author: MR. PRESIDING JUSTICE STAMOS

text:
    Alexander Dubinka, Plaintiff and Counterdefendant, Appellee, v. Theresa Dubinka, Defendant and Counterplaintiff, Appellant.
    Gen. No. 52,981.
    First District, Fourth Division.
    June 26, 1970.
    Julius L. Sherwin and Theodore R. Sherwin, of Chicago (Sherwin and Sherwin, of Chicago, of counsel), for appellant.
    Melvin A. Weinstein, of Chicago, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Theresa Dubinka, defendant, appeals from a decree for divorce in favor of Alexander Dubinka, plaintiff, on the grounds of adultery and desertion. The decree also granted custody of their son and an award for his support to Theresa Dubinka, but barred her from alimony, dower and all other rights arising from the marriage and dismissed her complaint for want of equity.

The issue presented for review is whether the decree is against the manifest weight of the evidence.

EVIDENCE

THERESA DUBINKA, called as a witness on her own behalf, testified:

She married plaintiff on April 21, 1951, and their son was born on March 15, 1952. During the last year of the marriage (1965), the plaintiff would either arrive home between 11:00 p. m. and 2:00 a. m. or 3:00 a. m., or sometimes not at all. His office closed at 5:00 p. m., but he would patronize taverns. Initially, there were “no regular intervals,” but after five years of marriage he embarked upon a course of conduct that commenced with one night a week which he selected as his night off. Plaintiff gradually enlarged it to two nights and eventually five nights a week.

Plaintiff would telephone her occasionally as he did once in 1965. When he called, she could hear music in the background, glasses clinking and “he would just talk silly.” Occasionally, plaintiff would put someone else on the phone and they “talked just silly, like, drunk like.” When plaintiff did arrive home, he would grope his way to the couch and stay there until morning. He drank constantly which made him stagger and slur Ms speech, while “ordinarily he is a dignified man.” Sometimes, when plaintiff was no longer sleeping in her bedroom, he would come in the room, turn on the lights and make noises. At the time of the trial, they had been separated about a year and a half. On one occasion plaintiff brought two friends home. He and his friends laughed, giggled and played cards all night. However, plaintiff went to work in the morning.

As a result of this conduct, she became very ill, extremely nervous and lost weight. She had no appetite and experienced dizzy spells. She received medical treatment for over a year and is still taking medicine.

Their son never saw his father during the week. On Saturday, plaintiff would sleep all day and would never take their son or her out. On April 16, 1965, he called and advised her that he had moved out. Plaintiff also stated that he was selling the automobile which was her property, but was in his name. She never gave plaintiff cause to leave.

Cross-examination revealed:

When she met her husband, he was an assistant manager for a small loan company. After their marriage, he became a manager at another loan company, eventually attaining the position of sales manager which required that he entertain customers. For more than a year before plaintiff left her, he never took her any place. However, she learned to play bridge and visited Lake Geneva with a girl friend.

She met a Mr. Cipriani during a visit to the library. The next time she met Cipriani was in a restaurant where they had coffee. She also met him at Lake Geneva during the summer before she and plaintiff separated. She did not recall how many times she visited Cipriani’s apartment. Once she was alone in his apartment with him, but could not remember the latest hour she ever remained. She denied ever spending the night with him. She would visit Cipriani’s apartment for the purpose of baby-sitting for his three children. She was not paid, but since Cipriani was an artist, he gave her pictures. She could not remember what time it was when she would depart, but she would arrive during the dinner hour, usually at 6:00 p. m.

She did not object to her husband bringing his friends to their home to play cards. Previous to his leaving her, he took her and their son on a motor trip. Plaintiff’s bed was removed from the bedroom to the porch with his consent. When the bed was removed to the basement, he slept on the couch, which he did even before the bed was removed.

NANCY JACK, called as a witness on behalf of Mrs. Dubinka, testified:

She has known defendant for eight years and plaintiff for five or six years and had occasion to visit then-home during their marriage. The last occasion she had to visit their home was during Christmas of 1965 when she expressed admiration for their Christmas tree. Plaintiff responded the “tree doesn’t mean anything to me now, if there was a broad there it would mean something.” The witness visited defendant a couple of times a week. On two occasions she saw plaintiff, at Christmas and when he drove her and defendant home from a show.

IRENE HARTLEY, called as a witness on behalf of Mrs. Dubinka, testified:

She is defendant’s mother and has known plaintiff for 17 years. She would visit the home of plaintiff and defendant at least four times a year for parties or card playing. Plaintiff would come home late and sometimes “stone drunk.” On one occasion he came home drunk and joined their card game but could not read the cards. During the Christmas season of 1964, plaintiff was at his home drunk and a bit under the weather. There was a little sarcasm, but it was not too bad. When plaintiff and defendant visited her home, he would leave and not return, or if he did return, he was drunk. This was either during 1963 or 1964. Plaintiff did this on Father’s day in 1963 or 1964 and defendant had to go to the tavern and get him. Defendant is very nervous and under doctor’s care.

Cross-examination revealed:

Prior to April 1, 1965, defendant would come almost every other week and remain for the weekend. Defendant did not leave the boy with her often, but the boy would come and remain with defendant. Only once did defendant leave the boy with the witness for a weekend.

ALEXANDER DUBINKA, testified on his own behalf as follows:

He lived with defendant until April 11, 1966. During the first two years of their marriage he worked from 5:00 a. m. to 10:00 p. m. His work required the lending and collecting of money for a finance company. He took defendant out regularly and they visited her mother’s home every Sunday. They moved to a building owned by his father which was twenty-five miles from his place of employment and required almost one hour and a half each way to reach his destination. His work required long hours and visits to customers.

He became tired of visiting his mother-in-law on holidays instead of his father or sister until 1964 and 1965, when he insisted this be done. In 1961, defendant complained of his long hours and low income. He quit his job and they took a three-week vacation to California where his mother-in-law joined them. He did not invite his mother-in-law, nor did he know she was coming. In 1963 they planned a two-week vacation. However, after visiting some eastern cities, defendant insisted they return home. To please her and not cause problems, they returned home. He spent the last week of the vacation painting the apartment at defendant’s request.

Defendant always complained about his lack of sufficient income and that all her friends had new houses.

In 1964 he was made branch manager which necessitated out-of-town travel, but defendant refused to drive him to the airport. On Memorial Day of 1965 defendant declined his invitation to do something special during the long weekend, but told him that she was going out of town for the weekend with her girl friend and that he could do as he pleased. In 1964, defendant accompanied him on social visits and parties that arose as a result of his employment, but after that year refused to do so. Commencing in 1954, he had to prepare his own breakfast, which she refused to do.

In February, 1966, defendant placed his bed on the porch and refused to replace it in their bedroom. After it was removed from the porch, he slept on the couch.

Commencing with the summer of 1965, defendant refused to spend weekends with him and in November, 1965, defendant insisted on having the car three nights a week because she was playing bridge. Defendant would be out until midnight and on Fridays she did not come home, advising him that she was staying overnight at her mother’s home. During the month of February he became suspicious of defendant’s activities and borrowed his sister’s car in an effort to see where defendant was going almost every Monday, Wednesday and Friday. He could not spend too much time in this regard, because their son was home alone.

In the first week of March he discovered that defendant visited a building containing six apartments. It was a week later that he observed defendant in one of those apartments and discovered it was rented to Mario Cipriani, who was divorced and the father of three children. One Friday evening in March he observed defendant and Cipriani emerge from a car at 8:00 p. m. and walk arm in arm into the apartment building. When he abandoned his vigil at midnight, defendant had not emerged, nor did defendant come home.

On April 12, 1966, he retained the services of a private investigator to monitor defendant’s activities. On April 15, 1966, he left defendant and they have been living separate and apart since that date.

Cross-examination revealed:

He was not aware that defendant was ill during their trip to the east coast nor that she was under doctor’s care for a nervous disorder.

HUBERT BUMGARDNER, called to testify on behalf of Mr. Dubinka related:

He was retained to conduct a surveillance of defendant. His observations revealed that defendant drove up to Mr. Cipriani’s apartment at 6:30 p. m. on April 15, 1966. She stepped from her vehicle carrying a small black valise and entered the apartment of Cipriani, who had preceded her by a half-hour. Defendant and Cipriani were observed in the apartment. She was dancing and twirling while Cipriani was seated; eventually, they danced. At 10:20 p. m. they emerged, entered Cipriani’s automobile and drove off. They returned at 12:30 a. m. and again went to Cipriani’s apartment. He placed markers on the apartment door after 12:30 and checked them from time to time. They remained intact until 8:00 a. m. when Cipriani came out and drove off. Twenty minutes later defendant departed from the apartment, entered her automobile and drove off.

Cross-examination revealed:

Surveillance was commenced from 100 to 200 feet. After they entered, he moved around to the front of the apartment. He was about fifty feet from the apartment window, which was about five and a half feet high. He could see a person’s body from the waist up. The bottom of the window from the ground was higher than his head.

THERESA DUBINKA, was recalled for further direct, examination.

On their trip to the east coast she told plaintiff that she was ill. Plaintiff knew she was taking tranquilizers and could not eat in restaurants. She always made breakfast for plaintiff and their son, but he refused to eat at home.

On April 15, 1966, plaintiff threatened her stating, “You better watch out for me” and he mentioned Cipriani’s name; this frightened her. She remained at work until 6:00 o’clock and drove to Cipriani’s apartment.

She observed a car parked across the street and its occupant was resting his head as though he were sleeping. She became frightened and told Cipriani that it was plaintiff in the car. She also told Cipriani that plaintiff had threatened to kill her. They both looked at the car and its occupant from the apartment window and then left the apartment. Cipriani drove her to her mother’s home. They made arrangements for Cipriani to pick her up in the morning. She remained at her mother’s home that night. When she returned the next day to pick up her automobile, she observed the automobile she had seen parked there the previous evening.

In response to questioning of her alleged bridge playing on Monday, Wednesday and Friday, she stated, “I certainly never played bridge that much. I couldn’t be out that much, because I was home with my son.”

MARIO CIPRIANI, testified on behalf of Mrs. Dubinka as follows:

On April 15, 1966, he arrived at his apartment at 5:00 or 5:30 p. m. Defendant came to his apartment at 6:30 or 6:45 p. m. They observed an automobile parked across the street and could see an occupant but could not discern what he was doing. The blinds were drawn at the time, and in such posture, nothing could be seen from the outside, not even an apartment light when turned on or off. After they both gazed at the automobile, he proceeded to continue on his plans for the evening and took defendant to her mother’s home at approximately 8:00 or 9:00 p. m. Nothing at all occurred that night in his apartment.

The automobile containing the occupant was parked 75 to 100 yards from the apartment. The upper third or fourth part of the apartment, towards the ceiling, is what would have been visible from the automobile. Directly in front of the apartment you can only see the ceiling. The apartment window is eight feet off the ground.

Cross-examination revealed:

He has known defendant for two years but they were not planning on marriage in the event she secures a divorce.

Examination of the court revealed:

His children have been at Angel Guardian’s Orphanage for one year. Prior to that time they were living with his sister and sister-in-law.

OPINION

The evidence reflects that at the time defendant met Cipriani, her marriage was already reduced to a status of constant bickering, discord and disharmony. Defendant testified she met Cipriani in a library and subsequently met him in a restaurant where they had coffee. She made a holiday trip without her husband to a summer resort; fortuitously, Cipriani appeared there. She could not recall the number of times she visited him at his apartment, but related that the latest she ever remained was 11:00 p. m. All of the foregoing was accomplished without the knowledge of plaintiff, whom she misled by informing him that her frequent nocturnal absences from home were in pursuit of playing bridge and staying overnight at her mother’s home.

Prior to plaintiff’s surveillance of his wife’s evening activities, he asked her if she were really playing bridge and was advised that it was none of his business. To which he replied that “if she were playing bridge, that was fine, but if she were doing anything else she better be careful.”

Plaintiff’s suspicions were confirmed when he followed defendant and became aware of her visits to Cipriani’s apartment. Plaintiff then retained the services of a private investigator.

Defendant testified that plaintiff had been drinking and telephoned her on April 15, 1966. She testified: “He threatened me and said, ‘You better watch out for me,’ and he mentioned Mr. Cipriani’s name, the first he had known him.” This recitation is significant in that up to that time defendant and Cipriani had been seeing each other and they obviously believed it was without plaintiff’s knowledge. Defendant’s immediate flight to Cipriani after this phone call cannot be equated with the actions of a woman wrongfully accused. She did not endeavor to impart her baby-sitting activities to her husband in explanation of her visits, but sought succor and safety from her outraged husband at the hands of Cipriani. There is no evidence that she made any effort to dissipate her husband’s belief of her wantonness, and explain her relationship with Cipriani as mere ugly, uncalled for suspicion. Her rush to Cipriani was evidence of her panic and guilt when she became aware that her relationship with Cipriani had been discovered by her husband.

They testified that when they observed an occupant in an automobile parked outside Cipriani’s apartment, defendant told Cipriani that she believed it was her husband who threatened to kill her. Their reaction under these circumstances was bizarre. They peered at the car and its occupant through the blinds, then emerged from the apartment. Cipriani testified he proceeded to continue on his plans for the evening and drove defendant to her mother’s home, leaving in their wake an occupant of an automobile they believed to be defendant’s outraged husband, who a few hours ago had threatened to take her life. If they had been wrongfully accused, it appears reasonable to assume they would have taken advantage of the opportunity to speak to plaintiff and explain that her visits to Cipriani’s apartment were in conjunction with baby-sitting.

At the trial, defendant sought to explain her presence and visits to Cipriani’s apartment by attributing them to her baby-sitting for his three children. This was without compensation, except for some pictures he painted and gave her in appreciation of her efforts. Defendant never imparted the foregoing information to plaintiff. The evidence disclosed that one year prior and at the time of trial Cipriani’s children were living in an orphanage and previously had been cared for by his sister and sister-in-law.

Defendant cites Blake v. Blake, 70 Ill 618 (1873), Sterling v. Sterling, 177 Md 683, 9 A2d 214 (1939), and Laccetti v. Laccetti, 245 Md 97, 225 A2d (1967), in support of her contention that the fact of mere occupancy of a room or apartment by the accused parties for an undue length of time or overnight is not evidence of adultery.

In Blake, supra, the evidence revealed that Mrs. Blake and her neighbor, Mr. Thompson, took evening carriage rides and walks together and visited at his law office. The testimony of her two sons, 11 and 14, that they observed the parties at midnight reclining fully dressed on a sofa in the library, she with her head on his chest and he with his hand around her waist, was held to have been properly rejected by the jury. The evidence revealed that they had much animosity toward their mother and were under the dominant influence of their father. There was testimony of a private detective who related that he had the parties under surveillance for six months, but only observed that they visited at the office, took walks and carriage rides and on one occasion he saw her friend place his hand on her lap. The court in that case commented that the evidence was very deficient and that the jury properly perceived that the relationship of the accused was not of a criminal character. With the exception of the library incident, the court observed that all their meetings were in public and seemed to be destitute of the characteristics which ordinarily lead a jury to the conclusion that adultery had been committed when the opportunity existed.

On some of their carriage rides, Mrs. Thompson would accompany them. Other evidence showed that the Blake and Thompson families were close friends and neighbors; in fact, the Sunday before Blake ousted his wife from their home, Thompson and his wife dined with the Slakes at their home.

In Sterling, supra, the parties entered into articles of separation and the wife moved to her own apartment with their child. One evening she accepted her neighbor’s invitation to attend a party in their adjoining apartment. After all the participants freely engaged in drinking, Mrs. Sterling invited one of the men to visit her apartment upstairs, which invitation he accepted. The apartment had two bedrooms and after a brief conversation, he entered one of the bedrooms and closed the door. She went to the other bedroom and went to sleep with her daughter. In the morning he was found fully clothed, except for his shoes and jacket, sleeping in the bed, and Mrs. Sterling was found sleeping with her child in the bed in the other bedroom. The other incident upon which Mir. Sterling relied to establish his allegations of adultery concerned a visit a man made to Mrs. Sterling’s apartment a month later. Her husband observed the visitor arrive at 9:00 p. m. and depart at 3:00 a. m. When her husband confronted her with his observations, she readily admitted the visit and stated that she had sewed a button on the visitor’s coat, danced, listened to the radio, played cards and that there was nothing wrong. She stated that she had a right to have guests.

The court after a detailed review and commentary of all the evidence and the applicable law said at pages 219 and 220 at 9 A2d:

“There was nothing secret or clandestine in their meetings, and there is no testimony of proximate familiarities nor of any on the nights in question. Except for the two evenings mentioned, Mrs. Sterling never met nor communicated with either of the two men.
“An adulterous disposition in a man and woman towards each other does not usually spring into existence on their first meeting. It has duration and does not suddenly end. In this case there is no evidence of affection nor of improper familiarities. Again, the interpretation of the evidence is, at most, open to two views and the one which is consistent with innocence should be adopted.” (Cases cited.)

In Laccetti, supra, the evidence revealed that the parties entered into a valid common-law relationship in 1949 and had two daughters born, respectively, in 1950 and 1951. In 1962, the husband left his family and lived with another woman, which provided the basis for the wife’s commencement of a divorce action charging her husband with desertion and adultery. On cross-examination, the wife admitted that until a few weeks before the trial, she and her two daughters had been living in the same house as a Mr. Thurston and his two boys, ages 16 and 14, for approximately one year. The court summoned Thurston to testify, and he related that he had been separated from his wife for about five years and they had three sons, ages 22, 16 and 14. The younger two reside with him in a three-bedroom house which he rents, and Mrs. Laccetti lives in the same house with her two daughters.

Thurston and his sons occupy one bedroom and Mrs. Laccetti’s daughters have one bedroom and she occupies the third. Thurston testified that he and Mrs. Laccetti had an agreement whereby she did the ironing and the cooking and took care of the children and that he paid the bills. He and Mrs. Laccetti repeatedly denied that they ever had sexual relations. He testified that his two boys had been in trouble and he had been advised by the Juvenile Court Judge that he could not have custody of his children unless he had someone to take care of them, to cook their meals and look after them. He said “I kept my kids if I got somebody to take care of the kids, and that is just the way it worked out.”

The court held that while there was ample evidence as to the opportunity of Mrs. Laccetti and Thurston to commit adultery, there was not an iota of evidence to prove a disposition on their part to commit the offense and, therefore, reversed the trial court.

Unlike the foregoing cases, cited by plaintiff, the case at bar reveals a secretive and clandestine relationship and a deliberate endeavor to mislead and to allay any suspicion of wrongdoing by defendant. It is significant to note that neither this defendant nor Cipriani specifically denied any intimacy.

In Wachowski v. Wachowski, 86 Ill App2d 145, 229 NE2d 149 (1967), the court at page 148 expressed language most appropriate to the case at bar:

“Plaintiff is quite correct in her assertion that before a court will enter a decree based on adultery, the evidence and proof must convince the mind affirmatively that actual adultery was committed, since nothing but the carnal act can lay the foundation for a divorce on those grounds. Fowler v. Fowler, 315 Ill App 270, 42 NE2d 954. However, we are not unmindful that adultery is an act committed in secrecy and invariably the parties use every means in their power to conceal their act and to prevent discovery. In most all such cases the evidence is circumstantial and the fact of adultery must be inferred from the circumstances that naturally lead to it. The direct fact of adultery can seldom, or ever, be proved. Zimmerman v. Zimmerman, 242 Ill 552, 559, 90 NE 192; Bast v. Bast, 82 Ill 584. The testimony in the record before us leads us to the inescapable conclusion that this plaintiff is guilty of adultery.”

In Marcy v. Marcy, 400 Ill 152, 79 NE2d 207 (1947), at page 156, the court said:

“It is contended by the appellant that there is no proof of the charge of adultery. Where adultery is charged, there is very seldom direct or positive evidence of the acts charged. The parties generally use every effort to conceal the act and usually deny that adultery has been committed, or attempt to explain away the circumstances which indicate adultery. In such a case it becomes very important to test the credibility of the witnesses testifying since it can be assumed that the defendant and anyone with whom she is alleged to have committed adultery would deny the charge. The position of the chancellor in such a case, therefore, becomes very important, particularly where he has heard all of the evidence and has had an opportunity to observe the witnesses and their demeanor while testifying, their candor or lack of candor and to consider the circumstances in issue.
“When the facts and circumstances introduced in evidence fairly and reasonably lead to the conclusion that adultery has been committed the court will be justified in finding the charge sustained. (Cooke v. Cooke, 152 Ill 286; Daily v. Daily, 64 Ill 329.) As this court stated in the case of Bast v. Bast, 82 Ill 584, ‘The fact of adultery is to be inferred from circumstances that naturally lead to it by a fair inference as a necessary conclusion. The direct fact of adultery can seldom, or ever, be proved.’ ”

We hold that the decree is sustained by the evidence which more than adequately establishes that defendant and Cipriani were disposed to commit the offense charged and had ample opportunity to do so.

Defendant also contends that the trial court erred in disallowing her an award of alimony, since she is dependent upon plaintiff for support.

In a divorce decree the court may enter an order of alimony for the wife and support of any children which from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. Ill Rev Stats, c 40, § 19 (1965).

We find there was no abuse of discretion in denying defendant alimony. Defendant was employed prior to and at the time of her misconduct. The evidence pertaining to her ill health did not reflect any condition that would impede or preclude her employment.

We conclude that the decree was not against the manifest weight of the evidence and, therefore, we affirm the judgment.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.

       The wife filed a complaint for separate maintenance on May-16, 1966, and on May 23, 1966, the husband filed his complaint for divorce alleging adultery, then both parties filed supplemental complaints charging the other with desertion. The causes were then consolidated and after a bench trial, the foregoing decree was entered.


source: Caselaw Access Project

author: TRAPP, J.

license: Public Domain

text:
    Jan Rogowski and Aniela Rogowski, His Wife, Plaintiffs-Appellees, v. Howard A. Nelson and Stella Nelson, His Wife, Defendants-Appellants.
    Gen. No. 53,187.
    First District.
    June 26, 1970.

      William T. Regas, of Chicago, for appellants.
    S. J. Be-Hannesey, of Chicago, for appellees.
   TRAPP, J.

Defendants appeal from a decree of the Circuit Court granting specific performance of a contract to purchase real estate and ordering defendants, herein designated “sellers,” to convey the property, which they occupied as a residence, to the plaintiffs, herein designated “buyers.”

Sellers contend:

(1) That the trial court reformed the contract by requiring insertion of a release and waiver of homestead without any pleadings seeking reformation or any evidence to support reformation.

(2) That the court ignored the affirmative defense of homestead which was admitted by the pleadings.

(3) That buyers failed to comply with the terms of the contract in that:

(a) there was no tender of the purchase price in proper form;
(b) there was no tender of the correct amount of the purchase price;
(c) there was failure to give notice of a closing date as provided by the contract; and
(d) there was a failure to supply sellers with buyers’ mortgage commitment required by the contract.

(4) That the court ignored a binding order entered by a previous trial judge that a homestead existed.

(5) That an estate of homestead can be extinguished only in the manner provided by statute, that is, by specific waiver in writing acknowledged in the manner provided for acknowledgment of deeds, as required by chapter 52, § 4 and chapter 30, § 26, Ill Rev Stats 1965.

The evidence before the court included the testimony of the buyers and the participating real estate agent, as well as documentary exhibits. The sellers did not cross-examine any of the witnesses or present any evidence in their own behalf.

The facts without dispute are: that sellers, who are husband and wife, by a written agreement of January 7, 1967, appointed Ben Friend Realty Co., as their exclusive agent for sale of their residence located at 8043 West Church Street, Niles, Illinois, including in the listing wall-to-wall carpeting in the living room and dining room, and a built-in oven and range and an agreement to give possession 60 days after closing; that buyers, in response to an advertisement, went to the real estate agency and were taken to the premises and shown the house by Stella Nelson at a time when Howard Nelson was also in the house; that a contract for purchase for $34,500, prepared by the broker, was signed by all parties and a payment of $3,400 earnest money was made by the purchasers; that the agreement added carpeting in the hall and combination aluminum storms and screens to the items detailed in the listing, and provided for a stamped warranty deed “subject only to general real estate taxes for the year 1966-67, special taxes or assessments for any improvements not yet completed, conditions and restrictions of record, zoning and building laws or ordinances, party wall rights or agreements, if any; roads and highways, if any; and existing leases . . that the agreement called for a merchantable title and that sellers would “vacate, surrender and deliver the premises to me on or before 60 days after date of closing”; that the agreement provided that the sellers were to pay $6 per day for each day of occupancy after closing and a penalty of $300 if sellers did not vacate in the 60 days.

It was also undisputed that a seller, Stella Nelson, advised a buyer, Aniela Rogowski, that she had changed her mind and would not sell and that a seller, Howard Nelson, advised his agent, Ben Friend, that his wife had changed her mind and they would not sell.

Buyers obtained a commitment for a loan of $10,000 from Fairfield Savings and Loan Association on April 17, 1967, and buyers’ attorney, on April 19, 1967, notified sellers of this commitment by registered mail. The letter was received by sellers April 20,1967.

Upon sellers’ first contention that reformation of the contract to include a waiver of homestead is not presented as an issue by any pleading, it is sufficient to note that the Civil Practice Act provides that all defects not objected to in the trial court are waived. Chapter 110, § 42 (3), Ill Rev Stats 1965. There is nothing in the record to indicate that sellers presented this question to the trial court, and accordingly it would not be subject to argument here. Investors Commercial Corp. v. Metcalf, 13 Ill App2d 99, 104, 140 NE2d 924. Additionally, all questions of defense to the merits were presented and neither any of the issues nor evidence presented took sellers by surprise. If amendment of the pleadings had been necessary, the trial court, on the question being presented, undoubtedly would have permitted it. Buyers did pray for general equitable relief. We note that in Hedrick v. Donovan, 248 Ill 479, 94 NE 144, the relief here requested was granted without reformation. Finally, there is merit in buyers’ contention that the contract called for possession and vacation of the premises which was agreed to be done pursuant to the conveyance within 60 days, and such contract, if carried out by the parties according to its terms, would have eliminated the homestead. As evidence of intent, it was abundantly clear that the provisions for vacation of the premises, transfer of the wall-to-wall carpeting, built-in oven and range and the aluminum storm windows and screens contemplated transfer of the homestead to the buyers, and a failure of the agent to make this intent clear as a technical matter was a failure to express the intent of the parties at the time of signing, and resulted in a mutual mistake as determined by the trial court.

As to the second contention that the affirmative defense of homestead was admitted by the pleadings, we disagree. The pleadings do admit that the contract did not include an express waiver of the estate of homestead in specific terms and that the agreement was not acknowledged, but the sellers’ conclusions from those facts are not admitted. The complaint further asserted the right to enforcement of the contract according to its terms, including delivery of possession and evidence of merchantable title.

The sellers’ third contention that buyers did not perform four conditions precedent is without merit. The evidence is uncontradicted that sellers first refused to perform. Such repudiation entitled the buyers to bring a suit for specific performance without tender upon allegation of readiness and willingness to perform. Bonde v. Weber, 6 Ill2d 365, 380, 381, 128 NE2d 883. This applies equally to notice of a closing date. As to the claim that buyers only gave notice of obtaining the mortgage commitment rather than forwarding the actual commitment, it is undisputed that the commitment was obtained. The contract does not call for notice, but notice of the fact and the place where it could be verified was given.

As to the contention that the order of the motion judge denying the motion to dismiss was a final determination of the issues as to homestead, we disagree. The order denied the motion to dismiss, and the alternative motion to strike the complaint, and granted leave to sellers to raise the subject matter of the motion by answer. Since no part of the motion was allowed, it is difficult to see how the order could result in the determination of an issue against the opposing party.

We reach the main contention of sellers that only by the use of the mechanical devices provided by statute can the estate of homestead be eliminated. Chapter 52, § 4, Ill Rev Stats 1965, is in part, as follows:

“No release, waiver or conveyance of the estate so exempted, shall be valid, unless the same is in writing, subscribed by the householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance; . . . .”

Chapter 30, § 26, Ill Rev Stats 1965, is as follows:

“No deed or other instrument shall be construed as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right. And no release or waiver of the right of homestead by the husband shall bind the wife unless she joins in such release or waiver.”

Sellers cite Wiegand v. Wiegand, 410 Ill 533, 103 NE2d 137, which, in fact, holds that a court of equity in a partition suit, in order to avoid the injustice of an impasse, may ignore the statutory provision that no homestead may be sold without the written consent of the one entitled to the homestead. There the court did order the value of the homestead paid to the owner. However, the case definitely established the power of a court of equity to override the statutory language. Sellers cite Holterman v. Poynter, 361 Ill 617, 198 NE 723, which holds that a direction by an execution debtor to the sheriff to levy on land first is not in itself a waiver of homestead.

Sellers also cite Redfern v. Redfern, 38 Ill 509, 512; Best v. Gholson, 89 Ill 465, 468, and Stodalka v. Novotny, 144 Ill 125, 130, 131, 33 NE 534, which unquestionably support sellers’ position.

On the other hand, Brown v. Coon, 36 Ill 243, and Coon v. Wilson, 222 Ill 633, 78 NE 900, and Phillips v. Gannon, 246 Ill 98, 107, 92 NE 616, support the position that possession delivered pursuant to conveyance, even if not at the same time as the conveyance, is an extinguishment of homestead.

In support of buyers’ position, is Hedrick v. Donovan, 248 Ill 479, 94 NE 144, where there was a contract with an agent to sell and transfer a certain tract of land and also a contract to sell made by the seller’s agent with the buyer. Neither contract mentioned homestead in any way. Neither contract was acknowledged. Without elaborate discussion, the court sustained a decree ordering conveyance including the homestead. Three judges dissented, saying the conveyance should be “subject to the homestead.”

In Ackerberg v. Dies, 269 Ill 392, 109 NE 1021, where the contract called for waiver of homestead but was not acknowledged as required by statute, the court ordered the transfer including the homestead. The court said, at p 395:

“The principal point raised and argued by the appellants is, that as the contract which provided for the conveyance of the homestead estate was not acknowledged the decree should not have provided for a release of the homestead and an acknowledgment thereof. Appellee, in his contention that the decree properly required the conveyance together with the release and waiver of the homestead estate and an acknowledgment thereof, relies upon Hedrick v. Donovan, 248 Ill 479. Appellants rely upon Stodalka v. Novotny, 144 Ill 125, and, in effect, ask us to overrule the holding in Hedrick v. Donovan, supra. This identical question was involved in Hedrick v. Donovan, and was there decided contrary to the contentions of appellants. We adhere to the decision arrived at in that case, and therefore hold that that part of the decree requiring appellants to make the conveyance, together with the release and waiver of their homestead estate, was proper.”

Sellers finally contend that even if specific performance may be had, they are entitled to $5,000 added to the purchase price for the value of the homestead. Since we find that the decree ordering the conveyance is supported by the evidence as to the original intention of the parties and results only in carrying out that agreement, including vacation of the premises and delivery of possession within 60 days of the intended closing, it would be unconscionable to allow sellers to increase the agreed sale price by $5,000.

The decree of the Circuit Court should be affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: ALLOY, J.

text:
    In the Estate of Rosina Merle Carr, Deceased. Edward A. Loss, Jr., Petitioner-Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, as Successor Executor of the Will of Rosina Merle Carr, Deceased, Mabel Merle Curran, Individually and as Executor of the Will of Henry J. Merle, Deceased, John M. Boyle, and Henry Joseph Roach, Respondents-Appellants, Barbara Ann Loss, a Minor, Respondent-Appellee.
    Gen. No. 53,272.
    First District.
    June 26, 1970.

      Sidley and Austin, of Chicago (Alice M. Bright, William H. Thigpen and Sylvia O. Decker, of counsel), for respondents-appellants.
    Friedman, Armstrong and Donnelly, of Chicago (Edwin R. Armstrong, James R. Donnelly and James T. Friedman, of counsel), for petitioner-appellee.
    Ira D. Schultz, of Chicago (Sidney Z. Karasik, of Chicago, of counsel), for respondent-appellee.
   ALLOY, J.

The record in this cause indicates that the decedent, Rosina Merle Carr, executed a will on September 7, 1949. After her death on June 5, 1966, no last will could be located. A copy of the 1949 will was then admitted to probate on November 18,1966, as a lost will, on a petition for probate of such will. Petitioner, one of 17 heirs of Rosina Merle Carr, thereafter filed a petition to contest the will on the theory that the 1949 will had been revoked and destroyed by the testator. Appellant-respondents filed a motion to dismiss on the ground that the question of revocation of the 1949 will had already been passed upon at the hearing held in connection with its admission to probate, and that the question of revocation of the 1949 will was thus res judicata. The trial judge denied the motion to dismiss. The court thereafter heard the petition to contest the will, sitting without a jury, and found that the will of September 7, 1949, was not the will of the decedent Rosina Merle Carr. The trial court order thereupon set aside the previous order admitting the will to probate and declared that the decedent died intestate. The trial court had appointed as the successor executor Continental Illinois National Bank and Trust Company (following the death of the executor first named). The court also fixed the fees of said bank at $750.

On appeal in this Court, appellants contend that the order admitting the copy of the will to probate on November 18, 1966, was res judicata and that the trial court erred in permitting the second hearing on the merits on the issue of admission of the carbon copy of such will. Appellants also contend that the trial court’s decision was contrary to the manifest weight of the evidence and that the trial court erred in specifying the fees and expenses of the executor.

In considering matters relating to will contests, it is vital to give careful attention to the facts of the case under consideration. In the cause before us the decedent, Rosina Merle Carr, was not survived by a husband or any descendants, but her heirs were brothers and sisters and children of deceased brothers and sisters. She left as heirs a brother, Henry J. Merle; a sister, Bertha Merle Boyle; one niece (a daughter of a deceased brother, William); two nephews (sons of a deceased sister, Maude Henn); five nephews (children of a deceased sister, Annie Roach); a niece and a nephew (children of a deceased sister, Mary Loss); and five grandnieces (children of a deceased nephew, William Loss). The heirship, therefore, if decedent died intestate involves a division into six shares, one to a brother, one to a sister, one to one niece, one to two nephews, one to five nephews, and one share to the Loss family (a niece, a nephew and five children of a deceased nephew being involved).

The significant facts are not in dispute but the parties differ in inferences and emphasis on such matters of fact. It was shown of record that decedent made a will in 1929, and then again in 1939, and that both times she sent a copy of the will to her brother Henry J. Merle. On September 7, 1949, Mrs. Carr executed a will in the law office of Daniel S. Jerka in Chicago. Her brother Henry Merle had talked with her about the will when she was planning it. Mrs. Carr took the original will with her and she also mailed a copy the same day. The chief asset of Mrs. Carr’s estate was a %2 interest in the William F. Merle, Sr. Trust. This trust owned a little over % of the stock in Eiverview Park Company, which allowed such trust to elect two directors to the Eiverview Park Board. By the terms of the 1949 will, decedent bequeathed her interest in the Trust and the residue of her property % to Mabel Curran (a daughter of Mrs. Carr’s brother, Henry Merle), % to John Boyle (son of decedent’s sister, Bertha), % to Henry Eoach (a nephew), and y2 in trust for William O’Toole, Jr. (a nephew). There was a provision in the will that if any of the four beneficiaries were to predecease the testatrix, the will provided that the share of the person so dying was to pass to the remaining designated beneficiaries. Since William O’Toole, Jr. died in 1955, the property under the terms of the will would go % each to Mabel, John, and Henry, and all of Mrs. Carr’s other nephews and nieces would be disinherited.

The record indicated that Mrs. Carr had a close relationship with her brother, Henry J. Merle, and that she discussed her will and financial affairs with him on numerous occasions. The testimony also indicated that Mrs. Carr was close to her sister, Bertha, and to Bertha’s son, and that she also had a close relationship with Mabel Curran. There was also testimony that Mrs. Carr had a close relationship with all of her relatives with the possible exception of Edward Loss, Jr., a nephew. Edward Loss had objected to William O’Toole being buried in the Merle family cemetery lot and had also instituted an action to have a conservator appointed for his mother. Mrs. Carr, however, was on good terms with the rest of the Loss family and had sent four of William Loss’s daughters to high school and helped other Loss children in college. The record indicates that Mrs. Carr had never said a bad word about any of the heirs and helped all members of the various families.

After the death of William O’Toole in 1955, Mrs. Carr talked with her brother, Mr. Merle, about her will. She stated according to the testimony of Mr. Merle, “Now, Billy is dead and there need be no provision for him in my new will.” She also mentioned at this time that she wanted to make some provisions in regard to the Merle Trust. Mr. Merle took her to see an attorney and although the attorney even wrote to Mrs. Carr offering his assistance, Mrs. Carr appeared never to have written a new will. At one time, Mrs. Carr talked to the attorney and told him that one day she was going to see him about a will. Her brother, Mr. Merle, saw the original 1949 will in 1955 when he sent a carbon copy of the will to an attorney in California. He also saw the will in December of 1959 when Mrs. Carr brought the will to Mrs. Boyle’s apartment.

Mr. Merle testified (and also his daughter Mabel Cur-ran) that Mrs. Carr once stated that she wished the Riverview stock to be held as a unit and not to get into the hands of strangers or any disgruntled people or the Loss family. Mr. Merle and Mabel Curran were the only parties testifying to this statement by Mrs. Carr.

In 1963, Mr. Merle asked the attorney to call Mrs. Carr about making a new will. The attorney did call Mrs. Carr and she stated she still had some things to think about and would let him know. In that same year of 1963, Mrs. Carr showed Mr. Merle a letter from the attorney and she told Mr. Merle, “I’ve got to do something about my will.”

In February 1966, just a couple of days before she was to go to the hospital, she talked with her brother, Mr. Merle, in her apartment. After discussing the Merle Trust and the stock in the Eiverview Corporation, Mrs. Carr went to her desk and got the original will and brought it over to Mr. Merle. She stated that she was going to leave her interest in the Trust to Mr. Merle. She also asked him what disposition she should make of her estate. Mr. Merle testified that he could not do this as someone might accuse him of influencing her. Mrs. Carr then asked Mr. Merle (February 1966) if he would check to see if the witnesses on the 1949 will were still alive in case something should happen to her between then and the time she might make a new will. She then placed the 1949 will back in her desk drawer. This was the last time Mr. Merle or anyone saw the 1949 will. After the trip to the hospital at that time, Mrs. Carr returned to her apartment. The record indicates that Mrs. Carr kept the will in her apartment, where she also kept a few securities. She was extremely careful with her papers and even used receipts when giving someone a copy of her will. It was clear from the record, also, that Mrs. Carr was in possession of all her faculties until the time of her death, although she was 76 years old in 1966. Mr. Merle also testified that on June 1, 1966, Mrs. Carr said to him, “If you won’t help me with my will I’ll tell you what I’m going to do. I’m going to leave it all to you and let you worry.” On June 2, 1966, Mrs. Carr became ill. She called Barbara Loss, widow of the deceased nephew of Mrs. Carr, and told Barbara that if she could not make it to the graduation for Mrs. Loss’s daughter, she would call her. She also mentioned that she put money in an envelope for the grandniece as a graduation gift. When Mrs. Carr was directed to go to the hospital on the morning of June 2, 1966, she had the hotel bellman plug her apartment door as she was leaving for the hospital. Her maid saw the door plugged when she came to work the next day. Mr. Merle saw Mrs. Carr in the hospital but she never mentioned her will. She died on June 5, 1966. About four or five hours after her death, Mr. Merle, decedent’s brother and his daughter, Mabel Curran, went to Mrs. Carr’s apartment to pick up some clothes to take to the undertaker. The doorman unplugged the door for them and they remained in the apartment and plugged it again when Mr. Merle and his daughter left.

It was shown that when the door is plugged it could only be opened with a special key which is kept at the hotel desk. There was testimony that at one time when Mr. Merle was in the apartment, the hotel manager took a prospective tenant to the apartment for the purpose of showing it to the prospective tenant. The original will was never located, although a carbon copy of the will was found in a lock box in a locked closet.

As we have indicated, a petition was filed to probate the carbon copy of the lost will. The heirs and beneficiaries designated in the will were notified of the date of the hearing held on the petition to probate the carbon copy of the will. At such hearing on probate of the lost will, probate was objected to by the guardian ad litem for a minor heir, but following a hearing, the carbon copy of the presumably lost will was admitted to probate. Edward Loss, Jr., an heir of decedent, who did not appear at the probate hearing, thereafter filed a petition to contest the will of decedent Rosina Merle Carr, alleging that the instrument admitted to probate as the last will of decedent was not her will since it could not be found at her death and was revoked and annulled by the decedent destroying it with intention to revoke it.

Following a full hearing on the petition to contest the will, as we have indicated, the trial court found that the 1949 will of Rosina Merle Carr had been revoked and the order admitting it to probate was set aside and vacated. The evidence and testimony of Henry J. Merle was read into the record at the time of the will contest since he had died following the time of hearing on probate and before the trial and hearing on the will contest. The basic question before the court for determination is whether the trial court was correct in permitting a full hearing on the question of whether the 1949 will had been revoked.

On appeal in this Court, appellant-beneficiaries under the 1949 lost will contend that the probate of the lost will is a different type of probate proceeding, which makes this case the exception to the general rule governing probate of wills and will contests. It is a contention of appellants that when the lost will is offered for probate, any evidence as to its execution or revocation may be presented by either the proponents or opponents. It is contended that this warrants the application of the doctrine of res judicata. No Illinois cases have decided this precise issue so that it is valuable to look to the history and purpose of the Illinois Probate Act and the precedents in this State in determination of this issue.

Originally, in the State of Illinois, on the probate of a will, only the attesting witnesses were competent to testify. Objectors, however, were allowed to present evidence of fraud, compulsion, and other improper conduct in order to prevent the probate of a will. It was soon recognized that if an unscrupulous witness to a will would testify falsely in regard to execution of the will, or the mental capacity of the testator, the proponents of the will would never be able to get the will probated since they had no right to introduce other types of evidence to support the will. This rule was changed to provide that if the probate of the will was refused, on appeal to the Circuit Court, the proponents could offer evidence in addition to the testimony of attesting witnesses. This rule was also relaxed even further in 1909 to provide that proponents could offer additional evidence on appeal from the probate court even if the will was admitted to probate. During the entire period (and still retained as a part of the statutory probate law in Illinois), the rule was maintained that those opposing the probate of a will are limited, as to evidence which they can present when the will is probated, and may only present evidence showing fraud, compulsion, or other improper conduct (1967 Ill Rev Stats, c 3, § 69).

The early Illinois case of Stuke v. Glaser, 223 Ill 316, 79 NE 105, restricted evidence of fraud to proof of a trick or a device by which the testator was induced to sign something not realizing it was a will. “Compulsion” was restricted to actual constraint or pressure amounting to duress and “other improper conduct” was defined to be conduct similar to a trick or duress performed on the testator. The procedure relating to probate and contests of wills, involved, initially the offer of probate in the county or probate court, with an appeal to be taken to the Circuit Court where the matter could be heard de novo. Thus, the probate proceedings either at the probate level or on a trial de novo were limited as to what evidence could be presented. The protection given to those opposing a will was that they could bring a will contest proceeding and attack a will upon any grounds, such as lack of testamentary capacity, improper execution or revocation. The will could also be attacked on grounds of fraud or duress, even though the contestants had been given the right to present evidence on these issues at the original probate level and also at the trial de novo in the Circuit Court. If a question of fraud arose on a will contest, the fact that such issue had been heard in probate and relitigated in the Circuit Court did not mean that the issue was res judicata. In Buerger v. Buerger, 317 Ill 401, 148 NE 274, the issue of undue influence was raised in probate, raised again on appeal in the Circuit Court and carried all the way to the Illinois Supreme Court. After all of this proceeding, the will contest was filed and undue influence was set out as the ground for contest. It was argued in that case that the question of undue influence was res judicata since the issue had been litigated all the way to the Supreme Court. The court, however, held that the question of undue influence was not res judicata and could be raised in a separate will contest action.

Appellants in the cause before us agree that these established principles of probate practice, as they have developed over the years in Illinois, are still valid in most situations. They argue, however, that the probate of a lost will is an unusual type of probate procedure which should allow the application of the res judicata principle. They agree that if the original will had been produced for probate, the only outside evidence that could have been offered on probate would have been fraud, compulsion or similar improper conduct. They agree that in such case there could be a contest of a will on any grounds. Appellants argue, however, that when a lost will is offered for probate, those opposing the probate may offer any evidence which touches upon the loss of the will. They contend, on this basis, that the issue relating to a lost will creates a different situation and that the doctrine of res judicata should be applied in a later will contest. We do not agree with this contention.

The purpose of the Probate Act is to permit an administration to get under way as quickly as is reasonably possible and yet to permit those who wish to question the will an adequate opportunity to test the validity of the will. The Probate Act (1967 Ill Rev Stats, c 3, § 64) provides for mailing a notice to the heirs, devisees and legatees, which notice is to be sent not less than 20 days prior to the hearing. Such notice is by mail and not personal service. If the doctrine of res judicata was applied where a lost will is offered for probate this would be a violation of the whole spirit and intent of the Probate Act. Most cases considering will contests emphasize that those opposing a will should be given time to investigate the circumstances surrounding the execution and possible revocation of the will before bringing a will contest action. At one time in this State contestants had five years in which to file a will contest. As stated in Dowling v. Gilliland, 275 Ill 76, 79, 113 NE 987:

“ ‘The proceeding is statutory, the object being to give the contestant of a will an opportunity to thoroughly investigate all the circumstances relating to the execution of the will, the capacity of the maker thereof to execute the instrument, and other facts affecting the validity of the will/ ”

Similarly, as stated in Sternberg v. St. Louis Union Trust Co., 394 Ill 452, at 459, 68 NE2d 892:

“The purpose of allowing a will to be contested after it has been admitted to probate is to give to the contestant an opportunity to thoroughly investigate all the circumstances relating to the execution of the will, the capacity of the testator, and other facts affecting the validity of the will.”

We, therefore, conclude that to require those opposing probate of a lost will to fully litigate the question of whether such will was revoked by destruction, at the time a copy of such instrument was offered for probate, would be inconsistent with the spirit and objective of the Probate Act. It would put a hardship on those opposing probate of a lost will by requiring them to make the necessary investigation and other activity on the basis of a short 20-day notice by mail. If those opposing the probate were to seek continuances in order to have time to investigate it fully, then the entire probate of the estate is delayed and the estate could well suffer loss and inconvenience. With the elimination of trial de novo by appeal to the Circuit Court, those opposing probate of a lost will would be required to present their entire case when the will was first offered for probate on the basis of only 20 days’ notice. The problems would be insurmountable when one of the heirs lives at a considerable distance from where the will is to be probated (such as Edward Loss, Jr., the appellee-petitioner in the instant case). We also are conscious of the fact that when a will is offered for probate, even if it is only a copy of a lost will, there is no provision in the statutes allowing a jury trial on the question of validity of the will. If the probate hearing made the question of revocation of the will res judicata, then the persons contesting such will would be denied a jury trial on such question.

While there is no exact precedent on the issue before us, the cases to which we have referred, as well as others, indicate that the doctrine of res judicata should not be applicable in this situation. In Sternberg v. St. Louis Union Trust Co., 394 Ill 452, 68 NE2d 892, a Missouri resident had made out a will in Missouri and then married after making the will. Following his death as a resident of Missouri, the will was also offered for probate in Illinois, as the testator owned Illinois real estate. The Illinois County Court admitted an authenticated copy of the original Missouri will to probate. A will contest was filed in Illinois upon the theory that marriage in Illinois revoked the will. It was contended by those seeking to uphold the will in Illinois that it was not proper to contest the will in Illinois on the theory that it was revoked, as it had been properly admitted to probate in this State. The court rejected this contention and emphasized the right to contest a will on any valid grounds, when it stated, at page 459:

“A will after it has been admitted to probate may be contested on any grounds including its revocation.”

The court emphasized that when a will is contested, the question is whether the will is the valid last will of the decedent, and not whether it was properly admitted to probate. Other cases following the same reasoning are Dowling v. Gilliland, 275 Ill 76, 113 NE 987; Buerger v. Buerger, 317 Ill 401, 148 NE 274; and Shelby Loan & Trust Co. v. Milligan, 372 Ill 397, 24 NE2d 157.

In Dowling v. Gilliland, supra, a will had been admitted to probate which had written across the face of the instrument a notation, “This is no good. Changed my mind.” In a will contest those seeking to support the will contended that the question of revocation was res judicata since the probate court had already passed upon the issue. The Illinois Supreme Court, however, stated that the right to file the separate will contest was not lost and emphasized, at pages 79-80:

“The action to contest a will is a statutory proceeding, and there must be an order admitting the will to probate before the bill will lie. In a will contest the question whether the will was properly or improperly admitted to probate is not the issue. The question of the validity of the will is raised for adjudication on its merits, unaffected by the action of the probate court. The issue in a suit to contest a will is whether the writing offered as the will of the deceased is his last will and testament, and not whether it was erroneously admitted to probate.”
“The grounds upon which a will may be contested under section 7 are not restricted, and any ground which, if established by proof, would invalidate the will may be made the basis of a contest under said section if the bill is filed within the time limited by the statute.....That the writing offered as the will of decedent has been revoked or that some part of it has been annulled or destroyed are proper grounds for contesting' the will under the statute.”

In the case of Buerger v. Buerger, supra, it was contended that the question of undue influence could not be litigated in a separate will contest proceeding since the issue had been contested on the probate hearing at the time of admission of the will, and was, therefore, res judicata. The court in that case indicated clearly that probate of a will is a special statutory proceeding in which the character and quantity of proof required has been carefully limited by statute. It is pointed out, in that case, that the judgment rendered is merely that the will be admitted to record, and that judgment is not final but subject to being set aside by a proceeding in equity begun within a limited time after probate. While there is a difference in facts in the cases to which we have referred and the facts in the instant case, we do not believe that the difference in facts warrants an exception to the general rule that an Illinois will can be contested on any grounds which show such instrument to be invalid. The fact that a lost will is involved should not alter the established rule in this State. The question of revocation may be raised in a will contest. Under 1967 Ill Rev Stats, c 3, § 90, an action to contest the validity of a will may be instituted and there is nothing in the statute which limits the ground of the contest. We believe it would be inconsistent with the spirit and intent of the Probate Act to read into such act an exception which would apply the doctrine of res judicata to situations where a lost will is probated.

In the case of Bley v. Luebeck, 377 Ill 50, 35 NE2d 334, there was an appeal to the Circuit Court which re-suited in a trial de novo and a circuit judge refused to allow any evidence by those opposing the will which tended to show that the testator revoked the will in his lifetime. The Supreme Court on appeal found such ruling to be erroneous and stated (at page 64):

“The loss or destruction of the will itself necessarily brings into the hearing issues upon which the proponents and the contestants both have the right to offer general evidence on those issues which are not present in a case where the will is in existence.”

It was pointed out in the Bley case that the purpose of the act is that prima facie execution of the instrument and the capacity of the testator to make it his last will and testament may be shown, so that the estate may be cared for and its administration proceed. The right of anyone interested to contest the validity of the will at any time within a year of its probate, the court stated, is given by statute and until the expiration of that time, the probate of the will is not conclusive and all facts necessary to establish the will in chancery are open to inquiry (at page 61). The Supreme Court in such case was simply referring to the fact that those opposing a will could not offer any proof they wished to at the probate level or on appeal at the Circuit Court level. This statement was not intended as and could not be expanded into, a determination that the doctrine res judicata would apply in a will contest.

Similarly, the case of Mather v. Minard, 260 Ill 175, 102 NE 1062, does not support appellant’s position. In that case a will had been admitted to probate and a will contest was then later filed alleging that the will which had been probated had been revoked by a later will. The Supreme Court would not allow the question of revocation of the probated will by a later will to be raised in the will contest. The basis for this determination was that the newly discovered will, which it was alleged revoked the probated will, would first be required to be probated.

It is, therefore, our conclusion that where a lost will is involved it may be contested on any grounds, including its revocation, in a will contest, and the court may retry any issue therein involved since the doctrine of res judicata has no application in the will contests under such circumstances.

Another issue which was raised on appeal is whether the decision of the trial judge is contrary to the manifest weight of the evidence. Two Illinois cases have defined the test to be used on the issue of when the lost will should be sustained. In In re Estate of Morgan, 389 Ill 484, 59 NE2d 800, it is pointed out that there is a presumption that a will has been destroyed by the testator with the intention of revoking it, and the burden is on the one seeking to probate the will to prove that it was not revoked at the testator’s death. The presumption can be rebutted by circumstances which tend to show a contrary conclusion. In In re Estate of Moos, 414 Ill 54, 110 NE2d 194, the Morgan case was cited with approval and the court there stated that there is a presumption that the will was destroyed by testator with the intention of revoking it. It is also pointed out that this presumption may be rebutted by circumstances which tend to show a contrary conclusion and that the burden is on the one seeking to probate a will to prove that it was unrevoked at testator’s death. The issue in the present case, therefore, is simply whether the proof clearly overcame the presumption of revocation in the instant case. As indicated in the statement of facts, all the actions and statements of the testator could be just as indicative of a conclusion that she did not wish to die leaving her December 7, 1949 will to dispose of her property, as it would be to a conclusion that she had not revoked the will by destroying it. As stated in In re Estate of Moos, supra, at page 62:

“Taken in its entirety, we believe that the proof is not sufficient in quality or quantity to show that it is unlikely that the testator would revoke his will, or to create a moral conviction that he did not revoke it. The circumstances shown by the evidence are equally, if not more, consistent with the thought that the testator changed his intentions relative to the disposition of his property and destroyed the will himself. However, even accepting the appellants’ evidence in its strongest light, we are of the opinion that it is not of a nature satisfactory to rebut the presumption that the will was revoked by the testator or to establish the manner in which his estate should be distributed.”

In the instant case it is clear that Mrs. Carr had been wrestling with the problem of making a new will for eleven years from 1955 until the time of her death following the death of Billy O’Toole. If all she intended to do in revising her will was to eliminate the provision for Billy O’Toole, it was not necessary that she do anything since her 1949 will left Billy O’Toole’s share to Mabel Curran, John Boyle and Henry Roach in the event Billy O’Toole predeceased her. On the basis of the evidence the court could properly have concluded that Mrs. Carr did not want Billy O’Toole’s share to pass to these three persons or she would not even have considered changing her will after Billy O’Toole’s death. The court could properly have concluded that her constant reference to wanting to make a new will was an indication by Mrs. Carr that she wished to benefit some of her other nieces and nephews or even her brother, Henry Merle, but couldn’t make up her mind how she wished to do it. All of the circumstances in the case point to a plausible conclusion that Mrs. Carr could not make up her mind which of her relatives to favor under her new will and that as a result she destroyed her 1949 will prior to entering the hospital for the last time on June 2, 1966. Whether she felt that destroying her will would leave the property equally to her family under the statute of descent or under the mistaken notion that if she had no will the bulk of her estate would pass to her sole surviving brother, Henry Merle and her sister, Bertha, cannot be determined. Her concern over the new will, however, could well have been determined by the court to have caused her to destroy and revoke her 1949 will in view of Mrs. Carr’s relationship with all her nieces and nephews. There was evidence that she called Barbara Loss, the widow of her nephew, on the day she went to the hospital, telling her of money she had left in an envelope for her daughter’s graduation. While it is a minor matter, it shows that on the very day she went to the hospital for the last time she was concerned about her grandnieces and members of the Loss family, none of whom are mentioned in the 1949 will. It is also noted that the share which would pass to Edward Loss, Jr., the only heir toward whom it appears Mrs. Carr had any animosity, would be only %8 of Mrs. Carr’s estate upon intestacy. There was even evidence to show that Edward Loss had visited Mrs. Carr and that the rift between them was not as great as it had been.

While the evidence indicates that Mrs. Carr talked to her brother, Mr. Merle, at all times in connection with making a new will, it is probable that if she destroyed her will, she would not tell him of this since this would be contrary to the interest of Mr. Merle and his daughter. Since Mrs. Carr was a meticulous record keeper and even obtained a receipt for a copy of her will every time she gave it to someone, it seems unlikely that the will could have been lost without some evidence showing where it was located. This supports the conclusion that Mrs. Carr did revoke the will by destroying it. For nearly 17 years she kept physical control of her 1949 will and it was last seen in February of 1966, about four months before her death. The evidence, therefore, would tend to support the court’s conclusion that Mrs. Carr destroyed the 1949 will herself, intending to revoke it, rather than it was misplaced by Mrs. Carr who was so meticulous in keeping her records, etc. On the basis of the record, therefore, we do not believe we would be justified in asserting that the decision of the trial judge was contrary to the manifest weight of the evidence or that appellants had sustained the burden of overcoming the presumption that the will had been revoked.

An issue which was raised on appeal by appellee was the contention that it was error to admit the testimony of Henry Merle which he had given when the will was probated. Mr. Merle died between the date of probate of the will and the hearing on the will contest. It is not necessary that we decide this issue since the appellee has prevailed and this cause is being affirmed.

Appellants also had contended that the trial judge erred in limiting testimony concerning the relationship of Mrs. Carr with the beneficiaries under her 1949 will. On the basis of our examination of the record, it is apparent that appellants were given ample opportunity to present this type of evidence and we find no basis for any error committed in this respect.

Appellants, additionally, contended that the allowance of the sum of $750 to the Executor to prosecute an appeal from an order of the Circuit Court was such a modest sum as to amount to an abuse of discretion by the trial court. In the record in this cause, it is apparent that the notice of appeal was filed by the three beneficiaries under the 1949 will, and that thereafter the executor, Continental Illinois National Bank of Chicago also filed a notice of appeal. The trial court apparently took notice of the fact that the same attorney represented both the will beneficiaries and the executor and in the light of this circumstance the trial judge determined that allowing $750 to the executor was adequate. On the basis of the record, therefore, we do not believe that we would be justified in finding that the trial judge abused his discretion in the allowance of such amount for fees and expenses.

Since we find no reversible error in the record, the judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Sheldon Perlman and Edward Gilman, Defendants-Appellees.
    Gen. No. 53,886.
    First District, Third Division.
    July 16, 1970.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    Richard J. Horka, of Chicago, for appellee.
   OPINION ON REHEARING

MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal by the State pursuant to Supreme Court Rule 604 from an order entered in the Circuit Court of Cook County suppressing evidence. Defendants were arrested on September 8, 1967, and charged with the offense of gambling. The arrests were made at 420 West Belmont Avenue in the City of Chicago by police officers executing a search warrant for the premises. On motion of defendants the court suppressed all evidence seized pursuant to the search warrant on the ground that the affidavit in support thereof was insufficient.

The affidavit recites in substance that the affiant, police officer Donald Herion, received information from a reliable informant known to him for approximately six months; that on previous occasions the informant had furnished true, exact and accurate information which resulted in three gambling raids, the arrest of three gamblers, the conviction of one and the recovery of record evidence of bets in all three cases. The affidavit further recited that the informant told the police he called a specified telephone number when he wanted to place a bet on a horse race or other sporting event; that affiant checked that number with the security section of the telephone company and found the name of the subscriber and the address of the premises and apartment involved. Surveillance revealed the address to be a multiapartment building. On September 7, 1967, affiant dialed the telephone number, handed the receiver to the informant and overheard one side of a conversation, the substance of which involved the placing of a $50 bet on a baseball game. The affidavit was duly subscribed by the affiant.

An affidavit for a search warrant is not to be deemed insufficient because it is based on the hearsay averments of an undisclosed informer as long as a substantial basis for crediting the hearsay is shown. United States v. Ventresca, 380 US 102 (1965); People v. Parker, 42 Ill2d 42, 245 NE2d 487. What is required to establish a substantial basis has been set forth in Aguilar v. Texas, 378 US 108 (1964) as follows: First, that the affidavit list the underlying circumstances upon which the informant’s conclusions are based and, second, that the affidavit explain with particularity why the undisclosed source is reliable. If the informant’s tip is found inadequate under the standards established by Aguilar, the other averments which corroborate the information contained in the hearsay report should then be considered in order to determine whether or not, with this added support, probable cause exists for the issuance of a search warrant. Spinelli v. United States, 393 US 410 (1969).

In the instant case we are guided in our application of the rules hereinbefore set forth by the recently announced decision in People v. Mitchell, 45 Ill2d 148, 258 NE2d 345. There the court examined the sufficiency of search warrants issued on the basis of affidavits which bear an almost precise similarity to the affidavit now before us. In Mitchell the affiant police officer received information from an undisclosed informant who had previously supplied true, exact and accurate information resulting in enumerated arrests and convictions. In that case as in this the informant’s conclusion that illegal gambling operations were being conducted was based on his own use of the telephone number whenever he wanted to place a bet, and the court held specifically that overhearing one side of a telephone conversation which appeared to culminate in the placing of a bet corroborated, to a limited extent, the informant’s information. The court held that these averments established probable cause for the issuance of a search warrant.

In the instant case, the informant used a specified telephone number to place bets. His reliability was established by the record of arrests, the conviction, and the recovery of record evidence of bets as the result of prior information he had furnished the police. A corroborative telephone call, identical to the one described in Mitchell, was initiated by the affiant and was listed among the averments in the affidavit. We conclude that probable cause was established for the issuance of the search warrant. The order of the trial court quashing the search warrant and suppressing evidence is reversed and the cause is remanded for such other and further proceedings as are consistent with the views herein expressed.

Order reversed and cause remanded with directions.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    William Pierce, Plaintiff-Appellee, v. Lawrence G. Pa-cini, d/b/a Larry’s Standard Station, Defendant-Appellant.
    Gen. No. 54,486.
    First District, Third Division.
    June 4, 1970.

      Paul M. Heller, of Chicago, for appellant.
    Wexler & Wexler, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The amount of money involved in this litigation is 70 cents. The legal question involved is whether a repairman in a gasoline station who added parts to a motor vehicle as a necessary incident to its repair, was engaged in the sale of service under the Service Occupation Tax Act or in the business of selling tangible personal property at retail under the Retailers’ Occupation Tax Act. The appeal comes to us from the Supreme Court to which it was originally taken. The transfer order stated that the controversy did not concern State revenue and that there was no other basis for the court’s jurisdiction.

The defendant, an owner of a gasoline service station, repaired the plaintiff’s motor vehicle in November 1968 and in doing so installed a rebuilt starter and solenoid. He billed the plaintiff for his labor and charged $28.10 for the parts. To this charge he added a $1.40 tax based on 5% of his selling price — the amount called for by the retailers’ occupation tax. The plaintiff protested that the tax should have been 70 cents — the amount the defendant was allowed to pass on to his customers under the service occupation tax. The defendant refused to rebate the difference and the plaintiff brought this action.

The complaint alleged that the defendant was a serviceman, not a retailer, and as such could only charge a 5% tax based on the cost price of the items he sold. The complaint also alleged that the plaintiff was unable to carry on his business without the repaired vehicle and, therefore, had paid the excessive tax under duress. The defendant moved to strike the complaint. He admitted collecting the $1.40 tax, stated it had been forwarded to the State Revenue Department and asserted that the plaintiff was suing the wrong party. He contended that in charging a tax of 5% of his selling price he did what he was required to do under the Retailers’ Occupation Tax Act because he had transferred tangible personal property to the plaintiff. The trial court denied the motion and granted judgment to the plaintiff.

The Retailers’ Occupation Tax Act (Ill Rev Stats 1967, c 120, par 440 et seq.) provides in paragraph 441 that:

“A tax is imposed upon persons engaged in the business of selling tangible personal property at retail at the rate of [4% % ] of the gross receipts from such sales of tangible personal property made in the course of such business. . . .”

A sale at retail is any transfer of the ownership of or title to tangible personal property to a purchaser for use or consumption for a valuable consideration. Paragraph 440.

The Service Occupation Tax Act (Ill Rev Stats 1967, c 120, par 439.101 et seq.) provides in paragraph 439.-103:

“A tax is imposed upon all persons engaged in the business of making sales of service ... at the rate of [414%] of the cost price of all tangible personal property transferred by said servicemen ... as an incident to a ‘sale of service’ ” . . . .

“Sales of service” is a transaction which is not a retail sale of tangible personal property under the Retailers’ Occupation Tax Act or under the Use Tax Act. Paragraph 439.102.

Municipal and county governments are authorized to levy additional retailers’ and service occupation taxes on the same personal property upon which the State has imposed a tax. Ill Rev Stats 1967, c 24, pars 8-11-1, 8-11-5; c 34, pars 409.1, 409.2.

Both the retailers’ and servicemen’s taxes are taxes on occupations — excise taxes imposed for the privilege of engaging in the designated occupation — and are not taxes on the sale of goods, even though they are measured by the receipts from such sales. Snite v. Department of Revenue, 398 Ill 41, 74 NE2d 877 (1947). The object of the Service Occupation Tax Act is to place servicemen on a tax parity with retailers to the extent that they transfer tangible personal property to the ultimate consumer. Fiorito v. Jones, 39 Ill2d 531, 236 NE2d 698 (1968).

The question of whether a businessman is engaged in a service occupation or a retail occupation has been before the courts in numerous cases construing the Retailers’ Occupation Tax Act. See, e. g., J. H. Walters & Co. v. Department of Revenue, 44 Ill2d 95, 254 NE2d 485 (1969); Central Television Service, Inc. v. Isaacs, 27 Ill2d 420, 189 NE2d 333 (1963). In Sterling Steel Casting Co. v. Department of Revenue, 7 Ill2d 244, 130 NE2d 262 (1955) the court stated, “To be taxable [under the retailers’ tax], the business of the taxpayer must be that of selling tangible personal property rather than that of rendering service. Where the business is that of furnishing service to which a sale at retail is incidental, the occupation has been held not taxable.” In Mahon v. Nudelman, 377 Ill 331, 36 NE2d 550 (1941), the plaintiffs engaged in repairing and restyling fur garments and in the course of business furnished the fur pieces or strips and lining necessary to the task. Customers retained the plaintiffs for the purpose of repair, and the plaintiffs used their skill to choose and fit the fur pieces or lining. The court found from the evidence that they were primarily selling services, and the materials used were incidental to this purpose. In Central Television Service, Inc. v. Isaacs, supra, the plaintiffs engaged in servicing and repairing television sets and electronic equipment. In the course of business they frequently incorporated parts into the repaired articles. At trial it was found that the plaintiffs’ employees possessed special training for their jobs. The customers relied on the plaintiffs’ skill in making the repairs and left the selection of the repair parts to them. The reviewing court found that the customers were contracting for repair and restoration of function rather than for the purchase of parts and materials. It upheld the trial court’s finding that the plaintiffs were engaged primarily in a service occupation in which the transfer of tangible personalty was incidental, and that they were not selling such property at retail within the meaning of the Retailers’ Occupation Tax Act.

Regulations issued by the State Department of Revenue also throw light on the problem of sales made by automobile repairmen. Although these regulations are not binding on this court, it is appropriate to consider them in resolving the problem at hand. Oscar L. Paris Co. v. Lyons, 8 Ill2d 590, 134 NE2d 755 (1956). Rule No. 10 of the Retailers’ Occupation Tax Act, issued May 1, 1963, provides:

“3. Persons who engage in the business of repairing tangible personal property belonging to others (including, but not limited to, automobile repairmen . . .) are engaged in a service occupation. To the extent to which they engage in such service occupation, they are not engaged in the business of selling tangible personal property to purchasers for use or consumption.”
(S
• • •
“4. The repairing of automobiles includes, but is not limited to, the replacement of parts, such as brake fluids, brake linings, carburetors, fan belts, fans, fenders, lights, gaskets, points, spark plugs, valves, windshield wipers and the like.”
(C
“5. Personal property repairmen and other servicemen . . . are liable for Service Occupation Tax on their cost price of repair parts, materials and other tangible personal property which they purchase and retransfer as an incident to a sale of service. . . .”

From this rule and the principles pronounced in the cases cited, the following conclusions can be drawn: When a customer contracts for the restoration of a motor vehicle’s function and relies upon the experience and skill of the serviceman in the performance of this task, the serviceman is engaged in the sale of a service. If in the course of repair, it becomes necessary to replace a part, and the serviceman chooses the part and installs it, its transfer is incidental to the service. The repairman is liable for the service occupation tax based upon the cost price of the item to him. On the other hand, when a customer purchases from a service station an item such as seat covers for his automobile and makes the selection and the sale does not obligate the seller to install them, then, even though the seller does install them, the transaction is a sale at retail, and taxable under the Retailers’ Occupation Tax Act.

It was the defendant’s responsibility to determine the correct tax and to collect and forward it to the Department of Revenue. The statutes define a “serviceman” as any person who is engaged in the occupation of making sales of service, and a “supplier” as any person who sells tangible personal property to servicemen for the purpose of resale as an incident to a sale of service. Ill Rev Stats 1967, c 120, par 439.102; c 120, par 439.32. The law imposes on the supplier the duty of collecting the service occupation tax from the serviceman if, at the time of selling him parts and materials, he intends to resell them as an incident to a sale of service. Chapter 120, par 439.103. If, however, the serviceman is unable to determine at the time he purchases the property how he will ultimately dispose of it, he may give his supplier an exemption certificate which relieves the supplier of liability for collecting the tax. If this is done the serviceman, upon disposing of the property, has the obligation of remitting to the Department of Revenue of the State the tax due as the result of the disposition of the property. See c 120, par 439.103, and Department of Revenue Bulletin, Re: Automobile Repairmen and Their Suppliers, dated March 1, 1967. The tax to be remitted depends upon the actual disposition of the property. If the property is sold “over-the-counter” at retail, the tax imposed is the amount called for by the retailers’ occupation tax — 5% of the selling price. If the property is incorporated into a motor vehicle and transferred as an incident to service upon the vehicle, the tax (which is collected from the customer, c 120, par 439.33) is to be computed on the cost price— that is, on the same basis as the serviceman’s own tax would have been computed had he paid it to his supplier. In the absence of proof to the contrary, the law assumes when the tax is paid directly to the Department of Revenue that the cost price to the serviceman is equal to 50% of the selling price paid by the customer. Chapter 120, par 439.33. In the present case, the defendant-repairman admitted in his motion to strike that he did not pay the tax to his supplier. He undertook, therefore, the obligation of accounting for the proper tax to the Revenue Department.

The record presented to this court does not include a report of proceedings, an agreed statement of facts or a certificate of the evidence heard at the trial. However, the order of the trial court stated that it heard the evidence and arguments of both parties and was fully advised in the premises. Without more, we must assume that the evidence supported the court’s judgment (Smith v. Smith, 36 Ill App2d 55, 183 NE2d 559 (1962)) and the finding implicit in that judgment: that the defendant did not sell the starter and solenoid at retail but rather placed them in the plaintiff’s vehicle as part of the service performed on that vehicle. It was, therefore, a sale incidental to service and the maximum tax that could be exacted was the same tax as the defendant would have been obligated to pay his supplier — 5% of the cost price.

The fact that the defendant remitted to the Department of Revenue the full tax he collected from the plaintiff does not relieve him of the obligation of reimbursing the plaintiff for the excessive tax. The defendant’s further argument that charging the tax on his cost price would require him, and other persons operating service establishments, to divulge the actual cost of the parts to the purchaser is immaterial to the issue.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.