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08/29/89 In Re Estate of Robert E. Spaulding

August 29, 1989

IN RE ESTATE OF ROBERT E. SPAULDING, DECEASED (VIRGINIA


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Tetzlaff, Plaintiff-Appellant, v.

Michael J. Sottile, Indiv. and as Ex'r of the Estate of

Robert E. Spaulding, Deceased, et al.,

Defendants-Appellees)

543 N.E.2d 980, 187 Ill. App. 3d 1031, 135 Ill. Dec. 412 1989.IL.1331

Appeal from the Circuit Court of Cook County; the Hon. Robert E. Cusack, Judge, presiding.

APPELLATE Judges:

JUSTICE DiVITO delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO

Plaintiff Virginia Tetzlaff appeals from an order of the circuit court granting defendants' motion for summary judgment in an action to enforce an oral contract to make a will.

Robert Spaulding (Spaulding), the deceased in this case, was the director of a funeral parlor in Chicago. On June 8, 1978, he executed a will which provided that the bulk of his estate was to pass to his brother, William Spaulding, or if his brother should predecease him, to his brother's wife, Elizabeth Spaulding. William Spaulding died on February 25, 1982.

Spaulding was murdered on July 21, 1986. His estate was opened on September 10, 1986. On October 14, 1986, plaintiff commenced this action as a supplemental proceeding in the probate division against the executor and the legatees named in Spaulding's probated will, seeking specific performance of an oral contract to make a will leaving her Spaulding's entire estate with the exception of one ring.

Plaintiff's complaint alleges that (1) plaintiff "formed and maintained a bond of mutual love and affection" with Spaulding which led her on September 29, 1982, to move into his home at 5933 North Hermitage in Chicago; (2) plaintiff and Spaulding exchanged mutual promises to marry on September 7, 1986; (3) from the time plaintiff moved in with Spaulding, she lived with him until he died "as his companion in affection and esteem, sharing the privileges of the home with him, giving aid, comfort, and assistance to him, sharing the expenses of living and the maintenance of the home with him, entertaining for him and his friends and acquaintances, and either paid or assisted in paying for items contributing to the mutual enjoyment and happiness of [Spaulding] and herself"; (4) in consideration for "the maintenance and continuation of their relationship" Spaulding orally agreed on "numerous occasions" to make a will leaving plaintiff his entire estate with the exception of one ring; (5) in reliance on Spaulding's promise to make a will, plaintiff "maintained and continued" her relationship with him and made arrangements for their marriage; (6) Spaulding "attempted to fulfill" his contract with plaintiff by drafting and signing a document on March 8, 1986, which purported to be his will and to leave his property to plaintiff, and which, until his death, Spaulding "acknowledg[ed] and characteriz[ed]" as his "Last Will and Testament"; (7) plaintiff fully performed her obligations under the contract but Spaulding breached the contract by failing to execute a valid will leaving plaintiff all of his property; and, finally, (8) plaintiff is entitled to specific performance of the contract because she has no adequate remedy at law.

On July 17, 1987, plaintiff was deposed. Plaintiff testified at her deposition that in September 1982, after having known Spaulding for 23 years, she moved from 6731 Greenleaf in Woodridge, Illinois, to Spaulding's home at 5933 North Hermitage in Chicago. At first plaintiff and Spaulding slept in separate bedrooms, ...


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