withdraw as the attorney of record for all of the other respondents named in the petition. He initially filed an appearance on behalf of all of them since he believed it was the executor's duty to uphold the will and the respondents, as beneficiaries, would all benefit if he was successful. The motion to withdraw was granted with leave to file an amended answer to the petition on behalf of the ...


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