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In Re Estate of Gaglione

OPINION FILED AUGUST 6, 1982.

IN RE ESTATE OF AUGUSTINA GAGLIONE. — (MARGARET G. RUFFO, APPELLANT AND CROSS-APPELLEE,

v.

SAM GAGLIONE ET AL., APPELLEES AND CROSS-APPELLANTS.)



Appeal from the Circuit Court of Cook County; the Hon. Charles C. Leary, Judge, presiding.

JUSTICE WILSON DELIVERED THE MODIFIED OPINION OF THE COURT ON DENIAL OF PETITION FOR REHEARING:

This is a consolidated appeal from an order of the trial court denying plaintiff's motion to vacate the summary judgment order of November 13, 1980, and from an order which denied her claim as not being timely filed. The issues raised by plaintiff for review are: (1) The trial court erred in admitting the 1959 joint will to probate and (2) if the trial court's action was correct in admitting the 1959 joint will to probate, then it was error not to extend the time for filing claims. The pertinent facts follow.

Nicolo Gaglione and his wife Augustina executed a "Joint and Mutual Last Will and Testament" dated June 27, 1959. Nicolo died on June 17, 1967, and the 1959 joint will was filed with the probate division of the circuit court; however, it was not offered for probate as Nicolo's last will and testament.

Augustina executed another last will and testament on August 28, 1973, which instrument revoked and annulled all former wills and codicils made by her. She died on January 1, 1980.

Sam Gaglione petitioned to probate the 1959 joint will as Augustina's valid last will and requested the appointment of Michael Gaglione and Josephine DeStefano, as co-executors. The court admitted the 1959 joint will on March 31, 1980, and letters of office were to issue to the named co-executors. Notice was sent by the court clerk advising all interested heirs of their rights under the Probate Act to require formal proof of the will pursuant to section 6-21 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 6-21).

On May 9, 1980, plaintiff, daughter of decedent, and a legatee and devisee under both the 1959 joint will and the 1973 will, filed her petition asking that letters of office issue to the named co-executors in the 1973 will, that the letters of office issued under the 1959 joint will be revoked and that the 1959 joint will be denied probate. The hearing on the petition was continued to May 12, 1980, at which time a formal petition to probate the 1973 will was filed in open court. Plaintiff's request for a formal hearing on the 1959 joint will was continued generally and the hearing for probate of the 1973 will was set for May 16, 1980. On that date, the court stated that the most "recent will" would be admitted, and that letters of office previously issued (under the 1959 joint will) would be cancelled when the 1973 will was properly admitted. The hearing on the petition to admit the 1973 will was continued to June 9, 1980.

Plaintiff filed her petition to probate the 1973 will and to have letters of administration with the will annexed issue to her on June 9, 1980. The named co-executors of the 1973 will, Donald Panarese and Josephine DeStefano, declined to act. Objections to plaintiff's appointment as administrator with the will annexed were filed by DeStefano, Sam Gaglione and Mary Wagener. These objections were rejected and plaintiff was appointed administrator. The 1959 joint will was held in abeyance.

Michael Gaglione filed his petition seeking formal proof of the 1973 will (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 6-21) on July 7, 1980. At the hearing on August 7, 1980, the court heard the testimony of Marie Sabatino through an interpreter and directed that the testimony of Rev. Angelo Carbone, the other witness to the 1973 will, who was a nonresident, be secured at a mutually convenient time. After this was completed on August 21, 1980, the court accepted on formal proof the probate of the 1973 will and confirmed the letters of office previously issued to plaintiff on June 9, 1980.

There was a formal hearing held on the 1959 joint will on September 24, 1980, at which time the court received the testimony of Panarese and Francis Renaldi, witnesses to the 1959 joint will. Over plaintiff's objections to the court's authority to conduct a hearing, the court admitted the 1959 joint will to probate, and granted the proponents of the 1959 joint will time to file a motion for summary judgment.

Proponents of the 1959 will filed their motions for summary judgment with supporting briefs. Plaintiff answered and replies were filed. On November 13, 1980, the court ordered that the only will to be probated was the 1959 joint will. The 1973 will was denied probate, letters of office issued under that will were revoked and all further proceedings were ordered to be conducted under the 1959 joint will.

An appeal was filed from the court's order refusing to vacate the order admitting the 1959 joint will to probate. A notice of cross-appeal was filed by the 1959 joint will proponents on December 29, 1980. Plaintiff had previously, on November 26, 1980, filed her claim in court and with the co-executors under the 1959 joint will for services rendered to the decedent. DeStefano, a co-executor, moved to strike and dismiss the claim as being untimely. The court ruled that the claim had not been filed within the six-month period from the date of initial issuance of letters of office under the 1959 joint will, i.e., March 31, 1980, and it was dismissed as untimely filed. An appeal was filed from this order and on plaintiff's motion for consolidation, these two appeals were consolidated.

OPINION

It is plaintiff's contention that when the court was confronted with two instruments purporting to be the decedent's last will, it had the authority only to admit to probate the last unrevoked will executed according to statutory requirements.

• 1-3 When the 1959 joint will met the statutory requirements of section 6-4 of the Probate Act, *fn1 notice was sent to all heirs and legatees advising them that they have a right to require formal proof of the will under section 6-21. *fn2 Plaintiff timely filed her petition asking that letters of office be issued under the 1973 will, that letters of office issued under the 1959 joint will be revoked and that the 1959 joint will be denied probate. Faced with the introduction of two wills, the court's function was to consider which was the last, valid unrevoked will under the statute. (In re Estate of Marcucci (1973), 54 Ill.2d 266, 296 N.E.2d 849.) Having determined that a prima facie case of validity had been made in regard to the 1973 will and it was admitted to probate, letters under the 1959 joint will then should have been revoked. The court in probate proceedings may properly consider the issue of presumed revocation under section 6-4. See In re Estate of Millsap (1979), 75 Ill.2d 247, 388 N.E.2d 374, where our supreme court held that a party is not limited to a will contest (Ill. Rev. Stat. 1979, ch. 110 1/2, par 8-1) if he desires to produce evidence giving rise to a presumption of revocation. ...


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