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Eiten v. Eiten

OPINION FILED NOVEMBER 24, 1976.

WESLEY WENZEL EITEN, A/K/A EDWARD W. EITEN, PLAINTIFF-APPELLANT,

v.

MYRA M. EITEN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. FLOOD, Judge, presiding.

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

Rehearing denied December 29, 1976.

This is an appeal from a judgment of the Circuit Court of La Salle County granting a motion for summary decree in a partition action instituted by the plaintiff, Wesley Wenzel Eiten, a/k/a Edward W. Eiten, as against Myra M. Eiten and others. Plaintiff had claimed to be the owner of an undivided one-half interest in the premises under the will of Thomas Eiten, who died on March 16, 1947. The issue before the court is what estate, if any, did plaintiff inherit from Thomas Eiten, the decedent.

It appears from the record that Thomas Eiten died on March 16, 1947, leaving a will dated April 25, 1945, which was modified by a codicil, dated January 17, 1947. Paragraph 5 of Thomas Eiten's will provided as follows:

"5. Upon the death of my wife, the said Elizabeth Eiten, I give and devise to Edward W. Eiten, my son, for and during the term of his natural life, the right to use, income and profits from the following described real estate, to-wit: (description omitted), and the said Edward W. Eiten shall keep all taxes levied and assessed against said premises fully paid, keep the improvements thereon in good repair, and not incumber by mortgage or otherwise his interests in and to said above described premises.

Upon the death of my son, Edward W. Eiten, I give and devise, to my son, Robert B. Eiten, S.J. the remainder interest in the lands herein above described and given to my son Edward W. Eiten for life, with the expressed understanding that the said Robert B. Eiten, S.J., shall cause to be paid to my Grandson, Wesley Wenzel Eiten, within one year after the date of death of the said Edward W. Eiten, the sum of Five Thousand ($5000.00) Dollars, and said bequest of $5000.00 shall be considered a lien against said last described premises until fully paid."

The codicil of Thomas Eiten executed in January 1947, provided in part as follows:

"I do hereby revoke all that part of Clause Five (5), in my said last will and testament commencing with the words, Upon the death of my son Edward W. Eiten and ending with the words fully paid, immediately preceding Clause Six (6) of said will.

And it is my will and I give, devise and bequeath, the remainder interest for the lands herein devised to my son, Edward W. Eiten, for life, to the heirs at law of the said Edward W. Eiten, share and share alike, at the date of his, the said Edward W. Eiten's death."

The will and codicil of Thomas Eiten were admitted to probate and the estate procedure was finished by order of the Circuit Court of La Salle County on August 22, 1949.

Elizabeth Eiten, the life tenant described in paragraph 4 of the will of Thomas Eiten, died on December 31, 1948. The father of plaintiff, Edward W. Eiten, died on July 9, 1975, leaving a will dated April 9, 1949, which provided, in part, as follows:

"SECOND: I give and bequeath the sum of Five Thousand ($5000.00) Dollars to my son, Wesley Wenzel Eiten.

THIRD: All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind or nature and wheresoever situated, I give, devise and bequeath to my wife, Myra Eiten, absolutely and in fee simple.

FOURTH: I nominate, constitute and appoint my wife, Myra Eiten, Executor of this, my Last Will and Testament, and I request that as such Executor she only ...


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