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Rauch v. Rauch

OPINION FILED FEBRUARY 8, 1983.

ORA RAUCH, PLAINTIFF-APPELLEE,

v.

FRANK RAUCH, INDIV. AND AS EX'R OF THE ESTATE OF DICIE B. RAUCH, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Moultrie County; the Hon. Art Powers, Jr., Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 4, 1983.

When is a joint will a "joint and mutual will?"

Answer: this one.

The trial court so found.

We agree — and affirm.

In 1959, Julius and Dicie Rauch jointly executed a will, leaving their property first to each other and then, after the death of the survivor of them, to their four children: Frank Rauch, Edna Webb, Opal Ledbetter, and Earl Rauch.

In 1969, Julius Rauch died and the joint will was admitted to probate.

In 1978, one of the children, Earl Rauch, died leaving his entire estate to his wife.

In 1981, the surviving testator, Dicie Rauch, died. The joint will was again admitted to probate.

The widow of the deceased son filed a complaint for construction of the joint will. The trial court found that the will was a joint and mutual will and that on the death of Julius the rights of the four children became vested. The court also found that the vested interest of the deceased son passed on his death to his widow and she was therefore entitled to all of the interest which he took under his parents' will.

The testators' surviving children filed a motion for reconsideration which was denied. They then brought this appeal.

The surviving children argue that their parents' joint will was not a "joint and mutual will." They further argue that the interest of their deceased brother lapsed under the provisions of section 4-11 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 4-11) (the antilapse statute) when he predeceased his mother, Dicie Raugh. They argue that because their deceased brother's interest lapsed, his widow did not take any interest under their mother's will.

In reply, the widow argues that the joint will was a "joint and mutual will" and that the interest of her husband became vested on the death of his father, Julius, and therefore ...


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