NO. 4-05-0446
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Estate of LEA J. ERICKSON, ) Appeal from
Deceased; ) Circuit Court of
WILLIAM R. ERICKSON, ) Vermilion County
Plaintiff-Appellee, ) No. 03P203D
v. )
JULIE A. SCHACKMANN, Individually )
and as Trustee; SANDRA McDOUGAL, a/k/a )
SANDRA MacDOUGAL; and SEAN DOGGETT, ) Honorable
Defendants-Appellants. ) Michael D. Clary,
) Judge Presiding.
JUSTICE KNECHT delivered the opinion of the court:
In July 2003, defendants, Julie A. Schackmann, Sandra
McDougal, and Sean Doggett, each purchased for $10 a parcel of
real property from Lea J. Erickson, just five days before Lea's
death. After Lea died, William R. Erickson filed suit to
challenge the transfers and argued the transfers violated the
terms of the joint and mutual will Lea executed with her husband
Charles R. Erickson. The Vermilion County circuit court agreed
with William. Defendants appealed. On appeal, defendants
contend (1) the joint and mutual will authorized the property
transfers; and (2) William waived any challenge to the propriety
of the transfers by not objecting to the final accounting of
Charles's estate. We affirm.
I. BACKGROUND
On April 4, 1994, Charles R. Erickson and Lea J.
Erickson executed a document they entitled their "Last Joint and
Mutual Wills and Testaments." In this will, the testators made
the following bequests:
"We give, devise[,] and bequeath our
entire estates of whatsoever kind and nature
and wheresoever the same may be situated to
the survivor of either of us, as the
survivor's property absolutely. After the
death of the survivor of us, we give,
devise[,] and bequeath twenty percent (20%)
of our entire estate to our daughter Julie A.
Schackmann, or to her descendants, per
stirpes. The other eighty percent (80%) of
our estate, after the death of the survivor
of us, shall be delivered by the executor to
Julie A. Schackmann, as trustee of the
following trust *** for the benefit of our
other four (4) children, William R. Erickson,
Charlene L. Stout, Richard P. Erickson, and
Sandra L. McDougal."
Charles died in January 2000. The will was admitted to
probate, and Lea was appointed executrix of his estate. In March
2002, Lea, in her role of executrix, petitioned the court to
permit "her to transfer real estate, either to third parties or
to herself individually as the sole heir of Charles." The court
gave Lea this authority. In her June 2002 final report, Lea
informed the court and the other beneficiaries under the will
"[t]hat all real estate that the estate was formerly possessed of
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has been transferred to" herself pursuant to court order. The
court approved Lea's final report and account.
Lea died on July 15, 2003. According to the death
certificate, Lea died from a condition she suffered for
approximately three years. Five days before her death, Lea
conveyed three tracts of real property by quitclaim deed. In one
conveyance, Lea conveyed two lots to Schackmann in exchange for
$10. In the second transaction, also in exchange of $10, Lea
conveyed property to McDougal. In the third transaction, also
for consideration of $10, Lea transferred property to Doggett, a
grandson.
In September 2003, William filed a complaint, seeking
the return of the three conveyed parcels to the estate. In the
complaint, William asserted the will was a joint and mutual will
that prohibited Lea from distributing property in a way that
would contradict the dispositive scheme of the will.
The circuit court agreed with William and found the
will was a joint and mutual will. The circuit court concluded
Lea's actions in attempting to deed property away were "improper"
in that they violated "the terms and conditions of the joint and
mutual Will." The court rejected the argument William waived any
challenge to the transfers. The court further found no just
cause to delay the appeal or enforcement of the order under
Supreme Court Rule 304 (155 Ill. 2d R. 304). This appeal
followed.
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II. ANALYSIS
Both parties concede the will here is a joint and
mutual will. A will is a joint will if it is executed by more
than one person to dispose of property "owned jointly or in
common by them or in severalty by them." Curry v. Cotton, 356
Ill. 538, 543, 191 N.E. 307, 309 (1934). Upon the death of the
first testator to die, the joint will is subject to probate as
that testator's will. After the death of the surviving testator,
it is subject to probate as the survivor's will. Curry, 356 Ill.
at 543, 191 N.E. at 309. Mutual wills are separate documents
involving more than one testator. The terms of these wills are
reciprocal, by which each testator disposes the property to the
other. A will is joint and mutual if it is "executed jointly by
two or more persons with reciprocal provisions and shows on its
face that the bequests are made one in consideration of the
other." Curry, 356 Ill. at 543, 191 N.E. at 309.
The parties are correct; Charles and Lea executed a
joint and mutual will. It is one document, executed by both
testators. The testators referred to the will as "our Last Joint
and Mutual Wills and Testaments." The gifts were reciprocal to
the surviving spouse, the property was pooled together, and it
was disposed of among their children in approximately equal
shares. See Rauch v. Rauch, 112 Ill. App. 3d 198, 201, 445
N.E.2d 77, 80 (1983) (outlining the considerations this court
employs when evaluating whether a will is joint and mutual).
Joint and mutual wills are not only testamentary but
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also contractual. They are "executed pursuant to a contract
between the testators, requiring the survivor of them to dispose
of the property as the will's provisions instruct." Rauch, 112
Ill. App. 3d at 200, 445 N.E.2d at 79. This contract, embodied
in a joint and mutual will, estops the survivor of the testators,
"from disposing of the property other than as contemplated in the
will." Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 80.
Conceding the contractual nature of the will,
defendants contend the contract allowed Lea to transfer the
property. Defendants emphasize the term "absolutely" in the gift
to the surviving spouse: "We give *** our entire estates of
whatsoever kind and nature and wheresoever the same may be
situated to the survivor of either of us, as the survivor's
property absolutely." (Emphasis added.) Defendants further
argue the phrasing of the gift indicates the testators intended
the surviving spouse could do whatever he or she wished with the
property.
William disagrees. William cites Rauch and Helms v.
Darmstatter, 34 Ill. 2d 295, 215 N.E.2d 245 (1966), and argues
"[t]he use of the word 'absolute' in describing the bequest or
devise to the surviving testator is illogical if to do so would
upset the common dispositive scheme of the later paragraphs of
the will."
Defendants' argument centers on the term "absolutely."
When interpreting a will, however, we focus not on one provision
or section, but we consider the will in its entirety with the
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goal of ascertaining and, if possible, giving effect to the
intent of the testator. In re Estate of Overturf, 353 Ill. App.
3d 640, 642, 819 N.E.2d 324, 327 (2004). This approach reflects
the approach taken in Helms, 34 Ill. 2d at 301-02, 215 N.E.2d at
249, in which our supreme court considered whether a joint and
mutual will with a similar bequest to the surviving spouse was
revocable.
In Helms, the testators, spouses George Lortz and Lena
Lortz, executed a joint and mutual will which bequeathed to the
survivor all of their property "'as his or her absolute property
forever.'" (Emphasis added.) Helms, 34 Ill. 2d at 299, 215
N.E.2d at 247-48. The joint will further provided after the
death of the survivor, their property was to be merged and sold,
with the proceeds of the sale to be distributed among their
relatives. Helms v. Darmstatter, 56 Ill. App. 2d 176, 178, 205
N.E.2d 478, 480 (1965). George died on March 13, 1948. In April
1951, Lena executed a codicil by which she altered the bequests
to benefit her own relatives. See Helms, 34 Ill. 2d at 297, 215
N.E.2d at 246.
On appeal in Helms, the issue was whether Lena, who was
given the property of the estate as her "'absolute property
forever,'" could alter the terms of the joint will by codicil
after George's death. The court, considering the will as a
whole, held Lena had not been given power to change the
disposition:
"The two clauses must be read together and we
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feel that the equal treatment of each side of
the family is so clearly provided for that it
would not be logical to consider that the
testators intended to give the survivor the
power to upset that scheme by a contrary
testamentary disposition by using the one
word 'absolute'." Helms, 34 Ill. 2d at 301,
215 N.E.2d at 249.
In Rauch, 112 Ill. App. 3d at 201, 445 N.E.2d at 80
(Fourth District), this court interpreted another joint and
mutual will that gave the surviving spouse "'all of the property
*** to be his or her absolute property.'" (Emphasis added.) The
joint and mutual will pooled all interests into a common fund
and, after the death of the surviving spouse, disposed of the
property equally among the couple's four children. Rauch, 112
Ill. App. 3d at 201, 445 N.E.2d at 80. On appeal, this court
considered when the interests of the children vested, whether on
the earlier death or on the death of the surviving spouse. See
Rauch, 112 Ill. App. 3d at 199, 445 N.E.2d at 79. In deciding
the interests of the children vested on the death of the first
testator to die, this court rejected the argument the term
"absolute" gave the surviving spouse complete power over the
property, "including the power to change the dispositive scheme."
Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d at 80. This court
interpreted Helms as concluding "where equal treatment for the
family is provided in the will, it would be illogical to
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interpret the will as giving the survivor the power to upset that
dispositive scheme." Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d
at 80.
When we consider this will as a whole, we find the
testators created a dispositional scheme by which the survivor of
the two would receive all of their property for use during his or
her lifetime. It is also equally clear, however, the testators
intended the survivor of the two would dispose of their property
almost equally among their children. As in Helms and Rauch, the
term "absolute" or "absolutely" does not give the surviving
spouse free reign to disrupt the agreed-upon dispositional
scheme.
Defendants contend Rauch and Helms, at best, establish
Lea could not revoke the joint and mutual will by codicil or a
later will. They assert Lea, absent a will or codicil, could
change the disposition by giving away her property. We disagree.
Rauch establishes that testators, in creating a joint and mutual
will, contract to dispose of their property in a certain way.
See Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79. That
contract becomes irrevocable upon the death of the first testator
to die. Here, five days before her death, Lea attempted to
circumvent both the terms of the joint and mutual will and her
contractual obligations thereunder to dispose of her property by
essentially giving it away. Lea's actions violate the spirit and
purpose of the joint and mutual will, as well as the implied duty
to act in good faith--a duty that is part of every contract. See
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Bank One, Springfield v. Roscetti, 309 Ill. App. 3d 1048, 1059-
60, 723 N.E.2d 755, 764 (1999) ("Good faith requires the party
vested with contractual discretion to exercise it reasonably, and
he may not do so arbitrarily, capriciously, or in a manner
inconsistent with the reasonable expectation of the parties").
The term "absolutely" does not give Lea the power to upset the
dispositive scheme.
We agree with defendants that Helms, Rauch, and other
decisions (see, e.g., Orso v. Lindsey, 233 Ill. App. 3d 881, 887,
598 N.E.2d 1035, 1039 (1992)) leave open the question to what
extent the surviving spouse may use the property upon the death
of the other testator: "It may well be that they intended that
the survivor should have the absolute right to use the entire
corpus for life, but only upon the condition that the property
owned by the survivor upon his or her death would pass in
accordance with the terms of the joint will." Helms, 34 Ill. 2d
at 301-02, 215 N.E.2d at 249. Interesting questions remain as to
whether Lea could have sold some property to make a modest gift
to a charity or to travel the world. We need not analyze those
possibilities, and we need not decide whether Lea, after
Charles's death, could have sold or given this property at a
different time or under different circumstances. The undisputed
facts establish Lea disposed of the property five days before her
death. She received $10 for each parcel. No facts establish Lea
could have had any intention other than to circumvent the
dispositional scheme. These transfers are not permitted by the
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will.
Defendants' cases are distinguishable. The court's
statement in Orso, that the surviving spouse had the right to
give property away during the survivor's lifetime, was dicta.
The Orso court considered whether the survivor could execute the
will after his spouse's death, and not whether the survivor could
give away property on his deathbed. See Orso, 233 Ill. App. 3d
at 882, 598 N.E.2d at 1036. In addition, the Orso court agreed
"[t]he power to use the property however the surviving spouse
sees fit does not mean he or she also has the power to change the
testators' dispositive scheme in contravention of their express
agreement or contract." Orso, 233 Ill. App. 3d at 887, 598
N.E.2d at 1039. Moreover, defendants' case, King v. Travis, 170
Ill. App. 3d 1036, 1043-44, 524 N.E.2d 974, 979 (1988), did not
involve a joint and mutual will. Because the will was not a
joint and mutual will, there were no contractual restrictions on
the disposition of property in King, as there are here.
Defendants next argue William forfeited any challenge
to the conveyances because he did not object at the closing of
Charles's estate to the transfer of property to Lea in fee
simple. Defendants emphasize William was informed of this
transfer by the final report. Defendants argue under section 24-
2 of the Probate Act of 1975 (755 ILCS 5/24-2 (West 2000)),
because William did not object, the "account as approved is
binding" on William.
William does not address this argument in his brief.
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The record shows the trial court found no waiver because, it
concluded, the act of transferring property from the estate to
Lea did not violate the terms of the joint and mutual will. We
agree. The act of transferring the property into Lea's name did
not violate the agreement to dispose of property as stated in the
joint and mutual will. Lea violated this agreement when she
tried to change the dispositional scheme shortly before her death
in direct contravention of what she agreed to do.
III. CONCLUSION
We affirm the trial court's judgment.
Affirmed.
TURNER, P.J., and STEIGMANN, J., concur.
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