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01/11/89 In Re Estate of Arthur B. Knight

January 11, 1989

IN RE ESTATE OF ARTHUR B. KNIGHT, DECEASED (TERESA RAI


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

Knight, Adm'r, Petitioner-Appellant)

533 N.E.2d 949, 178 Ill. App. 3d 777, 127 Ill. Dec. 867 1989.IL.16

Appeal from the Circuit Court of Cook County; the Hon. Frank M. Siracusa, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Teresa Rai Knight, administrator of the estate of Arthur B. Knight, filed a petition in the trial court to construe the joint will of Arthur and Dorothy T. Knight. The petition additionally sought a judgment declaring the second article of the will invalid. The trial court denied the administrator's petition. The administrator appeals, contending that the second article is invalid and the will should be construed accordingly; that the property should descend and be distributed as intestate estate; and that the provision in the will excluding an heir is without effect as to the property which is not disposed of by the will.

On June 29, 1976, Arthur and Dorothy executed a document entitled "Joint Last Will and Testament of Arthur B. Knight and Dorothy T. Knight." The second article of the will stated that Arthur and Dorothy "give, devise and bequeath unto the survivor of us all our property of every kind and nature and wheresoever situated, in full and complete ownership." The fourth article of the will provided for the Disposition of the property in the case of simultaneous death. The will made no mention of Disposition of the property upon the death of the survivor.

Arthur died on April 16, 1979. On October 1, 1979, Dorothy filed the will in the circuit court of Cook County. Dorothy died on January 1, 1981. No further action was taken with respect to the will until May 6, 1983, at which time the will was admitted to probate. On June 7, 1988, the administrator filed a petition to construe the second article of the will. The administrator asked the court to declare the second article invalid, alleging that the condition precedent to the vesting of Dorothy's legacy under that article, admission of the will to probate, was not met during her lifetime. Thus, when Dorothy died, her legacy under that will lapsed, and pursuant to the Probate Act of 1975 (the Probate Act) (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 1-1 et seq.), Arthur's property must descend and be distributed as intestate estate.

On appeal, the administrator contends that probate proceedings are a condition precedent to the vesting of any legacy. She concludes, therefore, that Dorothy's failure to probate the will prior to her death resulted in a lapse of her legacy.

The Probate Act provides that a will, when admitted to probate, is effective to transfer the real and personal estate of the testator bequeathed in that will. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 4-13.) A devisee cannot assert his title to property devised to him unless the will is probated and made a matter of record. Eckland v. Jankowski (1950), 407 Ill. 263, 95 N.E.2d 342.

A lapsed legacy or devise is one which does not vest because the legatee dies before the testator (Walker v. Walker (1918), 283 Ill. 11, 118 N.E. 1014), or the legatee, if he survives the testator, dies before his interest vests under the will (Gillett v. Gillett (1902), 109 Ill. App. 75). If a legacy lapses, and there is no other provision in the will disposing of that legacy, the legacy passes as intestate estate. (Ill. Rev. Stat. 1979, ch. 110 1/2, pars. 4-11(c), 4-14; Brown v. Leadley (1980), 81 Ill. App. 3d 504, 401 N.E.2d 599.) Therefore, the relevant inquiry here is whether Dorothy's interest vested prior to her death in 1981.

Generally, a will becomes effective on the date of the testator's death. (Lloyd v. Treasurer of the State of Illinois (1948), 401 Ill. 520, 82 N.E.2d 470.) The law favors the vesting of estates at the earliest opportunity; estates devised will vest on the testator's death unless a later time for their vesting is apparent from express provisions in the will. (Geiger v. Geer (1946), 395 Ill. 367, 69 N.E.2d 848.) Under a joint and mutual will, the death of the first testator determines whether the legacy lapses because the interests of the beneficiaries vest on the death of the first testator and not on the death of the surviving testator. (Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77.) We hold that failure of the survivor to probate a joint and mutual will does not defeat the vesting of a devise.

This determination is not inconsistent with the provision of the Probate Act which states that a will is effective to transfer the estate of the testator upon admission to probate. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 4-13.) Our courts always have recognized the marked distinction between the vesting of an estate and the right to enjoy possession of that estate. (1 E. Grigsby, Illinois Real ...


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