Wiersema v. People (In re Holmberg's Estate)

• Decision Date: 15 September 1948
• Docket Number: No. 30542.,30542.
• Parties: In re HOLMBERG'S ESTATE. WIERSEMA et al. v. PEOPLE.
• Court: Illinois Supreme Court

400 Ill. 366

81 N.E.2d 188

In re HOLMBERG'S ESTATE.WIERSEMA et al.

v.PEOPLE.

No. 30542.

Supreme Court of Illinois.

May 20, 1948.

Rehearing Denied Sept. 15, 1948.

Appeal from Circuit Court, Cook County; Philip J. Finnegan, judge.

Proceeding in the matter of the estate of Lillian A. Holmberg, deceased, for the probate of the alleged will of deceased, by Lois Wiersema, executrix, and others, proponents, opposed by the People of the State of Illinois and others, contestants. An order of the probate court of Cook County refused to admit the instrument to probate, and the case was thereafter heard in the circuit court on appeal. From an order of the circuit court denying probate, the proponents appeal.

Affirmed.

Henry C. Piel, of Harvey, and Wilson & McIlvaine, of Chicago (George A. H. Scott and W. S. Bodman, both of Chicago, of counsel), for appellants.

George A. Lane, guardian ad litem, W. Ayers Keplinger, and Don. M. Peebles, amici curiae, all of Chicago (Leon Lecour Drolet, of Chicago, of counsel), for appellees.

WILSON, Justice.

This is an appeal from an order of the circuit court of Cook County denying probate to an instrument alleged to be the last will and testament of Lillian A. Holmberg, deceased. The case was heard in the circuit court on appeal from an order of the probate court of Cook County refusing to admit the instrument to probate. Part of the estate consisting of realty, a freehold is necessarily involved.

The facts are not in dispute. Born Lillian A. Anderson, decedent entered the home of Charles A. Holmberg at an early age, was reared by him, adopted his name and upon his death, inherited property from him after successfully defending an action to contest his will brought by certain of his heirs. In later years, she also accumulated other property. On November 10, 1941, Lillian Holmberg, then between sixty and seventy years of age and a patient in a hospital, duly executed the typewritten original of the instrument alleged to be her will. At the same time, and attested by the same witnesses, she also executed a carbon copy of the will. Retaining the executed carbon copy, Miss Holmberg delivered the original to a friend for safekeeping. Subsequently, she recovered from the particular illness which had caused her hospitalization and returned to her home.

By her will, Lillian Holmberg devised and bequeathed all her property to the Illinois Humane Society and the Anti-Cruelty Society of Chicago, share and share alike. In November, 1943, she intimated to the managing director of the Anti-Cruelty Society that the association was a beneficiary in her will, saying that it would be to his interest to assist her in handling an accident claim because ‘the more I get, the more you will get.’

Miss Holmberg died January 23, 1946, leaving no known heirs. During the intervening years, she had not visited the friend to whom she had entrusted the typewritten original of her will. On her death, however, he filed the instrument in the probate court and the named executrix filed a petition to probate the will. A few days later, the carbon impression of the will was found in a pocketbook in her home and it, too, was filed with the clerk of the probate court. The carbon impression, when found, had the word ‘Void’ written diagonally down the length of the first page in two places, each of the huge handwritten words extending across each paragraph on the page. Between the words thus written there appears the signature of the deceased. Similarly, that part of the second page of the instrument above the signature and attestation contains the word ‘Void’ written in extremely large letters. Signatures of the decedent appear both avove and below the word ‘Void’ on the second page. All agree that this writing was not there when the carbon impression was executed. Furthermore, there is no controversy respecting the genuineness of the signatures or decedent's authorship of the word ‘Void.’ At the bottom of the second page, below the attestation clause, the word ‘Copy’ appears, written in letters of normal size by an unknown hand.

Proponents of the will are the executrix and the beneficiaries. Other parties having an interest in the case are the public administrator, as concerns his right to administer the estate, the State of Illinois, in the event of escheat, and certain heirs of Charles A. Holmberg, alleged adoptive parent of the deceased, who claim by virtue of section 14 of the Probate Act. Ill.Rev.Stat.1947, chap. 3, par. 165. In the circuit court, the appearances of the three lastnamed parties were stricken, and one of the attorneys for the public administrator was appointed amicus curiae. On the motion of the heirs of Charles A. Holmberg, the circuit court appointed a guardian ad litem for the unknown minor and incompetent heirs of Lillian Holmberg, the probate court having previously found that her heirs are unknown. The other appearances having been stricken, the guardian ad litem became and remains the sole objector to the admission of the alleged will to probate.

The probate court and the circuit court, in denying probate, both found that Lillian Holmberg had executed duplicate typewritten wills, one an original impression and the other a carbon impression, that subsequently she wrote the word ‘Void’ and her name across each page of the carbon impression, and that the words so written were effective to revoke both copies of her will. In this court, proponents contend, first, that neither the probate court nor the circuit court had jurisdiction to determine the question of revocation and, second, that the writing across the face of the executed carbon impression did not constitute an effective revocation of the original impression. By their first contention, proponents seek to relitigate a settled proposition. Research Hospital v. Continental Illinois' Bank and Trust Co., 352 Ill. 510, 186 N.E. 170, contains a detailed exposition of the applicable law and firmly establishes the right of probate courts and county courts to hear testimony on the question of revocation and to deny probate where it appears that the alleged will is no will at all by reason of revocation. The adoption of the Probate Act of 1939 wrought no changes in the law in this respect. Compare Ill.Rev.Stat.1947, chap. 3, par. 221, and Ill.Rev.Stat.1937, chap. 148, par. 2. See Bley v. Luebeck, 377 Ill. 50, 35 N.E.2d 334. On appeal, the circuit court has the same jurisdiction as the county or probate court in the original proceeding and, consequently, the circuit court must be empowered to determine the issue of revocation. Ill.Rev.Stat.1947, chap. 3, pars. 221, 223, 487; Bley v. Luebeck, 377 Ill. 50, 35 N.E.2d 334. We have re-examined and adhere to the rule announced in the Research Hospital case.

Proponents' second contention goes to the merits of the case. The pertinent statute ordains: ‘A will may be revoked only (a) by burning, cancelling, tearing, or obliterating it by the testator himself or by some person in his presence and by his direction and consent * * *.’ Ill.Rev.Stat....