APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 13, 1982.
Plaintiffs appeal from the order of the trial court which dismissed their complaint for money damages upon the motions by the respective defendants made pursuant to section 48 of the Civil Practice Act. Ill. Rev. Stat. 1979, ch. 110, par. 48.
Plaintiffs are the heirs at law of Cordelia Davis, whose will and codicil were admitted to probate on October 10, 1978. On that date defendant (Bank) was appointed executor. Defendant, Doss, received substantially all of the testator's estate under the will and codicil which were executed on November 15, 1974, and August 20, 1976, respectively.
The will and codicil drafted by an attorney, Kenneth Kinser, recited that Doss had been testator's friend, confidant and legal advisor and that Doss had refused to prepare the will for testator because of his professional relationship. Kinser is the attorney for the decedent's estate.
Although not included as parties to the actions, we designate five individuals unrelated to testator who were legatees and devisees under a will executed on March 10, 1973, as Anderson. The record discloses that on December 17, 1973, testator executed, in the presence of witnesses, and verified a document designated "Disclaimer, Cancellation, Nullification and Revocation." It recited that it is directed to the cancellation, disclaimer and revocation of all documents, instruments, pleadings, and other "written data," as well as a will prepared by an attorney from Chicago. The recitation discloses that the latter apparently became decedent's attorney at the suggestion of Anderson.
On April 6, 1979, the plaintiffs and Doss, together with Anderson as three designated parties acting through their respective attorneys, entered into a written agreement which stated the interests of the several parties and recited:
"WHEREAS, Robinson (plaintiffs) et al have agreed to refrain from filing a suit to contest either Will of Cordelia R. Davis above described, and Doss and Anderson, et al have agreed to pay Robinson, et al from the estate assets the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00).
3. Robinson, et al agree that they will not file a lawsuit to contest the Wills and Codicil of Cordelia R. Davis above described.
4. Doss and Anderson, et al agree that Robinson, et al will be paid the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00) out of the assets of the estate."
The document was executed by persons designated as the attorneys acting for each of the three parties. Beneath the signature of the attorneys and to the left margin was the notation "APPROVED AND ACCEPTED" with the signature of the attorney designated as the attorney for the executor.
The record contains a probate form identified as "EXHIBIT 4" to the pleading designated "RECEIPT ON DISTRIBUTION," reciting the receipt of cash in the sum of $125,000, pursuant to the agreement dated April 6, 1979. The document is not dated and bears no file stamp, but is signed by the attorney in behalf of the plaintiffs. The form waived notice and consented to approval of the final account of defendant Bank in its capacity of executor of the estate.
On March 4, 1981, plaintiffs filed a "PETITION FOR CITATION TO DISCOVER INFORMATION," directed to the attorney for the estate, the president of the Bank and defendant Doss. As to the Bank and the attorney for the estate it is alleged that there was a duty as a fiduciary to disclose the document which purported to revoke the first will of the testator; that defendants failed to so disclose the existence of the document with the result that plaintiffs failed to file a will contest and entered into the settlement agreement. It was alleged that the original document could not be found, although a photocopy of an executed copy was attached to the petition.
The petition alleged that there were "substantial grounds" to contest the probated will for the reason that Doss was attorney for the testator at the time of the execution of the will and codicil and received most of testator's property while serving in a fiduciary capacity.
The petition prayed discovery of the document of revocation, correspondence concerning it, and any other wills. Each defendant filed a motion to dismiss the petition. The written order found that the trial court did not have jurisdiction to entertain the petition, and that the petitioners had not shown an interest in the ...