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10/31/95 ROY KUSTER v. JOAN SCHAUMBURG

October 31, 1995

ROY KUSTER, PLAINTIFF-APPELLANT,
v.
JOAN SCHAUMBURG, BRIAN SCHAUMBURG AND RICHARD J. DALTON, INDIVIDUALLY AND AS CO-EXECUTORS AND TRUSTEES OF THE INSTRUMENT PURPORTING TO BE THE LAST WILL AND TESTAMENT OF RAYMOND JACOBS, DECEASED, ALSO KNOWN AS RAYMOND WILLIAM JACOBS, VIOLA KIPER, FLOYD KIPER, EDWARD KIPER, CHERYL KIPER MYERS, GLADYS KIPER WHITE, TERRY KEEN, GARY KEEN, GERRY KEEN, MICHAEL KEEN, DONNA KEEN BLANKENSHIP, MARLENE KEEN LONG, RHONDA KEEN KIMBERLY, BETTY PHILLIS, LARRY PHILLIS, LINDA PHILLIS MAYO, DAVID PHILLIS, NANCY JEAN PHILLIS POOL, MARGARET CAMPBELL, MARK CAMPBELL, CAROL CAMPBELL TASKER, MARY CAMPBELL SCHENKEL, LESLIE CAMPBELL, LORALEE DAWN CAMPBELL, LENA MOORE, DOLLY MAY PHILLIS GILL, TRINITY LUTHERAN CHURCH OF CHENOA, IL., GARY KUSTER, VICKIE KUSTER SMITH, DANA KUSTER, STEVEN KUSTER, JOY KUSTER CORIELL, KIM KUSTER AND RANDALL KUSTER, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of McLean County. No. 91CH114. Honorable Luther H. Dearborn, Judge Presiding.

As Corrected December 6, 1995. Rehearing Denied January 5, 1996. Released for Publication January 5, 1996. Petition for Leave to Appeal Denied April 3, 1996.

Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Honorable Rita B. Garman, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Raymond Jacobs died testate in May 1991, leaving an estate worth an estimated $1.6 million. Plaintiff Roy Kuster, his nephew, brought this action contesting the testator's last will, alleging (1) that the testator lacked the requisite capacity, (2) that the will was not properly witnessed by two credible witnesses, and (3) that will was the product of undue influence. The jury found for the proponents of the will, and the court entered a verdict against plaintiff. Plaintiff appeals, raising four issues: (1) whether the proponents failed to rebut the presumption of undue influence and whether plaintiff is entitled to judgment n.o.v. on the ground of undue influence; (2) whether plaintiff is entitled to judgment n.o.v. on the ground that decedent lacked testamentary capacity; (3) whether in the alternative plaintiff is entitled to a new trial based upon the weight of evidence; and (4) whether in the alternative plaintiff is entitled to a new trial because of the erroneous admission of evidence on irrelevant and collateral matters. We affirm.

I. FACTS

Raymond Jacobs (testator) had four sisters, Mabel Jacobs Kuster, Lidyia Jacobs, Milda Jacobs Armes, and Viola Jacobs Kiper. They each inherited farmland near Chenoa, Illinois, from their parents. The testator's share was 120 acres. The testator farmed this land until the 1960's, when he met Arthur Schaumburg. Arthur started working testator's land (as well as some of the sisters' land) as a tenant farmer, and the testator became very close friends with Arthur, his wife, defendant Joan Schaumburg, and their son, defendant Brian Schaumburg. Brian continues to farm the land today.

Defendant Richard J. Dalton was the testator's attorney. In 1977, Dalton drafted a will for the testator. The 1977 will granted testator's sister Lidyia a life estate in his farmland. Upon her death, the land was to pass in trust with the income therefrom to be paid, per capita, to each of the testator's nieces and nephews. The trust was to expire in 20 years, when the corpus was to be liquidated and paid in equal shares to the testator's nieces and nephews. However, plaintiff's and Gladys Kiper White's shares were to be held in a spendthrift trust, income payable to each, with the principal being paid to their children upon their deaths. Dalton, Arthur, and Joan were nominated as cotrustees and coexecutors. Three days after executing the will, the testator executed a codicil to the will providing that the trustees were allowed to rent the farmland and could also purchase the land upon the expiration of the trust. The lease terms for the land were to be similar to those for other leased land in the area, and, in the event a trustee bought the land, it was to be appraised by two independent appraisers.

In 1979, the testator executed a second codicil to the 1977 will. This codicil granted the trustees the power to sell the land during the period of the trust if it was in the best interests of the trust and the beneficiaries. The second codicil also changed the terms of plaintiff's interest. The one-sixth income from the trust that plaintiff was to receive was redistributed as follows: one-third of it was to be paid to Larry Phillis; one-sixth of it was to be paid to Gary Kuster; and plaintiff was to receive $100 in income. The remaining amount of plaintiff's share was to be paid equally to plaintiff's children.

In 1982, an agency agreement was written, but remained unsigned. The agreement provided that Arthur was to become manager of all testator's farmland. The agreement stated that testator was to have no management duties and called for the creation of an account upon which Arthur could draw checks to pay all of the farming operation's expenses.

The testator created a power of attorney in Arthur and Joan, which gave them the power to collect income, pay bills, lease and sell real estate, draw on all of his bank accounts, et cetera. The proponents claim that testator wrote another will in 1985 which was destroyed when he had his will rewritten in 1988.

In 1988, the testator had Dalton draft another will, signed and dated January 8, 1988. In this will, testator left plaintiff $500. The testator also established a trust for a duration of 12 years, income payable to four of testator's six nieces and nephews. The fifth clause reads:

"I *** am fully aware that I have two nieces and nephews not named above, to-wit: Gladys Kiper White and Roy Kuster. I am also fully aware that each of them have [sic] seven children. Other than the $500.00 bequest hereinfore provided for each of them and their children, it is my intent to omit them from this my Last Will and Testament."

The will nominated Dalton, Arthur, and Joan to serve as cotrustees and coexecutors.

Eighteen subparagraphs in the will gave the cotrustees broad powers. These powers included the power to plant and harvest crops, to purchase and sell equipment, and to lease the property to themselves or others. The trustees were also given the "right to deal with the trust the same if [sic ] if they were strangers and the fact that they are named trustees shall in no way prohibit them from leasing farmland from the trust or buying farmland from the trust." Any lease was to be a crop-share lease "on the basic 50-50 arrangement similar to other crop[-]share leases in the community." If a trustee or a relative of a trustee wanted to purchase the land, the price was to be determined by two independent appraisers. The 1988 will was witnessed by Dalton and his legal secretary, Dorothy Kirkton.

In late August 1988, the testator fell at his house and was found on the floor 12 hours later by Arthur and Joan. He was taken to the hospital where he was admitted with diagnoses of weakness in the lower extremities, a right ankle fracture, severe chronic degenerative arthritis of the lumbar spine, muscle necrosis, myoglobin anemia, and arteriosclerotic heart disease. He was in the hospital until September 15, 1988, when he was admitted to ...


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