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Kelly v. Stambaugh

February 16, 2000

IN THE MATTER OF THE ESTATE OF BEULAH KELLY, DECEASED, SHIRLEY DANNER RICHARDS, PETITIONER-APPELLANT,
V.
JOHN N. STAMBAUGH AND J. KELLY STAMBAUGH, EXECUTORS OF THE ESTATE OF BEULAH KELLY; DEBBIE PHERIGO, MICHELLE ROCKETT, JOHN N. STAMBAUGH, J. KELLY STAMBAUGH, SHANE KIMBRO, UNITED METHODIST CHURCH, BROWNING CEMETERY, AND ASTORIA CEMETERY, RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Justice Steigmann

Appeal from Circuit Court of Schuyler County No. 97P24 Honorable M. Carol Pope, Judge Presiding.

In February 1998, petitioner, Shirley Danner Richards, brought an action contesting the trial court's order admitting to probate the purported last will and testament of decedent Beulah Kelly. In May 1999, the court found that Shirley did not have standing to bring this action and granted the motion of respondents, John N. and J. Kelly Stambaugh, to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 1998)). Shirley appeals, and we reverse and remand.

I. BACKGROUND

In February 1987, Kelly executed a last will and testament (1987 will). In pertinent part, the will devised the residue of Kelly's estate to her late husband's nephews, John N. Stambaugh and J. Kelly Stambaugh, and her nephew, Galen Danner, in equal shares.

As to Galen's share, the will further provided as follows:

"And should Galen Danner predecease me, I give, devise and bequeath his share of said rest, residue and remainder of my estate as follows:

(a) To his wife, Shirley Danner, and his grandson, Shane Kimbro, in equal shares, share and share alike, or their survivor."

In July 1987, Shirley and Galen divorced. In September 1991, Kelly executed another last will and testament (1991 will) in which she revoked the 1987 will. Galen died before Kelly executed the 1991 will, which mentions neither Galen nor Shirley.

In October 1997, Kelly died, and in October 1997, the 1991 will was admitted to probate. In February 1998, Shirley petitioned to set aside probate, declare the will null and void, and distribute the estate among Kelly's heirs according to law or pursuant to the 1987 will. Shirley contended the will was null and void because some of the respondents had used undue influence upon Kelly.

In October 1998, the executors of Kelly's estate filed a motion to dismiss Shirley's petition pursuant to section 2-619(a)(9) of the Code. The executors' motion argued that Shirley and Galen's divorce extinguished Shirley's right to take under the 1987 will and she therefore had no standing to contest the 1991 will.

In May 1999, the trial court held as follows:

"[A]s a matter of law, the language 'to his wife, Shirley Danner' requires [Shirley] to remain the wife of Galen Danner at the time of Galen Danner's death. Therefore, Shirley Danner has no standing to contest the will dated September 9, 1991. The executor's motion is allowed, and the contestant's will contest petition is hereby dismissed."

This appeal ...


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