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In Re Estate of Gaglione

OPINION FILED SEPTEMBER 23, 1983.

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

v.

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



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Charles C. Leary, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

On November 13, 1980, the circuit court of Cook County, in ruling on a summary judgment motion, denied probate to the will of Augustina Gaglione dated August 28, 1973, and ordered that the joint and mutual will of Nicolo and Augustina Gaglione dated June 27, 1959, be admitted to probate. The circuit court also entered an order on April 20, 1982, denying the claim of Margaret Ruffo as untimely filed. All of those orders entered in the circuit court were reversed by a judgment entered in the appellate court on November 5, 1982. (109 Ill. App.3d 748.) We allowed the petition for leave to appeal filed by Sam Gaglione, Michael Gaglione, Josephine De Stefano, and Mary G. Wagener.

The appellate court set forth the pertinent facts as succinctly as possible. The facts are as follows.

Nicolo Gaglione and his wife Augustina executed a "Joint and Mutual Last Will and Testament" dated June 27, 1959. Nicolo died on June 21, 1964, at which time the 1959 joint will was filed with the probate division of the circuit court. The will was not, however, offered for probate as Nicolo's last will and testament.

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

Sam Gaglione, decedent's son, petitioned to probate the 1959 joint will as Augustina's valid last will and requested the appointment of Michael Gaglione and Josephine De Stefano, 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 of 1975 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, Margaret Ruffo, 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. 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 May 16, 1980, the court stated that the most recent will would be admitted, and that the 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.

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

Michael Gaglione filed a 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 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 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. De Stefano, a co-executor, moved to strike and dismiss the claim as being untimely. The circuit 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, 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 in the appellate court.

The appellate court found that it was error for the circuit court to conduct the further proceeding that it did under sections 6-4 and 6-21 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, pars. 6-4, 6-21) on the 1959 joint will, since the court had already accepted proof of the 1973 will which had revoked the 1959 joint will. The appellate court further found that the circuit court improperly advised the proponents of the 1959 joint will to file a motion for summary judgment. In determining that the 1973 will was duly proved to have revoked all former wills, the appellate court concluded it should have been admitted to probate as the last valid, unrevoked will, further finding that the appropriate action for the opponents of the 1973 will would be to initiate a will contest in compliance with statutory requirements. The appellate court also determined that a consideration of whether plaintiff's claim for services was timely filed becomes moot, since her claim was filed within six months of the issuance of letters of office to her under the 1973 will. In so finding, ...


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