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Akerman v. Trosper





APPEAL from the Circuit Court of La Salle County; the Hon. ROBERT CARTER, Judge, presiding.


This cause comes before us on interlocutory appeal pursuant to Rule 308 (Ill. Rev. Stat. 1980, ch. 110A, par. 308). At issue is whether a court is required to sever a will contest from an action to avoid or impose constructive trusts upon deeds of real property and transfers by gift of personalty. The court below denied the defendants' motion to sever, finding that "denial of the motion to sever would avoid a duplication and overlap of witnesses and evidence in two separate trials" and that "a single trial of all issues would be more expedient in accomplishing judicial purposes of the trial court." The court also found that "a severance rests within the sound discretion of the trial court and this Court expresses and finds that a denial of said motion will not prejudice the rights of the litigants."

The decedent, Pearl M. Keller, died on January 10, 1979, at the age of 92. She left a will, dated April 25, 1978, and codicil thereto, dated August 2, 1978. This will devised the decedent's real property, a residence and an 80-acre parcel of farm property, to her daughter, the defendant Lillian Trosper Stilwell, with provision that, should Lillian not survive, the property be devised to the children of the decedent's grandson, Robert Trosper (i.e., the defendants David Trosper and Roberta Trosper). The decedent's households goods and residue of her estate was, by the terms of the will, to be divided equally between her son, Kenneth Keller (now deceased), and her daughter, Lillian Trosper Stilwell. The codicil of August 2, 1978, names Lillian Trosper Stilwell as executor.

In December of 1978, the decedent, by quit-claim deed, conveyed to her daughter, Lillian, the same parcels of real estate described in her will. On December 18, 1978, the decedent conveyed her 80-acre farm and on December 26, 1978, she conveyed her residence in the village of Grand Ridge, Illinois. She reserved a life estate in each of these properties.

The complaint further alleges that, subsequent to the death of decedent's son, Kenneth, the defendant Lillian Stilwell had her name added as a joint tenant to certain bank accounts and savings and loan accounts, which had previously been held in joint tenancy by the decedent and her son Kenneth.

The plaintiffs in this action are the two daughters of Kenneth Keller. They claim to be the decedent's only heirs at law aside from the decedent's daughter, Lillian Trosper Stilwell. Count I of their complaint alleges that the document probated is not the will of Pearl Keller, in that it is "fraudulent, fictitious and forged" and/or was not executed in conformity with our statute of wills (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 4-1 et seq.). Count II alleges lack of capacity to make a will. Count III alleges that Lillian Trosper Stilwell, in whom "Pearl Keller, as her natural mother, reposed trust and confidence * * *, in violation of that trust and confidence" used undue influence and fraudulent practices to induce the execution of said will. This count also alleges that the will of April 25, 1978, was a "new will," which, "in opposition to Pearl Keller's prior will, effectively removed Kenneth Keller, her dying son, as legatee or devisee," at a time when Pearl Keller "was more than 90 years of age, and was suffering from mental distress due to her beloved son's having contracted cancer and dying."

Count IV alleges that Lillian Stilwell, holding a position of trust and confidence, violated her fiduciary duty toward her mother and exercised undue influence to induce her mother to convey to her the real estate described supra. It further alleges that Pearl Keller lacked the mental capacity to convey these lands. Count V alleges that Lillian Stilwell, in violation of her fiduciary duty and in the exercise of undue influence upon her mother, caused herself to be denominated joint owner, with her mother, of certain bank and savings and loan accounts, valued at $58,000. This count also alleges lack of capacity to make a gift of such funds. It further states, as factual background, that Pearl Keller's son Kenneth had, previous to his death, administered these funds for his mother, with whom he held them in joint tenancy. This count alleges that Lillian Stilwell, in causing herself to be named as joint tenant, excluded the daughters of Kenneth Keller from an interest in the funds, "contrary to the intention of Pearl M. Keller, complainants' grandmother."

The defendants in this action moved to sever trial on counts I, II, and III (the will contest) from trial on counts IV and V (the action to avoid inter-vivos transfers), and now appeal the denial of this motion. They rely primarily on the 1953 case of Mount v. Dusing (1953), 414 Ill. 361, 111 N.E.2d 502. Therein, it was held that "[i]n the circumstances of this case * * * it was error to deny the defendants' motion to sever the issues."

"There was a difference in time of one year between the execution of the challenged deed and the contested will, and mental capacity at both times was in issue. A higher degree of mental capacity is required to make a valid deed than to execute a will. (Moneta v. Hoinacki, 394 Ill. 47; Greene v. Maxwell, 251 Ill. 335.) Defendants Bessie Dusing and her son were sued both individually and in their representative capacities, so far as the will contest was concerned, but Mrs. Dusing, alone, was a defendant in the action to set aside the deed. Under section 2 of the Evidence Act, (Ill. Rev. Stat. 1951, ch. 51, par. 2,) she and her son were not competent witnesses, either individually or in their representative capacities, upon the issues going to the asserted invalidity of the will; as to the issues relating to the deed, she was competent to testify. The cumulative effect of these factors resulted in the imposition of an undue burden upon the jury." 414 Ill. 361, 368, 111 N.E.2d 502.)

The defendants in the instant cause, at trial and on appeal, advanced the same objections to joinder of the will contest with the action to avoid the inter-vivos transfers as were expressed by our supreme court in Mount v. Dusing. The defendants assert that the cumulative effect of the following factors would result in the imposition of an undue burden upon the jury such as would prejudice their rights:

(1) A difference in time of nearly eight months between the execution of one of the challenged deeds and the contested will, as the mental capacity at both times is in issue.

(2) A higher degree of mental capacity is required to make a valid deed than to execute a will.

(3) Different rules as to the competency of witnesses would be encountered.

(4) Different rules and shifting burdens of proceeding as to a fiduciary ...

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