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05/26/88 In Re Estate of Malissa M. Berry

May 26, 1988



al., Petitioners-Appellants, v.

Tessie Warnes et al., Respondents-Appellees)

524 N.E.2d 689, 170 Ill. App. 3d 454, 120 Ill. Dec. 659 1988.IL.838

Appeal from the Circuit Court of Douglas County; the Hon. Worthy B. Kranz, Judge, presiding.


PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.


On February 19, 1985, petitioners John Berry and C. E. Berry filed a petition in the circuit court of Douglas County contesting the validity of the codicil to a will of Malissa M. Berry. The codicil and the will had been admitted to probate on June 19, 1984. The petition was based on allegations the decedent lacked testamentary capacity to execute the codicil and did so under the undue influence of respondent G. R. Enright. Following a jury trial, the court entered judgment on July 24, 1987, on a verdict upholding the validity of the codicil.

Petitioners have appealed contending the court erred in (1) refusing testimony offered; (2) refusing petitioners sufficient discovery; and (3) quashing a notice directing a respondent to appear. Respondents deny any error occurred and contend the giving of an instruction unduly favorable to petitioners cured any error. We disagree and hold the circuit court's refusal of certain evidence offered by petitioners requires reversal and remandment for a new trial.

The parties to the proceedings are all of the heirs, devisees, and legatees of the decedent. Petitioners John and C. E. Berry are her sons, as is respondent Harvey Berry. Respondent Tessie Warnes is her daughter. Each of the four received a one-sixth share of her estate under her will. Respondent G. R. Enright is a grandson, the only child of the decedent's deceased daughter Sue. He also received a one-sixth interest in the estate under the will. Respondents Nancy Berry and Jannie Kocevar are granddaughters, the only children of decedent's deceased son Kenneth Berry. They each received a one-twelfth interest in the estate under the will.

The will was executed November 2, 1981, and its validity is not in issue. The dispute concerns the codicil dated March 14, 1982. The codicil designated respondent Enright as executor. Petitioner C. E. Berry was named executor under the will. The other substantial provision of the codicil was quite unusual. It recited that in December 1980, petitioner C. E. Berry, then decedent's "attorney in fact" paid from her funds as gifts the sum of $3,000 each to himself and to her other then living children without her consent. The codicil then stated she requested each to return the gift without interest. The codicil then indicated those who did not return the $3,000 before her death would be entitled to nothing under her will and their share would be apportioned among the remaining heirs. The evidence indicated that, not knowing of the existence of the codicil, C. E. Berry and John Berry had not repaid their $3,000 distribution. Thus, if the codicil stands, they take nothing and the share of the respondents, including Enright, would be substantially enhanced.

The codicil was drafted by G. R. Enright, who mailed it to Janice Berry, daughter-in-law of Harvey Berry. Janice presented the document to decedent, who executed it in the presence of Janice and a friend of Janice's. Two days before the codicil was executed, the decedent had been brought home from a nursing home. Enright testified he drafted the codicil from earlier notes he had made during a Discussion with decedent. He admitted he had been "attorney in fact" for decedent since September 24, 1981. He also stated the decedent had become upset because C. E. Berry, who had her power of attorney, had written the checks later described in the codicil. Enright's testimony was confusing as to decedent's motivation for the scheme in regard to the $3,000 distributions. His testimony indicated the decedent had said she did not want the children to know of the codicil but was apparently testing them to see what they would do. Enright's testimony indicated decedent was displeased with C. E. Berry's additional distribution of $20,000 from her estate at a time when she needed funds. Enright also testified that before he drafted the codicil, he asked all four of decedent's children to return the $3,000 given to each of them but only Harvey Berry and Tessie Warnes did so.

Janice Berry and Anne Eddington, a granddaughter of decedent's, testified corroborating Enright's statements in regard to the decedent's displeasure at the disbursement of the $12,000. Janice Berry also stated decedent, immediately prior to her death, owned 36-acre and 80-acre tracts of farmland, which were farmed by Janice's husband and father-in-law, and a two-story home. According to Janice, the decedent received a sum somewhat in excess of $300 per month from social security. Janice indicated decedent liked to make gifts. This was corroborated by Mary Lois Jackson, who saw decedent frequently before her death and who described decedent as generous, loving, forgiving and not vindictive.

The most serious question in regard to the trial court's refusal of testimony offered by petitioners concerns the court's sustaining an objection of an offer of proof of the testimony of Chester Keller, an attorney. Enright admitted Keller was present at the execution of decedent's will on November 2, 1981. In the offer of proof, Keller testified to an opinion that, at the time of the execution of that will, decedent did not know the extent and value of her property and was not competent to make the will. He also testified the decedent's statements at that time indicated the decedent had no desire for the return of the four $3,000 disbursements or for interest on a $20,000 disbursement made to Linda Berry. He testified that the $20,000 disbursement was considered a loan and not a gift, and $5,000 had been repaid. The offer of proof also included testimony of Keller that John Berry and C. E. Berry had each ...

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