In re Estate of Erickson

• Decision Date: 12 January 2006
• Docket Number: No. 4-05-0446.,4-05-0446.
• Citation: 841 N.E.2d 1104
• Parties: In re the ESTATE OF Lea J. ERICKSON, Deceased; (William R. Erickson, Plaintiff-Appellee, v. Julie A. Schackmann, Individually and as Trustee; Sandra McDougal, a/k/a Sandra MacDougal; and Sean Doggett, Defendants-Appellants).
• Court: United States Appellate Court of Illinois

Page 1104

841 N.E.2d 1104

In re the ESTATE OF Lea J. ERICKSON, Deceased; (William R. Erickson, Plaintiff-Appellee, v. Julie A. Schackmann, Individually and as Trustee; Sandra McDougal, a/k/a Sandra MacDougal; and Sean Doggett, Defendants-Appellants).

No. 4-05-0446.

Appellate Court of Illinois, Fourth District.

Argued December 14, 2005.

Decided January 12, 2006.

Paul T. Manion, J. Brian Manion, Manion, Devens, McFetridge & Schum, Ltd., Hoopeston, Terrance R. Miles, Danville, for Julie A. Schackmann.

Fred L. Hubbard, Danville, for William R. Erickson.

Justice KNECHT delivered the opinion of the court:

In July 2003, defendants, Julie A. Schackmann, Sandra McDougal, and Sean Doggett, each purchased for $10 a parcel of real property from Lea J. Erickson, just five days before Lea's death. After Lea died, William R. Erickson filed suit to challenge the transfers and argued the transfers violated the terms of the joint and mutual will Lea executed with her husband Charles R. Erickson. The Vermilion County circuit court agreed with William. Defendants appealed. On appeal, defendants contend (1) the joint and mutual will authorized the property transfers; and (2) William waived any challenge to the propriety of the transfers by not objecting to the final accounting of Charles's estate. We affirm.

I. BACKGROUND

On April 4, 1994, Charles R. Erickson and Lea J. Erickson executed a document they entitled their "Last Joint and Mutual Wills and Testaments." In this will, the testators made the following bequests:

"We give, devise[,] and bequeath our entire estates of whatsoever kind and nature and wheresoever the same may be situated to the survivor of either of us, as the survivor's property absolutely. After the death of the survivor of us, we give, devise[,] and bequeath twenty percent (20%) of our entire estate to our daughter Julie A. Schackmann, or to her descendants, per stirpes. The other eighty percent (80%) of our estate, after the death of the survivor of us, shall be delivered by the executor to Julie A. Schackmann, as trustee of the following trust * * * for the benefit of our other four (4) children, William R. Erickson Charlene L. Stout, Richard P. Erickson, and Sandra L. McDougal."

Charles died in January 2000. The will was admitted to probate, and Lea was appointed executrix of his estate. In March 2002, Lea, in her role of executrix, petitioned the court to permit "her to transfer real estate, either to third parties or to herself individually as the sole heir of Charles." The court gave Lea this authority. In her June 2002 final report, Lea informed the court and the other beneficiaries under the will "[t]hat all real estate that the estate was formerly possessed of has been transferred to" herself pursuant to court order. The court approved Lea's final report and account.

Lea died on July 15, 2003. According to the death certificate, Lea died from a condition she suffered for approximately three years. Five days before her death, Lea conveyed three tracts of real property by quitclaim deed. In one conveyance, Lea conveyed two lots to Schackmann in exchange for $10. In the second transaction, also in exchange of $10, Lea conveyed property to McDougal. In the third transaction, also for consideration of $10, Lea transferred property to Doggett, a grandson.

In September 2003, William filed a complaint, seeking the return of the three conveyed parcels to the estate. In the complaint, William asserted the will was a joint and mutual will that prohibited Lea from distributing property in a way that would contradict the dispositive scheme of the will.

The circuit court agreed with William and found the will was a joint and mutual will. The circuit court concluded Lea's actions in attempting to deed property away were "improper" in that they violated "the terms and conditions of the joint and mutual Will." The court rejected the argument William waived any challenge to the transfers. The court further found no just cause to delay the appeal or enforcement of the order under Supreme Court Rule 304 (155 Ill.2d R. 304). This appeal followed.

II. ANALYSIS

Both parties concede the will here is a joint and mutual will. A will is a joint will if it is executed by more than one person to dispose of property "owned jointly or in common by them or in severalty by them." Curry v. Cotton, 356 Ill. 538, 543, 191 N.E. 307, 309 (1934). Upon the death of the first testator to die, the joint will is subject to probate as that testator's will. After the death of the surviving testator, it is subject to probate as the survivor's will. Curry, 356 Ill. at 543, 191 N.E. at 309. Mutual wills are separate documents involving more than one testator. The terms of these wills are reciprocal, by which each testator disposes the property to the other. A will is joint and mutual if it is "executed jointly by two or more persons with reciprocal provisions and shows on its face that the bequests are made one in consideration of the other." Curry, 356 Ill. at 543, 191 N.E. at 309.

The parties are correct; Charles and Lea executed a joint and mutual will. It is one document, executed by both testators. The testators referred to the will as "our Last Joint and Mutual Wills and Testaments." The gifts were reciprocal to the surviving spouse, the property was pooled together, and it was disposed of among their children in approximately equal shares. See Rauch v. Rauch, 112 Ill. App.3d 198, 201, 67 Ill.Dec. 785, 445 N.E.2d 77, 80 (1983) (outlining the considerations this court employs when evaluating whether a will is joint and mutual).

Joint and mutual wills are not only testamentary but also contractual. They are "executed pursuant to a contract between the testators, requiring the survivor of them to dispose of the property as the will's provisions instruct." Rauch, 112 Ill.App.3d at 200, 67 Ill.Dec. 785, 445 N.E.2d at 79. This contract, embodied in a joint and mutual will, estops the survivor of the testators, "from disposing of the property other than as contemplated in the will." Rauch, 112 Ill.App.3d at 200, 67 Ill.Dec. 785, 445 N.E.2d at 80.

Conceding the contractual nature of the will, defendants contend the contract allowed Lea to transfer the property. Defendants emphasize the term "absolutely" in the gift to the surviving spouse: "We give * * * our entire estates of whatsoever kind and nature and wheresoever the same may be situated to the survivor of either of us, as the survivor's property absolutely." (Emphasis added.) Defendants further argue the phrasing of the gift indicates the testators intended the surviving spouse could do whatever he or she wished with the property.

William disagrees. William cites Rauch and Helms v. Darmstatter, 34 Ill.2d 295, 215 N.E.2d 245 (1966), and argues "[t]he use of the word `absolute' in describing the bequest or devise to the surviving testator is illogical if to do so would upset the common dispositive scheme of the later paragraphs of the will."

Defendants' argument centers on the term "absolutely." When interpreting a will, however, we focus not on one provision or section, but we consider the will in its entirety with the goal of ascertaining and, if possible, giving effect to the intent of the testator. In re Estate of Overturf, 353 Ill.App.3d 640, 642, 289 Ill.Dec. 167, 819 N.E.2d 324, 327 (2004). This approach reflects the approach taken in Helms, 34 Ill.2d at 301-02, 215 N.E.2d at 249, in which our supreme court considered whether a joint and mutual will with a similar bequest to the surviving spouse was revocable.

In Helms, the testators, spouses George Lortz and Lena Lortz, executed a joint and mutual will which bequeathed to the survivor all of their property "`as his or her absolute property forever.'" (Emphasis added.) Helms, 34 Ill.2d at 299, 215 N.E.2d at 247-48. The joint will further provided after the death of the survivor, their property was to be merged and sold, with the proceeds of the sale to be distributed among their relatives. Helms v. Darmstatter, 56 Ill.App.2d 176, 178, 205 N.E.2d 478, 480 (1965). George died on March 13, 1948. In April 1951, Lena executed a codicil by which she altered the bequests to benefit her own relatives. See Helms, 34 Ill.2d at 297, 215 N.E.2d at 246.

On appeal in Helms, the issue was whether Lena, who was given the property of the estate as her "`absolute property forever,'" could alter the terms of the joint will by codicil after George's death. The court, considering the will as a whole, held Lena had not been given power to change the disposition:

"The two clauses must be read together and we feel that the equal treatment of each side of the family is so clearly provided for that it would not be logical to consider that the testators intended to give the survivor the power to upset that scheme by a contrary testamentary disposition by using the one word `absolute'." Helms, 34 Ill.2d at 301, 215 N.E.2d at 249.

In Rauch, 112 Ill.App.3d at 201, 67 Ill. Dec. 785, 445 N.E.2d at 80 (Fourth District), this court interpreted another joint and mutual will that gave the surviving spouse "`all of the property * * * to be his or her absolute property.'" (Emphasis added.) The joint and mutual will pooled all interests into a common fund and, after the death of the surviving spouse, disposed of the property equally among the couple's four children. Rauch, 112 Ill.App.3d at 201, 67 Ill.Dec. 785, 445 N.E.2d at 80. On appeal, this court considered when the interests of the children vested, whether on the earlier death or on the death of the surviving spouse. See Rauch, 112 Ill. App.3d at 199, 67 Ill.Dec. 785, 445 N.E.2d at 79. In deciding the interests of the children vested on the death of the first testator to die, this court rejected the argument the term "absolute" gave the surviving spouse complete power over the property, "including the power to change the dispositive scheme." Rauch, 112 Ill. App.3d at 202, 67 Ill.Dec. 785, 445...