dissenting:
I am unable to agree with the judgment of the majority of the court. I am of the opinion that the petitioner’s request for relief under section 72 should be allowed and the cause should be reversed and remanded for trial on the merits of the petition.
Section 72 has been increasingly used as a procedural device to prevent injustice. Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350 (1953). A liberal construction of section 72 has been established whereby a petition filed under section 72 invokes the equitable powers of the court to grant relief where it is necessary to prevent injustice. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963).
Section 69 of the Probate Act (Ill Rev Stats 1965, c 3, § 69) as amended, provides in part, that the execution of a will is sufficiently proved to admit it to probate when two attesting witnesses testify that they believe the testator to be of sound mind and memory at the time of the signing and acknowledging of the will “. . . unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.” (Emphasis supplied.)
The record shows that Anna G. King, the testatrix in the instant case, was declared an incompetent on March 5,1962, and was never restored. The order declaring Mrs. King an incompetent was the result of a petition filed by the respondents-appellees. The petition alleged that Anna King was eighty-six years of age and was wholly incapable of managing her estate. The petition requested the appointment of a conservator because Anna King, due to her advanced age, physical incapacity, and mental deterioration, “. . . is wholly incapable of managing her person or estate.” The petition was supported by the verified affidavits of two physicians who personally examined Anna King. They found that her mental status reflected severe impairment of memory, periods of confusion, and seriously impaired judgment, and that these symptoms were the result of senility and could be expected to increase in intensity.
Pursuant to this petition, a conservator was appointed and by leave of court, Anna King, became a patient at Carmen Manor Nursing Home from March 7, 1962, to June 28, 1965, when she was removed by respondentsappellees through the aid of the firm of Jurco, Damisch and Sinson, and on the latter date, the testatrix executed the involved Will. The testatrix died on December 5, 1965, at the age of eighty-nine. On December 10, 1965, Stephen Jurco and John Damisch, attorneys for the executor, testified as subscribing witnesses to the Will and it was admitted to probate on that day.
In their petition under section 72 the petitioners alleged that they had no notice or knowledge of the pending probate proceedings or of the purported Will of the testatrix until December 2nd or 3rd of 1966. On December 21, 1966, they filed the instant petition. Affidavits were filed by petitioners of statements made by Dr. Louis A. Terman, physician and surgeon and house physician of the Carmen Manor Nursing Home; of Dr. C. Conover Talbot, personal physician of Anna King from 1958 to June 16, 1965; and of Mrs. Clara Cohen, administrator of the Carmen Manor Nursing Home.
Dr. Terman stated that Anna G. King was one of his patients during the entire time she was in the Carmen Manor Nursing Home, and if need be, he examined her on the average of five or more times per week. He said that when she came to the Nursing Home she was clearly senile and suffered from severe impairment of memory and periods of confusion. He further stated that her senility was progressive in nature, and on the date of her removal from the home, she was totally senile. During her stay in Carmen Manor the testatrix was suffering from (1) a total inability to use logic or draw conclusions; (2) total inability to recall; (3) total disorientation as to time, place, and people; (4) episodes of severe senile agitation and emotional outbursts; and (5) living in her childhood a good deal of the time. In Dr. Terman’s opinion she could not comprehend the significance of making a will.
Dr. Talbot, the personal physician of the testatrix, from 1958 to the time when he last saw her in Carmen Manor in June of 1965, stated that in 1962 Mrs. King became easily confused and was getting senile. It was upon his recommendation, concurred in by two other doctors, that a conservator was appointed. He said he saw her every other week at the Nursing Home and more frequently when she was hospitalized. He stated that eventually she became completely senile. In 1965 she could no longer identify him and would ask “who are you young man.” She associated him with a man who brought her candy. At times, Dr. Talbot stated, the testatrix thought her parents, husband, and brothers and sisters were still alive and living with her although they were long since dead. Dr. Talbot was of the opinion that on June 16, 1965, Mrs. King was totally senile, and was incapable of comprehending or taking care of her affairs, money, and property.
Mrs. Clara Cohen stated that she had occasion to see Mrs. King almost every day while the testatrix was staying in Carmen Manor. She stated that Mrs. King suffered from loss of memory and was unable to recall persons or events. She had absolutely no concept of what money, property or estate she might have. Mrs. Cohen stated further that when Anna King was removed from the Nursing Home by the respondents-appellees on June 28, 1965, she had no understanding or comprehension whatsoever of where she was going, or why, or of who was taking her. In the opinion of Mrs. Cohen, Mrs. King, at the time of her departure from Carmen Manor, was totally senile and was incapable of understanding the significance of making a will. Furthermore, the testatrix did not know who her living relatives were.
The section 72 petition alleges that actual and constructive fraud was practiced on the decedent testatrix, and upon the heirs, devisees and legatees who would take under the prior subsisting Will of July 25, 1961, in that the respondents-appellees took advantage of the testatrix’s mental infirmaties to cause her to execute the Will dated June 28, 1965. The petition further alleges that the respondents-appellees fraudulently concealed from the Probate Court the fact that the testatrix was suffering from complete senile dementia at the time of the execution of the instrument dated on June 28th, a fact that they knew about because of their participation in the then still pending conservatorship proceedings. The court dismissed the petition without giving the petitioners a hearing on the merits; the petition was dismissed summarily on the motion of the respondents-appellees.
I do not believe that the petition should have been dismissed in such a peremptory manner. Under the particular circumstances of the instant case I am of the opinion that justice would be better served by vacating the dismissal of the petition and remanding the cause to proceed to trial under the issues raised. Fraud is clearly an appropriate basis for considering relief under sections 69 and 90 of the Probate Act as well as under section 72. Under the Amended Judicial Article the Circuit Court now has “unlimited original jurisdiction of all justiciable matters.” This in effect abolishes the Probate Court as a separate court. This change would seem to militate against the former strict construction of section 69 concerning the scope of issues that could be raised in probate proceedings admitting a will to probate. I also deem it significant that the assets of the estate have not as yet been distributed.
I am of the opinion that the nine (9) months’ period of limitation under section 90 of the Probate Court for filing a petition to contest the admission of a will to probate, operates not as a jurisdictional limitation, but only as a Statute of Limitations subject to such exceptions as would, as here, by reason of fraud, bar the tolling or running of a Statute of Limitations. As pointed out by the petitioners the practical need for such a rule is further highlighted in the instant case by the fact that they were nonresidents of Illinois residing in Minnesota and Colorado, and had no notice or knowledge of the death of decedent, or of the admission to probate of the Will dated June 28, 1965, or of the execution of the prior Will dated July 25,1961, until after the expiration of more than nine (9) months after the admission to probate of the 1965 Will.
In my judgment, an order of Court admitting a Will to probate, is subject to post judgment review under section 72 of the Civil Practice Act and the petitioners should be given leave to contest the validity of the 1965 Will under the facts and circumstances revolving about the admission of the Will.