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04/02/87 In Re Estate of Otto L. Konow

April 2, 1987

IN RE ESTATE OF OTTO L. KONOW, SR., DECEASED (DOROTHY


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Abbott, F/K/A Dorothy Miller, et al., Petitioners and

Plaintiffs-Appellees, v.

Otto L. Konow, Jr., et al., Respondents and

Defendants-Appellants; Wanda Trumbie, a/k/a Wanda

Trumble, et al., Respondents-Defendants)

506 N.E.2d 450, 154 Ill. App. 3d 744, 106 Ill. Dec. 743 1987.IL.435

Appeal from the Circuit Court of Will County; the Hon. Charles P. Connor, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The decedent, Otto L. Konow, Sr., died testate on May 13, 1983, at the age of 89 years. He left as his heirs four children. They are: his son, the primary defendant herein, Otto Jr., and his three daughters, the plaintiffs herein, Dorothy Abbott (Dorothy), Florence Mitchell (Florence), and Lila Konow (Lila). The decedent was a farmer. His son farmed with him.

The decedent's last will and testament, dated April 26, 1977, and revocable living trust, dated April 23, 1977, were admitted into probate. All of the decedent's personal property, except the household goods, furniture, and effects located at the family farm household, was bequeathed to the defendant. The household goods, furniture, and effects located at the family farm household were bequeathed to Lila. The decedent specifically excluded Dorothy and Florence from receiving a bequest or devise by virtue of the will stating that they were adequately provided for in the revocable living trust incorporated in the will.

The revocable living trust devised to Dorothy and Florence 30 acres of the decedent's property in equal proportions. It further provided Lila with a life estate in the family farm consisting of approximately 120 acres, remainder in fee simple to the defendant. The defendant also received the remainder of the decedent's real property in fee simple.

Each of the plaintiffs filed a 14-count complaint contesting the 1977 will and revocable living trust, a 1973 will and three trusts, and seeking specific performance of an alleged contract to will. Each plaintiff also filed a claim for damages for breach of the alleged contract to will. Lila also filed a claim for breach of an alleged second contract to will. The only issue that concerns us on appeal is the contract-to-will issue raised by all three plaintiffs. This issue necessitates a further review of the facts.

The decedent also had another son, George, who committed suicide in February 1962. George died leaving 77 acres of real estate valued at $30,500. George's land passed intestate as follows: one-sixth interest to each of George's siblings, the defendant, Dorothy, Florence and Lila, and two-sixths or one-third interest to the decedent. The plaintiffs allege that shortly after George's death they entered into an oral contract whereby the decedent agreed to make a will devising an undivided one-fourth interest in George's land to each of his children if they would then convey their undivided one-sixth interests in George's land to the decedent. Dorothy devised her undivided one-sixth interest to the decedent on July 16, 1963. Approximately one month before delivering the deed, Dorothy received a check for $5,500 from the decedent. She testified that the check was unrelated to the deed she executed. The defendant and Lila conveyed their one-sixth interests to the decedent on November 5, 1962. Lila received a promissory note in the amount of $5,500 approximately three months later. She stated that the note was not actually payment for the deed, but was for "signing off" George's estate. Testimony concerning what the defendant received was not allowed. On November 30, 1962, Florence conveyed her one-sixth interest in George's land to the decedent. About that time she also received a promissory note in the amount of $5,500, but denied that it was related to the deed. The plaintiffs further allege that although they conveyed their interests as agreed, the decedent sold part of George's land during his lifetime and devised the rest to the defendant through his will in violation of the agreement.

The decedent retired from farming shortly after George's death and resided part of the time in Crystal Falls, Michigan. He leased his farmland to the defendant on a share-crop basis, and this arrangement continued until the decedent's death. In the late 1960's, the decedent met and befriended a retired attorney, Thaddeus Morowski, who had moved near his farm. Morowski did some legal work for the decedent, including handling a traffic matter, preparing the leases between the decedent and the defendant, executing a prenuptial agreement between the decedent and his second wife, preparing a 1973 will and trust, and preparing the 1977 will and trust agreement in question. Morowski testified that the decedent never mentioned the alleged contract to will to him.

The decedent remarried in 1973. By virtue of the prenuptial agreement prepared by Morowski, 17 acres of George's land was placed in joint tenancy with right of survivorship with his new wife. The decedent also had a will and three trusts prepared at that time which did not provide that the remainder of George's land pass equally to the four children. In 1974, the decedent sold six of the 17 acres to a person named Habernicht, and in 1975, he sold another acre to the Homer Congregational Church.

In 1976, the decedent's second wife died. Following her death, the decedent sold off the remaining 10 acres that he had owned with her in joint tenancy. In April 1977, the decedent executed the will and revocable living trust that is the subject of the present dispute. The trust provided that the defendant was to receive the remaining 60 acres of George's land in fee simple.

Trial was held with an advisory jury. The jury found that the decedent had entered into an oral contract to devise by will to each of his children an undivided one-fourth interest in George's land in return for their conveying to him their undivided one-sixth interests in the same. The Judge ruled in the plaintiffs' favor based on the jury verdict. The court then ordered the defendant individually and as co-administrator to execute and deliver to the plaintiffs a warranty deed granting each plaintiff an undivided one-fourth interest in the remaining 60 acres of George's land. It further entered judgment against the defendant and his son, as co-administrators of the estate, and in favor of each ...


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