Day's Estate, In re, 33599

• Citation: 7 Ill.2d 348,131 N.E.2d 50
• Decision Date: 23 November 1955
• Docket Number: No. 33599,33599
• Parties: Matter of the ESTATE of William E. DAY, Sr. C. E. DAY, Appellee, v. William E. DAY, Jr., Appellant.
• Court: Supreme Court of Illinois

Page 50

131 N.E.2d 50 7 Ill.2d 348 Matter of the ESTATE of William E. DAY, Sr.
C. E. DAY, Appellee,
v.
William E. DAY, Jr., Appellant. No. 33599. Supreme Court of Illinois. Nov. 23, 1955.
Rehearing Denied Jan. 16, 1956.

[7 Ill.2d 349]

Page 51

Leforgee, Samuels & Miller, and Denz, Lowe & Limerick, Decatur (Carl R. Miller and Jerald E. Jackson, Decatur, of counsel), for appellant.

Pfeifer, Fixmer, Gasaway & Simhauser, Springfield (John P. Fixmer and Frank M. Pfeifer, Springfield, of counsel), for appellee.

KLINGBIEL, Justice.

The issue presented in this case is whether a marriage ceremony, entered into by William E. Day about six weeks after he had executed his will, worked a revocation of the will. The county court of Fayette County denied probate of the will on the ground that it had been so revoked. [7 Ill.2d 350] The circuit court, on appeal, found that the will was not revoked by the marriage ceremony, and entered an order remanding the cause to the county court with directions to admit the will to probate. Since a freehold and constitutional questions are involved, the appeal comes directly to this court.

The validity of testator's marriage depends upon that of an antecedent divorce. On July 23, 1947, he executed the will in question, by which he gave one half of his estate to Mrs. Frone Lowe Allison, the woman whom he subsequently married; one fourth to William E. Day, Jr., his son; and the remaining one fourth (after payment of a $2500 legacy to another beneficiary) to C. E. Day, his brother, who was the plaintiff in the circuit court proceedings and is the sole appellee here. The testator's son, William E. Day, Jr., a defendant in the circuit court, is the sole appellant.

The record discloses that a few days after the testator's will was executed Mary F. Allison, referred to in the will as Mrs. Frone Lowe Allison, left her home in Illinois and went to Reno, Nevada, where she obtained a purported divorce six weeks latter. Her husband had executed and caused to be filed in the divorce suit a verified power of attorney appointing an attorney to represent him and authorizing the attorney to accept service and answer the complaint. An answer was filed on the husband's behalf denying the allegations relating to domicile, and his attorney was present at the trial of the case. The Nevada court specifically found the plaintiff to have been a resident of Nevada for six consecutive weeks and more immediately preceding the commencement of her action. On the same day she obtained the divorce she married the testator in Reno, and after taking a short honeymoon trip they returned to Illinois, where they lived until the testator's death on September 15, 1953.

The circuit court found that Mrs. Allison did not establish[7 Ill.2d 351] a domicile in Nevada; that her decree of divorce was null and void for want of jurisdiction; that the marriage ceremony between her and the testator was therefore of no force and effect, since she was still the wife of another man; and that as a result the will was not revoked by reason of the marriage ceremony. The first question presented is whether the court erred in denying full faith and credit to the Nevada divorce decree. Mary F. Day (formerly Mrs. Allison) was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act, Ill.Rev.Stat.1953, c. 110, § 184, and testified that on her trip to Reno she took only her own personal clothing and supplies; that she had an understanding with the owner of the motel at which she stayed that she would be there only six weeks; that she was married to the

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testator and left Reno all on the same day, after she had obtained her decree; and that her only purpose in going there was to secure a divorce. It also appears that in the divorce proceedings her husband's answer and power of attorney were filed only one minute after the complaint was filed, he was not personally present, and his...