APPEAL from the Circuit Court of Rock Island County; the Hon.
DAN H. McNEAL, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
On May, 4, 1959, Albert Flemming, age 65, and Eva Kent Dodd, age 58, were married. Albert had previously been married one time but had no children. Eva had two previous marriages and from one of these marriages had a son, Brian Kent. On February 17, 1966, Albert and Eva executed their joint and mutual will and a contract attached thereto.
The pertinent provisions of the joint and mutual will are as follows:
"We, Albert Flemming and Eva K. Flemming, * * * do each mutually in consideration of the other making this Will, and the provisions made herein by each of us in favor of the other, make, publish and declare this to be our Last Will and Testament, intending to provide herein for the ultimate disposition of all of our property, be it in joint tenancy, tenancy in common or in our individual names, and we agree that the same cannot be changed or varied without the consent in writing of the other, * * *.
Third: It is our joint will and desire that the survivor of us shall immediately become possessed in fee simple of all the rest, residue and remainder of the property of whatsoever name and nature and wheresoever situate of which the other may die seized or possessed.
Fourth: At the death of the survivor of us * * * all the rest, residue and remainder of the property of the survivor * * * be converted by our Successor Executor * * * into cash and distributed to the following persons in the following proportions:
A. One half (1/2) thereof to Brian E. Kent, the son of the testator, Eva K. Flemming.
B. One half (1/2) thereof to Brian E. Kent, as Trustee for the children of the said Brian E. Kent, * * *.
We each hereby nominate and appoint the other as Executor * * * then we nominate and appoint Moline National Bank * * * as Successor Executor * * *."
The contract signed by Albert and Eva and attached to their joint and mutual will provided as follows:
"CONTRACT TO EXECUTE JOINT LAST WILL AND TESTAMENT
This contract, made and executed, in duplicate, this 7th day of February, 1966, between ALBERT FLEMMING, party of the first part, and EVA ...