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

                               - 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.   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.


                               - 6 -
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


                               - 9 -
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

                              - 11 -
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


                              - 12 -
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

                               - 13 -
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)


                              - 14 -
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

                              - 15 -
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

                               - 16 -
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

                                - 17 -
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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