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In Re Estate of Dalton





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Knox County; the Hon. William K. Richardson, Judge, presiding.


Rehearing denied May 29, 1975.

This is a contest between legatees and devisees under the will of Earl C. Dalton on the one hand, and the heirs of his surviving spouse, Rose Dalton, on the other. The circuit court found for the heirs of the surviving spouse. The Appellate Court, Third District, affirmed with one judge dissenting (16 Ill. App.3d 186), and we allowed leave to appeal.

The testator made his will in September of 1967. He died March 5, 1971. At the time of his death, Rose Dalton, who had been his wife for 29 years, was 93 years old and had been a patient in a nursing home for 9 years. During the last 4 of those years she had been bedridden and unable to walk due to a broken hip and severe arteriosclerosis. She and the testator were childless, but she had children by a prior marriage.

The will disposed of four farms which the testator owned, each by a devise for life to specifically named nieces and nephews and a sister with the remainder to their surviving child or children. Each of these devises was made "subject, however to the provisions in this my Will made for my wife, if she survives me." The will also provided that the executor should, during the life of the testator's wife, rent all the lands owned by the testator, "collect all the rents and make the necessary repairs, so as to keep the buildings on the lands in good and ordinary repair and condition, and pay all the necessary expenses for my said wife, including her hospital bills, nursing home expenses, doctors bills, and everything she may require for her care and comfort so long as she shall live, and such Executor shall accumulate such income, rents and profits up until the time of the death of my wife and then make distribution thereof to my then heirs at law, according to the Statute of Descent." The land in question was valued for estate tax purposes at $207,000. In addition, the surviving spouse received the home in Knoxville, valued at $13,000, which had been owned in joint tenancy.

The will was admitted to probate in the circuit court of Knox County on May 12, 1971. Ten days later, Bessie Holt Shaffner and Veda Holt Gray, daughters of Rose Dalton by a previous marriage, were, on their own petition filed in the same court, appointed conservators of the estate and person of Rose Dalton. Three days later, on May 25, 1971, they filed their petition for the entry of an order authorizing them to renounce the will of Earl C. Dalton. No notice of the filing of this petition was given to anyone. After describing the advanced age and poor health of the surviving spouse, the petition alleged:

"Predictions on the continued life of the said Rose R. Dalton are extremely guarded; and her life span in normal health is actuarily inconsiderable."

The petition recited that "it is to the best interests of Rose Dalton, incompetent, and her estate that a general renunciation of testator's said Will be filed in her behalf with all possible speed."

The order authorizing the renunciation, which was entered on the same day, recited:

"At 93 years of age, necessarily bedridden for the past four years with a broken hip and advanced arteriosclerosis, the life span of said Rose R. Dalton is fleeting; and her gift under testator's Will is inconsiderable to her and her estate, compared with her prospective share in testator's estate upon effective Renunciation of said Last Will and Testament."

The order authorizing the renunciation also stated:

"Testator's plan, and direction to his Executor, to liquidate his entire estate is to the best interests of all the legatees, as well as the ward's personal estate; * * *."

The testator's will contained no such plan or direction. The inaccurate statement in the order may have been due to the fact that the petition did not accurately state the provisions which the testator made for his widow in his will.

More significantly, for present purposes, both the petition and the order appear to have been based upon the benefit that would inure to the incompetent's estate from a renunciation. This is an improper consideration. In Kinnett v. Hood (1963), 25 Ill.2d 600, the various factors that might be considered by a court in determining whether to permit ...

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