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12/09/94 ESTATE JOHN N. NICHOLSON v. NORTHERN TRUST

December 9, 1994

IN RE ESTATE OF JOHN N. NICHOLSON, M.D., DECEASED (MICHAEL NICHOLSON, PETITIONER AND PLAINTIFF-APPELLANT
v.
THE NORTHERN TRUST COMPANY, EX'R, RESPONDENT AND DEFENDANT-APPELLEE)



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ARTHUR PERIVOLIDIS, JUDGE PRESIDING.

Presiding Justice Cousins, Jr. delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS, JR. delivered the opinion of the court:

Michael Nicholson (plaintiff), son and sole heir to decedent Dr. John N. Nicholson, sued The Northern Trust Company (Northern), which served as executor under Dr. Nicholson's will and as successor trustee under Dr. Nicholson's declaration of trust. Plaintiff pled eight counts alleging that the will and the trust were invalid. Northern filed a motion to dismiss on the pleadings, which was granted as to all counts except that plaintiff was given leave to replead one of the counts. Plaintiff filed appeal No. 1-92-3159 as to the granting of the motion on the other seven counts, which Northern has moved to dismiss as premature. Plaintiff's amended repleading of the last count was also dismissed, upon which plaintiff filed appeal No. 1-93-4198 appealing that order. Those two appeals, as well as Northern's motion to dismiss appeal No. 1-92-3159, have been consolidated into this proceeding.

We affirm.

BACKGROUND

Between 1982 and 1990, decedent executed his declaration of trust and 12 separate amendments thereto, establishing an inter vivos trust. The trust contains the vast majority of decedent's assets and distributes them to various charitable organizations upon his death. Decedent died on July 24, 1990. On February 25, 1991, decedent's last will and testament, dated November 12, 1989, and first codicil thereto, dated April 6, 1990, were admitted to probate. Under the will and codicil, decedent gave his entire probate estate to Northern as successor trustee under the terms of his trust. Decedent expressly made "no provision for my nephew, MICHAEL KEFALIDES NICHOLSON, whom I adopted as my son, or any other of my relatives." Decedent further stated, "It is my intent to distribute my assets to charitable, religious and educational institutions."

On August 23, 1991, plaintiff filed a petition to contest admission of will to probate and a separate complaint to set aside declaration of trust. On November 14, 1991, by agreement of plaintiff and Northern, plaintiff filed a combined complaint - the first amended petition - challenging the validity of both decedent's trust and his will. Counts I, II, and VIII alleged technical deficiencies which rendered the trust void; count III alleged undue influence in the creation of the trust; count IV alleged that decedent lacked the mental capacity to make the trust; count V alleged decedent lacked testamentary capacity; count VI alleged technical deficiencies rendering the will void; and count VII alleged undue influence over the creation of the will. The trial court allowed the parties to proceed with discovery on April 10, 1992.

Northern had filed a section 2-615 (735 ILCS 5/2-615 (West 1992)) motion to dismiss the petition on January 15, 1992, and on August 20, 1992, the trial court dismissed with prejudice all of the alleged counts in plaintiff's first amended complaint except for count V, which was dismissed with leave to replead. Plaintiff appealed this ruling in appeal No. 1-92-3159 as to the granting of the motion on the other seven counts. Northern has moved to dismiss this appeal as premature.

On November 2, 1993, the trial court also dismissed with prejudice count V, which as amended constituted plaintiff's second amended petition. This was a final judgment and order, from which appeal No. 1-93-4198 has been taken.

I

The first issue is whether to allow the appeal of the dismissal of the first seven counts, either through the first appeal, appeal No. 1-92-3159, or through the second appeal relating back to the seven originally dismissed counts as well. The latter approach is sufficient to give this court jurisdiction.

As to the former issue, appeal No. 1-92-3159 is premature when analyzed in isolation. Plaintiff contends that jurisdiction is proper under either Supreme Court Rule 301 or Supreme Court Rule 304(b)(1). (134 Ill. 2d Rules 301, 304(b)(1).) Rule 301 allows appeal of a "final" judgment, and plaintiff contends that the August 20 order was final as to his trust claims, relying on In re Estate of Wrigley (1982), 104 Ill. App. 3d 1008, 433 N.E.2d 995, 60 Ill. Dec. 757. However, Wrigley is inapposite to this matter, as the trust count in Wrigley was severed from the count involving the will because they had no relationship: "Causes of action are considered the same where the same evidence would sustain both. [Citation.] This is not the situation here. *** The trial court correctly severed the two counts for ...


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