Appeal from the Circuit Court of Mercer County; the Hon.
Edward Keefe, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Joan Larison and Carol Schaubroeck, filed an action in the circuit court of Mercer County against defendant Donna Record, seeking construction of the will of George and Anna Berge. Cross-motions for dismissal, seeking different constructions of the will, were filed by the defendant. The court entered judgment on the pleadings in favor of the defendant. Plaintiffs appeal.
On January 21, 1961, George C. Berge and Anna C. Berge executed their last will and testament, leaving their property first to each other and then, in the event they die simultaneously, to their children: Joan Grace Headley, Carol Jean Schaubreck, and Donna Kay Record, to share equally. (Joan Grace Headley is now known as Joan Grace Larison.) The will made no provision for a bequest upon the death of the survivor if the testators' deaths were not simultaneous. Both George and Anna had previously been married, plaintiffs are the daughters of George and defendant is the daughter of Anna.
In July 1977 George Berge died.
In July 1983 Anna Berge died.
In November 1983 the will was admitted to probate.
The following relevant provisions were contained in what is labeled their "Mutual Will."
"* * * We, George C. Berge and Anna C. Berge * * * being of sound mind * * * and desirous of disposing of our property * * * after our deaths, respectively, do hereby * * * declare this to be our * * * joint and reciprocal last Will and Testament * * *,
Second: We give * * * each to the other, respectively, all * * * of our estate * * * jointly and severally * * * seized and possessed * * * of the one who may die first to the survivor, to be his or her sole and absolute property forever.
Third: In the event that we meet our death in a common disaster * * * we hereby give * * * all of our property * * * to our beloved children * * * to share equally."
Plaintiffs contend the will of George and Anna Berge is a joint and mutual will invoking the construction rule that a court should not hesitate to insert, transpose, or disregard words in a will to arrive at the true intention of the testator by declaring the devise to the surviving spouse in the second paragraph to be a life estate.
• 1 In Illinois, the execution of a joint and mutual will by a husband and wife is prima facie evidence of a contract not to revoke the will. Merely mutual wills do not afford such evidence, and specific, clear, and convincing evidence is necessary. (In re Estate of Marcucci (1973), 54 Ill.2d 266, 296 N.E.2d 849.) The Illinois Supreme Court has held that the taker of property subject to a contract not to revoke the joint and mutual will has only a life estate in that property, at least where there is an express prohibition against sale of the property. Thus, any lifetime gift of property is only a gift of a life estate, and the remainder passes under the will as contracted. First United Presbyterian Church v. Christenson (1976), 64 Ill.2d 491, 356 N.E.2d 532.
Wills may be joint or mutual, or both joint and mutual. A "joint will" is one where the same instrument is made the will of two of more persons and is jointly signed by them. "Mutual will" may be defined as the separate wills of two persons which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal, and which shows on its face that the devises are made one in consideration of the other. (Frazier v. Patterson (1909), 243 Ill. 80, 90 N.E. 218.) The word "joint" goes to the form, and the word "mutual" goes to the substance of what is called a "joint & mutual" will. 97 C.J.S. Wills sec. 1364 at 290 (1957).
The testators were husband and wife who made identical reciprocal provisions for each other in a single instrument; each gave up the right of absolute ownership of property held jointly and severally, each had children by a previous marriage, and the instrument appears to have intended that all the children should receive equal treatment; the property of both testators is treated as a common pool and the dispositions are made by both rather than by each of them individually. This will, being a single instrument and signed by both parties, was labeled a mutual will, and they recognized that it was a joint and reciprocal will since the first paragraph contains the words "do hereby * ...