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Brown v. Peters

OPINION FILED JULY 9, 1976.

J.L. BROWN, EX'R OF THE LAST WILL AND TESTAMENT OF ZATHOE HAUTER, DECEASED, RESPONDENT-APPELLANT,

v.

ETTA MAE PETERS, PETITIONER-APPELLEE.



APPEAL from the Circuit Court of Bureau County; the Hon. JAMES J. WIMBISCUS, Judge, presiding.

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

J.L. Brown, executor of the last will and testament of Zathoe Hauter, appeals from an order of the Circuit Court of Bureau County admitting a certain document to probate as the second codicil to the last will and testament of the decedent. As noted in the opinion later, the second codicil purports to make a specific devise of the residence of decedent and a bequest of the household goods in the residence at the time of the death of the decedent. Such property would otherwise be disposed of by executor's sale and the proceeds would be received by certain specific named beneficiaries in the original will.

The executor argues on appeal that the document is ambiguous and that other evidence surrounding its execution should be admissible to show the intent of the decedent. He also contends that the evidence would indicate that the document was not testamentary in nature.

Appellee Etta Mae Peters, who is the beneficiary designated in the tendered second codicil, contends that testamentary intent is clear from the document and that even the other evidence which was presented tends to support the finding of testamentary intent. Appellee also contends on appeal that the executor lacks standing to prosecute the appeal.

It appears from the record that Zathoe Hauter executed her last will and testament on November 12, 1965. In that will she left all household goods and furniture to her niece and nephew, and the remainder of her estate, including her residence, was to be sold and the proceeds therefrom used to pay specific bequests to various individuals, charities and public bodies. Any amount remaining after payment of specific legacies was to be divided equally between two named residuary legatees. J.L. Brown was designated as executor. Slightly over a month after execution of the will, on December 20, 1965, the decedent executed her first codicil to her will which increased the bequest of one individual, who was provided for in the original will, and added specific bequests to two additional persons. In all other respects the original will was ratified and confirmed.

We glean from the reading of the documents filed in the case that petitioner, Etta Mae Peters, was employed by decedent as a housekeeper and companion. After the execution of the 1965 codicil, and apparently some time in 1969, the decedent and Etta Mae Peters executed a handwritten document which reads, in its entirety, as follows:

"Agreement — between 1st Party — Zathoe Hauter and 2nd Party — Etta Mae Peters

1st Party

I (Zathoe Hauter) give and bequeath unto 2nd Party (Etta Mae Peters) my residence at 1626 South Main Street, Princeton, Illinois. I also give and devise unto Etta Mae Peters all of the household goods and furnishings which I may own at the time of my death.

Signed: /S/ Zathoe Hauter

2nd Party

I agree to stay with, care for and be a companion to 1st Party (Zathoe Hauter) for as long as she shall live.

Signed: /S/ Etta Mae ...


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