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In Re Estate of Minsky

OPINION FILED FEBRUARY 15, 1977.

IN RE ESTATE OF CHARLES L. MINSKY, DECEASED. — (MARGARET MINSKY ET AL., PETITIONERS-APPELLEES,

v.

STANLEY W. MINSKY, INDIVIDUALLY AND AS EX'R OF THE ESTATE OF CHARLES L. MINSKY, ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT A. SWEENEY, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Stanley W. Minsky, both individually and as executor of the estate of Charles L. Minsky, Elizabeth Przybylski, and Lillian V. Peterson (hereinafter referred to as "appellants") appeal from an order of the circuit court declaring the will of Charles L. Minsky (hereinafter referred to as "testator") revoked and vacating a previous order whereby said will was admitted to probate. On appeal, appellants contend that the trial court's finding of revocation is contrary to the manifest weight of the evidence and that the trial court improperly denied appellant's motion for a one day continuance to allow them to produce a material witness.

Testator died on December 31, 1974. On March 7, 1975, a hearing was held in the circuit court on a petition filed by the executor of testator's estate to admit to probate a document dated March 29, 1972, and purporting to be the last will and testament of testator. Oliver Harris and Janet Thompson, attesting witnesses to the execution of this document, testified at the hearing. At that time, Harris was a legal associate and Thompson the secretary of Jack R. Davis, the attorney who drafted the document and who represented appellants throughout the proceedings in the circuit court. Both witnesses observed testator sign the document, and they then signed the original document and "one or two" onion skin copies. It was their opinion that testator was of sound mind and memory at the time he signed the document. On cross-examination, both witnesses responded to questions posed by appellee's counsel. Although their answers were responsive to the queries concerning the execution of the will, neither witness commented with regard to counsel's repeated reference to the "three documents." At the conclusion of this hearing, the court ordered the will admitted to probate.

On April 2, 1975, testator's wife and two daughters (hereinafter referred to as "appellees") filed a petition to vacate and reconsider the order entered on March 7, 1975, admitting the will to probate, and for other relief. It was alleged, inter alia, in the petition that testator duly executed his will in triplicate, retaining one copy in his possession and giving the other two copies to his attorney, Jack Davis; that at the proceeding to admit the will to probate, only two copies of the will were accounted for; and that appellees could offer proof establishing that testator revoked his will by tearing and destroying the copy which he had retained.

Appellants filed a motion to dismiss the petition. They alleged therein that testator executed an original and one onion skin copy of his will; that testator retained possession of the original document and that Davis retained possession of the one onion skin copy; that the original document was filed with the clerk of the circuit court on January 29, 1975; and that the one onion skin copy remained in the files of Davis. Attached to, and in support of, the motion to dismiss was an affidavit of Davis. The declarations contained in the affidavit supported the allegations asserted in the motion.

Appellees filed a reply to the motion to dismiss and alleged various procedural defects in the motion. In addition, appellees quoted portions of the transcript of the proceeding to admit the will to probate when appellees' counsel repeatedly referred to the "three documents" during his cross-examination of the two attesting witnesses. It was alleged that the testimony adduced at the previous proceeding established that three documents were executed. Since one copy was not accounted for at that hearing, a presumption attached that testator destroyed the missing copy, thus revoking his will. Also quoted in the reply was a segment of the cross-examination of Janet Thompson when she stated that she placed the original document, as opposed to the onion skin copy as stated in Davis' affidavit, in the files at Davis' law office.

After other pleadings were filed with respect to the petition, a hearing on the petition was conducted on May 21, 1975. The court first entertained arguments by counsel regarding appellants' motion to dismiss the petition. Davis took the witness stand to enable the court and opposing counsel to examine him with respect to the affidavit he filed in conjunction with the motion to dismiss. Upon questioning by the court, Davis recounted the circumstances under which he was retained by testator to draft the will and the manner in which the will was executed. He maintained that only the original and one onion skin copy were prepared and executed and that the original was given to testator. *fn1 Counsel for appellees confronted Davis with most of the testimony elicited at the prove-up hearing of March 7, 1975, which counsel had quoted in his reply. Davis stated that he believed his secretary had testified truthfully at that hearing. At the conclusion of the arguments, the court commented that it remained unclear whether one or two copies of the will had been executed in addition to the original document and denied the motion to dismiss the petition.

Although contending that a presumption of revocation should arise in favor of appellees thus shifting the burden to appellants, counsel for appellees proceeded to call two witnesses to testify in support of the petition to vacate and reconsider. The witnesses were the sister-in-law and the mother of testator's widow. Both witnesses testified that they engaged in a conversation with testator in his home during March of 1974, some nine months prior to testator's death. At that time, testator was holding some papers which he identified as his will. He also mentioned the date on which the will was executed and the name of the attorney who had drafted the will. Testator related to the witnesses that he had excluded his wife from the will because of marital difficulties they were experiencing at the time the will was prepared. However, since they had reconciled their differences, he regretted the exclusion. He requested that the witnesses not divulge their conversation to his wife, whereupon he tore the papers and departed. Although neither witness examined the papers, both observed signatures on them.

When this testimony was completed, appellees rested their case and appellant's motion for a finding in their favor was denied. The following colloquy then occurred:

"MR. DAVIS: I will have to proceed with my case.

THE COURT: In view of that —

MR. DAVIS: Recess until tomorrow.

MR. ALTIERI [co-counsel for appellees]: I object, your Honor. Your Honor said this was the final date. It has got to go on.

MR. DAVIS: It's the final date.

MR. SCOVILLE [co-counsel for appellees]: He asked for a continuance.

MR. ALTIERI: Their witnesses are here.

MR. DAVIS: They are not here. I told you I have a subpoena out and the witness will be here tomorrow morning at 10:00 o'clock.

MR. ALTIERI: Somebody was exluded here.

THE COURT: I don't want to preclude anybody from anything, Counsel, except this — what's the nature of the evidence? Can you tell me or give us some idea what it ...


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