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In Re Estate of Mccabe

OPINION FILED MARCH 31, 1981.

IN RE ESTATE OF JAMES O. MCCABE, DECEASED. — (SHEILA BENTHALL, PETITIONER-APPELLEE,

v.

FRANCIS MCCABE ET AL., EX'RS AND TRUSTEES OF THE WILL OF JAMES O. MCCABE, RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Madison County; the Hon. P.J. O'NEILL, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 28, 1981.

At issue in this appeal is the validity of a family settlement agreement executed by the three children of the decedent, James McCabe. After his death on September 22, 1978, his brother and sister, Francis McCabe and Betty June Luck, who were nominated as "joint-Executors and Joint Trustees" of his will, filed a petition, on October 1, 1979, for the admission of the will to probate and for the issuance of letters testamentary. Thereafter, on October 16, 1979, the three children, Sheila Benthall, aged 31, James Edward McCabe, aged 19, and Colleen Marie McCabe, aged 18, executed a family settlement agreement disposing of the assets of their father's estate in a manner different from that provided for by him in his will.

On October 17, 1979, Sheila Benthall petitioned the court for issuance of letters of office to her as administrator of her father's estate and for express approval of the family settlement agreement. In an order entered on December 14, 1979, the trial court found "[t]hat all the heirs of the decedent have entered into a bona fide Family Settlement Agreement which resolves any disputes as between them and provides for an amicable settlement of decedent's estate" and "[t]hat the Family Settlement Agreement should take precedence over the Petition for Probate of Will so as to avoid unnecessary litigation and a potential contest of decedent's will." As a result of its findings, the trial court denied the petition for admission of the will to probate and issuance of letters testamentary and, at the same time, allowed the petition for the appointment of administrator to carry out the terms of the family settlement agreement, which the court expressly approved. From that order the co-executors and trustees designate appeal.

In his will James McCabe provided first for the payment of his debts and funeral expenses and then devised and bequeathed the remaining property to the trustees to be distributed in the following way:

"(a) To Sheila Benthall * * *, my daughter from my first marriage the sum of Twenty five hundred ($2500.00) dollars to be paid out of my savings account at the Granite City Trust and Savings bank, if there is therein remaining. And in addition all horsehold [sic] goods and furniture within the residence at 2112 Lynch ave. [sic], Granite City, Illinois.

(b) My funeral expenses shall first be paid by my TRUSTEES and EXECUTORS from my Savings account at Granite City Trust and Savings bank first before the sum mentioned in (a) shall be paid to my daughter Sheila Benthall from my first marriage.

(c) All the rest and residue of my estate then remaining shall be divided equally between my two children from my second marriage, namely, JAMES EDWARD McCABE and COLLEEN MARIE McCABE when they reach their 21st birthday, except my automobiles, a 1960 Cadillac and 1974 Ford which shall be turned over to my son JAMES EDWARD McCABE.

(d) If my two children from my second marriage are minors at the time of my decease my TRUSTEES shall create a TRUST FUND deposit at the Granite City Trust and Savings Bank and shall pay to JAMES EDWARD McCABE and COLLEEN MARIE McCABE, my two children the sum of Four Hundred Dollars ($400.00) to each toward their support and education until they reach the age of 21 years."

A third provision of James McCabe's will deals with his interest in a business partnership:

"Regarding my business being a full partner — Granite City Motor express [sic] — if this business is in existence [sic] at the time of my decease, my partner should have first option to purchase my interest therein."

The family settlement agreement lists the following as the sole assets and debts of the estate of James McCabe:

"1. Three automobiles — 1977 Chevrolet Impala; 1974 Ford LTD; and 1973 Pontiac Graville [sic]: value ...


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