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In Re Estate of Comiskey

OPINION FILED JUNE 19, 1984.

IN RE ESTATE OF VERNON O. COMISKEY, DECEASED (JOANE COMISKEY, EX'R OF THE ESTATE OF VERNON O. COMISKEY, RESPONDENT-APPELLANT AND CROSS-APPELLEE,

v.

DEBRA COMISKEY, A MINOR, BY M. MARIE COMISKEY, HER MOTHER AND NEXT FRIEND, PETITIONER-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

In this probate action, the trial court, after construing a life insurance policy provision in decedent's divorce decree, awarded the minor claimant one-half of decedent's insurance proceeds. Both the executor of the estate and the minor appeal. The executor raises two issues: (1) whether the trial court erred in construing the terms of the property settlement agreement and awarding one-half of the life insurance proceeds to claimant; and (2) whether the trial court erred in holding that laches and equitable estoppel were inapplicable to the claim of the minor. In her cross-appeal, the minor raises the issue of whether she was entitled to the full amount of the insurance proceeds.

The claim in this action was brought against the estate of Vernon O. Comiskey (decedent), who died on December 22, 1981. The executor of his estate, respondent Joane Comiskey (executor), is decedent's widow and third wife. Petitioner Debra Comiskey *fn1 (Debra), a minor, is the child of decedent and his second wife, M. Marie Comiskey (Marie). Decedent and Marie were married on November 6, 1954, were divorced, and then remarried on December 31, 1955. Their child, Jenise A. *fn2 was born on September 22, 1955. Decedent and Marie adopted Debra, born on December 17, 1967, who was a minor at the time of decedent's death.

Decedent and Marie were divorced on October 26, 1970. The judgment for dissolution awarded decedent custody of Jenise and Marie custody of Debra. Decedent was ordered to pay a specified sum in alimony and child support. Article VI of the property settlement which was incorporated into the divorce judgment required that, in connection with six life insurance policies then owned by decedent, he was to:

"A. Name the two minor children of the parties as irrevocable beneficiaries of said policies during their minority under the same terms and conditions now existing and furnish proof to the wife that same has been done.

B. Pay the premiums when they become due.

C. Direct the duplicate premium notices and receipts be sent to the wife.

D. Make no further loans against said policies other than what has already been made and exist against said policies.

E. Do all other acts and execute all documents needed to keep those policies in full force and effect and to accomplish all matters set forth above."

Schedule A of the agreement named the six policies which totaled the sum of $55,633. The policies at the time of the divorce named Marie as the primary beneficiary. Contrary to the settlement's mandate, the minor children Jenise and Debra were never named as irrevocable beneficiaries. Instead, in October of 1972, decedent named executor, whom he married in June of that year, as primary beneficiary on all six policies.

In October of 1976, Marie filed a petition to show cause why decedent should not be held in contempt for failure to pay alimony and child support. In that action, Marie did not raise the issue of decedent's failure to adhere to the settlement agreement in regards to the life insurance policies. Comiskey v. Comiskey (1977), 48 Ill. App.3d 17, 366 N.E.2d 87, appeal denied (1977), 66 Ill.2d 629.

After decedent's death, the total proceeds of the policies were paid to executor. Marie filed this claim on behalf of Debra against decedent's estate, seeking the sum of $55,633 based upon decedent's failure to name Debra as an irrevocable beneficiary on the insurance policies in accordance with the settlement agreement. The estate answered and raised the affirmative defenses of statute of limitations, laches and that the minor was adequately provided for by social security.

At trial, Debra presented evidence from a life insurance company employee who supplied information about the changes in the named beneficiaries and the amounts paid to executor after decedent's death. Marie testified that she did not receive the notices from decedent regarding the policies called for under the settlement agreement.

On behalf of the estate, decedent's father, brother and executor testified that Marie had conversations with decedent in which she stated that she didn't care about the life insurance policies as long as she was provided for by social security. The witnesses further stated ...


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