Moos' Estate, In re

• Decision Date: 22 January 1953
• Docket Number: No. 32471,32471
• Citation: 110 N.E.2d 194,414 Ill. 54
• Parties: In re MOOS' ESTATE. MOOS et al. v. MOOS et al.
• Court: Illinois Supreme Court

Page 194

110 N.E.2d 194

414 Ill. 54

In re MOOS' ESTATE.

MOOS et al. v. MOOS et al.

No. 32471.

Supreme Court of Illinois.

Jan. 22, 1953.

Edwin C. Mills, of Lincoln, for appellants.

John R. Gehlbach and Harris & Marris, of Lincoln, for appellees.

DAILY, Justice.

Thomas P. Moos, a resident of Lincoln, Illinois, executed a last will and testament on January 4, 1950; when he died, eleven months later, the will could not be found. Shortly after his death, Nellie Mae Koester, as executrix, filed a petition in the county court of Logan County, alleging that the will had been in existence after the testator's death; that it was never revoked by him; that it was lost or destroyed, and prayed for the admission to probate, as the will of the decedent, of a carbon copy of the said will which had remained in possession of the draftsman. Her petition was denied and, on appeal to the circuit court, the latter court made an express finding that the decedent had revoked the original will, and denied permission to probate the carbon copy. A freehold being involved, the proponents have appealed directly to this court from the order of the circuit court.

The undisputed facts show that the decedent was unmarried; that he had no children or descendants of deceased children and that his heirs-at-law at his death consisted of brothers and sisters, and the children of deceased brothers, both of the whole and half blood. When the will of January 4, 1950, was executed, Thomas P. Moos was a patient in a hospital at Lincoln and was apparently apprehensive about a forthcoming operation. On that date he caused Robert McCarthy, an attorney with whom he had had no previous dealings, to call at the hospital to discuss a will. Later in the day McCarthy drafted the will and returned to the hospital where decedent executed it in the presence of McCarthy and a fellow patient as attesting witnesses. By its terms the testator devised his residence to his nephew, Thomas Moos, and another parcel of real estate and his automobile to his nephew, William Moos. Rose Moos, his divorced wife, who was then living at his home as housekeeper, was bequeathed $300 and it was directed that the residue of his estate be converted to cash and divided into nine equal shares between Emil Moos, Sr., and Ray Moos, his brothers, and between the following nieces and nephews: Emil Moos, Jr., William Moos, Thomas, Moos, Nellie Mae Koester, Mary Ann Moos, and Norma Moos Shanle, children of Emil Moos, Sr., and Howard Moos, child of Ray Moos. Nellie Mae Koester was named executrix. As thus drawn, the will excluded all of the testator's relatives of the half blood and also failed to recognize Beatrice Jones and Sybil Moos, the children of Tim Moos, a full brother who had predeceased the testator. It is noteworthy, too, that members of the Emil Moos, Sr., family received all of the real estate, and, except for the $300 bequeathed to Rose Moos, seven-ninths of the personal property. They are the proponents of the lost will and the appellants in this court, while the remainder of the heirs, full and half blood alike, are the contestants-appellees.

After the will was executed on January 4, 1950, McCarthy left the original with Thomas P. Moos at the hospital. There is not one iota of evidence that it was ever seen after that date or that the will or its contents were ever mentioned by the testator to anyone. McCarthy did testify that, in response to the testator's wishes, he informed Nellie Mae Koester of the will and of her nomination as executrix, but there is no showing that the testator himself ever discussed the will in question with her. This is true despite a showing that Mrs. Koester was, during the same period, given custody of his bankbooks, given access to his safety-deposit box, which contained some $20,000 and was entrusted with the task of settling his hospital bills. As we interpret the record, the testator recovered from his operation and was released from the hospital, but was a patient on two other occasions before his death in December 1950. During the intervals, as later evidence shows, he was able to be about and to transact his own business. Two weeks after his death, Mrs. Koester and McCarthy inventoried the contents of decedent's safety-deposit box and also made a search of his home, but were unable to find the will. This action to probate the carbon copy retained by McCarthy soon followed.

Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. In re Estate of Morgan, 389 Ill. 484, 59 N.E.2d 800; Holler v. Holler, 298 Ill. 418, 131 N.E. 663; Griffith v. Highinbotom, 262 Ill. 126, 104 N.E. 233; St. Mary's Home v. Dodge, 257 Ill. 518, 101 N.E. 46; In re Page, 118 Ill. 576, 8 N.E. 852; 3 A.L.R.2d 949. The same cases establish that the presumption is subject to be rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator's death. In the Morgan case, it is stated that the test is whether the evidence shows it unlikely that a testator destroyed his will. To determine this, it has been held that declarations of a testator made a short time before his decease are competent evidence. Holler v. Holler, 298 Ill. 418, 131 N.E. 663; Leemon v. Leighton, 314 Ill. 407, 145 N.E. 631. Proof that a testator, whose will cannot be found after his death, entertained a kindly and loving feeling toward the beneficiaries under the will has been held to support the conclusion of non-revocation by the testator. In re Estate of Morgan, 389 Ill. 484, 59 N.E.2d 800; In re Page, 118 Ill. 576, 8 N.E. 852. Proof that persons who had an adverse interest had possession of, or access to, the testator's will, either before or after the testator's death, carries weight in the determination of whether the will, which is lost, was revoked by the testator. 3 A.L.R.2d 976; In re Bradley's Estate, 215 Mich. 72, 183 N.W. 897; In re Hodgson's Estate, 270 Pa. 210, 112 A. 778. Thus, in the present case, as in all such cases, the issue of whether the carbon copy should be admitted to probate as the will of Thomas P. Moos, gives rise to the query of whether the proof offered by appellants is sufficient to overcome the presumption of revocation by the testator.

The first contention made by appellants is that their proof shows that the will was in existence after the testator's death. This premise is based largely on inferences drawn from statements and conduct attributed to Ray Moos and, while not expressly charged or argued, embraces an underlying thought that Ray Moos unlawfully destroyed the will. The pertinent facts show that, following the death of the testator, Ray Moos, who had been called from his home in Peoria, met with other relatives at the home of Emil Moos, Sr., in Lincoln. Emil, his wife, and Nellie Mae Koester testified that after some general discussion, Ray Moos announced that he was going to spend the night at decedent's house and that he was going to tear the place apart to find out what his brother had left. The witnesses said they sought to dissuade him from going because of the probability that Rose Moos, decedent's housekeeper, and her sister, Elsie Meacham, who was also staying at decedent's house, had already gone to bed, but that Ray persisted. The latter admits he spent the night at decedent's house, but denies that he voiced the motive attributed to him by the others, or that he made a search. The following morning Ray returned briefly to Emil's house, and the testimony of Emil and his wife was that Ray told them, in substance, that since their son Tommy was to get decedent's house, it would be necessary to appoint an 'administrator' for him inasmuch as he was a...