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08/18/97 STANLEY COLEMAN v. DR. WALTER HEIDKE

August 18, 1997

STANLEY COLEMAN, PLAINTIFF-APPELLEE,
v.
DR. WALTER HEIDKE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 92-LM-44. Honorable P.J. O'Neill, Judge, presiding.

The Honorable Justice VIRGILIO delivered the opinion of the court. Kuehn, P.j., and Hopkins, J., concur.

The opinion of the court was delivered by: VIRGILIO

The Honorable Justice VIRGILIO delivered the opinion of the court:

The plaintiff, Stanley Coleman, filed this action against the defendant, Dr. Walter B. Heidke, to enforce a promissory note Dr. Heidke issued to Alice Price, now deceased. Stanley Coleman obtained a one-half interest in the note following a will contest that arose after the death of Alice Price.

Stanley Coleman moved for summary judgment on the grounds that the Dead Man's Act (735 ILCS 5/8-201 (West 1996)) barred any testimony dealing with the enforcement terms of the note. The circuit court of Madison County granted the plaintiff's motion for summary judgment, finding that the Dead Man's Act barred the testimony of Dr. Heidke concerning his defenses to the enforcement of the note. In addition, the trial court found that Mr. Coleman was a holder in due course of the note and was not subject to any special defenses against its enforcement.

There are two issues in this appeal: (1) whether the Dead Man's Act bars the testimony of the maker of a promissory note as to defenses that impair the enforceability of the note, and (2) whether someone who obtained an interest in a note from the settlement of a will contest is a holder in due course.

We affirm the summary judgment entered by the trial court that testimony of Dr. Heidke concerning defenses to the enforceability of the note is barred by the Dead Man's Act and that Stanley Coleman is a holder in due course of the note.

I. BACKGROUND

On April 24, 1987, Alice Price executed a will naming Stanley Coleman as executor and sole beneficiary of her estate. Sometime after Alice Price's death, the heirs at law filed a petition to contest the will. The will contest was subsequently settled, and the settlement agreement awarded certain property to the heirs and other property to Stanley Coleman. A promissory note, which is at issue in this case, was distributed as an undivided one-half interest to the heirs and the remaining one-half interest to Stanley Coleman. The note was signed by Dr. Heidke on January 8, 1983, and Dr. Heidke made payments on the note until Alice Price died. The note is unconditional on its face and contains no defenses to its enforcement.

After filing suit, the plaintiff filed a motion for summary judgment, alleging that the Dead Man's Act barred any defenses against enforcement of the promissory note. On April 8, 1996, the trial court granted summary judgment in favor of the plaintiff, holding that the Dead Man's Act applied and that Stanley Coleman was a holder in due course of the note.

II. DEAD MAN'S ACT

Section 8-201 of the Illinois Code of Civil Procedure, also known as the Dead Man's Act, provides in pertinent part:

"In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***.

*** 'Representative' means any executor, administrator, heir or legatee of a deceased person and any guardian or trustee of any such heir or legatee, or a guardian or guardian ad litem for a person ...


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