APPEAL from the Circuit Court of Warren County; the Hon.
KENNETH L. BATH, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This appeal lies from orders of the circuit court of Warren County, which admitted to probate and afterwards confirmed admission of the will of Lillian Brownell Lynch. Plaintiff, Virginia Missavage, is a pretermitted heir of the testator and plaintiff, David Missavage, is one of her children, likewise pretermitted in a distribution to certain ones, but not all, of the testator's grandchildren. Defendant is the corporate executor nominated in the will.
The testator died on October 30, 1980, and on October 31, 1980, a daughter, Mary Lemoine, who together with her children received the bulk of the estate under the will, filed a petition to probate the instrument dated February 4, 1980.
On the same day, October 31, 1980, the trial court took testimony regarding heirs left by the testator and found plaintiff Virginia Missavage and Mary Lemoine, her daughters, to be her sole heirs. The court also considered the affidavits of the subscribing witnesses and admitted the will to probate.
On November 3, 1980, notice of such admission was sent to all interested parties and on December 12, 1980, plaintiffs filed a petition for formal proof of the will pursuant to section 6-21 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 6-21). A hearing on the petition was held on May 6, 1981, and the trial court, after hearing the testimony offered, confirmed the order of October 31, 1980, which admitted the will to probate. It is from this order that plaintiffs appeal.
Plaintiffs, as their sole issue, raise the sufficiency of the evidence. However, the defendants have raised another issue which must be dealt with first, namely, the appealability of the order in question.
It has been generally accepted that an order admitting a will to probate is not a final order within the meaning of Supreme Court Rules 301 and 303(a) (73 Ill.2d Rules 301, 303(a)), since the probate process represents a continuum of proceedings and an order of admission normally is among the first to be entered. However, most of the case law on the subject did not deal with it directly since some other action had intervened, generally to contest the will itself. For example, In re Estate of Kvasauskas (1972), 5 Ill. App.3d 202, 282 N.E.2d 465; In re Estate of Ariola (1979), 69 Ill. App.3d 158, 386 N.E.2d 862 (which included a summary judgment problem); Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 452, 68 N.E.2d 892.
All of these cases, and others, laid down by way of dictum that an order admitting a will to probate was not a final order. In view of the fact that those courts were dealing with will contests, not admission orders, the statement may be taken as true but not necessary to the decision. The significance is that will contests by their nature include the same issues as are present in an admission proceeding, but the reverse is not likewise true. The admission proceeding is limited to a determination as to whether a prima facie showing of compliance with the statutory requirements set forth in section 6-4 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 6-4) has been made. In re Estate of Ketter (1978), 63 Ill. App.3d 796, 380 N.E.2d 385.
The inquiry then must separate the question of finality from the question of appealability. Assuming that an admission order is not final, can it nonetheless be appealable? Supreme Court Rule 304(b)(1) (73 Ill.2d R. 304(b)(1)) appears to make it so. That rule states in pertinent part:
"(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, conservatorship, or similar proceeding which finally determines a right or status of a party."
The Committee Comments (revised October 1969) to this Rule state in pertinent part:
"Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim." Ill. Ann. Stat., ch. 110A, par. 304, at 347 (Smith-Hurd Supp. 1981-1982).
In a number of decisions both the supreme and appellate courts of this State have considered orders admitting wills to probate on the merits. (In re Estate of Millsap (1979), 75 Ill.2d 247, 388 N.E.2d 374; In re Estate of Marcucci (1973), 54 Ill.2d 266, 296 N.E.2d 849; In re Estate of Netherton (1978), 62 Ill. App.3d 55, 378 ...