Estate of Kline, In re

• Decision Date: 19 May 1993
• Docket Number: No. 3-92-0223,3-92-0223
• Citation: 613 N.E.2d 1329,184 Ill.Dec. 737,245 Ill.App.3d 413
• Parties: , 184 Ill.Dec. 737 In re ESTATE OF Luella KLINE, Deceased (Robert W. Kline, Petitioner-Appellant v. Johnny K. Kline, Ex'r of the will of Luella Kline, Respondent-Appellee, and Wendell E. Kline, Respondent and Wendell E. Kline, Petitioner-Appellant v. Johnny K. Kline, Ex'r of the will of Luella Kline, Respondent-Appellee, and Robert W. Kline, Respondent).
• Court: United States Appellate Court of Illinois

Page 1329

613 N.E.2d 1329

245 Ill.App.3d 413, 184 Ill.Dec. 737

In re ESTATE OF Luella KLINE, Deceased (Robert W. Kline Petitioner-Appellant v. Johnny K. Kline, Ex'r of the will of Luella Kline, Respondent-Appellee, and Wendell E. Kline Respondent and Wendell E. Kline, Petitioner-Appellant v Johnny K. Kline, Ex'r of the will of Luella Kline Respondent-Appellee, and Robert W. Kline, Respondent).

No. 3-92-0223.

Appellate Court of Illinois, Third District.

May 19, 1993.

Timothy L. Bertschy, Peoria, Brad A. Elward, argued, Karen L. Kendall, Richard N. Molchan, Heyl, Royster, Voelker & Allen, Peoria, for Wendell E. Kline.

Stanley L. Tucker, argued, Hartzell, Glidden, Tucker & Hartzell, Carthage, for Robert Kline.

Bruce Beal, argued, Chester J. Claudon, Thomas J. Homer, Claudon, Lloyd, Barnhart & Beal, Canton, for Johnny K. Kline.

Justice LYTTON delivered the opinion of the court:

Robert W. Kline (Robert) and Wendell E. Kline (Wendell) appeal by right from a judgment upon a verdict entered on June 24, 1991, by the McDonough County Circuit Court in favor of Johnny K. Kline (Johnny), as executor of Luella Kline's (Luella) estate. Robert and Wendell jointly raise the following issues for review: (1) whether the jury verdict finding the last will and codicil of their mother, Luella Kline, to be valid was against the manifest weight of the evidence; (2) whether the circuit court's ruling on the issue of Johnny's waiver of the protections of the Dead-Man's Act was in error; (3) whether prejudicial error resulted from various rulings by the circuit court, and; (4) whether the circuit court erred in its ruling denying one of petitioners' requested jury instructions. We affirm the circuit court on all issues.

Luella and Ernest Kline (Ernest) operated a large and successful farming operation near Macomb in McDonough County. Together Luella and Ernest had three sons, Johnny, Robert and Wendell. As the sons reached maturity, Johnny and Robert worked with Ernest farming their father's land while Wendell opened a produce store in Macomb.

In 1976, Johnny began living with Elsie Sue King (Sue) in a house located 3/4 of a mile from Luella and Ernest's home. Johnny rented this house from Ernest and Luella. Johnny and Sue were married in 1980. Between 1983 and the time of trial, they had separated numerous times, and at the time of trial, a divorce was pending.

Robert and Ernest jointly owned and operated a farm that was purchased in 1949. In addition to this farm, Robert helped Ernest farm a 160 acre parcel owned by Ernest. Originally, Ernest provided the farming machinery and Robert provided the labor. Robert worked in this relationship for approximately 20-25 years. In 1975, Robert purchased his own farming equipment and began tenant farming for Ernest. Later, Robert and Ernest became estranged from one another, after which they did not communicate, and all of their business affairs were conducted through Robert's wife, Mary.

In August 1982, Luella suffered a stroke which left her partially disabled, so that she required help with her daily personal needs. For many years before her stroke, Luella had very poor vision; she was blind in one eye, had severely impaired vision in the other and wore thick, heavy corrective lenses. Sue helped Luella with her personal needs such as dressing, bathing, going to the bathroom, cooking and cleaning. Immediately after Luella's stroke, she was confined to a wheelchair, but gradually was able to walk with the assistance of a walker, and then a cane.

In late November 1982, Sue and Johnny suggested that Ernest and Luella come to live with them. Ernest and Luella agreed, so long as Johnny and Sue promised not to place them in a nursing home. Sue agreed to take care of them. According to Sue, Robert and Wendell had suggested nursing care for their parents, but Ernest and Luella were adamantly opposed. They moved in with Johnny and Sue without consulting Robert or Wendell.

According to the testimony of petitioners' witnesses, Luella's behavior began to change after her stroke. Specifically, Luella was observed laughing or crying for no apparent reason, talking or whispering to imaginary persons, talking to the dog as if it were a person, and undressing while watching TV. Luella would speak about being married to someone other than Ernest, about having a baby girl and having a miscarriage. This behavior was observed until the time of Luella's death. Sue testified that she would prepare Luella for anticipated conversations with people. Sue would tell Luella who the person was, what the weather was, and what day it was.

One of petitioners' witnesses, Cindy Teal, who used to date Johnny's son, testified that while she observed some unusual behavior from Luella, she also observed Luella carrying on normal conversations, including talking with Johnny about daily farming operations.

Ernest died intestate in March 1983. Sue testified that Johnny instructed her to sit next to Luella at the funeral so that if Luella talked to herself, it would appear that she was talking to Sue. During the funeral, Luella's sister, Pearl, came up to Luella. Luella did not believe that it was her because she believed Pearl was dead. On the night Ernest died, Mary asked Johnny to place Luella in a nursing home. Robert did not attend the funeral.

The day after Ernest's funeral, Sue called Wendell and asked him to come over to Johnny's house for a meeting. Robert was not called. Johnny, Sue, Luella, Wendell and his wife, Francis, attended the meeting. During the meeting, Johnny asked Wendell, "How do you want yours? Do you want it in land or money?" Wendell responded that the land should belong to Luella for her lifetime. Johnny asked Wendell if he would be willing to sign a paper to that effect. Wendell refused because, as he later testified, he did not trust Johnny. Johnny told Wendell that he wanted to keep the land together as long as possible as a tribute to Ernest, and that Johnny would farm the land and take care of it.

Sometime after Ernest's funeral, Johnny stopped by Robert's house and met Mary in the driveway. According to Mary, Johnny told her that Ernest had not left a will, and that "things would be different the next time around." Johnny denied making this statement.

Within three months after Ernest's death, Johnny was placed on Luella's joint checking account. Johnny sometimes wrote out checks for Luella to sign, but generally, from 1983 until Luella's death, Johnny signed almost every check. Johnny took over the bookkeeping responsibilities of the farm from Luella.

While Ernest and Luella lived with Johnny and Sue, Robert's wife Mary called frequently on the telephone to talk with Luella. After Ernest died, when Mary called for Luella, she would be told that Luella was asleep, was in the bathroom, or generally unavailable. This continued for over a month until Mary gave up and stopped calling. Similar instances occurred when Wendell and Francis called or attempted to visit Luella after Ernest's death. Sue testified that Johnny instructed her to discourage Wendell and Francis from having contact with Luella.

On April 11, 1983, Johnny called and made an appointment for Luella with Chester J. Claudon (Claudon). Claudon is an attorney whose firm represented Johnny at trial in the instant litigation and on appeal. Luella and Johnny attended a meeting with Claudon on April 14, 1983.

According to Claudon's testimony, the April 14, 1983, meeting was a standard estate planning conference where the parties went over the assets of the estate and what course should be followed. Luella told Claudon that Johnny had managed the farm and handled the business affairs for Ernest and Luella, and that it was her desire that he continue. Luella nominated Johnny to act as administrator for Ernest's estate. An appointment to discuss the assets of Ernest's estate was set for April 22, 1983.

At the April 22nd meeting with Johnny and Claudon, Luella indicated her desire to make a will. Johnny excused himself from the room, leaving Luella and Claudon alone. Luella told Claudon about the state of the families' relationships with one another, and indicated that she wanted each son to receive 1/3 of the estate, but wanted an arrangement where Johnny could farm the land for a period of time and the families would share in the income generated. Luella wanted Robert to be protected with a right to farm part of the land. Claudon suggested a testamentary trust. Luella wanted the trust to last twenty years, but Claudon recommended a ten year term. Luella agreed to reduce the trust to ten years.

Claudon drafted a will according to Luella's instructions. The will, in essence, provides that the two homes that she owned in Macomb, all personal property, securities in grain and livestock were to be divided equally between Robert, Wendell and Johnny; the farmland was to be held in trust for ten years with Johnny being named as trustee; all earnings from the trust were to be divided equally between Robert, Wendell and Johnny; after ten years, the land was to be "equitably and fairly" divided between Robert, Wendell and Johnny; during the trust period, Robert and Johnny had first option of farming the same tracts they were currently farming. Johnny was named executor of Luella's estate.

Luella executed the will on May 13, 1983, in the presence of Claudon and two secretaries for Claudon's firm, Shirley Kozelichki and Marla Hance. Sue drove Luella to the office, but was not present at the will's execution. Claudon testified that he read the entire will to Luella, stopping after each paragraph to explain the will's provisions. In Claudon's opinion, Luella was of sound mind, knew who her children were, and knew what her property was. Claudon did not believe that Luella was under constraints from anyone, and that she did not exhibit symptoms of dependency or mental deficiency.

Both Shirley Kozelichki and Marla Hance...