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In Re Estate of Jaeger

JANUARY 9, 1974.

IN RE ESTATE OF OTTO T. JAEGER, DECEASED — (MATHILDA A. (TILLIE) NOBS ET AL., PETITIONERS,

v.

ROBERT BEISS, ADM'R, ET AL., RESPONDENTS.)



APPEAL from the Circuit Court of Clinton County; the Hon. ARTHUR G. HENKEN, Judge, presiding.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 7, 1974.

Petitioner, Mathilda Nobs, appeals the decision of the Circuit Court of Clinton County which denied probate to a will purported to be the will of one Otto T. Jaeger and also the decision of the same court which revoked her authority to act as administrator of said estate.

Mathilda Nobs filed a purported will of Otto Jaeger, deceased, and also filed a petition to probate the same in the Probate Division of the Circuit Court of Clinton County, Illinois. The will was purportedly signed by the said Otto Jaeger and was also purportedly witnessed by Elmer Kunze and J. Scranton, both of Belleville, Illinois.

Elmer Kunze testified in court as to the acknowledgment before him and the attestation of the purported will by him. Kunze's character was impeached when the respondents introduced evidence of the fact that Kunze at one time plead guilty to a charge of income tax evasion. The other attesting witness, J. Scranton, was deceased. The testimony of Armin Forcade, a subordinate employee of James Melvin Scranton at the St. Clair Service Company, Belleville, testified as to the authenticity of the handwriting of J. Scranton on behalf of the proponent of the will. Elizabeth Mary Scranton, the widow, and James Robert Scranton, son of James Melvin Scranton both testified on behalf of the contestants that the signature "J. Scranton" appearing on the purported will was not the signature of James Melvin Scranton.

Justine Bradley, who did not sign the document as an attesting witness, testified on behalf of the proponent that he was present when a witness named "Elmer" signed the purported will and that he was also present when a man he assumed to be J. Scranton signed the purported will, however, Bradley stated that the signings occurred in different places at different times. Bradley testified at a subsequent hearing ten months after the original hearing.

The Probate Division of the Circuit Court of Clinton County denied probate to the purported will of Otto T. Jaeger for the reason that the document was not witnessed by two witnesses as required by statute.

Mathilda Nobs, the petitioner, takes the position that the purported will should be admitted to probate on the basis of the testimony of Elmer Kunze, who was the one attesting witness who testified in court; on the basis of the testimony of Armin Forcade, who testified as to the signature of J. Scranton, the other attesting witness; on the basis of the attestation clause appearing on the purported will; and on the testimony of Justine Bradley, who said he saw both witnesses sign the purported will. Mathilda Nobs asks that the decision of the trial court be reversed.

The admission or denial of a document to probate is covered by the following statute:

"When each of two attesting witnesses to a will testifies before the court (a) that he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act, (b) that the will was attested by the witness in the presence of the testator, and (c) that he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will." Ill. Rev. Stat. 1971, ch. 3, par. 69.

• 1-2 In this case the will was not admitted to probate. The plaintiff claims this was error. In Ruffing v. Glissendorf, 41 Ill.2d 412, 243 N.E.2d 236, our Supreme Court stated the criteria to be considered by the trial court in deciding whether to admit a will to probate:

"It has long been recognized that the proof necessary to entitle a will to probate is confined to the essential elements fixed by the statute (section 69 and its predecessors) and is for the purpose of establishing whether a prima facie case of validity has been made. (In re Will of Ingalls, 148 Ill. 287; Claussenius v. Claussenius, 179 Ill. 545.) The hearing is to determine whether the will has been executed with the formalities required by statute, including testimony of two subscribing witnesses that in their belief the testator was of sound mind."

The statute reserves the right of the contestants to show fraud, compulsion, forgery, or other improper conduct sufficient to invalidate the will.

Where the testator and two attesting witnesses in fact signed the will, every presumption will be indulged in favor of the execution and attestation of the will. Loomis v. Campbell, 333 Ill. App. 617, 78 N.E.2d 143; In re Estate of Willavize, 21 Ill.2d 40, 171 ...


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