Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lee County; the
Hon. James E. Bales, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1974.
The Appellate Court for the Second District affirmed a judgment that had been reluctantly entered by the circuit court of Lee County, and granted a certificate of importance. (11 Ill. App.3d 60.) Both courts felt themselves compelled to reach the result that they did because of the decision of this court in McAnnulty v. McAnnulty (1887), 120 Ill. 26. We have re-examined that case, and we have concluded, for reasons which will be stated, that it is not controlling here.
In the present case, Bert O. Vogeler and his then wife, Olive P. Vogeler, executed wills in 1949, which, after specific bequests, left all property owned by each of them to the other, or, if one should die before the other or within one week of the death of the other, to the nieces and nephews of both, then living. Bert Vogeler died on November 28, 1952, survived by Olive, leaving an estate, which, for inheritance tax purposes, had a gross value of $135,065.66. On June 16, 1962, Olive Vogeler, then aged 72, married Orin W. Cox, a widower then aged 74. On October 23, 1964, Olive Cox and Orin Cox signed the following "Agreement":
"THIS AGREEMENT, entered into on Oct. 23, 1964, between Orin W. Cox, party of the first part, and Olive P. Cox, his wife, second party, for the purpose of clarifying and establishing their respective property interests, WITNESSETH:
WHEREAS, each of said parties had in his or her own right certain real and personal property at the time of said marriage, and
WHEREAS, before their marriage with each other and in consideration thereof, each of the said parties agreed verbally with the other that none of their respective property rights should in any way become affected or changed in any way by reason of said marriage,
NOW, THEREFORE, in consideration of the foregoing premises, and of the mutual covenants herein contained, the party of the first part hereby waives, releases, foregoes, and disclaims all his rights in any and all property, both real, personal, and mixed, wheresoever situate, of which the party of the second part is or may become seized or possessed, and hereby expressly waives all right to inherit from the second party under the laws of any and all states of the United States, and hereby agrees that the party of the second part shall have the right to dispose of all of her property by will and in case the party of the second part fails to dispose of any of her property, of any kind, by will, then said property shall descend to her legal heirs, other than the party of the first part, and he shall not inherit anything from her.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals the date first above written.
/S/ Orin W. Cox (SEAL) /S/ Olive P. Cox (SEAL)"
On February 16, 1970, Olive Cox died, survived by Orin Cox. A petition to admit her 1949 will to probate was denied, and no appeal was taken. On April 30, 1970, a petition for letters of administration was filed, signed by Orin Cox, and letters of administration were issued to the Dixon National Bank, one of the defendants. On May 28, 1970, Orin Cox died. On July 20, 1970, this action was instituted.
The plaintiffs are the nephews and nieces of Olive Vogeler Cox and her first husband, Bert Vogeler. They sought a decree that the will executed by Mrs. Cox in 1949, taken together with evidence of an oral agreement between Mr. and Mrs. Cox prior to their marriage and the written agreement set out above, constituted an equitable assignment of all the assets of the estate of Mrs. Cox to the beneficiaries under her will. The defendants are the banks which are administrators of the estates of Mr. and Mrs. Cox, heirs at law of Mrs. Cox who are not legatees under her will, and four children of Mr. Cox by his former marriage.
The trial and appellate courts both held that the marriage of Olive Vogeler to Orin Cox revoked her earlier will, and that determination has not been attacked. After the marriage of Mr. and Mrs. Cox, the statute which provided that a marriage revoked a will was amended to provide: "No will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator * * *." (Ill. Rev. Stat. 1965, ch. 3, par. 46.) Concerning this statute the appellate court said:
"It is obvious that the Legislature intended to rectify inequitable situations such as the case before this court. The Legislature went on to provide that the new provision would be applicable to wills of decedents dying after December 31, 1965. The 1965 Act further provided in substance however, that a will revoked in any manner, in this case by the marriage prior to the ...