Appeal from the Circuit Court of St. Clair County; the Hon.
William R. Starnes, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
This action commenced with the filing for probate of the September 19, 1980, will of Herman Schwebel in the circuit court of St. Clair County by defendant Phillip Sheets. Plaintiffs filed their petition seeking that the 1980 will be declared inoperative in light of an alleged joint and mutual will executed in 1960 by Herman Schwebel and his brother Ralph. After evidentiary hearings, the trial court found that the 1960 will was a joint and mutual will and that the 1980 will was inoperative. Plaintiffs herein are nephews and nieces of the Schwebel brothers; defendants are the son, daughter and wife of a deceased nephew of the Schwebel brothers, plus Eugene Jones, a longtime neighbor and friend. Defendants appeal with the exception of Jones, who is not involved in this appeal. We affirm.
The Schwebel brothers died unmarried and without issue. They lived with their sister until her death in 1955, after which time they lived alone together on their farm. Their relationship was by all accounts remarkably close. In 1956 the brothers executed a joint will in which each left all of his estate to the survivor of them, without provision for disposition upon the death of the survivor. The brothers executed a second joint will in 1960. As the text of the 1960 will is virtually dispositive of this appeal, we set it forth in its entirety with the exception of signature and attestation:
"JOINT LAST WILL AND TESTAMENT OF RALPH SCHWEBEL AND HERMAN SCHWEBEL
We, Ralph Schwebel and Herman Schwebel, brothers, of New Athens Township, St. Clair County, Illinois, being of sound mind and memory, do hereby make, publish and declare the following to be our joint Last Will and Testament, hereby revoking any and all former wills by us heretofore made:
FIRST: We order and direct our executor to pay and discharge all of our just debts and funeral expenses as soon after our respective deaths as may be convenient. We also direct our said executor to pay and discharge all taxes, including Illinois Inheritance taxes and Federal Estate taxes out of the assets of our respective estates and direct and request that the payment of said taxes shall not be charged against the beneficiary or beneficiaries under this Will and Testament.
SECOND: We give and bequeath the sum of Five Hundred ($500.00) Dollars to the State Bank of New Athens, Illinois, for the upkeep, care and maintenance of the Schwebel Cemetery lot located in the Oak Ridge Cemetery, New Athens, Illinois, said State Bank of New Athens to invest said fund in accordance with the usual and general practice now prevailing in said community, intended to provide continued care and maintenance of lots in said cemetery.
THIRD: After the payment of the foregoing provisions, we give, bequeath and devise unto the survivor of us all of our estate, real, personal or mixed, of every kind and description and wherever situated, the same to be the absolute property of said survivor.
FOURTH: After the death of the survivor, or in the event our deaths occur simultaneously, or under circumstances that it may be difficult to determine who died first, we give and devise unto Herman Winter, our nephew, `the old Schwebel Farm or homestead' located in New Athens Township, St. Clair County, Illinois, in fee simple, and in the event the said Herman Winter predeceases the survivor, then said farm shall go to his children in equal shares.
FIFTH: After the death of the survivor, or in the event our deaths occur simultaneously, or under circumstances that it may be difficult to determine who died first, we give and devise unto Irene Kunkelmann, our niece, the farm known as the `Hulliung Farm, and also known as the George Mueller Farm', located in New Athens Township, St. Clair County, Illinois, in fee simple and in the event the said Irene Kunkelmann shall predecease the survivor, then said farm shall go to her children in equal shares.
SIXTH: Our executor shall have full power and authority to make proper deed or deeds of conveyance to carry into effect the provisions of Clause Fourth and Clause Fifth of this our Last Will and Testament.
SEVENTH: After the death of the survivor of us, or in the event our deaths occur simultaneously under circumstances that it may be difficult to determine who died first, we give, bequeath and devise all the rest, residue and remainder of our respective estates, real, personal or mixed, and wherever situated, to our surviving nephews and nieces, including the nephew and niece under Clause Fourth and Clause Fifth.
EIGHTH: In order to make proper distribution among the nephews and nieces we direct and request our executor to reduce our entire estate to money and said executor shall have full power and authority to sell the same, either personal or real, at either private or public sale and to give proper deed or deeds for the conveyance thereof.
NINTH: We hereby nominate and appoint the survivor of us to be the Executor of this our Last Will and Testament, without bond. After the death of the survivor, or in the event that our deaths occur simultaneously, or under circumstances that it may be difficult to determine who died first, we nominate and appoint the State Bank of New Athens, Illinois, to be the executor hereof. We further request our executor to employ our friend, Hilmar C. Lindauer, for all legal matters required for the administration of our respective estates and in the event of his inability to act as such, then the Law Firm of Lindauer, Lindauer, Pessin & Nieman, or their successors, shall be so employed; our said executor and the attorneys employed by them, in whom we have complete confidence, shall make all necessary and proper funeral arrangements for our burial in the family lot in Oak Ridge Cemetery."
Attorney Hilmar Lindauer was the scrivener as to the 1956 and 1960 wills. His partially legible handwritten notes regarding the 1960 will, in evidence at trial and included in the record on appeal, do not appear to expressly refer to any agreement by the Schwebel brothers not to revoke the 1960 will. The 1960 will was admitted to probate as the will of Ralph Schwebel. At the time of his death, the brothers owned considerable real estate, most of it jointly. Thereafter, during the period prior to his death, Herman Schwebel lived with and was cared for by the Sheets family. Herman Schwebel executed three wills in 1980, the last dated September 19, 1980, in which Herman left the bulk of his estate to defendants Phillip, Clara, and Dorothy Sheets. Phillip Sheets petitioned for admission of the September 19, 1980, will to probate. This petition was granted and letters testamentary issued to Phillip Sheets. Thereafter plaintiffs filed their petition seeking that the 1960 will be declared binding on Herman Schwebel's estate and the 1980 will ineffective. Said petition also sought that certain inter vivos transfers by Herman Schwebel be ...