In Re Estate of Marcucci

285 N.E.2d 141, 5 Ill. App. 3d 484, 1972 Ill. App. LEXIS 2907

• Court: Appellate Court of Illinois
• Decided: May 16, 1972
• Docket: 54256
• Status: Published

Opinions

Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal involves a controversy concerning which of three wills of a testator is entitled to probate. Appellant Daniel Marcucci petitioned to admit what he claimed was a joint and mutual will. Appellee Emil Marcucci petitioned to admit the last of three wills executed by the testator. Although the parties proliferate the issues presented for review, dispositive of this appeal are two questions. 1. Whether in tire first of three testamentary documents, the testator made a joint, mutual and irrevocable will. 2. Whether a magistrate assigned to the probate division of the circuit court can decide that of three testamentary documents of a testator, the first was a joint, mutual and irrevocable will. The facts which give rise to this controversy are not in dispute.

On May 12, 1950, Dominic Marcucci and Maria, his wife, executed “[o]ur joint and several last wills and testaments,” which gave to the survivor “[t]o have and to hold unto his or her heirs, executors, administrators and assigns forever” all the property left by the one who predeceases. In the third paragraph, the joint testators provided that in the event their deaths were in a common disaster or contemporaneous, then their four sons Daniel (a/k/a Donato), John, Matthew and F.mil were to take the estate in equal shares. Maria Marcucci died before Dominic; and on November 13, 1952, the joint will was admitted to probate as her will. Her estate was administered and in its entirety, it devolved to Dominic Marcucci.

On December 10, 1957, Dominic, in the office of a lawyer executed “[t]his my Last Will and Testament.” After directing payment of his debts and funeral expenses, he devised and bequeathed all of his property, share and share alike, to the four sons named in the joint will. Then on January 15, 1958, he executed another will in which he devised and bequeathed “[u]nto my beloved children namely: Daniel (a/k/a Donato) Marcucci, the sum of Ten ($10.00) Dollars; John Marcucci, the sum of One Hundred ($100.00) Dollars; Matthew Marcucci, the sum of One Hundred ($100.00) Dollars.” He devised and bequeathed “[u]nto my beloved son, Emil Marcucci, the balance of all my property, both real and personal, wherever situated and whatever kind of which I may die possessed.” Dominic Marcucci died on November 27, 1967. His hens were his sons, Daniel, Matthew, Emil and two children of John who had predeceased him.

On February 14, 1968, a petition was filed to probate the will dated December 10, 1957. Later, in the same proceeding, appellant petitioned to. admit the joint will. Appellee petitioned to admit the last of Dominic Marcucci’s three wills. Hearing of the petitions was set; and pursuant to statute, all interested parties were notified. On October 9, 1968, with a magistrate of the circuit court presiding, the petitions were called. When the hearing began, the following colloquy ensued:

“The Court: Are all the attorneys present and in court? Do they all have their appearances on file? Let the record show all attorneys responding yes.

Gentlemen, in view of the fact that this is a contest, do you wish the Court to proceed with the ordinary questions that we ask of the witnesses as far as the execution of the documents are concerned, or do you want to put on your own cases concerning the execution of whatever wills were going to testify to?

Mr. Cummingham (Attorney for appellee): I would prefer to have the Court do it.

The Court: Does anyone have any objection?”

No objection was made. Evidence was heard and after one continuance the hearing was completed. The magistrate heard arguments of the parties. Appellant argued that from the proof, the will dated May 12, 1950, was the prior, joint, mutual and irrevocable will of Dominic Marcucci; and that it, over the others, was entitled to probate. Appellee, on the other hand, argued that the question before the court was which of the proposed wills was last executed in accordance with section 69 of the Probate Act, Ill. Rev. Stat. 1967, ch. 3, §69. After hearing the arguments, the magistrate announced “[t]he finding of this court is that the document dated May 12, 1950, being a valid joint will, will be admitted to probate as to Dominic Marcucci; and the petitions for admission to probate for letters testamentary of documents [sic] dated December 10, 1957, and January 15, 1958, will be denied.” On October 24, 1968, appellant was appointed executor of the estate of Dominic Marcucci under the will of May 12, 1950.

Within 30 days, appellee filed a post-hearing motion contending that the magistrate erred in admitting the joint will because the court had only the jurisdiction to determine which of Dominic Marcuccfis wills was last executed in compliance with the statute; that the will the magistrate admitted was not irrevocable; and that the order appointing appellant executor of Dominic Marcucci’s estate was void for want of jurisdiction of the subject matter. Appellant answered the post-hearing motion. The cause was continued from time to time and on April 24, 1969, the magistrate (a) set aside tire orders of October 24, 1968, (b) dismissed the petitions to admit the joint will and the will dated December 10, 1957, (c) revoked the letters testamentary issued to appellant, (d) admitted as the last will and testament of Dominic Marcucci the will dated January 15, 1958, with letters testamentary to appellee appointing him executor of the estate and (e) ruled on appellant to file his first and final account and report.

Appellant contends that it was error to vacate the orders which admitted the joint will and appointed him executor because it was a will that became irrevocable after the death of Maria Marcucci in 1952. To meet this contention, appellee argues that the joint will was revocable because it did not contain a contract not to revoke, either express or implied; therefore, Dominic Marcucci was free to execute the will dated January 15, 1958.

A will that is both joint and mutual is one executed jointly by two or more persons, with provisions which are reciprocal and show that they are made one in consideration of the other. (Frazier v. Patterson, 243 Ill. 80, 84, 90 N.E. 216.) A joint and mutual will may be executed pursuant to a contract or may itself constitute a contract, which, after the death of one maker will, under appropriate circumstances, be enforced by a court applying principles of equity. (In re Estate of Baughman, 20 Ill.2d 593, 170 N.E.2d 557.) When a joint will is executed by husband and wife, there will arise a presumption that the execution was the result of mutual trust and confidence. When evidence proves that the joint will was mutual, and one dies leaving the other to benefit from its provisions, the will is irrevocable; the survivor is bound to convey the property he acquired through the will in accordance with its terms. Helms v. Darmstatter, 56 Ill.App.2d 176, 205 N.E.2d 478.

Whether the joint will of May 12, 1950, was a mutual will, whether there was a contract that bound the surviving testator to its terms so as to make it irrevocable, were questions for a trial court to decide from examination of the will itself and consideration of evidence which could disclose such an arrangement. (See In re Briick’s Estate, 24 Ill. App.2d 77, 100, 164 N.E.2d 82.) In the hearing conducted by the magistrate, the parties offered evidence. The record contained the proofs of heirship. The magistrate had before him the three wills. In addition, he heard the testimony of a lawyer, Phillip L. Howard, who at Dominic Marcucci s request, prepared the will of December 10, 1957. This witness testified that Dominic Marcucci told him he had received the assets of his wife’s estate and that he made an agreement with his wife that assets he may have at his death were to go to his children (the four sons named in the joint will), to be divided equally among them. Appellee, however, argues that Howard was not a competent witness because his conversation with Dominic Marcucci was covered by the lawyer-client privilege that was not waived by an authorized legal representative. This contention cannot prevail.

When Howard was called as a witness, there was no objection that he was incompetent to testify. After he described the conversation with Dominic Marcucci, appellee’s counsel said, “I object to that testimony. No evidence presented as to any agreement.” At the conclusion of his testimony no motion was made to strike it. It is a rule of evidence that in order to preserve for review the question whether a witness was competent, objection on the ground of incompetency must be made in the trial court. (Cotter v. Sullivan, 162 Ill.App. 396.) Failure to make the objection is a waiver. People ex rel Blackmon v. Brent, 97 Ill.App.2d 438, 240 N.E.2d 255.

Therefore, the magistrate heard Howard’s testimony, that of witnesses to the joint wifi; he examined the wiHs and had before him the proofs of heirship. From this evidence the magistrate correctly concluded on October 24, 1968, that the joint will was entitled to probate and that the other two were not. Implicit in the order was the conclusion that the will of May 12, 1950, was mutual and irrevocable. Helms v. Darmstatter, 34 Ill.2d 295, 215 N.E.2d 245; In re Estate of Weaver, 71 Ill.App.2d 232, 217 N.E.2d 326.

Notwithstanding these facts, appellee contends that the order was void for lack of jurisdiction because it was entered by a magistrate of the circuit court. This argument is buttressed by reference to provisions of the judicial article in our constitution, a statute governing assignment of cases to magistrate and to Rule 14.2 of the circuit court of Cook County which provides that:

“Invoking Jurisdiction in Certain Cases.

Jurisdiction for any purpose which was not cognizable by the Probate Court prior to January 1, 1964, shall be invoked by the filing of a petition in the proceeding for the administration of the estate and by the issuance of process thereon as in other civil cases, except that jurisdiction as respects claims for personal injury, wrongful death or other tort shall be invoked as provided by Rule 14.16.”

The record discloses that when hearing on the wills began, it was known by the parties that the presiding judicial officer was a magistrate who, concerning the nature of the hearing, announced “[t]hat this is a contest.” After a preliminary statement, the magistrate asked, “Does anyone have any objection?” Appellee expressed none. It is now settled that questions concerning the kind of cases a magistrate can handle involves assignability, not jurisdiction. (See, Fins, Illinois Appellate Practice, 30-39 (1970).)A magistrate is a judicial officer of the circuit court which has “[ujnlimited original jurisdiction of all justiciable matters, * * * ” (S.H.A. Const. Art. VI, Sec. 9.) Magistrates and circuit judges are equal members of the same court. (See People ex rel Filkin v. Flessner, 48 Ill.2d 54, 268 N.E.2d 376.) All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. (People v. Crawford, 80 Ill.App.2d 237, 243, 225 N.E.2d 80.) No order or judgment is void or subject to collateral attack merely because it was rendered by a magistrate to whom the case was improperly assigned. Coleman v. Scott, 38 Ill.2d 387, 231 N.E.2d 408; Jordan v. Savage, 88 Ill.App.2d 251, 232 N.E.2d 580.

Despite these authorities, appellee argues that prior to 1964, probate courts, when hearing petitions to probate a will, did not have jurisdiction to decide whether the testator had contracted to make an irrevocable will. (In re Baughmans Estate, 20 Ill.2d 593, 170 N.E.2d 557; In re Will of Lortz, 23 Ill.2d 344, 178 N.E.2d 298.) Therefore, appellee insists, after January 1, 1964, jurisdiction of a probate division of the circuit court can be invoked only in compliance with Rule 14.2 by filing a petition in the proceeding for the administration of the estate and issuance of process. In this case, appellee argues, no process issued; and because the case was heard by a magistrate, there was no jurisdiction.

This argument has two fallacies. Fust, the assumption that compliance with Rule 14.2 is the only way the jurisdiction of the circuit court could have been invoked in this case. Second, the oversight that Rule 14.2 is only a procedure to secure the appearance of parties; it is a mode for issuance of process. However, process is unnecessary if the parties, without objection, appear voluntarily in a court that has general subject matter jurisdiction. (People v. Estep, 6 Ill.2d 127, 126 N.E.2d 637; In re Trapani’s Estate, 21 Ill.App.2d 19, 157 N.E.2d 83.) As we have already pointed out, the circuit court of Cook County has unlimited original jurisdiction of all justiciable matters. Appellee and the other parties appeared without objection. Procedural requirements are waived by participation in a hearing or trial without objection. (People v. United Medical Service, Inc., 362 Ill. 442, 200 N.E. 157.) Therefore, it was error for the magistrate to vacate the order of October 24, 1968, which admitted the joint will to probate on the ground, as claimed by appellee, that there was lack of jurisdiction to enter the order.

Our attention has been called to In re Estate of Lockwood, 124 Ill.App.2d 439, 260 N.E.2d 344 in which the Appellate Court, Fifth District held that it was not within the realm of inquiry in a proceeding to admit a will whether a prior, joint will was executed pursuant to contract not to revoke. Appellee relies on Lockwood, contending that it conflicts with a decision of our court in In re Estate of Weaver, 71 Ill.App.2d 232, 217 N.E.2d 326 which held that in a proceeding to admit a will whether a prior, joint will was executed pursuant to contract not to revoke. Appellant contends that Lockwood conflicts with our decision in In re Estate of Weaver, 71 Ill.App.2d 232, 217 N.E.2d 326, where we held that in a proceeding to admit a will, the probate division of the circuit court could rule on issues presented by two wills of a testator, one alleged to be a prior, joint and mutual will.

We do not agree with this contention. In Lockwood, the proponent of a subsequent will contended, at trial and on appeal, that the circuit court, in the same proceeding, could not procedurally determine whether the prior will was mutual and irrevocable. Questions concerning jurisdiction, assignment of causes to a magistrate and waiver of procedural regularities which we decide in this case were not involved in Lockwood. Weaver, on the other hand, was a case in which neither party argued that the probate division of the circuit court could not, in the same proceeding, determine issues concerning an earlier, joint, mutual will and the probate of another will executed after the earlier one. The court under these circumstances assumed that the probate division had power to dispose of the issues in one proceeding. In our opinion, Lockwood, Weaver and the case before us present different questions.

Therefore, the judgment is reversed and the cause is remanded with directions to vacate the order of April 24, 1969, and enter such orders as are necessary, consistent with this opinion to probate the estate of Dominic Marcucci under the joint will dated May 12, 1950.

Reversed and remanded with directions.

SCHWARTZ and STAMOS, JJ., concur.

SUPPLEMENTAL OPINION AFTER REHEARING

Mr. JUSTICE LEIGHTON delivered the opinion of the court:

After we filed our opinion, appellee petitioned for rehearing. He alleged that the parties had requested oral argument; that it was scheduled but on the day set, appellant asked leave to file a motion for a certificate of importance to the Supreme Court. Our records disclose that we granted leave and allowed appellee the opportunity to object. Appellant filed his motion and appellee his objections. Thereafter, without oral argument, we took the cause under advisement. Later, we denied appellant’s motion for certificate and disposed of the appeal.

In his petition for rehearing, appellee contended that his filing of objections to appellant’s motion did not manifest waiver of the right to argue his cause before us. We found merit in this contention. Consequently, we granted rehearing without restriction and set the appeal for oral argument. Thus, the cause was again before us for consideration. See Colesar v. Star Coal Co., 255 Ill. 532, 544, 99 N.E. 709; Bergman v. Bd. of Education of City of Chicago, 30 Ill.App.2d 65, 69, 173 N.E.2d 565.

We have now heard the parties in oral argument. With the benefit of this presentation, we have reviewed the issues, the points and authorities in the briefs and appellee’s petition for rehearing. In both his petition and oral argument, appellee reiterates his contention that the magistrate lacked jurisdiction to order probate of the 1950 will executed by Dominic Marcucci and his wife Maria. This reiteration makes it necessary that we explain the rationale of the opinion we have filed.

In 1964, when amendments to the Judicial Article became effective, circuit courts of this state acquired “[ujnlimited original jurisdiction of all justiciable matters * * (S.H.A. Const. Art. VI, §9.) This change in our constitution reformed the judicial system, abolished all distinctions between courts of law and equity and conferred all judicial power on circuit courts without regard to specialized functions of a division within the court. The intendment of these constitutional amendments was to consolidate the judiciary and vest in circuit courts the jurisdiction to adjudicate all controversies.

Jurisdiction of a court, it is generally said, flows from the constitution of the state, statutory enactments and principles of the common law which are consistent with state and federal constitutional provisions and laws. (21 C.J.S. Courts, §28.) In Illinois, however, because plenary jurisdiction is constitutional, vested in a unitary trial court, the failure of the parties or the court, in a “justiciable matter”, to comply with the provisions of a statute or a rule, may give rise to questions concerning procedure but not to questions concerning jurisdiction. See People v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468, 51 A.L.R. 2d 1337.

In this case appellee contends that the hearing before the magistrate concerning execution of three wills, without the filing of a petition or issuance of process, did not comply with section 69 of the Probate Act and Rule 14.2 of the circuit court of Cook County. This is true. But these were procedural irregularities. Although appellee contends otherwise, we construe the record as showing that he waived these irregularities when, without objection, he proceeded to a hearing which concerned issues he now says the magistrate did not have power to decide.

The magistrate, now an associate judge, was a judge of the circuit court. (Supreme Court Rule 2, Ill. Rev. Stat. 1969, ch. 110A, §2.) In a case assigned to him, without objection to his hearing it, he had power like any other judge, to administer the jurisdiction of the circuit court. (Coleman v. Scott, 38 Ill.2d 387, 231 N.E.2d 408.) Jurisdiction is vested in a court, not in a judge, however the court may be composed, whether of one judge or of several. (48 C.J.S. Judges, §41.) The authority of the magistrate was incidental to and grew out of the plenary jurisdiction of the circuit court. See Dept. of Public Works & Buildings v. Legg, 374 Ill. 306, 309, 29 N.E.2d 515.

This being so, whether the Marcuccis contracted to execute an irrevocable will on May 12, 1950, was a question which, from all the evidence, the magistrate had to decide. In his ruling admitting the 1950 will to probate, the magistrate could have found, and there was evidence to support the finding, that because of a contract, Dominic Marcucci could not revoke the will which he and his wife, Maria, executed in 1950.¹ For this reason, this case is distinguishable from In re Briick’s Estate, 24 Ill.App.2d 77, 164 N.E.2d 82 and In re Baughman’s Estate, 20 Ill.2d 593, 170 N.E.2d 557.

In Briick’s Estate, the circuit court found there was no evidence of a contract to make an irrevocable wül. In Baughman’s Estate, on procedural grounds, the circuit, court dismissed a petition to probate a joint will. Therefore, we need not decide whether the dicta “[t]o make an irrevocable will would be the creation of an instrument unknown to the law * * *” (In Re Briick’s Estate) “[a]ny wül, whether it is a joint or a joint and mutual wiH executed pursuant to an agreement not to revoke, is revocable at any time prior to death * * *” (In Re Baughman’s Estate) are correct formulations of the law. These dicta are from cases in which the court did not (and for lack of jurisdiction could not) find a contract to make an irrevocable will.

In the case before us, after the parties, without objection, submitted their “justiciable matters” to a magistrate, it would be a retreat from judicial reform for us to hold that a valid judgment could not be entered without institution of another proceeding.² this is the rationale of our decision to reverse the judgment of the trial court. We adhere to our opinion.

SCHWARTZ, J., concurs.

1 In fact, appellee’s "Post-Hearing Motion” did not question sufficiency of the evidence to sustain the order that admitted the 1950 will to probate. And in this court, appellee does not argue that the order which, on his motion, the trial court vacated, lacked evidence to sustain it.

2 We assume that in any ease involving more than one purported will of a testator, the parties can, by timely and appropriate request, insist on a procedure in accordance with section 69 of the Probate Act and in compliance with a rule like Rule 14.2 of the circuit court of Cook County. When a case presents issues concerning what is claimed to be a prior, joint, mutual and irrevocable will, the trial court may first determine which was the last will executed in compliance with statutory requirements. In such a case, letters testamentary may issue and the ultimate probate of the estate abide the court’s later determination of the irrevocability of the purported prior, joint and mutual will. It is for the trial court to determine in what order these questions are to be decided. In any event, in view of the plenary grant of constitutional authority to Illinois circuit courts, these are questions of procedure, not jurisdiction.