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In Re Estate of Cornelius

OPINION FILED JUNE 28, 1984.

IN RE ESTATE OF PETER J. CORNELIUS, DECEASED (ELDRED J. CORNELIUS, EX'R OF THE ESTATE OF PETER J. CORNELIUS, PETITIONER-APPELLEE,

v.

TERRY LEE MINGEE, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Intestate estate closed.

$400,000 in farmland.

Will found under an old rug.

Will admitted.

We affirm.

The facts are as follows. Cornelius died September 15, 1980. No will was immediately found so his estate was administered intestate. After payment of the expenses of administration, there remained to be distributed an estate valued at over $400,000, consisting primarily of farmland. The estate was closed November 23, 1981.

In March 1983, Roy P. Johnson found an envelope under an old rug in the living room of Cornelius' house. He thought that this contained the last will and testament of Cornelius. On March 22, 1983, the document was filed with the clerk of the circuit court of Champaign County. On April 20, 1983, appellees here filed a petition to vacate the court's order of November 23, 1981, which closed decedent's estate. The relief was requested pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401).

Upon the filing of this petition, a guardian ad litem was appointed to represent the interest of a minor, Terry L. Mingee, who was an heir of the estate. The guardian ad litem opposed the petition to vacate. A hearing was had, at which time Roy Johnson described the events leading to his discovery of the document purported to be Cornelius' will. Following the taking of evidence, the trial court ruled that its original order closing decedent's estate should be vacated and granted petitioner leave to file a petition for probate of the will and for letters testamentary in the estate of Peter Cornelius.

A hearing was held on October 6, at which time the petitioner put on proof pertaining to the execution of the will of Cornelius. Betty Smith, an employee of the probate division of the local circuit clerk's office, testified that she was familiar with the handwriting of one of the witnesses and identified his signature as appearing on page 2 of the will. She also testified that to her knowledge the witness had been dead for more than 10 years.

Ann Bell testified that her signature appeared on page 2 of the will and that she placed it there at the request of Cornelius. She also testified that she observed Cornelius sign the will. She stated that two other witnesses were present when she signed the will. She indicated that she had personally observed the two witnesses sign the will and identified their signatures thereon.

James Myers, president of the First National Bank of Ogden, Illinois, testified that the signature on page 1 of the will appeared to be that of the testator. He also indicated that he had refreshed his recollection as to the testator's signature from signature cards at his bank before coming to court to testify.

Eldred Cornelius testified that he was a son of decedent, that he was familiar with the signature of his father, and that his father's signature appeared on the first page of the will.

On November 2, 1983, a written order was entered, admitting the last will and testament of decedent, Peter J. Cornelius, to probate. Letters ...


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