APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
McGregor et al., Petitioners-Appellants, v.
Raymond R. Cusack et al., Respondents-Appellees)
507 N.E.2d 28, 154 Ill. App. 3d 249, 107 Ill. Dec. 364 1987.IL.320
Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski, Judge, presiding.
JUSTICE HARTMAN delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
This appeal proceeds from the dismissal of an action for tortious interference with the expectancies of three petitioners under a former will of Norah Knowlson (Norah), deceased. The tort action is set forth in count V of a petition which contains additional grounds contesting Norah's will, pursuant to section 8-1 of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 8-1).
On review we are asked to decide whether the timely filed and still pending will contest bars petitioners from maintaining a concurrent action against respondent, the sole legatee and appointee under a 1981 probated will and codicil, for damages they incurred as a result of her asserted tortious interference with their expectancies. The claimed damages allegedly equal the difference between the amount petitioners would receive from a successful will contest and the much greater amount which they contend they would have received as legatees and appointees under Norah's prior will. Punitive damages are also sought.
Petitioners are Norah's daughter, Mary Knowlson McGregor (Mary), and two of Norah's grandchildren, DeWitt Edwards Lobe (DeWitt) and Timothy Alden Edwards (Timothy), both children of another of Norah's daughters, Elizabeth Knowlson Edwards (Elizabeth), who survived Norah but died before this suit was filed. The only respondent named in count V is Norah's third daughter, Barbara Knowlson Ray (Barbara). Petitioners John Peter McGregor and Bruce Knowlson Scace, other grandchildren of Norah, have dismissed their appeal from a different part of the same order being appealed.
Count I of the petition, claiming undue influence, was stricken for factual insufficiency with leave to amend. Count II, asserting Norah's lack of capacity to make a will, is still pending before the probate division of the circuit court of Cook County.
Norah died at age 95 on January 25, 1985, survived by her three daughters: Mary, Elizabeth, and Barbara. A son, James S. Knowlson IV, predeceased Norah. Elizabeth died on March 30, 1985, survived by DeWitt and Timothy. Norah's husband, James S. Knowlson III (James III), predeceased her on March 6, 1959. His will created a testamentary trust known as Fund A, under which Norah was given general testamentary power of appointment over the fund. If Norah failed to exercise her power of appointment, the money remaining in Fund A would be transferred to another trust, Fund B, and Norah's children would each receive a life interest in one-quarter of the income. On the death of each such child, unless the children exercised a special power of appointment in favor of a spouse or descendants, their descendants would receive the principal per stirpes.
Petitioners claim that Norah executed wills in 1966, 1971 and 1974 under which Fund A appointed and distributed the residue of her estate equally among her three daughters. That claim is contested by counsel for the executors, who stated at a hearing on April 25, 1986, that the prior will did not exercise the power of appointment over Fund A. Petitioners claim no knowledge of the present location of the three earlier wills. No copies of the wills are included in the record.
A later will dated May 13, 1981, with codicils dated February 4, 1982, and June 7, 1983, the later codicil revoking the earlier (collectively 1981 will), left Norah's entire estate to Barbara and appointed Barbara to receive Fund A in its entirety. The 1981 will was admitted to probate on ...