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03/17/88 In Re Estate of Madge H. Keener

March 17, 1988

IN RE ESTATE OF MADGE H. KEENER, DECEASED (MARY GOSNEY,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Plaintiff-Appellant, v.

Phillip Lynn Gosney, Ex'r of the Will of Madge H. Keener,

Deceased, et al., Defendants-Appellees (Daphne Gosney

Hedges et al., Defendants))

521 N.E.2d 232, 167 Ill. App. 3d 270, 118 Ill. Dec. 164 1988.IL.381

Appeal from the Circuit Court of Warren County; the Hon. William D. Henderson, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Madge Keener died testate on March 27, 1985. She left two grandchildren, sons of her deceased daughter. Keener's last will, dated February 20, 1985, was admitted to probate. The only unrelated devisee was the Kirkwood United Methodist Church, which was to receive $500. Keener's grandson Jan Carroll Gosney was to receive $100,000 and the remainder of her estimated $1,500,000 estate was left to her grandson Phillip Lynn Gosney.

Mary Gosney, wife of Jan Carroll Gosney, filed a petition to contest the will. On April 20, 1987, the trial court dismissed the plaintiff's petition for the reason that the plaintiff was not an "interested person" as that term is used in the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 8-1(a)). Plaintiff appeals such dismissal.

Mary Gosney had been named as a beneficiary in a will which Keener executed in September 1983. However, Gosney was not a beneficiary of the instant will admitted to probate, nor was she a beneficiary of three intervening wills and a series of codicils executed subsequent to the September 1983 will and prior to the instant will of February 1985.

Initially we note that the instant appeal is one of right and the plaintiff's application for leave to appeal was not necessary in this case. Dismissal of an action on the ground that the plaintiff lacks standing operates as an adjudication upon the merits and is final and appealable. People ex rel. Howarth v. Gulf, Mobile & Ohio R.R. Co. (1970), 125 Ill. App. 2d 473, 261 N.E.2d 221.

The sole issue upon review is whether Mary Gosney is an "interested person" under the law and has ...


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