Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Donald Morthland, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 30, 1983.
On April 6, 1981, the plaintiffs, the heirs of Cordelia R. Davis, filed a three-count complaint in the circuit court of Macon County. The record does not disclose why all of the other documents not directly relating to the complaint were filed in Piatt County.
In counts I and II the plaintiffs sought damages from the defendant First State Bank of Monticello, and in count III from defendant Dwight H. Doss. The circuit court of Macon County dismissed all counts with prejudice. The appellate court reversed the circuit court's order on count III of the complaint and affirmed the circuit court's dismissal of counts I and II. (104 Ill. App.3d 758.) The plaintiffs and defendant Doss filed petitions for leave to appeal with this court (73 Ill.2d R. 315(a)) and both petitions were granted. The cases were consolidated for appeal in this court.
The will and codicil of Cordelia Davis were admitted to probate on October 10, 1978. On that date, the First State Bank of Monticello was appointed as executor. Under the will and codicil defendant Doss received substantially all of the testator's estate. The will was executed on November 15, 1974, and the codicil on August 20, 1976.
Both the will and the codicil were drafted by an attorney named Kenneth Kinser. Mr. Kinser is the attorney for the decedent's estate.
In Ms. Davis' will she included a paragraph explaining that defendant Doss was her friend, confidant and legal adviser and that on numerous occasions she had requested him to prepare her will. She further explained that he had refused because of their professional association.
Prior to the will of November 1974, Ms. Davis had executed another will. This will was executed on March 10, 1973, and named five individuals unrelated to the testator as legatees and devisees. The appellate court chose to label this group of individuals as "Anderson." We will also refer to this group of individuals as the Anderson group. There is nothing in the record to indicate whether the 1973 will was ever filed in the probate proceeding or who the executor was in that will.
On December 17, 1973, the testator executed a document prepared by defendant Doss entitled "Disclaimer, Cancellation, Nullification and Revocation." This document was attested to by two witnesses and notarized. In the document Ms. Davis stated that she "disclaims, cancels, nullifies and revokes all documents, instruments, pleadings and other written data prepared by attorney Tom Yates of Chicago, Illinois, and executed by the undersigned, especially including a certain Last Will and Testament prepared by said Yates, dated the 10th day of March, 1973, and any codicil thereof." Mr. Yates was hired by decedent at the suggestion of the Anderson group.
Subsequent to the date that Ms. Davis' 1974 will and 1976 codicil were admitted to probate by the probate court of Piatt County, the plaintiffs and Doss, together with the Anderson group, acting through their respective attorneys, entered into a written settlement agreement. The agreement was dated April 6, 1979, and plaintiffs (the Robinson group), the Anderson group and defendant Doss were the three designated parties to the agreement. The record is unclear as to why the Anderson group was a party to the agreement and agreed to pay the Robinson group when they were not beneficiaries under the 1974 will or 1976 codicil. The agreement stated in pertinent part:
"WHEREAS, Robinson et al. [plaintiffs] 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).
NOW, THEREFORE, in consideration of the promises and agreements herein set forth, the parties agree as follows:
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 ...