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June 27, 1996


Appeal from the Circuit Court of Cook County. No. 94 P 1457. Honorable Robert E. Cusack, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

J. LeVelle Williams appeals from the trial court's order admitting the will of her aunt, Ethel Polk Smith, to probate. She contends the will was not properly executed. We consider whether the testimony of one of three witnesses to a will can overcome the presumption of validity created by a proper attestation of the other two. The testimony of the third witness in this case called into question only his own participation in the execution ritual. No issues were raised about the participation of the non-testifying witnesses. Under the circumstances of this case, though we find that the trial court erred in labeling the testimony of the third witness "vague," the error was harmless and the will was properly admitted to probate. We affirm.

Ethel Polk Smith died on February 6, 1994. On March 1, 1994, John C. Polk, decedent's brother living in Arizona, filed a petition for probate of the will and for letters of administration with the will annexed. Polk said in his petition that decedent had nominated him as executor, he was not willing to act because of his out-of-state status, and he nominated Ann Koontz to replace him. The petition listed decedent's heirs as her brother, John C. Polk, and her nieces, Ann Koontz and J. LeVelle Williams. The approximate value of the estate was stated to be $100,000 in personal property and $50,000 in real property.

The will submitted was a one-page legal form entitled "Last Will and Testament." It was completed in longhand and dated October 7, 1974. The will appointed "My brother John C. Polk, Jr." as executor and directed him to pay just debts and funeral expenses, after which "all the rest and residue" of the estate was given to the following persons in equal shares: John C. Polk, Sr. (father), John C. Polk, Jr., (brother), Ruth Polk Williams (sister), and Frances Polk Koontz (sister). The will further stated: "The share of any person above named who shall not survive me shall go to the other three beneficiaries named above in equal shares." "Ethel P. Smith" was handwritten on the signature line, and the same name was typed below the signature line. Below the signature line, an attestation clause stated:

"This instrument was, on the date thereof, signed, sealed, published and declared by the Testator as and for her Last Will and Testament, in our presence, who, at her request and in her presence and in the presence of each of us, have subscribed our names hereto as witnesses thereof. And we do hereby certify that at the time of the execution thereof the Testator was of sound and disposing mind and memory."

Three employees of Gateway National Bank subscribed as witnesses: Betty Stepter, Terry Spencer, and B.J. Sutton. They each listed home addresses in Chicago.

The court ordered on March 1, 1994, that the will of Ethel Smith, dated "October 7, 1994 [sic]," be admitted to probate and that letters of office as independent administrator with the will annexed issue to Ann Koontz. On March 29, 1994, J. LeVelle Williams filed a petition to require proof of the will by testimony under section 6-21 of the Probate Act (755 ILCS 5/6-21 (West 1994)).

A hearing was held on March 24, 1995. The only witness to the will who could be located, Terry Spencer, testified: he signed the will at the request of Betty Stepter, who worked in customer service at Gateway National Bank with Spencer. The decedent was a Gateway customer. Spencer believed her to be "of sound mind and memory" when she signed her name to the will and when he witnessed it. He did not see the decedent sign the will and did not think she saw him sign as a witness. He believed, however, that she was in the bank when he signed. Betty Stepter, who had signed before Spencer, was present when he signed. Spencer had no reason to believe Betty Stepter's signature was not genuine.

The niece and administrator, Ann Koontz, testified that the signature on the will was that of the decedent. She knew the signature from letters that decedent wrote to her and from other estate papers that decedent signed around the same time as the will was prepared.

Two affidavits were submitted: one from E. Erikson, a process server and licensed private investigator, and one from John C. Polk, Jr. Erikson stated that he began to search for the two other witnesses to the will--Stepter and Sutton--in November 1994. He searched the post office records, telephone books, marriage licenses for the preceding 20 years, and the voters' registration bureau. He was unable to locate either Stepter or Sutton.

John C. Polk, Jr. stated that he was 73 years old and had moved to Arizona in 1964. Since then, he had visited decedent once a year. For the last six months of decedent's life he spent four- and one-half months visiting and caring for her. He was familiar with decedent's signature based on seeing her sign letters, checks, and other ...

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