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09/05/95 ESTATE GEORGE ARCHER MUELLER v.

September 5, 1995

IN RE ESTATE OF GEORGE ARCHER MUELLER, DECEASED, LYN ZIELINSKI, GEORGE FREDERICK MUELLER, PHILLIP RANDY MUELLER AND DANIEL ARCHER MUELLER, PETITIONERS-APPELLANTS,
v.
CONSTANTINA HENKE A/K/A CONSTANTINA MUELLER, NICHOLOUS HENKE, AND KONSTANDINA HENKE, RESPONDENTS-APPELLEES, AND J. ARNOLD MUELLER, INTERVENOR-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JEFFREY A. MALAK, JUDGE PRESIDING.

Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This is a consolidated appeal. Initially, we are called upon to address the interlocutory appeal by appellants, Lyn Zielinski, George Frederick Mueller, Phillip Randy Mueller and Daniel Archer Mueller, of an August 4, 1993, order of the circuit court of Cook County, determining the method for the administration and distribution of the estate of their deceased father, George Archer Mueller (Mueller). The trial court certified the following question of law to the appellate court, pursuant to Illinois Supreme Court Rule 308, (134 Ill. 2d R.308):

"Whether individuals who are named as contingent beneficiaries in a will may take property under that will when the original taker is precluded under Section 2-6 of the Probate Act of 1975 (Probate Act), (755 ILCS 5/2-6 (West 1992)), and the contingent takers are heirs of the precluded person but not of the testator."

We answer this question in the negative.

In addition, J. Arnold Mueller, (J. Arnold) Mueller's twin brother, appeals a separate order of the circuit court, entered on September 16, 1993, denying his petition to intervene in the estate proceedings. We affirm this order of the circuit court.

The record reveals the following relevant facts. Mueller married respondent Constantina Henke (Henke) in November 1984. At that time, Henke had two children from a previous marriage, Nicholous and Konstandina Henke (Henke children).

On March 19, 1985, Mueller executed a Last Will and Testament (Will) purporting to leave a house in Frankfort, Illinois and fifty percent (50%) of his estate to Henke. The balance of the residue of his estate was to pass to appellants. Article VII of the Will provides as follows:

"Should, however, my wife CONSTANTINA MUELLER, predecease me or fail to survive me by (30) days, then the gifts, devises and bequests to CONSTANTINA MUELLER shall fail and be of no effect, and in that event, I give, devise and bequeath her share of the residue of my estate, including the house at 910 Abbots ford Lane, Frankfort, Illinois whether real, personal or mixed, of every kind, nature and description whatsoever, and wherever situated, which I may now own or hereafter acquire, or have the right to dispose of at the time of my death, by the power of appointment or otherwise, to her children, KONSTANDINA HENKE, NICHOLOUS HENKE who survive me, absolutely and in fee simple, share and share alike."

Mueller subsequently executed a Codicil to the Will (Codicil) on September 10, 1985, purporting to increase Henke's share of the estate from fifty percent to sixty percent (60%) with a corresponding decrease from fifty percent (50%) to forty percent (40%) to appellants.

On March 28, 1986, Mueller was shot dead at his place of business in Blue Island, Illinois.

On April 10, 1986, J. Arnold filed a petition to admit into probate a prior will of Mueller's dated February 25, 1971. At that time, the court issued letters of administration to J. Arnold.

However, upon Henke's petition, the probate court revoked the letters of office issued to J. Arnold, and admitted to probate on May 15, 1986, Mueller's Will and Codicil.

Appellants filed a petition contesting the Will and Codicil on October 17, 1986.

On July 15, 1987, Henke and Blue Island Police Officer Ronald Tellez were arrested and charged with Mueller's murder. Subsequently, the probate court granted appellants' motion to remove Henke as executrix of Mueller's estate, and on July 27, 1987, appointed Richard Cowen as Special Administrator of Mueller's estate.

Appellants filed a petition to strike portions of the Will and Codicil on December 4, 1989. Four days later, the probate court appointed Theodore Rodes, Jr. Guardian Ad Litem (Guardian) for Henke's minor children.

On December 13, 1989, Henke entered into a plea of guilty for the solicitation to commit Mueller's murder, stipulating that she in fact arranged for Tellez to kill Mueller so that she could collect sixty-percent of Mueller's estate. Henke received a sentence of ten-years imprisonment, pursuant to a prior agreement. On January 5, 1990, the Guardian filed a motion to strike and dismiss appellants' petition to strike portions of the Will and Codicil.

A hearing commenced on both parties motions to strike on July 7, 1993. At the hearing, appellants' counsel revealed that one of the Henke children was no longer a minor, and that Henke was no longer in prison. Counsel further indicated that the Henke children never lived with Mueller, and suggested that the marriage was in fact a "sham."

On August 4, 1993, the trial court made the following findings of fact: On December 13, 1989, Henke was convicted of solicitation to commit the murder of Mueller, and was sentenced to ten-years imprisonment. Henke is now released from prison. Pursuant to section 2-6 of the Probate Act (755 ILCS 5/2-6), Henke intentionally and unjustifiably caused Mueller's death, and is therefore precluded from receiving any property, benefit or other interest under Mueller's Will. Mueller's Will provides that if Henke is to predecease him, her portion of the estate passes in its entirety to Henke's children, who are not Mueller's natural heirs. Appellants are Mueller's natural heirs. Pursuant to section 2-6 of the Act, Henke'schildren are not precluded from receiving any property, benefit or other interest under Mueller's Will.

The trial court entered an order granting in part and denying in part appellants' motion to strike portions of Mueller's Will and Codicil. The trial court ordered that Mueller's estate be administered and distributed as if Henke had died prior to Mueller, and subject to a determination of a will contest. The trial court further ordered that the Henke children are eligible to receive the distributions due them pursuant to Mueller's Will. Finally, the trial court found that a question of law exists as to whether individuals who are named as contingent beneficiaries in a will may take property under that will when the original taker is precluded under Section 2-6 of the Probate Act, (755 ILCS 5/2-6 (West 1992)), and the contingent takers are heirs of the precluded person but not of the testator, and allowed an immediate appeal to this court pursuant to Supreme Court Rule 308. 134 Ill. 2d R.308.

Appellants filed their application for leave to appeal the question of law posed by the trial court pursuant to Rule 308(b) on August 17, 1993, and this court granted a permissive interlocutory appeal on October 6, 1993. The record shows that Appellants filed an additional appeal of the trial court's order on November 5, 1993.

Meanwhile, on July 2, 1993, J. Arnold filed a petition to intervene in the estate proceedings. Following a hearing on September 16, 1993, the trial court denied J. Arnold's petition.

J. Arnold filed his timely appeal of the trial court's order on October 14, 1993. This court consolidated the parties' appeals.

Initially, appellants contend that the trial court erred in determining that the Henke children are eligible to receive the distributions due them pursuant to Mueller's Will. Appellants argue that the question of law posed by the trial court, "whether individuals who are named as contingent beneficiaries in a will may take property under that will when the original taker is precluded under section 2-6 of the Probate Act and the contingent takers are heirs of the precluded person but ...


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