Ernest v. Chumley

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Ernest v. Chumley

State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0663 Rel

Case Date: 08/10/2010

Preview:Filed 8/10/10

NO. 4-09-0663 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

DEBORAH D. ERNEST and JOHN P. SONNEBORN, Plaintiffs-Appellants, v. DOROTHY L. CHUMLEY, f/k/a DOROTHY L. SONNEBORN, Defendant-Appellee.

) Appeal from ) Circuit Court of ) Morgan County ) No. 04CH52 ) ) Honorable ) Tim P. Olson, ) Judge Presiding. _________________________________________________________________ JUSTICE STEIGMANN delivered the opinion of the court: Plaintiffs, Deborah D. Ernest and John P. Sonneborn, appeal from the trial court's August 2009 order denying, in part, their complaint to construe a will. Deborah and John argue that

the court erred by finding that the mutual will executed by defendant, Dorothy L. Chumley, f/k/a Dorothy L. Sonneborn, and their since-deceased father, Robert A. Sonneborn, was not enforceable during Dorothy's lifetime. directions. I. BACKGROUND A. The Undisputed Facts In October 1989, Robert and Dorothy married, each having had two children from a previous marriage. (Dorothy did We affirm and remand with

not give birth to any children during her marriage to Robert.) In August 2000, Robert and Dorothy each executed mutual wills that, with the exception of references to name and gender, contained identical reciprocal clauses. In particular, Dorothy's

mutual will stated, in pertinent part, the following:

"ARTICLE II In the event my husband, ROBERT A. SONNEBORN, shall survive me for a period of at least [30] days, I give him the rest, residue[,] and remainder of my estate, of whatever nature and wheresoever located. Should my said husband so survive me, I expressly make no provision for any of my children. * * * ARTICLE IV Since my husband and I each have children from a prior marriage, it is our intent that upon the death of the survivor of us, that my estate or his estate, as the case - 2 -

may be, be divided one-half to my children and one-half to his children designated as beneficiaries in Article III. Accordingly,

it is further our intent that upon the death of the first of us, the terms of the will of the surviving spouse shall become irrevocable." In April 2003, Robert died, owning assets in joint tenancy with Dorothy valued at approximately $200,244, which included their home and several bank accounts. Two months after

Robert's death, Dorothy executed a new will that bequeathed her entire estate to her biological children. In December 2004, Dorothy married Thomas Chumley. following month, Dorothy executed another will, in which she bequeathed her entire estate to (1) Thomas and, should he predecease her, then to (2) her biological children and Thomas's two children in equal shares. In February 2006, Dorothy sold the The

home she had shared with Robert, depositing the net proceeds of approximately $103,901 into a revocable trust account that she had held in joint tenancy with Robert but now held solely in her name. (Before Dorothy deposited the aforementioned proceeds, her One week later, Dorothy

trust account balance was $980.)

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withdrew $96,951 from her trust account and deposited various sums totaling the withdrawal amount into three separate certificates of deposit that she held in joint tenancy with Thomas. B. Procedural History In October 2004--two months before Dorothy married Thomas--Deborah and John filed a complaint to construe the will, requesting that the trial court (1) find Dorothy's August 2000 mutual will irrevocable, (2) order Dorothy to itemize the assets she owned with Robert immediately before his death, and (3) impose a constructive trust, prohibiting (a) Dorothy from making gratuitous transfers of those assets and (b) Thomas's or Dorothy's future spouses from making any statutory claims on the itemized assets. At a December 2008 bench trial, Dorothy testified that her understanding of her August 2000 mutual will was that (1) upon Robert's death, she could use the remaining estate for her comfort, support, maintenance, and welfare during her lifetime; (2) upon her death, her estate, if any, would be divided equally among their four children; and (3) if Robert had survived her, her children would not have been entitled to control Robert's estate. Dorothy acknowledged that her June 2003 will, which left - 4 -

her entire estate to her biological children, was contrary to her intent as stated in her August 2000 mutual will. Following the presentation of evidence and argument, the trial court permitted the parties to file additional briefs in support of their respective positions. court entered the following ruling: "As agreed by the parties, the facts are basically not in dispute. The issues revolve In August 2009, the

around the intent of the parties and whether [Dorothy's] will *** became irrevocable upon [Robert's] death ***. Based on the wills themselves and [Dorothy's] trial testimony ***, the [c]ourt finds her will *** became irrevocable on [Robert's] death. Moreover, the [c]ourt finds all the property of the survivor at the time of his or her death was subject to the testamentary scheme regardless of how obtained. *** The wills appear to give the survivor the unfettered right to use the property as - 5 -

each saw fit.

There is absolutely no

restriction in the wills on the use by the survivor. [Deborah and John] are asking this [c]ourt to do something not provided for in the wills. The [c]ourt finds the contract is not enforceable against Dorothy during her lifetime as the will [is not] specific as to how [Dorothy is] to use her property during her life. This [c]ourt declines to impose such a restriction. The relief requested by [Deborah and John] is denied." This appeal followed. II. THE APPLICABILITY OF DOROTHY'S MUTUAL WILL DURING HER LIFETIME A. The Legal Implications of Mutual Wills Mutual wills are the separate instruments of two or more testators that contain reciprocal terms such that each testator disposes of his or her respective property to the other.

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In re Estate of Erickson, 363 Ill. App. 3d 279, 281-82, 841 N.E.2d 1104, 1106 (2006). In contrast, a joint will is a single

instrument that contains the wills of two or more persons, and may be considered mutual if it contains reciprocal provisions. Erickson, 363 Ill. App. 3d at 281-82, 841 N.E.2d at 1106. In the

case of mutual and reciprocal wills, "'a judicial presumption arises in favor of the existence of the contract from the existence of the mutual wills themselves.'" In re Estate of

Aimone, 226 Ill. App. 3d 1057, 1063, 590 N.E.2d 94, 98 (1992), quoting In re Estate of Kritsch, 65 Ill. App. 3d 404, 408, 382 N.E.2d 50, 53 (1978). A contract embodied in a mutual will

becomes irrevocable as to the survivor upon the death of the first testator. Freese v. Freese, 49 Ill. App. 3d 1041, 1044,

364 N.E.2d 983, 985 (1977). B. Deborah and John's Claim That Dorothy's Mutual Will Implicitly Restricted Her Use of Certain Assets During Her Lifetime We first note that Deborah and John do not contest the trial court's findings that (1) in April 2003, Dorothy's mutual will became irrevocable because of Robert's death; (2) the expressed terms of Robert's and Dorothy's mutual wills (a) did not restrict Dorothy's use of the assets during her lifetime and (b) show that Robert and Dorothy entered into a contractual - 7 -

agreement; and (3) regardless of how Dorothy obtained the assets at issue, they were subject to the testamentary scheme of their respective mutual wills. Instead, Deborah and John argue only that the trial court erred by denying, in part, their complaint to construe the will because they are entitled to (1) an accounting and (2) the imposition of a constructive trust upon the assets owned by Robert at his death. Specifically, Deborah and John contend that

although the contract embodied by Robert's and Dorothy's mutual wills did not explicitly restrict Dorothy's use of the assets at issue during her lifetime, it implicitly restricted Dorothy from (1) executing new wills, (2) selling the home she shared with Robert, and (3) transferring money into a joint account with Thomas. Thus, the narrow question before this court is whether

Robert's and Dorothy's mutual wills implied restrictions upon Dorothy's use of the aforementioned assets during her lifetime. With one exception, we conclude that they did not. That

exception is that we conclude that Dorothy's transfer of funds from the sale of her home into three certificates of deposit that she held in joint tenancy with Thomas violated the terms of the irrevocable contract created by the execution of her joint and mutual will. - 8 -

1. The Standard of Review "In construing a will, the court's primary [purpose] is to ascertain the testator's intent and, provided that the intention is not against public policy, to give it effect." Chicago Title & Trust Co. v. Steinitz, 288 Ill. App. 3d 926, 931, 681 N.E.2d 669, 672 (1997). A testator's intent is most clearly

evidenced by considering the plain, ordinary meaning of the words used within the four corners of the entire instrument itself. Steinitz, 288 Ill. App. 3d at 931, 681 N.E.2d at 672. "Interpretation of a will is a question of law that an appellate court reviews de novo." In re Estate of Williams, 366 Ill. App.

3d 746, 748, 853 N.E.2d 79, 82 (2006). 2. Deborah and John's Claim That This Court Has Previously Addressed This Issue As already mentioned, Deborah and John contend that Robert's and Dorothy's mutual wills implied restrictions upon Dorothy's use of the aforementioned assets during her lifetime. In support of their contention, Deborah and John claim that the appellate court has previously addressed this issue in Moline National Bank v. Flemming, 91 Ill. App. 3d 398, 414 N.E.2d 936 (1980). However, because Flemming concluded that the surviving

spouse's conduct was improper after his death, as opposed to

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during his lifetime, based on the plain language of his will, instead of inferences gleaned from it, their reliance is misplaced. In Flemming, 91 Ill. App. 3d at 400, 414 N.E.2d at 93738, Eva and her husband, Albert, executed an irrevocable joint and mutual will (1) giving the surviving spouse possession of the entirety of the other spouse's property in fee simple upon either spouse's death and (2) bequeathing the remaining estate to Eva's biological son and his heirs upon the surviving spouse's death. In March 1973, Eva died. N.E.2d at 938. Flemming, 91 Ill. App. 3d at 401, 414

After Eva's death, Albert created several trusts

and joint accounts for an individual other than Eva's son. Flemming, 91 Ill. App. 3d at 401-02, 414 N.E.2d at 938-39. In

January 1979, Albert died, and the executor sued to recover all accounts not benefitting Eva's son as estate assets. 91 Ill. App. 3d at 402, 414 N.E.2d at 939. In concluding that Albert acted beyond his authority when he placed assets in jointly held accounts and trust accounts for an individual other than Eva's son, the appellate court stated the following: "The power of the surviving spouse[,] Albert[,] over the property he obtained upon - 10 Flemming,

[Eva's] death *** is described in 97 C.J.S. Wills

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