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In Re Estate of Kritsch

OPINION FILED SEPTEMBER 18, 1978.

IN RE ESTATE OF GUSTAV KRITSCH, DECEASED. — (ANNA ATKINSON ET AL., PLAINTIFFS-APPELLANTS,

v.

MARIE KRITSCH ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND E. TRAFELET, Judge, presiding.

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

Anna Atkinson, Mary Munch and Alice Joachim (plaintiffs), filed a petition against various persons interested in the estate of Gustav Kritsch, deceased, including Egon Kritsch, executor of said estate. Plaintiffs sought relief concerning the wills of said Gustav Kritsch, deceased, and his deceased first wife, Bessie Kritsch. After a hearing, the trial court allowed the motion of Egon Kritsch, as executor, to strike and dismiss the petition of plaintiffs. Plaintiffs have appealed.

In this court, plaintiffs contend that the wills of the late Bessie and Gustav Kritsch were mutual and contain a plan for distribution of the estate of the last of these two testators to die. In addition, plaintiffs urge that any existing ambiguity as to the intent of the testators did not justify the dismissal of plaintiffs' petition. In response the executor, Egon Kritsch, contends that the mutual wills of Bessie and Gustav Kritsch clearly contain a plan for distribution of the estate of the first to die to the survivor in fee if such survival is by more than 90 days. The executor also urges that there is no ambiguity as to the intent of the testators so that it was proper for the trial judge to strike and dismiss the petition of plaintiffs.

• 1 Since the order of dismissal was entered upon allowance of the motion to dismiss filed by the executor, all facts properly pleaded in the petition of plaintiffs must be taken as true. (Kendall v. Kendall (1978), 71 Ill.2d 374, 375, 375 N.E.2d 1280; Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 329, 371 N.E.2d 634.) A statement of the facts before us for purposes of this appeal follows.

On January 30, 1956, Gustav Kritsch and Bessie Kritsch, his wife, executed mutual wills. These wills were identical except for the names of the testators and designation and description of the primary beneficiary of each will. Each will contained the following paragraph (identical except for use of "husband, Gustav E." in Bessie's will and "wife, Bessie" in Gustav's will):

"SECOND: It has been agreed between me and my husband, GUSTAV E. KRITSCH, In consideration of our mutual bequests and in pursuance of a compact between us, that we shall each make a separate will bearing the same date, disposing of our property, both real and personal, wherever situated, in such a way as to accomplish certain things, and we have agreed between us and in consideration of each other's mutual promises and covenants that said wills, as so made, will not be revoked or destroyed by either of us, nor will either of us change the terms by codicil or by a subsequent will without the full consent and agreement of the other."

In the third paragraph of each will, each testator gave to the other "all my property, both real and personal."

Each will contained a fourth paragraph stating (except for use of "husband" in Bessie's will and "wife" in Gustav's will):

"FOURTH: If my said husband shall not survive me or, surviving me, shall not be living on the day ninety (90) days after my death, then and in that event I give, devise and bequeath all of my property, both real and personal, as follows:"

Immediately following this, each of the testators made identical bequests to a bible institute and the balance of each estate was left in various designated fractional shares to relatives of both testators. Each testator made the other their sole executor with a designated bank as successor.

On February 11, 1966, each testator executed a codicil to their last wills. These codicils each revoked the legacy to the bible institute. Each revoked the appointment of the bank as successor executor and designated Bessie's brother and Gustav's nephew as successor co-executors of both wills.

Bessie Kritsch died on January 29, 1974. Her will and codicil were filed in the probate division of the circuit court of Cook County. On July 7, 1975, Gustav Kritsch executed another will. He devised all of his estate to his various relatives in equal shares. He appointed his nephew, Egon Kritsch, as executor. On October 7, 1976, Gustav married Marie Kritsch. Gustav Kritsch died on November 26, 1976. His last will, dated July 7, 1975, was duly admitted to probate on April 7, 1977.

The motion to strike the petition of plaintiffs advances the theory that the fourth article of the will of Bessie Kritsch, dated January 30, 1956, provided that all property of the testator was to go to Gustav Kritsch if Gustav survived Bessie for more than 90 days after the death of Bessie, all of the property passed to him as sole owner and therefore passed to the beneficiaries of his subsequent will dated July 7, 1975.

The trial court heard argument of counsel and studied memoranda filed by both parties. In its final order the trial court found that the wills executed by Gustav and Bessie on January 30, 1956, were "mutual binding Wills." The court found that a compact existed between these testators as recited in the second article of their mutual wills above quoted. The trial court also found that since Gustav had survived Bessie by more than 90 days, the condition created in the language of the will was satisfied and, under ...


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