Estate of Kritsch, 78-404

• Decision Date: 18 September 1978
• Docket Number: No. 78-404,78-404
• Citation: 21 Ill.Dec. 756,65 Ill.App.3d 404,382 N.E.2d 50
• Parties: , 21 Ill.Dec. 756 ESTATE of Gustav KRITSCH, Deceased. Anna ATKINSON et al., Plaintiffs-Appellants, v. Marie KRITSCH et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 50

382 N.E.2d 50 65 Ill.App.3d 404, 21 Ill.Dec. 756 ESTATE of Gustav KRITSCH, Deceased.
Anna ATKINSON et al., Plaintiffs-Appellants,
v.
Marie KRITSCH et al., Defendants-Appellees. No. 78-404. Appellate Court of Illinois, First District, First Division. Sept. 18, 1978.

[65 Ill.App.3d 405]

Page 51

[21 Ill.Dec. 757] Brown, Cook & Hanson, Chicago, for plaintiffs-appellants.

Spitzer, Addis, Susman & Roskin, Chicago, for defendants-appellees.

Page 52

[21 Ill.Dec. 758] GOLDBERG, Presiding Justice:

Anna Atkinson, Mary Munch and Alice Joachim (plaintiffs), filed a petition against various persons interested in the Estate of Gustav Kritsch, deceased, including Egon Kritsch, executor of said estate. Plaintiffs sought relief concerning the wills of said Gustav Kritsch, deceased, and his deceased first wife, Bessie Kritsch. After a hearing, the trial court allowed the motion of Egon Kritsch, as executor, to strike and dismiss the petition of plaintiffs. Plaintiffs have appealed.

In this court, plaintiffs contend that the wills of the late Bessie and Gustav Kritsch were mutual and contain a plan for distribution of the estate of the last of these two testators to die. In addition, plaintiffs urge that any existing ambiguity as to the intent of the testators did not justify the dismissal of plaintiffs' petition. In response the executor, Egon Kritsch, contends that the mutual wills of Bessie and Gustav Kritsch clearly contain a plan for distribution of the estate of the first to die to the survivor in fee if such survival is by more than 90 days. The executor also urges that there is no ambiguity as to the intent of the testators so that it [65 Ill.App.3d 406] was proper for the trial judge to strike and dismiss the petition of plaintiffs.

Since the order of dismissal was entered upon allowance of the motion to dismiss filed by the executor, all facts properly pleaded in the petition of plaintiffs must be taken as true. (Kendall v. Kendall (1978), 71 Ill.2d 374, 375, 16 Ill.Dec. 938, 375 N.E.2d 1280; Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 329, 13 Ill.Dec. 699, 371 N.E.2d 634.) A statement of the facts before us for purposes of this appeal follows.

On January 30, 1956, Gustav Kritsch and Bessie Kritsch, his wife, executed mutual wills. These wills were identical except for the names of the testators and designation and description of the primary beneficiary of each will. Each will contained the following paragraph (identical except for use of "husband, Gustav E." in Bessie's will and "wife, Bessie" in Gustav's will):

"SECOND: It has been agreed between me and my husband, GUSTAV E. KRITSCH, in consideration of our mutual bequests and in pursuance of a compact between us, that we shall each make a separate will bearing the same date, disposing of our property, both real and personal, wherever situated, in such a way as to accomplish certain things, and we have agreed between us and in consideration of each other's mutual promises and covenants that said wills, as so made, will not be revoked or destroyed by either of us, nor will either of us change the terms by codicil or by a subsequent will without the full consent and agreement of the other."

In the third paragraph of each will, each testator gave to the other "all my property, both real and personal."

Each will contained a fourth paragraph stating (except for use...