                           NO. 4-05-0446

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

In re: the Estate of LEA J. ERICKSON,       )   Appeal from
Deceased;                                   )   Circuit Court of
WILLIAM R. ERICKSON,                        )   Vermilion County
          Plaintiff-Appellee,               )   No. 03P203D
          v.                                )
JULIE A. SCHACKMANN, Individually           )
and as Trustee; SANDRA McDOUGAL, a/k/a      )
SANDRA MacDOUGAL; and SEAN DOGGETT,         )   Honorable
          Defendants-Appellants.            )   Michael D. Clary,
                                            )   Judge Presiding.


          JUSTICE KNECHT delivered the opinion of the court:

          In July 2003, defendants, Julie A. Schackmann, Sandra

McDougal, and Sean Doggett, each purchased for $10 a parcel of

real property from Lea J. Erickson, just five days before Lea's

death.   After Lea died, William R. Erickson filed suit to

challenge the transfers and argued the transfers violated the
terms of the joint and mutual will Lea executed with her husband

Charles R. Erickson.   The Vermilion County circuit court agreed

with William.   Defendants appealed.   On appeal, defendants

contend (1) the joint and mutual will authorized the property

transfers; and (2) William waived any challenge to the propriety

of the transfers by not objecting to the final accounting of

Charles's estate.   We affirm.

                           I. BACKGROUND

          On April 4, 1994, Charles R. Erickson and Lea J.

Erickson executed a document they entitled their "Last Joint and

Mutual Wills and Testaments."    In this will, the testators made
the following bequests:

               "We give, devise[,] and bequeath our

          entire estates of whatsoever kind and nature

          and wheresoever the same may be situated to

          the survivor of either of us, as the

          survivor's property absolutely.   After the

          death of the survivor of us, we give,

          devise[,] and bequeath twenty percent (20%)

          of our entire estate to our daughter Julie A.
          Schackmann, or to her descendants, per

          stirpes.   The other eighty percent (80%) of

          our estate, after the death of the survivor

          of us, shall be delivered by the executor to

          Julie A. Schackmann, as trustee of the

          following trust *** for the benefit of our

          other four (4) children, William R. Erickson,

          Charlene L. Stout, Richard P. Erickson, and

          Sandra L. McDougal."

          Charles died in January 2000.   The will was admitted to

probate, and Lea was appointed executrix of his estate.   In March

2002, Lea, in her role of executrix, petitioned the court to

permit "her to transfer real estate, either to third parties or

to herself individually as the sole heir of Charles."    The court

gave Lea this authority.   In her June 2002 final report, Lea

informed the court and the other beneficiaries under the will

"[t]hat all real estate that the estate was formerly possessed of


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has been transferred to" herself pursuant to court order.        The

court approved Lea's final report and account.

            Lea died on July 15, 2003.     According to the death

certificate, Lea died from a condition she suffered for

approximately three years.    Five days before her death, Lea

conveyed three tracts of real property by quitclaim deed.        In one

conveyance, Lea conveyed two lots to Schackmann in exchange for

$10.   In the second transaction, also in exchange of $10, Lea

conveyed property to McDougal.    In the third transaction, also
for consideration of $10, Lea transferred property to Doggett, a

grandson.

            In September 2003, William filed a complaint, seeking

the return of the three conveyed parcels to the estate.       In the

complaint, William asserted the will was a joint and mutual will

that prohibited Lea from distributing property in a way that

would contradict the dispositive scheme of the will.
            The circuit court agreed with William and found the

will was a joint and mutual will.        The circuit court concluded

Lea's actions in attempting to deed property away were "improper"

in that they violated "the terms and conditions of the joint and

mutual Will."   The court rejected the argument William waived any

challenge to the transfers.    The court further found no just

cause to delay the appeal or enforcement of the order under

Supreme Court Rule 304 (155 Ill. 2d R. 304).       This appeal

followed.




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                             II. ANALYSIS

             Both parties concede the will here is a joint and

mutual will.    A will is a joint will if it is executed by more

than one person to dispose of property "owned jointly or in

common by them or in severalty by them."        Curry v. Cotton, 356

Ill. 538, 543, 191 N.E. 307, 309 (1934).       Upon the death of the

first testator to die, the joint will is subject to probate as

that testator's will.    After the death of the surviving testator,

it is subject to probate as the survivor's will.       Curry, 356 Ill.

at 543, 191 N.E. at 309.    Mutual wills are separate documents

involving more than one testator.        The terms of these wills are

reciprocal, by which each testator disposes the property to the

other.    A will is joint and mutual if it is "executed jointly by

two or more persons with reciprocal provisions and shows on its

face that the bequests are made one in consideration of the

other."   Curry, 356 Ill. at 543, 191 N.E. at 309.
           The parties are correct; Charles and Lea executed a

joint and mutual will.    It is one document, executed by both

testators.    The testators referred to the will as "our Last Joint

and Mutual Wills and Testaments."        The gifts were reciprocal to

the surviving spouse, the property was pooled together, and it

was disposed of among their children in approximately equal

shares.   See Rauch v. Rauch, 112 Ill. App. 3d 198, 201, 445
N.E.2d 77, 80 (1983) (outlining the considerations this court

employs when evaluating whether a will is joint and mutual).

           Joint and mutual wills are not only testamentary but


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also contractual.    They are "executed pursuant to a contract

between the testators, requiring the survivor of them to dispose

of the property as the will's provisions instruct."    Rauch, 112

Ill. App. 3d at 200, 445 N.E.2d at 79.    This contract, embodied

in a joint and mutual will, estops the survivor of the testators,

"from disposing of the property other than as contemplated in the

will."   Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 80.

            Conceding the contractual nature of the will,

defendants contend the contract allowed Lea to transfer the

property.    Defendants emphasize the term "absolutely" in the gift

to the surviving spouse: "We give *** our entire estates of

whatsoever kind and nature and wheresoever the same may be

situated to the survivor of either of us, as the survivor's

property absolutely."    (Emphasis added.)   Defendants further

argue the phrasing of the gift indicates the testators intended

the surviving spouse could do whatever he or she wished with the

property.

            William disagrees.   William cites Rauch and Helms v.
Darmstatter, 34 Ill. 2d 295, 215 N.E.2d 245 (1966), and argues

"[t]he use of the word 'absolute' in describing the    bequest or

devise to the surviving testator is illogical if to do so would

upset the common dispositive scheme of the later paragraphs of

the will."

            Defendants' argument centers on the term "absolutely."

 When interpreting a will, however, we focus not on one provision

or section, but we consider the will in its entirety with the


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goal of ascertaining and, if possible, giving effect to the

intent of the testator.     In re Estate of Overturf, 353 Ill. App.

3d 640, 642, 819 N.E.2d 324, 327 (2004).     This approach reflects

the approach taken in Helms, 34 Ill. 2d at 301-02, 215 N.E.2d at

249, in which our supreme court considered whether a joint and

mutual will with a similar bequest to the surviving spouse was

revocable.

             In Helms, the testators, spouses George Lortz and Lena

Lortz, executed a joint and mutual will which bequeathed to the

survivor all of their property "'as his or her absolute property
forever.'"     (Emphasis added.)   Helms, 34 Ill. 2d at 299, 215

N.E.2d at 247-48.    The joint will further provided after the

death of the survivor, their property was to be merged and sold,

with the proceeds of the sale to be distributed among their

relatives.    Helms v. Darmstatter, 56 Ill. App. 2d 176, 178, 205

N.E.2d 478, 480 (1965).     George died on March 13, 1948.   In April

1951, Lena executed a codicil by which she altered the bequests

to benefit her own relatives.      See Helms, 34 Ill. 2d at 297, 215

N.E.2d at 246.

             On appeal in Helms, the issue was whether Lena, who was
given the property of the estate as her "'absolute property

forever,'" could alter the terms of the joint will by codicil

after George's death.     The court, considering the will as a

whole, held Lena had not been given power to change the

disposition:

             "The two clauses must be read together and we


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          feel that the equal treatment of each side of

          the family is so clearly provided for that it

          would not be logical to consider that the

          testators intended to give the survivor the

          power to upset that scheme by a contrary

          testamentary disposition by using the one

          word 'absolute'."    Helms, 34 Ill. 2d at 301,

          215 N.E.2d at 249.

          In Rauch, 112 Ill. App. 3d at 201, 445 N.E.2d at 80

(Fourth District), this court interpreted another joint and

mutual will that gave the surviving spouse "'all of the property

*** to be his or her absolute property.'"    (Emphasis added.)     The

joint and mutual will pooled all interests into a common fund

and, after the death of the surviving spouse, disposed of the

property equally among the couple's four children.    Rauch, 112

Ill. App. 3d at 201, 445 N.E.2d at 80.   On appeal, this court

considered when the interests of the children vested, whether on

the earlier death or on the death of the surviving spouse.    See

Rauch, 112 Ill. App. 3d at 199, 445 N.E.2d at 79.    In deciding

the interests of the children vested on the death of the first

testator to die, this court rejected the argument the term

"absolute" gave the surviving spouse complete power over the

property, "including the power to change the dispositive scheme."

 Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d at 80.    This court

interpreted Helms as concluding "where equal treatment for the
family is provided in the will, it would be illogical to


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interpret the will as giving the survivor the power to upset that

dispositive scheme."    Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d

at 80.

           When we consider this will as a whole, we find the

testators created a dispositional scheme by which the survivor of

the two would receive all of their property for use during his or

her lifetime.    It is also equally clear, however, the testators

intended the survivor of the two would dispose of their property

almost equally among their children.     As in Helms and Rauch, the

term "absolute" or "absolutely" does not give the surviving

spouse free reign to disrupt the agreed-upon dispositional

scheme.

          Defendants contend Rauch and Helms, at best, establish
Lea could not revoke the joint and mutual will by codicil or a

later will.     They assert Lea, absent a will or codicil, could

change the disposition by giving away her property.     We disagree.

 Rauch establishes that testators, in creating a joint and mutual

will, contract to dispose of their property in a certain way.

See Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79.     That

contract becomes irrevocable upon the death of the first testator

to die.   Here, five days before her death, Lea attempted to

circumvent both the terms of the joint and mutual will and her

contractual obligations thereunder to dispose of her property by

essentially giving it away.    Lea's actions violate the spirit and

purpose of the joint and mutual will, as well as the implied duty

to act in good faith--a duty that is part of every contract.       See


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Bank One, Springfield v. Roscetti, 309 Ill. App. 3d 1048, 1059-

60, 723 N.E.2d 755, 764 (1999) ("Good faith requires the party

vested with contractual discretion to exercise it reasonably, and

he may not do so arbitrarily, capriciously, or in a manner

inconsistent with the reasonable expectation of the parties").

The term "absolutely" does not give Lea the power to upset the

dispositive scheme.

           We agree with defendants that Helms, Rauch, and other

decisions (see, e.g., Orso v. Lindsey, 233 Ill. App. 3d 881, 887,

598 N.E.2d 1035, 1039 (1992)) leave open the question to what

extent the surviving spouse may use the property upon the death

of the other testator: "It may well be that they intended that

the survivor should have the absolute right to use the entire

corpus for life, but only upon the condition that the property
owned by the survivor upon his or her death would pass in

accordance with the terms of the joint will."   Helms, 34 Ill. 2d

at 301-02, 215 N.E.2d at 249.   Interesting questions remain as to

whether Lea could have sold some property to make a modest gift

to a charity or to travel the world.    We need not analyze those

possibilities, and we need not decide whether Lea, after

Charles's death, could have sold or given this property at a

different time or under different circumstances.   The undisputed

facts establish Lea disposed of the property five days before her

death.   She received $10 for each parcel.   No facts establish Lea

could have had any intention other than to circumvent the

dispositional scheme.   These transfers are not permitted by the


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will.

          Defendants' cases are distinguishable.     The court's

statement in Orso, that the surviving spouse had the right to

give property away during the survivor's lifetime, was dicta.

The Orso court considered whether the survivor could execute the

will after his spouse's death, and not whether the survivor could

give away property on his deathbed.      See Orso, 233 Ill. App. 3d

at 882, 598 N.E.2d at 1036.   In addition, the Orso court agreed

"[t]he power to use the property however the surviving spouse

sees fit does not mean he or she also has the power to change the

testators' dispositive scheme in contravention of their express

agreement or contract."   Orso, 233 Ill. App. 3d at 887, 598
N.E.2d at 1039.   Moreover, defendants' case, King v. Travis, 170

Ill. App. 3d 1036, 1043-44, 524 N.E.2d 974, 979 (1988), did not

involve a joint and mutual will.    Because the will was not a

joint and mutual will, there were no contractual restrictions on

the disposition of property in King, as there are here.

          Defendants next argue William forfeited any challenge

to the conveyances because he did not object at the closing of

Charles's estate to the transfer of property to Lea in fee

simple.   Defendants emphasize William was informed of this

transfer by the final report.    Defendants argue under section 24-

2 of the Probate Act of 1975 (755 ILCS 5/24-2 (West 2000)),

because William did not object, the "account as approved is

binding" on William.

          William does not address this argument in his brief.


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The record shows the trial court found no waiver because, it

concluded, the act of transferring property from the estate to

Lea did not violate the terms of the joint and mutual will.     We

agree.   The act of transferring the property into Lea's name did

not violate the agreement to dispose of property as stated in the

joint and mutual will.   Lea violated this agreement when she

tried to change the dispositional scheme shortly before her death

in direct contravention of what she agreed to do.

                          III. CONCLUSION
          We affirm the trial court's judgment.

          Affirmed.

          TURNER, P.J., and STEIGMANN, J., concur.




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