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In Re Estate of Krotzsch

APRIL 18, 1974.




APPEAL from the Circuit Court of Sangamon County; the Hon. GEORGE P. COUTRAKON, Judge, presiding.


Rehearing denied May 7, 1974.

Lilah Krotzsch executed her will on August 11, 1964, devising 240 acres to her sister, Stella Parsell, for life, with remainder in nephews and a niece who are respondents here. On April 7, 1966, testator entered into a contract to sell such land to parties here designated Kramer. The testator died on December 25, 1968, and the will was admitted to probate in January, 1969.

The trial court held that the final payment on the contract should be made to the petitioner and executor, Stella Parsell, and thereafter be distributed through the probate court to Stella Parsell, individually. The trial court granted authority to the executor to execute a deed to the purchasers and determined that the respondent remaindermen were not entitled to the proceeds of the contract for sale. He also denied respondent's counterclaim for construction of the will.

Other than the provision at issue, the will bequeathed all personal estate to Stella Parsell, and in a residuary clause devise and bequeathed all personal and real estate to her. The inventory discloses that the testator owned a residence.

The contract for sale to Kramer provided for payment in annual installments with the final payment to be made in the fifth year, but that if the testator should die before the fifth year, Kramer could accelerate payment of any balance due. The contract provided that Kramer should have possession and receive the income, pay taxes and keep the improvements in repair and insured. The contract was stated to be binding upon the heirs, executors, administrators and assigns, and provided that if the testator died before final payment, such final payment should be made to petitioner, Stella Parsell, or if she shall not be living, to the estate of the testator.

In a letter opinion, the trial court determined that the contract was as effective in defeating the devise at issue as if she had conveyed the real estate and had received the full purchase price during her lifetime.

Section 46a of the Probate Act (Ill. Rev. Stat. 1967, ch. 3, par. 46a) was not in effect either at the time of the execution of the will or the making of the contract. Such statute provides that if a testator after executing a will specifically devising the real estate makes a contract which remains executory at his death, the contractual disposition of the property shall not revoke the devise, but that the property shall pass to the devisee subject to the contract. The statute is not applicable to these facts for constitutional reasons.

• 1 The effect of the contract provision in this case is to work an ademption of the devise in the will. The court, in Brady v. Paine, 391 Ill. 596, 600-601, 63 N.E.2d 721, defined ademption as follows:

"Ademption of a specific legacy or devise is the extinction, alienation, withdrawal or satisfaction of the legacy or devise by some act of the testator by which an intention to revoke is indicated; the doing of some act with regard to the subject matter of the devise which interferes with the operation of the will. It signifies an alteration in the subject matter of the legacy or devise."

The recent opinion in In re Estate of Bloomer, 5 Ill. App.3d 533, 283 N.E.2d 523, under substantially similar circumstances, held that the unpaid proceeds should go to the devisees following the rule stated in Adams v. Peabody Coal Co., 230 Ill. 469, 82 N.E. 645. The opinion cites eminent texts, including 2 James, Illinois Probate Law And Practice, ch. 41, par. 43.90, p. 176:

"Where the vendor dies testate devising the land, the devisee is entitled to the purchase money in the absence of a contrary intent, and is entitled to the realty on failure of the vendee to pay the purchase price."

The texts cite as authority Covey v. Dinsmoor, 226 Ill. 438, 80 N.E. 998; Adams v. Peabody Coal Co., 230 Ill. 469, 82 N.E. 645; Heirs of Wright v. Minshall, 72 Ill. 584, and First Trust & Savings Bank v. Olson 353 Ill. 206, 187 N.E. 282. In Covey and Minshall, the contract for sale had been executed prior to the time the will was made and the devise was "subject to the contract". The court concluded that in such instances there was no question but that it was intended that the devisee take the proceeds. Also in Olson, the contract for sale was outstanding when the will was executed, and the court said that there was an intent that when paid the purchase money should go to the devisee. To the same effect is Beemer v. Beemer, 252 Ill. 452, 96 N.E. 1058.

In Adams v. Peabody Coal Co., a will was executed devising real estate. The testator subsequently gave an option for mineral rights and the option was exercised after testator's death. The issue raised was whether the option proceeds should go to the devisees or pass to the personal representative. We note that the devise remained operative for all purposes except the mineral rights. That court, citing Covey and Minshall, determined that the testator ...

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