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In Re Estate of Millsap

OPINION FILED JANUARY 26, 1979.

IN RE ESTATE OF GENERAL HOBSON MILLSAP. — (WILLIAM JOHNSON, APPELLANT,

v.

GERALDINE G. WAGY ET AL., APPELLEES.)



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Emil DiLorenzo, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1979.

Appellees, Geraldine G. Wagy and Patricia Ruth Scott, filed a petition for letters of administration in the circuit court of Will County, alleging that their father, General Hobson Millsap, died intestate. Appellant, William Johnson, filed a petition for letters testamentary, attaching thereto an executed carbon copy of the decedent's will. The court heard arguments on both petitions at the same time, granted the petition of Wagy and Scott, and denied the petition of Johnson. The court found that the original will was under the exclusive control of the decedent, that it was not found at his death and was therefore presumed revoked, and that no evidence was produced to rebut the presumption. The court accordingly ruled that the copy offered by Johnson could not be admitted to probate. Johnson appealed, and the appellate court affirmed (55 Ill. App.3d 749). We allowed his petition for leave to appeal under Supreme Court Rule 315 (65 Ill.2d R. 315).

The will offered by appellant Johnson devised and bequeathed all of the decedent's property to Johnson and his wife, and designated Johnson as executor, to be succeeded by his wife in the event that Johnson did not serve. Pursuant to section 6-7(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, par. 6-7(a), current version at Ill. Rev. Stat. 1977, ch. 110 1/2, par. 6-7(a)), a hearing was held to determine whether the will should be probated. On cross-examination of an attesting witness, it was revealed that the decedent had declared that he would retain the original will in his safety deposit box. A carbon copy was executed and retained by appellant Johnson. At the decedent's death, the original could not be found. Appellant Johnson offered the copy for probate, which was denied on the basis of the presumption of revocation that arises when a will is retained by the decedent after its execution, but cannot be found at his death. See In re Estate of Moos (1953), 414 Ill. 54, 57.

Appellant Johnson contends that the issue of presumed revocation may not be raised under section 6-7(a) because that section is limited in scope. It is argued that the drafters of the law intended that a probate court conducting a hearing under section 6-7(a) should only consider the testimony of attesting witnesses as to whether the will was executed with the requisite testamentary formalities, and any evidence of fraud, forgery, compulsion, or other invalidating conduct. Appellant Johnson has also conceded at oral argument that a probate court may also consider other evidence establishing revocation as a matter of law. Appellant contends that the presumption of revocation may only be raised in a will contest, apparently on the belief that this presumption is not a matter of law competently adjudicated in proceedings under section 6-7(a).

Close consideration of the argument leads us to conclude that adoption of appellant's analysis of section 6-7(a) would unnecessarily limit the scope of proceedings under that section. The statute provides in pertinent part:

"(a) When each of 2 attesting witnesses to a will testifies that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will in chancery. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will." (Ill. Rev. Stat. 1975, ch. 3, par. 6-7(a).)

Contrary to appellant's argument, we feel that evidence giving rise to a presumption of revocation may be presented in probate court proceedings under section 6-7(a), and that a party is not limited to a will contest if he desires to produce such evidence. Probate courts have long had the power "to hear testimony on the question of revocation and to deny probate where it appears that the alleged will is no will at all by reason of revocation." In re Estate of Holmberg (1948), 400 Ill. 366, 369, citing Research Hospital v. Continental Illinois Bank & Trust Co. (1933), 352 Ill. 510; see also In re Estate of Moos (1953), 414 Ill. 54; Bley v. Luebeck (1941), 377 Ill. 50.

The Bley case is most instructive in this matter. The case involved an appeal from a circuit court decree admitting to probate a copy of a lost will. Rules of probate practice in effect at the time required that a petition to probate a will be filed in the county court with right of appeal to the circuit court. The court's opinion traced the history of probate practice and included a discussion of a statute, section 71 of the Probate Act of 1939, identical in material respects to the statute now before us, section 6-7(a) of the Probate Act of 1975:

"In 1939, the legislature passed an act designated by short title as the Probate act. This act was a complete revision of the statutes relating to the administration of estates, including the probate of wills. All other statutes on the subject, including chapter 148, which is the act of 1874 relating to wills, were expressly repealed. Section 71 of the Probate act (Ill. Rev. Stat. 1939, chap. 3, par. 223) was substituted for section 13 of the chapter on wills, but the language was materially changed. That section, as reenacted as section 71 of the Probate act, preserves and continues the right of the proponent to offer additional evidence on an appeal to the circuit court as such right existed under section 13 of the act relating to wills. * * * `* * * If the proponent establishes the will by sufficient competent evidence it shall be admitted to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which, in the opinion of the court, is deemed sufficient to invalidate or destroy the will.' * * *

In a case where the will is lost and is not in existence, proof may be offered on the additional issue of the loss or destruction of the will and its contents.

* * * In the case of a lost will, which is not in existence, the issues to be tried by the county court are necessarily broadened. In such case the county court must hear proof of the due execution of the will and the sanity of the testator and any evidence of fraud, forgery, compulsion, or other improper conduct, the same as in cases where the will is in existence; but where the will is lost, proof that the will has been lost, or destroyed, and that it was not revoked by the testator in his lifetime must also be made. * * * There is nothing in the statute which limits the evidence on these additional issues to the subscribing witnesses either on the hearing in the county court, or on appeal to the circuit court. * * * Upon the hearing of an appeal from an order of the county court, either admitting or denying probate of a lost will, the circuit court is required to pass upon the issues of loss, or destruction, of the will; that it was in existence at the time of the testator's death and had not been revoked by him in his lifetime." Bley v. Luebeck (1941), 377 Ill. 50, 56-57, 62-64.

Even cases cited by appellant recognize the power of a court to deny admission of a revoked will in probate proceedings. In re Estate of Marcucci (1973), 54 Ill.2d 266, 270, for example, stated, "The usual issue presented at such proceedings is a determination of which ...


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