Ernest v. Chumley ( 2010 )

Filed 8/10/10 NO. 4-09-0663
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DEBORAH D. ERNEST and JOHN P. SONNEBORN, ) Appeal from
Plaintiffs-Appellants, ) Circuit Court of
v. ) Morgan County
DOROTHY L. CHUMLEY, f/k/a DOROTHY L. ) No. 04CH52
SONNEBORN, )
Defendant-Appellee. ) 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 en-
forceable during Dorothy's lifetime. We affirm and remand with
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
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
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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. The
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
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
trust account balance was $980.) One week later, Dorothy
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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
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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. In August 2009, the
court entered the following ruling:
"As agreed by the parties, the facts are
basically not in dispute. The issues revolve
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
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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
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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.
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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 937-
38, 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. Flemming, 91 Ill. App. 3d at 401, 414
N.E.2d at 938. 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. Flemming,
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
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[Eva's] death *** is described in 97 C.J.S.
Wills §1367(2), at 307-309 (1957), which
states:
'Where an agreement as to
mutual wills does not define the
survivor's power over the property,
but merely provides as to the
disposition of the property at his
death, the survivor may use not
only the income but reasonable
portions of the principal, for his
support and for ordinary
expenditures, and he may change the
form of the property by
reinvestment and the like ***.'"
Flemming, 91 Ill. App. 3d at 405,
414 N.E.2d at 941.
We note that the other cases cited by Deborah and John
in support of their contention also involve a surviving spouse's
attempt to evade the will's disposition of assets after that
surviving spouse's death. See Helms v. Darmstatter, 34 Ill. 2d
295, 296-302, 215 N.E.2d 245, 246-49 (1966) (surviving spouse's
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attempted testamentary transfers made three years after her
husband's death held invalid after her death years later because
such transfers violated the expressed terms of their joint will);
Bonczkowski v. Kucharski, 13 Ill. 2d 443, 447-56, 150 N.E.2d 144,
147-52 (1958) (following the surviving spouse's death four months
after her husband, the supreme court invalidated the parties'
joint will but concluded that a contract existed between them
that prevented the testamentary transfer of real estate to the
surviving spouse's daughter); Erickson, 363 Ill. App. 3d at 281-
85, 841 N.E.2d at 1106-09 (sale of real estate by the surviving
spouse five days before her death held invalid because it was
contrary to the parties' joint and mutual will); Freese, 49 Ill.
App. 3d at 1042-45, 364 N.E.2d at 984-86 (testamentary transfers
of surviving spouse made six years after his wife's death held
invalid after his death two years later because transfers
violated expressed terms of mutual will). Thus, as in Flemming,
the aforementioned cases do not offer Deborah and John any
support.
3. Restrictions Placed on a Surviving Spouse's Use
of Bequeathed Assets During Her Lifetime
Over three decades ago in First United Presbyterian
Church v. Christenson, 64 Ill. 2d 491, 356 N.E.2d 532 (1976), the
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supreme court considered the effect of explicit restrictions on
the use of bequeathed assets during a surviving spouse's
lifetime. In Christenson, 64 Ill. 2d at 494-95, 356 N.E.2d at
534, Margaret and her then-husband, Lewis, executed a joint and
mutual will that (1) gave the surviving spouse possession of the
entirety of the other spouse's estate upon either spouse's death;
(2) explicitly prohibited Margaret, as the surviving spouse, from
selling two parcels of land devised to the First United
Presbyterian Church; and (3) upon the surviving spouse's death,
bequeathed the remaining estate to their nieces and nephews to
"share and share alike."
Approximately three years after Lewis's death, Margaret
executed two warranty deeds conveying the two parcels of land
devised to the church to her nieces and nephews. Christenson, 64
Ill. 2d at 495, 356 N.E.2d at 534. The church brought suit,
requesting, in part, that the trial court set aside the warranty
deed. Christenson, 64 Ill. 2d at 495, 356 N.E.2d at 534. The
court found that because the will expressly limited Margaret from
selling the parcels, the warranty deeds were null and void.
Christenson, 64 Ill. 2d at 495-96, 356 N.E.2d at 534-35.
The appellate court reversed, concluding, in pertinent
part, that because Margaret and Lewis held the parcels as joint
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tenants, the church did not acquire a property interest under the
will but, instead, was a third-party beneficiary under the
contract embodied in the will. Christenson, 64 Ill. 2d at 496,
356 N.E.2d at 535.
In reversing the appellate court, the supreme court
held that the plain language of Margaret's and Lewis's will did
not prohibit Margaret from conveying the parcels to her nieces
and nephews during Margaret's lifetime. Christenson, 64 Ill. 2d
at 499, 356 N.E.2d at 536. In so holding, the supreme court
directed the trial court to enter an order (1) finding Margaret's
nieces and nephews owners of the parcels until Margaret's death
and (2) enjoining them from executing any instrument that would
convey the parcels in a manner inconsistent with the church's
ownership interest after Margaret's death. Christenson, 64 Ill.
2d at 499-500, 356 N.E.2d at 537.
4. The Plain Language of Robert's and Dorothy's
Respective Mutual Wills
Deborah and John premise their argument that Robert's
and Dorothy's respective mutual wills implicitly restricted
Dorothy's use of the bequeathed assets during her lifetime on (1)
Dorothy's attempts to make a purported testamentary transfer that
was contrary to her irrevocable August 2000 mutual will and (2)
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the clause bequeathing them each a one-quarter interest in
Dorothy's estate upon Dorothy's death. However, Deborah and
John's contentions ignore that (1) "[a] clause in a will
purporting to bequeath property to someone is testamentary and
has no effect until the death of the testator" (In re Estate of
Lowry, 93 Ill. App. 3d 1077, 1082, 418 N.E.2d 10, 14 (1981)) and
(2) we construe the plain language of the will--that is, we do
not infer provisions the testator might have made had he or she
thought of a particular contingency. Larison v. Record, 117 Ill.
2d 444, 448-49, 512 N.E.2d 1251, 1253 (1987).
In this case, the plain, unambiguous language of
Robert's and Dorothy's respective August 2000 mutual wills shows,
in pertinent part, that (1) upon Robert's April 2003 death, (a)
Dorothy was immediately entitled to the entirety of Robert's
assets without restriction, (b) Deborah and John were not
entitled to any of Robert's assets, and (c) Dorothy's mutual will
became irrevocable, and (2) upon Dorothy's death, Deborah and
John would each be entitled to a one-quarter interest in
Dorothy's estate. If Robert and Dorothy intended to place
restrictions on Dorothy's use of the bequeathed assets during her
lifetime, they could have easily expressed their intent to do so
in their mutual wills as the parties did in Christenson. They
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did not, and we decline to infer otherwise. Thus, we reject
Deborah and John's contention that Robert's and Dorothy's mutual
wills implicitly created a life estate that restricted Dorothy's
use of the assets at issue during her lifetime. However, our
analysis does not end here.
5. Dorothy's Ownership of Assets in Joint Tenancy With Robert
As previously noted, Deborah and John do not contest
the trial court's findings that (1) Robert and Dorothy entered
into a contractual agreement when they executed their respective
mutual wills, (2) Dorothy's contractual obligation based on that
execution became irrevocable upon Robert's death, and (3) the
expressed terms of Robert's and Dorothy's mutual wills did not
impose any restrictions upon Dorothy's use of the assets in
question. Despite the parties' apparent agreements with regard
to those issues, and this court's previous conclusion that
Robert's and Dorothy's mutual wills did not impose any implicit
restrictions on Dorothy's use of the assets at issue, Dorothy was
still bound by the expressed intent of the underlying irrevocable
contract created by her mutual will. Specifically, that upon
Dorothy's death, Deborah and John would each inherit one-quarter
of her remaining estate. See Rauch v. Rauch, 112 Ill. App. 3d
198, 200, 445 N.E.2d 77, 79 (1983) ("A joint and mutual will must
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be executed pursuant to a contract between the testators,
requiring the survivor of them to dispose of the property as the
will's provisions instruct").
Although assets held in joint tenancy do not pass under
a joint and mutual will, they can be the subject of a contractual
agreement contained within a joint and mutual will and a court,
under the appropriate circumstances, can enforce the agreement by
limiting the surviving spouse's disposition of property.
Christenson, 64 Ill. 2d at 497, 356 N.E.2d at 535. Although not
immediately entitled to possession until the death of the
surviving spouse, third-party beneficiaries of a joint and mutual
will are entitled to enforcement of the underlying contract.
Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 80.
In this case, the record shows that Robert and Dorothy
expressly bequeathed the entirety of their respective estates to
the surviving spouse--in this case Dorothy--intending to leave
the residue of that estate, however much that estate might be at
the time of her death, to Robert's and Dorothy's biological
children in equal shares. The record also shows that after
Robert's death, Dorothy deposited a substantial portion of the
funds she received from the sale of the home she previously owned
with Robert into three separate certificates of deposit, which
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she held in joint tenancy with Thomas. However, in so doing,
Dorothy effectively breached the expressed intent of her
irrevocable contract by removing those funds from her estate by
operation of law. See Bonczkowski, 13 Ill. 2d at 451, 150 N.E.2d
at 149 ("An essential feature of the estate of joint tenancy is
the right of survivorship, that is, the right of the last
survivor to take the whole of the estate" immediately upon the
death of the other joint tenant by operation of law).
Accordingly, we remand to the trial court with
directions that it enter an order mandating that Dorothy (1)
terminate Thomas's interest in the aforementioned certificates of
deposit and (2) refrain from taking any future action that is
inconsistent with Deborah and John's future interest in her
estate except expenditures made for her own support.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment and remand with direction.
Affirmed; cause remanded with directions.
APPLETON and McCULLOUGH, JJ., concur.
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