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Kelley v. First State Bk. of Princeton





APPEAL from the Circuit Court of Bureau County; the Hon. JAMES J. WIMBISCUS, Judge, presiding.


Rehearing denied March 25, 1980.

This was a will contest action by plaintiffs James Kelley, Ruth Ann Kelley, and the United Methodist Church of Malden to set aside a 1974 trust agreement, will, codicil, and certain gifts of the decedent Hazel Ware.

The Kelleys, brother and sister, and the church stood to inherit a large portion of Hazel Ware's estate under a 1965 will of Hazel Ware, which would apparently be effective if the 1974 instruments were declared invalid and set aside. A jury was requested by plaintiffs for the trust portion of the suit, and was demanded for the will and codicil issues. After a lengthy trial, the jury returned verdicts, in favor of the plaintiffs, setting aside the trust agreement, will, codicil, and certain gifts made by Hazel Ware. Further verdicts found that certain other gifts by Hazel Ware were valid. As to the equitable matters, the jury was sitting in an advisory capacity only. The trial judge found in accordance with the jury verdicts and entered judgment consistent therewith.

The defendants, Frank M. Bettasso, Sr., Rita Bettasso, Michael S. Bettasso, Frank M. Bettasso, Jr., George E. Bettasso, Janelle Bettasso, John Francis Scott, Josephine Scott; Frank Bettasso, Sr., and First State Bank of Princeton, as trustees under a trust agreement, and The First State Bank of Princeton, as executor of the estate of Hazel M. Ware, appeal from the verdicts of the jury and the judgments of the trial court adverse to such appellants. They raise numerous issues, addressing in them the standing of the plaintiffs, the inconsistency of the verdicts, the evidentiary support for the verdicts, certain rulings on pretrial motions on the pleadings, numerous evidentiary matters, and certain instructions. Eight issues are purported to be covered, although when separate subissues are properly included, more than 20 separate issues are raised. The briefs of the parties are, respectively, 107 and 150 pages in length. The record is 9 volumes and the report of proceedings in the trial court spans 23 volumes. An abbreviated summary of the facts (which consumed better than half of each brief) will be set forth initially, and the other facts will be brought forth as pertinent to the discussion of the issues raised.

Hazel M. Ware died January 18, 1975, owning substantial real estate and personal property. The plaintiffs are the principal beneficiaries under three wills and a codicil executed by Hazel Ware in the years 1963 and 1965. As noted, the individual defendants, Frank and Rita Bettasso, are the principal beneficiaries under a trust, pour-over will and codicil executed by Hazel Ware in 1974. The other Bettassos, children of Frank and Rita, were recipients of gifts from Hazel Ware during her lifetime. As noted, the plaintiffs brought suit to set aside the trust, pour-over will, and the codicil, as well as certain gifts, asserting that the same had all been the result of undue influence upon Hazel Ware by Frank Bettasso, Sr. An allegation in the will contest complaint also challenged the mental competency of Hazel Ware at the time of the execution of the 1974 documents.

At the time of her death in 1975, Hazel Ware was 81 years of age and owned considerable real estate in Bureau County. She owned a 180-acre farm, known as the Ware farm, and also a 150-acre farm, known as the Bracken farm, as well as substantial stocks, bonds, savings and checking accounts. Her net estate, before taxes, was appraised at upwards of $600,000. At the time of her death, Hazel Ware was survived by no close relatives. Her husband had died in 1963, an aunt (a former owner of the Bracken farm) died in 1964, and her sister died in 1971. A friend and house companion, as well as aunt by marriage, Suzie Snow, died in 1972. The parties to this lawsuit are not related by blood to Hazel Ware. Plaintiffs James and Ruth Kelley are the children of Frank Kelley, a long-time friend and farm hand of Ed and Hazel Ware, who predeceased Hazel Ware by one day. Defendant Frank Bettasso, Sr., was a friend of Hazel and Ed Ware, who after Ed's death handled Hazel's business affairs and, later, much of her personal affairs. Rita Bettasso is Frank Sr.'s wife, and the rest of the individual defendants are the children of Frank and Rita Bettasso.

In the two years following the death of her husband in 1963, Hazel Ware executed three wills and a codicil. They were substantially the same with regard to devisees and legatees. The will of December 31, 1965, the last of the three, left certain securities outright to James and Ruth Ann Kelley. The Ware farm, after the death of Suzie Snow and Josephine Palmquist (Hazel's sister), was left in trust to Frank Kelley for life, then to his children James and Ruth Ann for life, and then to the United Methodist Church of Malden and the Antioch Presbyterian Church of Cyrene, Missouri. The Kelley children were also the beneficiaries under the residuary clause of the will. Under that clause, if the will of 1965 were to be found to be the last valid will of Hazel Ware, they would acquire the 150-acre Bracken farm, to which Hazel Ware acquired full interest upon the death of her sister in 1971.

The 1974 documents, over which the principal dispute centers in this action, consisted of a trust agreement and pour-over will, executed by Hazel Ware on May 24, 1974, and a codicil, of October 3, 1974, which republished the will. Also at issue in the suit were certain gifts allegedly made by Hazel Ware to Bettasso family members during the years 1972-1975. We shall return to the gifts later in the opinion. The trust agreement of May 24, 1974, provided that upon Hazel Ware's death, John and Josephine Scott, former tenants on the Bracken farm and friends of Hazel Ware, were to receive the Bracken farm. It also provided that $125,000 was to be placed in trust, with the income to Frank Kelley during his lifetime and the remainder to James and Ruth Kelley, Frank's children. The Ware farm and the remainder of her estate were given to Frank and Rita Bettasso, upon the death of Hazel Ware. Frank Bettasso and The First State Bank of Princeton were named trustees. Bettasso was a director at the bank. The will, also executed on May 24, 1974, named the First State Bank as executor and essentially poured any assets of her estate not then in the trust into the trust at her death. The codicil was executed on October 1, 1974, and was drawn up to provide for the manner of her burial, which had apparently been omitted from the previous will of May 24, 1974.

It was these three documents which the plaintiffs challenged as being the product of undue influence and as being executed without the requisite testamentary capacity. The jury and the trial court found for the plaintiffs and set aside the documents. Before going to the issues and the evidence pertinent to them it is useful to note that when determining whether the findings of the court are supported in the evidence, we may not substitute our judgment on the evidence for that of the factfinder, who was in the best position to judge the credibility of the witnesses and to determine the weight of the evidence. (Rhodes v. Sigler (1975), 27 Ill. App.3d 1, 3, 325 N.E.2d 381.) As therein stated,

"[W]here, as here, several reasonable inferences are possible from conflicting testimony, we are obligated to accept those which support the trial court's order."

With this obligation in mind we turn to an examination of the pertinent evidence bearing on the questions of undue influence and mental capacity with regard to the 1974 documents.

Hazel Ware was 80 years old in 1974. She had a breakdown in 1966, suffering from severe depression, which required her hospitalization during that year for almost four months, under the care of Dr. Irving Turow at the mental health unit of St. Francis Hospital in Peoria. She continued under Dr. Turow's care until her death in 1975, suffering further serious problems in 1972. Dr. Turow had her on a drug program to combat the depression and he saw her for counseling up until her death. She was on a variety of drugs during the months February through June 1974 and during October 1974. She had other health problems, including eye trouble from 1971 onward, for which she saw an optometrist. She suffered from heart problems, the most serious attack occurring in late December 1973, for which she was hospitalized for several weeks. During 1974, she was in and out of hospitals and nursing homes, spending only the months March through June at her farmhouse. The testimony concerning her mental condition during the year 1974, and specifically in May and October, was conflicting and contradictory.

Several nurses who attended to her while she resided at Colonial Hall nursing home from January through March testified that Mrs. Ware was weak, had problems with her balance, and was often confused. Rose Chilausky, one of the nurses, testified that Hazel Ware was disoriented much of the time and had problems with her memory. Chilausky was of the opinion that Hazel Ware was not of sound mind and did not have the ability to conduct any business. She did not feel that Hazel Ware had the ability to know the nature and extent of her property. Another witness, the Reverend Harold Burkey, who saw Hazel Ware on February 27, 1974, at the nursing home, testified that she did not know where she was. He stated that she was not fit to conduct any business at that time. Dr. Irving Turow, who had Mrs. Ware as a patient for her mental problems from 1966 until her death in early 1975, saw her on May 16, 1974, just eight days before the trust agreement and will were executed. He testified that on that date she did not know where she was staying. He testified that she had impaired cognitive capacity such that he doubted whether she had the capacity to know the nature and extent of her property or the natural objects of her bounty. He further testified that she had no ability to conduct any business or her affairs at that time. He questioned whether she would have been able to understand the details of any document, but he did state that she would have known she was signing a will.

In June 1974, Hazel Ware was admitted to Perry Hospital, after a fall and dizzy spells. After a week at the hospital, she returned to Colonial Hall, and then for the first three weeks of August, she remained in the mental health unit at St. Francis Hospital under Dr. Turow's care. After leaving St. Francis, she returned to Colonial Hall and was there until her death in January 1975. Her last stay at St. Francis was for agitated depression. Dr. Turow stated that, during that stay, her cognitive capacity was continuing to decrease. He testified that he doubted she had the ability to understand that she was providing for disposition of her property by a document. He also reiterated his testimony concerning her ability to know and understand the nature and extent of her property or the natural objects of her bounty. He further testified that she was behaving in a very dependent manner during this stay, which was consistent with her problem. She indicated to Dr. Turow that her business affairs were all handled by Frank Bettasso, Sr. At the last meeting between Dr. Turow and Hazel Ware, on September 18, 1974, a month prior to the execution of her codicil, Turow found her further deteriorated and depressed. As to her condition at Colonial Hall, after leaving St. Francis, Rose Chilausky testified that she was not of sound mind, did not have the ability to know and understand the nature and extent of her property and did not have the ability to conduct business affairs.

In addition to the testimony of the witnesses above discussed there was testimony from both Madge Kelley, Frank Kelley's widow, and plaintiff Ruth Ann Kelley that Hazel Ware was in ...

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