dissenting:
I cannot agree with the majority opinion in this case. I do not question the holding in the case of In re Estate of Reighard, 402 Ill. 364, 84 N.E.2d 345, wherein our Supreme Court stated that in an ex parte proceeding by incompetent conservator for probate court order directing petitioner to renounce ward’s deceased husband’s will on ward’s behalf is proper when filed under court’s authority, and all persons interested in will need not be made parties to proceeding. However, in Reighard it should be noted that both the executor of the estate and a devisee, under the will of the deceased with their counsel did in fact participate in the hearing on the conservator’s petition to renounce the deceased’s will on the ward’s behalf. In Reighard we find a situation where a hearing was in fact held and the executor, trustee and certain beneficiaries under the will were permitted to introduce testimony in their behalf. In Reighard the court also made the observation that:
“No motion was made by the appellants asking the court to make other person parties, and the only question for the court to determine was as to what course should be taken in the best interests of the widow.” (Emphasis supplied.) 402 Ill. at 369.
In the instant case there wasn’t any person made an adverse party to the proceedings to renounce the will. It is true that Reighard states that it isn’t necessary to make all persons interested in the will parties to such a proceedings, but I question if Reighard stands for the proposition that you can proceed without any adverse party and especially so in view of their language that the paramount question is what is for the best interests of the widow.
The petitioners-appellants in their petition to strike the renunciation of the will state that the renunciation was not for the benefit of the incompetent. The law is well settled in Illinois that a motion to dismiss a petition admits all facts well pleaded in the petition as well as reasonable inferences therefrom favorable to the petitioners. See Johnson v. North American Life and Casualty Co., 100 Ill.App.2d 212, 241 N.E.2d 332; Bishop v. Ellsworth, 91 Ill.App.2d 386, 234 N.E.2d 49.
The petitioners-appellants allege that from the will of the decedent the incompetent widow was to receive the income from real estate valued for federal estate tax purposes in the sum of $207,735.00. The will provided that from said income the executor “pay all necessary expenses for my said, wife, including her hospital bills, nursing home expenses, doctor bills, and everything she may require for her care and comfort so long as she shall live.” It was further provided that all Illinois inheritance taxes and the federal estate tax was to be paid from the residuary estate. The incompetent widow further received from the testator joint tenancy property having a value of $13,400. Based upon these allegations there appears to me to be a genuine question present as to whether or not the renunciation of the will was for the best interests of the incompetent widow or was it for the best interests of her children from a previous marriage.
We also should not be unmindful of those Illinois cases which hold that in cases involving a renunciation, the court should not be unmindful of the deceased spouse’s desires and that the interest of the heirs of the surviving incompetent spouse should not be considered. See Kinnett v. Hood, 25 Ill.2d 600, 185 N.E.2d 888; Rock Island Bank and Trust Co. v. First National Bank, 26 Ill.2d 47, 185 N.E.2d 890.
There is also injected into this case the matter of a collateral attack since the order permitting the renunciation was entered in the conservatorship proceedings while the petition to strike the renunciation was filed in the decedent’s estate proceedings. I fail to see where the petitioners-appellants had any standing to intervene in the conservatorship proceedings unless made adverse parties, which they were not. They attacked the actual renunciation which was filed in the estate proceedings and I know of no other procedure which they could have utilized.
For the reasons set forth I am compelled to dissent from the majority opinion. I believe that this cause should be remanded to the circuit court of Knox County for further proceedings on the petition to strike the renunciation of the will.