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07/06/88 In Re Estate of Minna Duncan

July 6, 1988

IN RE ESTATE OF MINNA DUNCAN, DECEASED (ESTATE OF MINNA


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Duncan, Appellant, v.

Estate of Charles D. Stemmler, Appellee)

525 N.E.2d 1212, 171 Ill. App. 3d 594, 121 Ill. Dec. 905 1988.IL.1064

Appeal from the Circuit Court of Union County; the Hon. D. D. Bigler, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. LEWIS and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

This is an appeal from an order by the trial court of Union County awarding the estate of Charles Stemmler, appellee, a statutory share of half of the estate of Minna Duncan, appellant; ordering appellant to pay $5,000 to appellee as a surviving spouse's award; and ordering appellant to pay 25% of the total net proceeds from the sale of the real estate held by appellant to appellee as Stemmler's share of the property. We reverse and remand for proceedings consistent with this opinion.

Minna Duncan and Charles Stemmler were married on May 16, 1975. On August 22, 1977, Duncan filed an action for dissolution of marriage, the court entered what it designated a judgment of dissolution on December 26, 1978. Duncan died the following day, December 27, 1978, in Chicago, Illinois, leaving an estate valued at $371,000 and a will executed on December 11, 1978. The circuit court of Union County admitted the will to probate on February 7, 1979.

On February 16, 1979, Charles Stemmler filed a claim in the circuit court of Union County against the personal property and real estate of Duncan. Stemmler died on March 21, 1980.

On October 30, 1981, appellee filed a motion for determination of rights in Duncan's property. The motion for determination of rights requested that the court award Stemmler his statutory share of Duncan's property. Appellee asserted that because Duncan died on December 27, 1978, the date after the first hearing in a dissolution proceeding, but before the court had an opportunity to hold a second hearing determining the distribution of property between the spouses, the dissolution of the marriage was not final and Stemmler was the surviving spouse of Duncan.

On January 29, 1985, appellee filed a motion to renounce Duncan's will and to elect a statutory share of Duncan's property under the provisions of section 2-8 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 2-8). Duncan died without descendants, and the motion contended that appellee was entitled to renounce Duncan's will and to claim a statutory share of half of appellant's property. The trial court denied this motion.

On April 8, 1986, the trial court entered a judgment in connection with the action for dissolution of the marriage, determining the rights of the estates in property owned by Stemmler and Duncan. On a subsequent appeal, this court found that the circuit court's judgment was improper because the parties had not finalized the judgment of dissolution of marriage before Duncan's death. This court then vacated the judgment and the circuit court's distribution of property. In re Marriage of Stemmler (1987), 151 Ill. App. 3d 1168, 515 N.E.2d 491 (unpublished Rule 23 order).

On February 11, 1987, subsequent to this court's determination of the status of the marriage between Duncan and Stemmler, appellee filed a new motion to renounce Duncan's will and to claim a statutory share of Duncan's property. In this motion, appellee prayed for the court to "issue an order requiring the estate of Minna Duncan Stemmler to file an amended petition for admission of will to probate and give formal notice to the estate of Charles D. Stemmler, Jr., so that the estate of Charles D. Stemmler, Jr., can formally and properly renounce the will as provided in section 110 1/2-2-8 [ sic ] and for all other relief just and proper in the premises." The trial court granted the appellee's motion. The court found that the claim of February 16, 1979, served as sufficient notice to appellant that Stemmler intended to renounce Duncan's will and to demand a statutory share of Duncan's property. The court concluded that the prior determination by this court that Duncan and Stemmler were married to each other at the time of Duncan's death necessitated its interpretation of Stemmler's claim of February 16, 1979, as a renunciation of Duncan's will and as a demand for a statutory share of Duncan's property. The court awarded appellee half of the appellant's property under section 2-8(a) of the Act, which prescribes that a renunciating party ...


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