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In Re Estate of Ketter

OPINION FILED JUNE 23, 1978.

IN RE ESTATE OF FLORENCE S. KETTER, DECEASED. — (TERESE KROPP, PETITIONER-APPELLEE,

v.

RUTH ANHALT ET AL., RESPONDENTS-APPELLANTS — (FIRST NATIONAL BANK AND TRUST COMPANY OF EVANSTON, APPELLEE).)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES C. LEARY, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Ruth Anhalt and Doralee Kropp (respondents) appeal from orders admitting the last will of Florence S. Ketter (testatrix) to probate and appointing the First National Bank and Trust Company of Evanston, Illinois, as executor of the will. On appeal they contend that: (1) the evidence was insufficient to admit the will to probate; (2) the trial court unduly restricted their cross-examination of the attesting witnesses, (3) the trial court improperly conducted examination of the attesting witnesses, and (4) the trial court improperly placed the burden of proof upon the opponents of the will.

The following facts are pertinent to this appeal.

Following the death of Florence S. Ketter (testatrix), on July 22, 1977, her daughter, Terese Kropp (petitioner), filed a petition to admit her last will to probate. The will, which was dated March 11, 1977, contained no specific bequests but left the residue of the testatrix's estate to her children in equal shares. The First National Bank and Trust Company of Evanston, Illinois, was named as executor. The will offered for probate consisted of three pages. Following the dispositive provisions or body of the will was the following clause:

"IN WITNESS WHEREOF I have set my hand and seal this 11th day of March, 1977, to this my Last Will consisting of three pages, the witnesses certificate included, and in the margin of the first and third pages I have placed my initials for greater security."

The handwritten name of Florence S. Ketter appeared directly below this clause. In the left hand margin of the first page were the handwritten initials "F.S.K."

The attestation clause followed next and indicated that the testatrix signed the instrument "or directed that it be signed for her by Zenobia Ratajack," and that the attesting witnesses did witness the said execution in the presence of the testatrix and of each other. It further stated that the witnesses believed the testatrix to be of "sound mind and disposing memory" at the time of the execution. The clause was dated March 11, 1977, and was followed by the handwritten signatures and addresses of Mildred L. Ott, Zenobia Ratajack and Ann F. Hart.

An affidavit also dated March 11, 1977, and signed by the three witnesses followed the attestation clause. The affidavit repeated the statements contained in the attestation clause and added that the witnesses signed as attesting witnesses at the request of the "Testator" and that none of the witnesses were related to the "Testator." Although the affidavit contained provisions for a notary public's signature, it was not notarized.

The petition to admit the will to probate was filed August 26, 1977, and disclosed that the testatrix's only heirs and legatees were her three daughters, Doralee Kropp, Ruth Anhalt and Terese Kropp, the petitioner. All three named daughters were served by mail with copies of the petition to admit the will to probate. Terese Kropp also filed an affidavit of heirship stating that the testatrix was 76 years of age on the date of her death and that her only heirs at law were Ruth Anhalt, Doralee Kropp and Terese Kropp. A hearing on the petition was set for October 28, 1977.

At the hearing on the petition counsel for Ruth Anhalt and Doralee Kropp appeared to resist admission of the will dated March 11, 1977, to probate. The following evidence pertinent to this appeal was adduced at the hearing on October 28, 1977.

Ann Hart

She signed "the instrument purporting to be the last will and testament of Florence Ketter" as a witness at the request of Terese Kropp. She and the testatrix saw each other sign the instrument. Also present when she signed the instrument on March 11, 1977, were Terese Kropp and the two other witnesses, Zenobia Ratajack and Mildred Ott. She believed the testatrix was 76 years of age and of "sound mind and disposing memory at the time that she signed her name to the instrument." The instrument appeared to be in the same condition as on the day she signed it. She was not related to the testatrix.

On cross-examination she admitted that she had "assisted" the testatrix sign the instrument, stating that "I guided her hand." She was asked to guide the testatrix's hand by "one of the witnesses who was there." She had no conversation with the testatrix regarding the signature. Furthermore, she had no conversation with Terese Kropp regarding the signature of the testatrix.

Her conclusion that the testatrix was of "sound mind and disposing memory" was based upon a normal conversation of about 20 to 30 minutes in length which she had with the ...


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