Crews, Public Adm'r, v. Waitches (In re Kelly's Estate)

• Decision Date: 08 May 1936
• Docket Number: Gen. No. 38210.
• Citation: 1 N.E.2d 905,285 Ill.App. 143
• Parties: IN RE KELLY'S ESTATE. CREWS, PUBLIC ADM'R, v. WAITCHES.
• Court: United States Appellate Court of Illinois

285 Ill.App. 143

1 N.E.2d 905

IN RE KELLY'S ESTATE.CREWS, PUBLIC ADM'R,

v.WAITCHES.

Gen. No. 38210.

Appellate Court of Illinois, First District, Third Division.

April 22, 1936.

Rehearing Denied May 8, 1936.

Error from Probate Court, Cook County; John F. O'Connell, Judge.

Proceeding in the matter of the estate of James Thomas Kelly, deceased, wherein a contempt proceeding was instituted against Julius P. Waitches, upon a petition filed by Jack Rubens, an investigator for Halbert O. Crews, Public Administrator. To review an order finding him in contempt of court, and imposing sentence therefor, Julius P. Waitches brings error.

Affirmed. Frank A. McDonnell and Elwyn E. Long, both of Chicago, for plaintiff in error.

Levinson, Becker, Peebles & Swiren, of Chicago, for defendants in error.

HEBEL, Justice.

This writ of error directed to the probate court of Cook county was issued upon the request of Julius P. Waitches for the purpose of reviewing the record in a contempt proceeding, wherein this respondent, together with others, was found guilty in the probate court of Cook county and committed to the county jail for a period of one year, unless sooner discharged in due course of law.

This proceeding was instituted upon a petition filed in the probate court by Jack Rubens, an investigator for the public administrator of Cook county. The petition sets forth that a direct contempt had been committed by reason of the fact that the document purporting to be the last will and testament of James Thomas Kelly, deceased, was a forgery, and known to all of the persons connected therewith to be such. The petitioner further named the persons involved in the matter and prayed that the court might require the persons named to show cause why they should not be held in contempt of the probate court of Cook county, Ill.

Upon the filing of this petition, the court proceeded in a summary manner, and heard the evidence of witnesses, who were interrogated, together with persons whose names appeared on the document as attesting witnesses, and this respondent, who as the attorney filed with the clerk of the court the purported last will and testament of James Thomas Kelly, deceased, also presented the petition for proof of the will and letters testamentary in the estate of James Thomas Kelly, also known as James T. Kelly and as Thomas Kelly, deceased, on February 25, A. D. 1935, praying that the will be admitted to probate and that letters testamentary be issued after proper hearing and proof, and that the petition be set down for hearing on May 16, A. D. 1935.

At the conclusion of the hearing upon the matter of contempt, the court entered an order from which it appears that James Thomas Kelly departed this life on or about the 26th day of February, 1935; that Julius P. Waitches appeared in the probate court of Cook county, Ill., on the 6th day of March, 1935, and presented a document purporting by its terms to be the last will and testament of James Thomas Kelly, deceased, which purported last will and testament bore the signature of Paul P. Zalinck and John Dailyde as witnesses thereto, and which said purported last will and testament named Bella Butman and Nicholas Radis as executors thereof; that at the time Julius P. Waitches filed the purported last will and testament of James Thomas Kelly, deceased, he also presented to the court the verified petitions of Bella Butman and Nicholas Radis, the persons named in the will as executors thereof, asking that the will be admitted to probate and record and that letters testamentary issue to them in the premises.

The court thereupon found from the evidence heard in said cause that the document said to be the will of James Thomas Kelly, deceased, and which was presented to this court as such, and which bore the signatures of Paul F. Zalinck and John Dailyde as witnesses to the execution thereof, was not actually witnessed by these persons in the presence of James Thomas Kelly and in the presence of each other, as required by statute, but on the contrary the court found the fact to be that Paul P. Zalinck and John Dailyde affixed their signatures thereto after the death of James Thomas Kelly, the said John Dailyde having signed said document in the undertaking establishment maintained in the city of Chicago by the respondent John J. Bagdonas, and the said Paul P. Zalinck having signed the document at his home after the death of James Thomas Kelly at the request and instance of the respondent Nicholas Radis.

And the court entered a further finding from the evidence that all of the persons named above were fully advised of these facts prior to the date when the aforesaid Julius P. Waitches appeared in court and presented the last will and the application for its probate to the court, and that the persons herein named were scheming to perpetrate a fraud upon the court and intended to cause the court to admit to probate and record a document which Julius P. Waitches and the other respondents knew on said date was not the valid last will and testament of James Thomas Kelly, deceased.

Thereupon the court found the said respondent Julius P. Waitches, together with the other respondents in contempt of court, and they and each of them, were sentenced to the county jail of Cook county for a period of one year from the date of the order.

The respondent makes the point that the probate court of Cook county erred in not discharging the respondent Julius P. Waitches on his sworn testimony in open court, denying his guilt. Upon an examination of the record filed by the respondent as far as this respondent is concerned, we are unable to find that at any time during the hearing he objected to the admissibility of evidence of witnesses, on the theory that he had purged himself by his testimony as a witness at the hearing before ...