Donovan's Estate, In re

• Decision Date: 22 March 1951
• Docket Number: No. 31794,31794
• Citation: 29 A.L.R.2d 215,409 Ill. 195,98 N.E.2d 757
• Parties: , 29 A.L.R.2d 215 In re DONOVAN'S ESTATE. DONOVAN v. NEWMAN.
• Court: Illinois Supreme Court

Page 757

98 N.E.2d 757

409 Ill. 195, 29 A.L.R.2d 215

In re DONOVAN'S ESTATE.

DONOVAN v. NEWMAN.

No. 31794.

Supreme Court of Illinois.

March 22, 1951.

As Modified on Denial of Rehearing May 21, 1951.

I. H. Streeper, III and Harold G. Talley, Alton, (Harold R. Clark, Alton, of counsel) for appellant.

C. W. Burton, of Edwardsville, for appellees.

WILSON, Justice. ^*

Irene Conley Donovan, a resident of the city of Alton, in Madison County, died testate on November 16, 1945. She left surviving her husband, Michael F. Donovan, and several nephews and nieces, including William E. Newman and Margaret McClintock. By her last will and testament, dated March 6, 1945, the testatrix devised to her executors property described as her home real estate, in Alton, in trust, with directions to the executors, as trustee, to sell this property within one year after her death for such price and upon such terms as they might deem reasonable, and to divide the proceeds of the sale equally between her husband and Margaret McClintock. All the rest of the real estate was devised to Donovan. Testatrix bequeathed the household furniture, equipment, other furnishings and personal chattels in her home to her niece and to her husband, provided, however, that the niece should first choose and take such articles as she might desire, the remainder to go to the husband. All cash on hand and the amounts in savings or checking accounts in banks at the death of the testatrix were bequeathed to her husband. Irene Donovan owned 1000 shares of Obear-Nester Glass Company stock at the time of her death. By her will, she bequeathed one fourth of these shares to her husband for life and, at his death, to her niece, Margaret McClintock. The will provided, further, that, during Donovan's lifetime, these shares should be held in the name of the executors and the net income paid by them to Donovan. One fourth of the shares was bequeathed absolutely to Margaret McClintock, one fourth to William Newman, and one fourth to William Conley, an adopted son of testatrix's parents. The testatrix devised and bequeathed the residue of her estate to Margaret McClintock. Donovan, Newman and Mrs. McClintock were named coexecutors of the will, which directed that they not be required to furnish bond as executors, and that, in the event any of the three persons named failed to act as coexecutor for any reason, the ones acting should have full power to execute the will, including the power to sell the home real estate.

Irene Donovan's will was admitted to probate in the probate court of Madison County on January 16, 1946. On the same day, Donovan, Newman and Mrs. McClintock were appointed coexecutors and, on March 13, 1946, filed their respective oaths. On May 3, 1946, the executors filed an inventory and proceeded to administer the estate. On May 23, 1946, Donovan filed in the office of the clerk of the probate court his renunciation of his wife's will. The renunciation reads: 'And now comes Michael F. Donovan, surviving husband of Irene Conley Donovan, and renounces the Will of Irene Conley Donovan, disclaims any share thereunder and by this renunciation elects to take the portion of the Estate of Irene Conley Donovan he would have taken had she died intestate.'

On November 9, 1946, the three executors, by their executors' deed under power of will, conveyed the home real estate, in Alton, to James J. Fingleton, his wife, and three others for $14,500. On May 3, 1947, two of the executors, Newman and Margaret McClintock, filed a partial report without accounting, covering the period from March 13, 1946, to May 1, 1947. The report alleged that, since the filing of his renunciation, Donovan had continued to act as executor under his wife's will and continuously exercised all of the powers of an executor with the other two executors, disposed of real estate devised to himself, Margaret McClintock and Newman, as executors with power of sale, acting jointly with the other executors, and had, 'by his actions and doings as such executor and trustee, revoked or waived any rights claimed under the said purported renunciation of the will of Irene Conley Donovan.' Newman and Margaret McClintock asked the court to declare that Donovan's renunciation had been released, abandoned, waived or revoked by him, and to authorize them, together with Donovan, to proceed to execute the will of Irene Conley Donovan, as provided therein, and to make a final report and accounting of their acts as executors.

On July 18, 1947, Donovan interposed his objections to the partial report without accounting, specifically denying the allegations relative to the waiver of his renunciation of his wife's will and denying that the coexecutors were entitled to the relief sought. By his objections, Donovan averred that his renunciation was effective as of the date it was filed in the office of the clerk of the probate court of Madison County in accordance with the law and that, having renounced the provisions of his wife's will for himself, and having elected to take his share of the estate in accordance with the laws of the State of Illinois, no act of himself, as one of the coexecutors, had increased or diminished any right, title or interest he had in the estate. He asked that the coexecutors be ordered to distribute to him his share of his wife's estate in accordance with his renunciation, as provided by law. Evidence was heard, briefs were filed, and, on May 13, 1949, the probate court entered an order sustaining Donovan's objections to, and setting aside, the partial report. Newman and Margaret McClintock appealed to the circuit court of Madison County where the cause was heard de novo.

The circuit court appointed an administrator pendente lite to represent the estate of Irene Donovan as its legal representative. Evidence was heard and, on June 26, 1950, an order was entered approving the partial report of Newman and Margaret McClintock. The decree, to the extent relevant, found that Donovan's renunciation filed on May 23, 1946, was not recorded by the clerk of the probate court nor was the attention of the court directed to it, and that the coexecutors knew nothing of its existence or of its filing, but that, on July 14, 1946, it was, for the first time, brought to the attention of the probate judge who, on the day named, made a notation, 'Note filing,' on the instrument; that, after the filing of the renunciation, a conference was held that the home place at which the three executors, the attorney for the estate, and the probate judge, Hon. Anthony W. Daly, were present; that Judge Daly explained to Donovan he had prepared an irrevocable trust agreement for Irene Donovan under date of July 12, 1945, and had also prepared her will; that she had chosen to sign the will rather than the trust agreement, and stated that, in his opinion, there was a strong moral obligation on Donovan to not insist upon his renunciation and to abide by the will; that Donovan, on his occasion, and on another unnamed occasion, agreed he would give consideration to Judge Daly's advice and counsel; that the home real estate was sold any conveyed, as previously described; that, on November 12, 1946, Donovan, together with the coexecutors, prepared, signed and filed a supplementary inventory in the estate; that, together with the coexecutors, he prepared and filed a Federal estate income tax return for the year 1947-1948; that a United States fiduciary income tax return for the year 1945 was signed and filed by Donovan and the coexecutors; that the three executors prepared and filed an estate tax return in which Donovan claimed and was allowed $2000, as his proportionate executor's commission of a total sum of $6000 requested and allowed in the return; that Donovan took many items of personal property from the home place, pursuant to the terms of the will; that, acting as coexecutor, a list of articles taken by him had been inventoried as assets of his wife's estate, and that he had signed dividend checks and instruments as a coexecutor. The court found, further, that Donovan was still active in the handling of any business where any signatures were necessary for the administration of the estate under the will, and, finally, that, after filing his renunciation, Donovan continued to act as coexecutor, accepted benefits, and claimed a fee in this capacity, executed and verified reports as coexecutor, and that these acts constituted an abandonment of his renunciation and an election to abide by the will. The decree found the partial report of Newman and Margaret McClintock, so far as pertinent here, correct and ordered that it be approved; overruled and denied Donovan's objections; set aside the order of the probate court sustaining his objections, and set aside his renunciation, adjudging that he had abandoned, waived and released it and was estopped to assert its validity. Donovan prosecutes an appeal, seeking a reversal of the decree of June 26, 1950. A freehold is necessarily involved.

The controlling issue presented for decision is whether the acts of Donovan subsequent to the filing of his renunciation of the will of Irene Conley Donovan constituted an abandonment, waiver and equitable estoppel to deny the validity and effectiveness of the will as to him. Stated somewhat differently, the question is whether Donovan, by his continued official acts as coexecutor, waived and abandoned his personal renunciation of the will, thereby estopping himself to deny its validity and effectiveness as to him personally.

The nature and effect of Donovan's renunciation requires consideration. Section 17 of the Probate Act declares that, 'In order to renounce a will the testator's surviving spouse shall file at the time and place provided for herein a written instrument signed by the surviving spouse and declaring the renunciation. The time of filing the instrument shall be as follows: (a) within ten months after the admission of...