Robinson v. First State Bank of Monticello

• Citation: 454 N.E.2d 288,73 Ill.Dec. 428,97 Ill.2d 174
• Decision Date: 17 June 1983
• Docket Number: Nos. 56372,56689,s. 56372
• Parties: , 73 Ill.Dec. 428 Robert C. ROBINSON et al., Plaintiffs-Appellants, v. FIRST STATE BANK OF MONTICELLO et al. (Dwight H. Doss, Defendant-Appellee).
• Court: Supreme Court of Illinois

Page 288

454 N.E.2d 288

97 Ill.2d 174, 73 Ill.Dec. 428

Robert C. ROBINSON et al., Plaintiffs-Appellants, v. FIRST STATE BANK OF MONTICELLO et al. (Dwight H. Doss Defendant-Appellee).

Nos. 56372, 56689.

Supreme Court of Illinois.

June 17, 1983.

Rehearing Denied Sept. 30, 1983.

Hull, Campbell, Robinson & Gibson, Decatur, for defendant-appellee; Michael I. Campbell, Decatur, of counsel.

Harlan Heller, Harlan Heller, Ltd., Mattoon, for plaintiffs-appellants.

Vernon H. Houchen and Kenneth Kinser, Decatur, for defendant-appellee First State Bank of Monticello.

CLARK, Justice:

On April 6, 1981, the plaintiffs, the heirs of Cordelia R. Davis, filed a three-count complaint in the circuit court of Macon County. The record does not disclose why all of the other documents not directly relating to the complaint were filed in Piatt County.

In counts I and II the plaintiffs sought damages from the defendant First State Bank of Monticello, and in count III from defendant Dwight H. Doss. The circuit court of Macon County dismissed all counts with prejudice. The appellate court reversed the circuit court's order on count III of the complaint and affirmed the circuit court's dismissal of counts I and II. (104 Ill.App.3d 758, 60 Ill.Dec. 488, 433 N.E.2d 285.) The plaintiffs and defendant Doss filed petitions for leave to appeal with this court (73 Ill.2d R. 315(a)) and both petitions were granted. The cases were consolidated for appeal in this court.

The will and codicil of Cordelia Davis were admitted to probate on October 10, 1978. On that date, the First State Bank of Monticello was appointed as executor. Under the will and codicil defendant Doss received substantially all of the testator's estate. The will was executed on November 15, 1974, and the codicil on August 20, 1976.

Both the will and the codicil were drafted by an attorney named Kenneth Kinser. Mr. Kinser is the attorney for the decedent's estate.

In Ms. Davis' will she included a paragraph explaining that defendant Doss was her friend, confidant and legal adviser and that on numerous occasions she had requested him to prepare her will. She further explained that he had refused because of their professional association.

Prior to the will of November 1974, Ms. Davis had executed another will. This will was executed on March 10, 1973, and named five individuals unrelated to the testator as legatees and devisees. The appellate court chose to label this group of individuals as "Anderson." We will also refer to this group of individuals as the Anderson group. There is nothing in the record to indicate whether the 1973 will was ever filed in the probate proceeding or who the executor was in that will.

On December 17, 1973, the testator executed a document prepared by defendant Doss entitled "Disclaimer, Cancellation, Nullification and Revocation." This document was attested to by two witnesses and notarized. In the document Ms. Davis stated that she "disclaims, cancels, nullifies and revokes all documents, instruments, pleadings and other written data prepared by attorney Tom Yates of Chicago, Illinois, and executed by the undersigned, especially including a certain Last Will and Testament prepared by said Yates, dated the 10th day of March, 1973, and any codicil thereof." Mr. Yates was hired by decedent at the suggestion of the Anderson group.

Subsequent to the date that Ms. Davis' 1974 will and 1976 codicil were admitted to probate by the probate court of Piatt County, the plaintiffs and Doss, together with the Anderson group, acting through their respective attorneys, entered into a written settlement agreement. The agreement was dated April 6, 1979, and plaintiffs (the Robinson group), the Anderson group and defendant Doss were the three designated parties to the agreement. The record is unclear as to why the Anderson group was a party to the agreement and agreed to pay the Robinson group when they were not beneficiaries under the 1974 will or 1976 codicil. The agreement stated in pertinent part:

"WHEREAS, Robinson et al. [plaintiffs] have agreed to refrain from filing a suit to contest either will of Cordelia R. Davis above described, and Doss and Anderson, et al. have agreed to pay Robinson, et al. from the estate assets the sum of One Hundred Twenty-five Thousand Dollars ($125,000.00).

NOW, THEREFORE, in consideration of the promises and agreements herein set forth, the parties agree as follows:

* * *

* * *

3. Robinson, et al. agree that they will not file a lawsuit to contest the Wills and Codicil of Cordelia R. Davis above described.

4. Doss and Anderson, et al. agree that Robinson, et al. will be paid the sum of One Hundred Twenty-five Thousand Dollars ($125,000) out of the assets of the estate.

5. Except as herein set forth, each of the parties hereby releases the other parties from any and all claims, causes of action and the like which might or may arise from any Will or Codicil execute[d] by Cordelia R. Davis or any other undertaking by the parties."

Each of the attorneys of the three designated parties signed the agreement. To the left of their signatures was a notation: "APPROVED AND ACCEPTED," and Kenneth Kinser, attorney for the estate, signed his name under the notation.

Also included in the record in this case is a document entitled "RECEIPT ON DISTRIBUTION" which states that the plaintiffs received the $125,000 that they had agreed to in the settlement agreement. The document also states that the plaintiffs waived notice and consented to the approval of the final account of the First State Bank of Monticello in its capacity as executor of the decedent's estate.

On March 4, 1981, the plaintiffs filed a "PETITION FOR CITATION TO DISCOVER INFORMATION" in the circuit court of Piatt County. The petition was directed to Kenneth Kinser, attorney for the estate, Frances A. Anderson, president of the First National Bank of Monticello (not to be confused with the Anderson group), and Dwight Doss and his secretary. The plaintiffs asserted that the bank, and Kinser as attorney for the estate, owed the plaintiffs a fiduciary duty to disclose the existence of the document which purported to revoke the first will of the decedent. It also stated that as a result of all the defendants' failure to disclose the existence of the document, the plaintiffs refrained from filing a will contest proceeding within the six months allowed and entered into a settlement agreement.

The plaintiffs also asserted, in reference to the 1974 will, "[t]hat substantial grounds existed for a Will Contest based upon undue influence because the principal beneficiary of said Will and Codicil was DWIGHT H. DOSS, her attorney, and said Will was executed at a time when said DWIGHT H. DOSS, represented her in a fiduciary capacity * * *."

In their petition the plaintiffs prayed for discovery of the original document of revocation (they had attached a copy of the document to their petition), any correspondence concerning the document, and any other wills. The defendants filed a motion to dismiss the petition asserting that section 16-1 of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 110 1/2, par. 16-1), under which the petition was filed, referred to discovery of information needed to recover property for an estate and that the petition referred to no property that should have been included in the estate or was sought to be recovered for the estate. The defendants also asserted that the circuit court had no jurisdiction over the petition for citation to discover information because the petition amounted to a collateral attack on the validity of the order admitting the will and codicil to probate and the six months provided for a will contest in section 8-1 of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 110 1/2, par. 8-1) had expired. The defendants also contended that the petition incorrectly referred to the document of revocation as a will and that although the Probate Act of 1975 requires the filing of the testator's will under section 6-1 of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 110 1/2, par. 6-1) it does not require the filing of the testator's documents of revocation. Also, the defendants pointed out that the 1974 will that was probated on October 10, 1978, contained the usual revocation clause which they alleged had the same effect as the document of revocation so that the plaintiffs knew the decedent's first will was revoked.

Lastly, the defendants contended that neither the bank, as executor, nor Kenneth Kinser, as attorney for the estate, was a party to the settlement agreement. The defendants argue that Kinser's signature on the agreement did not make the bank or Kinser a party to the agreement, or indicate that either took part in the settlement negotiations. They argue that it only showed that the defendant bank as executor was "notified, made aware of it, and was therefore bound to honor it." The bank pointed out that the only persons securing a benefit or suffering a detriment under the terms of the agreement were Doss, the Anderson group, and the Robinson group.

The circuit court of Piatt County entered an order stating that it did not have jurisdiction, and that even if it did have jurisdiction, "the facts presented do not justify a showing that the petitioning parties are interested in said estate at this time." The order dismissing the complaint stated that it was a final order and that no just reason existed to delay an appeal therefrom.

An appeal was never brought regarding the order probating the 1974 will and the 1976 codicil or the order dismissing the petition for citation to discover information, but on April 6, 1981, the plaintiffs filed the complaint that is at issue in this appeal in the circuit court of Macon County.

In count I of the complaint the plaintiffs alleged that the bank, as executor, had a fiduciary duty to the plaintiffs as heirs of the decedent. The bank, they alleged, had actual knowledge of the...