author: JUSTICE "VAN DEUSEN

text:
      In re ESTATE OF WILMA M. MASLOWE, a/k/a Wilhelmina M. Maslowe, Deceased—(Emmanuel John Seidner, Ex’r of the Estate of Wilma M. Maslowe, a/k/a Wilhelmina M. Maslowe, Petitioner-Appellant, v. Richard H. Maslowe, Respondent-Appellee).
    Second District
    No. 82—956
    Opinion filed November 29, 1983.

      H. Lester Seidner, of Seidner & Seidner, of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

The executor of the estate of Wilma M. Maslowe, a/k/a Wilhelmina M. Maslowe, appeals from an order of the trial court of November 10, 1982, that (1) dismissed a rule to show cause order entered by a prior judge against respondent, Richard H. Maslowe, for failure to comply with an order of the court entered July 15, 1981, directing Maslowe to turn over to the executor the certificates of certain designated stocks; (2) directed that the inventory of the assets of the estate be amended to delete all stock being administered in Michigan; and (3) found Michigan to be the proper jurisdiction to probate all stocks which are part of the estate.

Despite the fact that respondent, an attorney, has failed to enter an appearance or file a brief in this appeal, we choose to decide the matter on its merits. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.) We conclude from our examination of the record that Judge Teschner committed error in entering the order of November 10, 1982. We hold that Judge Coolahan’s order of July 15, 1981, directing Maslowe to turn over the stock certificates in question was a proper order which he had jurisdiction to enter as was the rule to show cause issued against Maslowe by Judge Douglas on September 16, 1982.

Decedent, a resident and domiciliary of Michigan, executed her will in Illinois on September 4, 1973. The will named Emmanuel Seid-ner as executor and Richard H. Maslowe, respondent herein, successor executor. The will provided, inter alia, that all personal property both tangible and intangible situated in Illinois be administered in this State. On February 6, 1981, the testatrix died still a Michigan domiciliary. The will was admitted to probate in this State and in this proceeding on February 25, 1981, and letters of office as executor issued to Seidner.

On March 25, 1981, Seidner filed a petition for citation (Ill. Rev. Stat. 1981, ch. 110½, par. 16 — 1) against Maslowe to recover, inter alia, certain stock certificates. On May 4, 1981, Seidner moved to set his citation petition for immediate hearing, and Maslowe filed a verified petition for summary administration of the estate. (Ill. Rev. Stat. 1981, ch. 110½, par. 9 — 8.) Maslowe’s petition stated that decedent’s personal estate subject to Illinois administration was itemized on an attached schedule, which schedule listed the contested stocks. In a letter dated May 26, 1981, Maslowe informed Seidner that he sent the stock certificates to attorneys in Michigan whom he had retained to probate the estate there, and, on June 4, 1981, Maslowe filed a motion to file an amended petition for summary administration listing only a bank account of $4,432.88.

The record reveals that Judge Coolahan held a full hearing on July 15, 1981, on Seidner’s citation petition and Maslowe’s motion to file his amended summary administration petition. The evidence at that hearing showed that the stock certificates in question were in Illinois at and after the decedent’s death and in the possession of or under the control of Maslowe and that Maslowe sent them to Michigan while the citation petition was pending so that the certificates were in the hands of Michigan attorneys on and after July 15, 1981. At the conclusion of the hearing, Judge Coolahan entered written orders granting Maslowe’s motion for leave to file his amended petition and ordering Maslowe to turn over a bank passbook and the corporate stock to Seidner pursuant to section 16 — 1(d) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 16-l(d)).

On September 16, 1982, Judge Douglas entered a rule to show cause why the court should not impose sanctions authorized in the aforesaid section 16 — 1(d) of the Probate Act of 1975 against Maslowe for his failure to comply with Judge Coolahan’s July 15, 1981, turnover order. In his answer to Seidner’s petition for a rule, Maslowe raised as “Affirmative Matters” that he was appointed personal representative in the Michigan probate of the estate on June 30, 1981; that, as a personal representative at the time of the entry of the turnover order, he had and complied with the obligation, to collect and submit assets subject to Michigan probate jurisdiction; and that the July 15, 1981, turn-over order would direct him to breach the laws of Michigan. However, the record shows that Maslowe’s letters of authority as Michigan representative were issued August 3, 1981, and the stock certificates were inventoried in the Michigan probate on October 27,1981.

On September 16, 1982, Judge Douglas entered a rule to show cause against Maslowe for failure to comply with the July 15, 1981, turn-over order returnable October 14, 1982, and denied his amended petition for summary administration. On October 14, 1982, the case was transferred to Judge Teschner. On November 10, 1982, Judge Teschner entered the order from which this appeal is taken, finding that the turn-over order was void because decedent was domiciled in Michigan at her death, that the assets were inventoried and being administered there for the benefit of the beneficiaries in both States, and that to require the stocks to be brought to Illinois would be to assert jurisdiction and fail to give full faith and credit to Michigan law.

Judge Teschner erred in directing that the Illinois inventory of .the assets of the estate be amended to delete all such stocks and in finding Michigan to be the proper jurisdiction to probate estate stocks. When the subject matter of litigation is specific property, jurisdiction may only be had where the property is situated. (Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 959, aff’d (1979), 77 Ill. 2d 323, citing Oakman v. Small (1918), 282 Ill. 360.) Here the stock certificates were in Illinois at the decedent’s death and subject to Illinois administration at that time regardless of her domicile at her death. (Ill. Rev. Stat. 1981, ch. 110½, pars. 7 — 6, 5 — 2; 33 C.J.S. Executors & Administrators sec. 20a (1942); see Iowa v. Slimmer (1918), 248 U.S. 115, 63 L. Ed. 158, 39 S. Ct. 33; In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037; Nelson v. Miller (9th Cir. 1952), 201 F.2d 277.) Section 7 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 7 — 6) provides inter alia that a nonresident, like the decedent, may provide by her will for the disposition of intangible personalty having situs in Illinois according to Illinois law, which decedent here did. It was her obvious intent that Illinois, rather than Michigan, administer the assets at issue.

At the time of decedent’s death the Illinois courts had subject matter jurisdiction over the stocks in question as intangible personalty having their situs in Illinois and subject to disposition under Illinois law pursuant to the express terms of the decedent’s will. The fact that respondent caused the stock certificates to be sent to Michigan and inventoried in the Michigan probate proceedings in no way caused the Illinois courts to lose subject matter jurisdiction over the decedent’s stock.

More importantly, at the time of the July 15, 1981, order and at all other pertinent times, the trial court in this proceeding had personal jurisdiction over the respondent and had the authority and jurisdiction to order him to turn over the stock. The fact that Maslowe had sent the stock out of the State of Illinois would not deprive the Illinois courts from holding him in contempt for the breach of its order of July 15 even if the Illinois courts had lost subject matter jurisdiction over the stock. However, the stock at that time had not even been inventoried in the Michigan estate. Even if Maslowe had been appointed Michigan representative prior to the July 15, 1981, turnover order, he would not have been obligated to submit corporate securities to that State. Michigan, as domiciliary State, could not have exerted jurisdiction over assets having their situs in Illinois, and an attempt to do so would not be entitled to full faith and credit. In re Estate of DeL ano (1957), 181 Kan. 729, 315 P.2d 611, citing Iowa v. Slimmer (1918), 248 U.S. 115, 63 L. Ed. 158, 39 S. Ct. 33.

Judge Coolahan had jurisdiction to enter his turn-over order on July 15, 1981, and Judge Teschner’s finding that such order was void is erroneous. To hold to the contrary would allow an individual holding property subject to Illinois probate jurisdiction to avoid that jurisdiction by sending the evidence of ownership out of State. It would defeat the purpose of the citation procedures in the probate act (see In re Estate of Joutsen (1981), 100 Ill. App. 3d 376, 380) and would allow for serious disruption of the orderly process of estate administration in this State.

The record clearly establishes that Maslowe failed to comply with Judge Coolahan’s order to turn over the certificates in question. Judge Douglas’ order and rule that Maslowe show cause why he should not be held in contempt for not complying with the turn-over order was correct. Judge Teschner’s order of November 10, 1982, is reversed in its entirety, and this cause is remanded to the trial court for hearing on the rule to show cause.

Reversed and remanded with instructions.

REINHARD and HOPE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    SALLY RAHN et al., Plaintiffs-Appellants, v. RUSSELL GERDTS et al., Defendants-Appellees.
    Third District
    No. 82-716
    Opinion filed September 19, 1983.
    Supplemental opinion filed on denial of rehearing November 15,1983.

      John A. Slevin, of Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellants.

      Roland N. Litterst, of Covey and Litterst, of Peoria, for appellee Deluxe Mobile Home Sales, Inc.
    Karen J. Steele and W. Thomas Johnston, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellees Russell Gerdts and Connie Gerdts.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County dismissing the third amended complaint (hereinafter complaint) of Sally Rahn and Robert Rahn seeking to recover damages from defendants Deluxe Mobile Home Sales, Inc. (hereinafter Deluxe), and Russell and Connie Gerdts (hereinafter Gerdts). This action arises in connection with a motor home manufactured by Winnebago on a chassis supplied by Chrysler Corporation. These latter two parties were originally defendants in separate counts of the complaint, but after the notice of appeal was filed actions with them were settled and they are not parties to this appeal.

On December 21, 1979, plaintiffs, Bob and Sally Rahn, leased from Gerdts a 1975 motor home. Gerdts were at the time engaged in the business of leasing motor homes and had advertised their business in the Peoria Journal Star newspaper among others.

Later, on December 21, 1979, the Rahns and their family started out on a family trip to spend the Christmas holidays in Florida. While they were driving the leased motor home about 23 miles south of Atlanta on Interstate 75, one of the two fuel tanks became disconnected, dragged on the pavement, and as a result of the friction burst into flames. Plaintiffs and their children leaped from the flaming vehicle after it had stopped without receiving any burns or serious physical injury. Sally Rahn did sustain a scratch to her arm and an immediate pain in her chest. The personal belongings of clothes, Christmas gifts and the like were totally destroyed.

Approximately nine weeks later Sally Rahn was admitted to a psychiatric unit of St. Francis Hospital in Peoria where she was treated for severe depression, anxiety and nervousness, all of which were caused, according to the complaint, by the incident. She continues to be seen and treated by her psychiatrist.

After earlier complaints were dismissed with leave to amend, the third amended complaint was dismissed with prejudice, and it is the judgment dismissing the third amended complaint which is the subject of this appeal.

The third amended complaint may be summarized as follows:

Counts I and V are brought by Sally Rahn and Robert Rahn respectively. Each count is against Gerdts and is based on strict liability in tort. Essentially, each alleges Gerdts was engaged in the business of leasing motor homes and as such leased a motor home to plaintiffs on December 21, 1979; the motor home was at the time it left the possession of Gerdts defective and unreasonably dangerous by reason of an insecure fuel tank; and the defect was not present when the motor home left the possession and control of the manufacturer. In count I, plaintiff alleges she was injured physically and emotionally because of the defect and asks for damages. In count V, Robert Rahn seeks damages for the loss of personal property and for loss of consortium as a result of the injuries to his wife.

Counts II and VI are similar to counts I and V and are based on strict liability in tort only as against Deluxe, which was the dealer that sold the vehicle as a used vehicle to Gerdts.

Counts III, IV, VII and VIII were counts against Winnebago and Chrysler (who have since settled with plaintiffs).

Counts IX, X, XI and XII are against Gerdts (IX and XI) and Deluxe (X and XII) and seek damages for the negligent inspection of the vehicle or, in the alternative, the negligent failure to inspect.

We are initially concerned with the four counts against Gerdts and Deluxe seeking recovery based on the doctrine of strict liability in tort. The plaintiffs allege that Gerdts as lessor and Deluxe as seller of a used vehicle bear a relationship to the condition causing the injuries which subject each of them to strict liability in tort. The plaintiffs also allege facts sufficient to establish their particular rights to recover under the doctrine of strict liability in tort. Finally, plaintiff Sally Rahn argues that her allegations regarding physical injury resulting from emotional distress are compensable injuries.

One of the reasons advanced by both Gerdts and Deluxe in support of the motions to dismiss the counts of the complaint based on strict liability is the complaint alleges only emotional and mental injuries. Relying on Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194, the defendants argue that mental anguish and emotional distress unaccompanied by other physical injury are not compensable injuries in a strict liability tort action. We agree that Woodill does so hold and we believe that the Woodill precedent is still applicable notwithstanding the recent decision of our Illinois Supreme court in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546. In Rickey, the court extended the holding of Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, permitting recovery for mental anguish and emotional distress in nonimpact cases of deliberate torts to torts based on negligence. However, the discussion of the court in Rickey makes to clear that permitting recovery for such kinds of injuries is as a policy matter related to the nature of the conduct. Emphasizing that the recovery permitted is dependent on the element of foreseeability in a negligence action, the court did not see fit to describe the extension of the doctrine in terms other than those related to negligence. It should be noted that in Rickey v. Chicago Transit Authority (1981), 101 Ill. App. 3d 439, 428 N.E.2d 596, the appellate court, while extending the doctrine to negligence cases, declined to do so with respect to the count of the complaint based on strict liability and the plaintiff did not cross-appeal from this-ruling.

Plaintiff Sally Rahn has suggested the same rationale for permitting recovery for mental anguish and emotional distress in negligence cases should be applicable in strict liability in tort cases. Although there may be some support for such a suggestion, our supreme court has not as yet extended the rule to that extent, and we decline to do so.

We next consider the counts of the complaint alleging negligence against Gerdts and Deluxe. The trial court in dismissing the complaint did not specify any reasons for the judgment and consequently there is some uncertainty as to which of the arguments proffered by the defendants was accepted by the court.

One common issue presented by both Gerdts and Deluxe in their briefs in this court is the argument by each that the negligent infliction of emotional distress in the absence of impact is not a recognized cause for recovery in this State. Their arguments in their briefs as well as the opposing argument of the plaintiffs, are based on the appellate court decision in Rickey v. Chicago Transit Authority (1981), 101 Ill. App. 3d 439, 428 N.E.2d 596. As indicated earlier, our supreme court has now held there may be recovery for mental anguish and emotional distress without impact so this issue has now been resolved in favor of the plaintiffs and we believe no discussion of the issue is required. (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546. In Rickey the supreme court held “[t]he standard we adopt here shall be applied to this case and to all cases not finally adjudicated.” (98 Ill. 2d 546, 556.) Since this case has not been finally adjudicated the standard of Rickey is applicable and supports the plaintiffs cause of action.

Another ground for dismissing the negligence counts in the complaint was that the counts were filed more than two years after the incident took place and were therefore barred by the two-year statute of limitations.

At the time the second amended complaint was dismissed leave was granted to file another amended complaint within 28 days. No amended complaint was filed within the 28 days, but several weeks after the expiration of this period the plaintiffs moved for leave to file a third amended complaint. Over the objections of the defendants such leave was granted, the third amended complaint was filed and the defendant again moved to dismiss this complaint. The dismissal motion alleged that the negligence counts which appeared for the first time in this complaint were filed more than two years after the occurrence of the incident. According to section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(b)):

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute *** prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.”

The trial court permitted the third amended complaint to be filed, and we believe it falls within the terms of the foregoing provision and for the purpose of determining timeliness of filing it relates back to the filing of the initial complaint.

Gerdts is the only defendant renewing this argument on appeal, and the only case cited is King v. Donahue (1966), 70 Ill. App. 2d 481, 216 N.E.2d 824, which is inapplicable. In King we affirmed the judgment of the trial court which declined to grant leave to file an amended complaint after a time period had expired which is not the case here. The trial court did grant the motion to file the third amended complaint, and there is no claim made that such permission constituted an abuse of discretion. No final judgment had been entered, and the trial court had ample authority to permit the filing of the third amended complaint.

Defendant Gerdts neither in the trial court nor in this appeal has raised any issue regarding the sufficiency of the allegations of negligence, raising only questions relating to the statute of limitations and the insufficiency of damage allegations where only mental and emotional injuries are alleged. Since we have found in favor of the plaintiffs on these issues we conclude the trial court erred in dismissing the two counts against Gerdts based on negligence.

The other defendant, Deluxe, has argued because it is the seller of a used motor vehicle the counts in the complaint against it do not allege as a matter of law any negligence on its part. Contrary to the allegations of the complaint, Deluxe asserts it was under no duty to inspect or discover the defective condition of the vehicle and accordingly it could not have performed such duty negligently or carelessly as so charged. Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, 329 N.E.2d 785, appears to support the defendant’s position and even though it deals more specifically with strict liability in tort, its language tends to negate any duty to generally inspect and discover defects. For this reason we believe the trial court properly dismissed the negligence counts against Deluxe.

For the foregoing reasons the judgments of the circuit court of Peoria County dismissing counts IX and XI based on negligence against Russell and Connie Gerdts are reversed and such counts are remanded to such court for further proceedings. All other judgments of the circuit court of Peoria County are affirmed.

Affirmed in part, reversed in part and remanded.

SCOTT and HEIPLE, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

In his petition for rehearing appellant Robert Rahn claims that count V of the complaint against Gerdts, the dismissal of which we affirmed in our opinion, should not have been dismissed because damages for loss of personal property of the plaintiff are recoverable in a strict liability in tort action and are not barred because merely an economic loss as defined in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. The main thrust of the plaintiff’s complaint in counts I and V, the arguments before the trial court and the briefs before this court focused primarily on the claim of damages resulting from the emotional and mental distress of Sally Rahn, and we have some doubts that the damage to the personal property was ever any significant issue. Nevertheless, we have decided to accept the plaintiff’s position that the issue should have been considered.

Accordingly, we hold that insofar as count V seeks damages for injury to personal property of plaintiff based on the alleged strict liability of defendant Gerdts, it does state a cause of action. Such damages are not barred by Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.

In accord with the foregoing we therefore modify our previous opinion by reversing the judgment of the circuit court of Peoria County dismissing count V of the complaint and remand such count for further proceedings. In all other respects our opinion is affirmed as modified by this supplemental opinion and the petition for rehearing is denied.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE TRAPP

text:
    ALEEN MANNING et al., Plaintiffs-Appellees, v. JOHN H. MOCK, Indiv. and as Ex’r of the Estate of Madge Willis, Deceased, Defendant-Appellant (Doris Elaine Blomquist et al., Defendants).—ALEEN MANNING et al., Plaintiffs-Appellees, v. DORIS ELAINE BLOMQUIST, Defendant-Appellant (Sumpter Township Public Library et al., Defendants).
    Fourth District
    Nos. 4—83—0061, 4—83—0089 cons.
    Opinion filed November 22, 1983.

      Ralph D. Glenn, of Glenn & Logue, of Mattoon, for appellant John H. Mock.
    Burditt & Calkins, of Chicago, for appellant Doris Elaine Blomquist.
    Harlan Heller, of Harlan Heller, Ltd., of Mattoon, and Raymond Lee, Jr., of Lee & Lee, Ltd., of Tuscola, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendants John Mock and Doris Blomquist bring separate appeals to this court from a judgment of the circuit court of Coles County entered on a jury verdict finding the last will and testament of Madge Willis invalid. On this court’s motion, the cases have been consolidated for disposition. Issues raised in both appeals include whether the trial court erred in excluding evidence under the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201), whether a gerontologist may rely on nursing home records in forming an opinion on mental competency, and whether the trial court erred in refusing to admit certain exhibits. In cause No. 483-0089, defendant Blomquist has made additional arguments including whether the trial court erred in overruling motions for a directed verdict and a new trial, and for post-trial discovery. We affirm.

Madge Willis died on January 16, 1980, at the age of 85 in the Cumberland Nursing Center near Toledo, Illinois. In February of 1980, decedent’s alleged last will and testament was duly admitted to probate in the circuit court of Cumberland County and letters testamentary were issued to her executor, defendant, John Mock. The alleged last will and testament of decedent was executed on December 21, 1979, and purported to divide decedent’s estate among 20 churches and community organizations and 37 individuals, some of whom were or had been employees of the nursing center where Mrs. Willis had spent the latter part of her life. Under the will defendant Mock received 30 shares of stock of the First National Bank of Toledo ($3,000) and defendant Blomquist received testatrix’s home and its contents. The total value of the estate for tax purposes was $362,255.51.

On July 24, 1980, plaintiffs Aleen Manning and Harry Gipson, heirs of the testatrix, filed a two-count complaint in the circuit court of Cumberland County against 77 defendants, heirs of the testatrix and legatees under the last will and testament. Count I alleged a lack of testamentary capacity and count II charged that defendant John Mock, in abuse of an alleged fiduciary relationship, procured the execution of the will to secure for himself and others associated with him a substantial benefit. Plaintiffs later amended their complaint to add a final count (count III) which alleged that decedent did not sign the will which had been admitted to probate. Defendants Mock and Bloomquist answered plaintiffs’ complaint and denied the material allegations therein.

The evidence shows that testatrix and her late husband, Ben Willis, made their home in Toledo, Illinois, for most of their lives. Her late husband had been president of the First National Bank of Toledo, and decedent had been on the board of directors of the bank until her death. Testatrix was predeceased by her husband and had no children. In 1971, testatrix broke her hip and went to the nursing home where she remained until her death in 1980. While in the nursing home, testatrix managed her personal business affairs until 1979 when two powers of attorney were executed. The first authorized her sister-in-law, Betty Kelly, to manage her business affairs, and the second authorized defendant Mock. The second power of attorney was executed following Betty Kelly’s death in October of 1979. At testatrix’s death, she owned the largest minority block of stock of the bank, approximately 11% of all outstanding shares.

At trial, the parties introduced considerable evidence concerning the physical and mental health of testatrix while she was at the nursing home. Three of the plaintiffs’ witnesses were nursing home employees who cared for testatrix during the last months of her life. One such employe, Janet Reisner, stated that during the last few months of testatrix’s life she gradually went downhill, spoke less, seemed disoriented, and did not recognize her. Reisner stated that testatrix could not feed, dress, bathe, or get out of bed herself, and she never saw testatrix play games, read, or write. Reisner testified that testatrix gradually spoke less and less. During the 1979 Christmas season, Reisner showed testatrix a Christmas card, but testatrix thought it was an Easter card. Reisner opined that Madge Willis was not capable of compiling a list of people or organizations, was not of sound mind, did not know who her relatives were, and did not know the nature and extent of her property. Reisner acknowledged on cross-examination that she was not listed as a beneficiary and admitted making a note on Willis’ nursing home records on December 12, 1979, that testatrix was “usually alert, communicates well, very slow at times.”

Bernice Sharp, another employee of the nursing home, testified along the lines of Reisner that Madge Willis was unable to care for herself, spoke seldom, and did not read or watch television. Sharp took a leave of absence on November 1, 1979, but opined that as of then Willis was not of sound mind and memory, was incapable of knowing her relatives, and was unaware of the nature and extent of her property. Another employee, Ina Green, was called for both the plaintiffs and the defendants. Green acknowledged that she was a beneficiary under the will and was present when it was executed on December 21. She agreed that testatrix was physically unable to sign her name and that she did help testatrix sign her last name to the instrument. Green stated that testatrix “just seemed to be unable to finish,” and “I put my hand over her hand and steadied it, and guided, I guess you would say.” Green acknowledged that testatrix did not ask for her assistance but stated that she did not take the pen in her hand.

Glen Neal, the attorney who drafted the 1979 will, testified that he knew testatrix all his life and drafted the will from a set of instructions furnished by defendant Mock. Neal stated that he never talked to testatrix about the will.

Plaintiffs’ medical expert was Dr. Richard Hamm, a gerontologist at the University of South Florida. Dr. Hamm testified that he reviewed the nursing home records of Cumberland Nursing Center and records from the Sarah Bush Lincoln Health Center, where testatrix was hospitalized, and stated that such records were of a type ordinarily used and relied upon by members of his profession. In response to a lengthy hypothetical by plaintiffs, Hamm responded that testatrix was not of sufficient judgment to sign the 1979 will, was a very dependent old lady, was absolutely reliant upon other people for all of her needs and was uncommunicative and incapable of explaining or understanding her basic needs.

In contrast to the testimony of plaintiffs’ witnesses, defendants presented the testimony of numerous witnesses who opined that testatrix had the capacity to know her property and relatives and was of sound mind.

Pearl Connell, age 79, testified that she had known testatrix for 45 to 50 years and had visited her three to five times in 1979, including one visit shortly before Christmas. Connell stated that during her visit she asked testatrix if she knew who she (Connell) was and that testatrix replied that she did. On cross-examination, Connell admitted that she asked Madge Willis if she knew who she was because Connell did not know for sure.

Norma Bartelsmeyer, Lois Lashmet, and Thursa Lyons testified that they had known the testatrix for over 40 years and visited her in the nursing home in October of 1979. Based upon the October visit, Bartelsmeyer was of the opinion that testatrix was of sound mind and memory, knew her relatives and the nature and extent of her property. Lashmet stated that testatrix was active in the “science club” (beneficiary under the 1979 will), the Toledo American Legion (beneficiary), and the Kiwanis Club (beneficiary). She visited testatrix on October 18 and stated that testatrix was alert and her responses appropriate. Lashmet stated that while her husband was hospitalized in Florida in January of 1979, he received a get well card from Madge Willis. (The card was offered for admission by defendant Mock, but on motion of plaintiffs, the card was excluded for an improper foundation.) Lyons visited testatrix at the nursing home on October 18, 1979, along with Pearl Connell and Lashmet. She could not recall what was discussed or how long she was there, but opined that on that date testatrix was definitely of sound mind and memory, had the capacity to know her relatives, and the nature and extent of her property.

Mary Hunt, Una Janes, and Mary Kirkham testified that they were witnesses to the will’s execution. They were in the nursing home beauty shop on December 21 and were asked by defendant Mock to witness the will. Hunt testified that when she entered the testatrix’s room defendant Mock had the will in his hand and said, “[T]his is a will. Madge has read it — it has been read to her — she knows what’s in it.” She stated that testatrix “signed her first name and then she was so shakey, her hand was, that Mrs. Green steadied her hand so that she could sign her last name.” The testimony of Hunt was corroborated by Janes and Kirkham.

Dr. Leland McNeil, testatrix’s physician, stated that testatrix was sent to the nursing home in 1971 after she fractured her hip and in 1978 she had a stroke and was admitted to Sarah Bush hospital. McNeil testified that Madge Willis gradually recovered but did have speech difficulties. He stated that testatrix was somewhat obstinate and talked to people she wanted to, but often did not talk to a person if she did not like that particular person. From mid-1978 until testatrix’s death, McNeil saw her every three months. Based upon his personal knowledge of her and the medical records kept by the nursing home, he was of the opinion that she was of sound mind and memory, knew the nature and extent of her property and knew her relatives. On cross-examination, McNeil acknowledged that testatrix needed assistance in feeding, was incontinent, and had arteriosclerosis. McNeal also acknowledged that nursing home records contained entries of October 31 that testatrix was “confused and disoriented,” of October 23 “still very confused and disoriented,” and on November 28 “is depressed, withdrawn, confused and disoriented.” On redirect, he stated that he also relied upon nursing home records which showed that on September 22 “patient shows more awareness to surroundings,” and on December 24 “Madge is alert.”

Defendant Mock testified that he was a lifelong resident of Toledo and had been sheriff and county treasurer of Cumberland County. Presently, Mock is the president of the First National Bank of Toledo. Over objection, Mock testified that he first saw the testatrix’s will on December 18, in attorney Glen Neal’s office. When asked if he participated in the preparation of the will, plaintiffs objected on the basis of the Dead Man’s Act. (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201.) The court sustained the objection, and an offer of proof was made. The substance of the offered testimony was that Mock and testatrix had several discussions concerning whom she wanted to leave her property to. According to Mock, he visited the testatrix in late November and she requested him to draft a will. Acting on this instruction, Mock went to attorney Neal’s office who told him what information was needed to draft a will. Mock returned to testatrix’s nursing home around December 10 or 12, discussed the disposition of her estate, and conveyed this information to Neal, who then prepared a rough draft. Mock stated that he took the rough draft back to testatrix, further discussions were had, and final changes were made and given to Neal. Neal then prepared a final copy which he gave to Mock, Mock returned to the nursing home, discussed the terms further with testatrix, and the will was then executed. The trial court sustained plaintiffs’ objection, but did permit Mock to testify to the events surrounding the execution of the will from the time the witnesses were assembled in testatrix’s room. Mock’s testimony concerning the execution of the will was similar to that of Hunt, Kirkham, and Janes. On objection of plaintiff, Mock was also not allowed to give an opinion on the testatrix’s mental capacity.

Closing arguments were made, and the jury was instructed on three distinct theories to find the will invalid: (1) lack of testamentary capacity, (2) undue influence, or (3) improper execution. A general verdict was returned for plaintiffs finding the alleged will to be invalid and the trial court entered judgment upon the jury’s verdict.

At trial, the plaintiffs called Ina Green and attorney Glen Neal to testify concerning the preparation and execution of the will. Green stated that she witnessed the execution of the will and “steadied and guided” decedent’s hand in writing her signature. Attorney Neal testified that he drafted the will from a set of instructions delivered by defendant Mock which Neal assumed was in Mock’s handwriting. He testified that he never talked to the decedent but did deliver testatrix’s will to defendant Mock. After delivery of the will to Mock, Neal never saw it again until Mock brought it to him to be admitted to probate.

It is the defendants’ contention that the introduction of this testimony by the plaintiffs “opened the door” under the Dead Man’s Act to allow Mock to testify fully in reference to his total participation in the will’s preparation and execution. Defendants argue that the conversations with the decedent and Mock commencing in late November or early December and culminating in the execution of the will on December 21 were an integral part of the event testified to by Ina Green on behalf of the plaintiffs and should have been admissible under section 8 — 201(a) of the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(a)).

Section 8 — 201 of the Code of Civil Procedure provides in part:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:” (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201.)

Exception (a) to this general rule provides:

“(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.” Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(a).

The parties, as well as this court, have been unable to find any decisions interpreting the word “event” as used in the current statute. Although the parties have referred us to similar circumstances in Perkins v. Brown (1948), 400 Ill. 490, 81 N.E.2d 207, and Garrus v. Davis (1908), 234 Ill. 326, 84 N.E. 924, we deem these decisions inapposite since they were concerned with the proper interpretation of section 3 of the prior Dead Man’s Act, whose language is materially different than presently provided. Defendants suggest that the word “event” appearing in the present statute (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(a)) should be deemed equivalent in scope to the word “transaction” as used in the former provision. (See Ill. Rev. Stat. 1971, ch. 51, par. 2.) We find no historical or statutory association between these words by reason of the plain language of the respective sections. The word “transaction” found in the prior statute is explicitly limited to a conversation or a transaction between an agent of the deceased person, an opposing party, or an interested person. The respective statutory provisions patently refer to distinctly different testimonial relationships. Plaintiffs do not dispute that they opened the door with testimony concerning the “event” but construe the word “event” as used in the Dead Man’s Act to have a logical limitation as to time and place. The trial court construed subparagraph (a) of section 8 — 201 of the Dead Man’s Act to mean that “event” was only the act of the execution of the will which the witness Green had testified to and not the total event of all actions leading up to the will’s preparation.

The purpose of all statutory construction is to give effect to the legislature’s intent by examining the language employed in the statute, giving it its plain and ordinary meaning, and also by looking to the necessity for the law, the evil sought to be remedied, and the object sought to be attained. (In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429, 337 N.E.2d 8.) The word “event” as ordinarily used and understood refers to a “happening or occurrence” (Webster’s New World Dictionary 485 (second college ed. 1976).) It is undisputed that plaintiffs introduced no evidence concerning Mock’s meetings with testatrix wherein they purportedly discussed the execution of the will. The only testimony relied upon by defendants to open the door is that of Green and Neal, neither of whom discussed decedent’s alleged meetings with Mock. The only happening or occurrence testified to which occurred in the presence of the decedent was the actual execution of the will which was described by the witness Green. Clearly the word “event,” when given its plain and ordinary meaning, is not as encompassing as defendants would have us read it.

Defendants also charge that the trial court improperly excluded statements of Mock concerning heirship. In the offer of proof, Mock stated that while he was discussing the preparation of the will with testatrix the following statement was made:

“I named other people -1 named Mrs. Manning, she said, ‘Yes, Mrs. Manning is a cousin, the only relative I have.’ Then I said, ‘Well, you have another cousin.’ She said, ‘No, I do not.’ I said, ‘Yes, Harry Gipson, I understand, is a cousin.’ She said, ‘Harry Gipson is dead.’ I said, ‘No, Harry Gipson lives in Tuscola; I know Harry Gipson, and I understand he’s a cousin.’ She said, ‘He’s not a cousin of mine.’ So I said, ‘Well, let me put his name down, and you think on it.’ ”

Defendants claim that these statements were admissible as testimony concerning heirship, an exception to the Dead Man’s Act. Subsection (d) of section 8 — 201 of Dead Man’s Act provides that “[n]o person shall be barred from testifying as to any fact relating to the heirship of a decedent.” Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(d).

The simple answer to defendants’ contention is that heirship was not at issue at the trial. Before the will contest was tried, defendant Mock signed an affidavit admitting that Harry Gipson and Aleen Manning were cousins and an order of heirship was entered in the probate court so finding both the affidavit and the order finding heir-ship were admitted into evidence in the will contest case. The statements concerning the heirship of testatrix were irrelevant since there was no issue of heirship at trial.

Defendants contend that Mock’s offered testimony on a number of matters concerned events out of the decedent’s presence and should not have been excluded under the Dead Man’s Act. These matters were: (1) the request by defendant to attorney Neal that he prepare the will for decedent; (2) the request of attorney Neal to defendant that defendant obtain information from the decedent from which to prepare the will; (3) the delivery of the information gathered by defendant to attorney Neal; and (4) the preparation of the preliminary and final draft of the will by attorney Neal. The present Dead Man’s Act, unlike the statute prior to 1973, imposes no rule of general incompetency on adverse parties or interested persons to testify against a decedent’s estate. The present act only bars such persons and parties from testifying concerning conversations with the decedent and events occurring in the decedent’s presence. Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 378 N.E.2d 800.

The offer of proof indicates that all of these events which allegedly occurred out of the decedent’s presence were events growing out of a conversation with the decedent. Mock attempted to explain in the offer of proof that decedent had told him to have Neal draft the will and the statements made to Neal concerned Mock’s conversation with decedent. The purpose in bringing these events before the jury was to demonstrate that specific conversations were had with decedent to coordinate the drafting of the will by Neal. Such matters were plainly prohibited by the Dead Man’s Act and were properly excluded.

Defendants’ last issue pertaining to the Dead Man’s Act challenges the trial court’s ruling that prohibited an opinion by Mock on testatrix’s mental competence. The supreme court has made it plain that a lay witness should not give an opinion on the issue of testamentary capacity unless a foundation of facts and circumstances is established for the opinion. “A person who is not an expert may give his opinion concerning the mental capacity of a testator if it appears that the witness has an acquaintance with the person whose competency is in question, and relates facts and circumstances which afforded reasonable ground for determining the soundness or unsoundness of mind of such person.” (Quellmalz v. First National Bank (1959), 16 Ill. 2d 546, 552, 158 N.E.2d 591, 594.) Since the foundation for Mock’s opinion is necessarily conversations with decedent and events occurring in her presence, no foundation could be established to introduce an opinion, and lacking such, the opinion would be inadmissible. The trial court correctly excluded Mock’s opinion of testatrix’s mental capacity under the Dead Man’s Act.

Defendants next allege that the trial court erred in allowing Hamm to give an expert opinion on testatrix’s mental condition since the nursing records he relied upon were not of a type reasonably relied upon by experts in the field in forming opinions or inferences. Defendants suggest that nursing home records may not form the basis of an expert’s opinion because they consist of notations made by unskilled and untrained persons such as nurses aides, activity directors, and social service directors.

In Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, the supreme court held that an expert medical witness could give an opinion based upon hospital records which were inadmissible at trial if the records were of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. The court noted that hospital records were highly reliable. In so holding, the court adopted Federal Rule of Evidence 703. 28 U.S.C. app., Rules of Evid., at 570-71 (1976).

The advisory committee’s comments to Rule 703 indicate that “a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians, and other doctors, hospital records and X-rays.” (28 U.S.C. app., Rules of Evid., Adv. Comm. Notes, at 571 (1976).) Plaintiffs argue that if these sources are embraced within the scope of what can be reasonably relied upon, then nursing home records prepared by nursing home personnel are also within the rule.

We are not prepared to hold that all of those varieties of information listed in the Advisory Committee Note to the Federal Rules of Evidence are always reasonably relied upon by medical experts. We do hold that where the expert indicates that he found the record or information of assistance and that similar records or sources are commonly relied upon in his field, an opinion based upon such may properly be admitted. Specific evidence of unreliability, is a proper subject for impeachment of the expert’s opinion. Here, there is nothing to support the defendants’ suggestions that the nursing home records were prepared by untrained and unskilled persons and contained substantial inaccuracies.

Defendants also assign error to the trial court’s refusal to admit a greeting card, purportedly signed by the testatrix, into evidence. Count III of plaintiffs’ complaint charged that “although the instrument hereinabove referred to was purportedly executed by the decedent, the said decedent did not in fact sign said purported will.” During defendants’ case, they attempted to offer into evidence a- get-well card received by the husband of witness Lois Lashmet in early January of 1980, approximately two weeks after the will in question was signed. The foundation for the card was as follows:

“Q. Have you ever seen Madge write her name?
A. Not for a great many years. I have seen her signature before, because on Christmas cards.
Q. Do you know what it looks like?
A. Well, in the last few years it’s been sorta sprawled out like.
Q. Ma’am, based upon your past association with her and those facts I just asked about, do you have an opinion of whether or not that is the handwriting of Madge Willis?
MR. HELLER: Object for want of foundation.
THE COURT: Let me see the exhibit. Overruled. Go ahead.
Q. And your opinion, Ma’am?
A. It is similar to the ones that she had signed on Christmas cards a year or two before.”

Although the trial court initially overruled the foundation objection, it later refused to admit the card into evidence when plaintiffs objected on the same basis.

There can be no question that an original document which is relevant to the issues and properly authenticated is entitled to admission into evidence, unless a proper ground of exclusion is noted. The parties apparently disagree only with respect to a foundation of au-' thenticity. In Buckingham Corp. v. Ewing Liquors Co. (1973), 15 Ill. App. 3d 839, 305 N.E.2d 278, it was stated that handwriting may be authenticated with proof that a witness is familiar with a putative writer’s handwriting. This familiarity may be gained from having seen the party actually write or from having an acquaintance with the handwriting acquired in the course of business dealings. The court noted that the extent of the knowledge of the witness goes to the weight to be given the opinion and not its admissibility.

We think that the trial court erred in sustaining the objections to the admission of the card. The witness testified to a familiarity with the handwriting of the testatrix as a result of previous correspondence, and any infirmity in her knowledge should have gone to the weight of her conclusion and not the admissibility of the card. We find the error harmless in the instant situation however, since the jury was aware that testatrix did sign her name to the card and there was no dispute that testatrix signed the will, in part. The jury was not required to decide the genuineness of the signature on the disputed will by comparison to the card, and the card’s exclusion could not have prejudiced the defendants. Here, the trial court did not strike the witness’ opinion, but only refused to admit the card into evidence.

Defendants also sought to admit a 1964 will of testatrix into evidence but, upon plaintiffs’ objection, the court refused to admit the same. Defendants cite the rule of O’Day v. Crabb (1915), 269 Ill. 123, 109 N.E. 724, to the effect that it is proper to show the contents of a former will on behalf of the proponents in a will contest case where the former will was drawn along the same general lines as the disputed instrument, in order to show that the testator had a constant and enduring scheme for the distribution of his property and thus to refute the charges of a lack of testamentary capacity or undue influence. Defendants claim that the 1964 will was admissible because it shows a constant and abiding scheme of distribution when compared with the 1979 will.

The 1964 will left all of testatrix’s estate to Mack and Betty Kelly with the exception of $1,000 to plaintiff Aleen Manning. The 1979 will left nothing to the Kellys, who were dead, $3,000 of bank stock to Manning, and the remainder of testatrix’s bank stock to 56 other beneficiaries. Contrary to the defendants’ argument, we conclude that the wills are so dissimilar as to indicate a deviation from prior dispositions. The 1964 will was inadmissible as evidence of a consistent and abiding scheme of property distribution and was properly refused admission by the trial court.

The balance of the issues discussed hereinafter relate exclusively to the issues raised in appeal No. 483 — 0089 by defendant Doris Elaine Blomquist. Defendant Blomquist’s first issue is whether a judgment notwithstanding the verdict should have been granted on count I for the reason that plaintiffs’ proof concerning testamentary capacity was allegedly not related to a time at or near the date the will was executed.

At trial, the principal witnesses presented by plaintiffs on the issue of testatrix’s mental competency were Janet Reisner, Bernice Sharp, Roberta Gray, and Dr. Richard Hamm. Defendant correctly notes that Reisner’s testimony was general in nature and concerned her observations during the last six months of testatrix’s life. On only a couple of occasions did she mention any specific dates. Witness Sharp left the nursing home on November 1, 1979, and all of her testimony concern's a general time period up to that date. Witness Gray’s testimony was likewise related to a general 14-month period during which she was employed at the nursing home. Relying on cases such as In re Estate of Milligan (1972), 4 Ill. App. 3d 38, 280 N.E.2d 244, and In re Estate of Wrigley (1982), 104 Ill. App. 3d 1008, 433 N.E.2d 995, defendant Blomquist contends that plaintiffs’ proof was insufficient as a matter of law, entitling her to a directed verdict or a judgment n.o.v. To entitle the defendant to a directed verdict or a judgment n.o.v., all of the evidence, when viewed in its aspect most favorable to the plaintiffs, must so overwhelmingly favor the defendants that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

It is well established that the law presumes every person to be sane until the contrary is shown, and the burden of proof rests upon the party who asserts a lack of testamentary capacity. (Shevlin v. Jackson (1955), 5 Ill. 2d 43, 124 N.E.2d 895; Lewis v. Deamude (1941), 376 Ill. 219, 33 N.E.2d 440.) Illinois courts have defined testamentary capacity as having the ability to know and understand the natural objects of one’s bounty, the nature and extent of one’s property, and to make a disposition of property according to some plan formed in the mind. (Quelhnalz; Beyers v. Billingsley (1977), 54 Ill. App. 3d 427, 369 N.E.2d 1320.) To be relevant as evidence of a lack of testamentary capacity, the proof must relate to a time at or near the execution of the will. Shevlin.

We agree with the general rule stated in Milligan and Wrigley but believe that there are sufficient differences between the circumstances at bar to distinguish these authorities. Contrary to evidence in those cases, here the employees observed the testatrix on a daily basis before the will was executed, and their opinions were based on these daily contacts. In several instances the testimony related to specific factual events closely related to December 21, 1979. We think that the opinions were properly admitted and relevant to testatrix’s competency on December 21, 1979.

The supreme court has never established any rule prescribing the relevant time period for evidence of testamentary capacity, but dicta in the case of Mitchell v. Van Scoyk (1953), 1 Ill. 2d 160, 115 N.E.2d 226, indicates that the testimony at issue is sufficiently related to the critical time period. In Mitchell the court noted: “Proof of the mental condition of the testator a reasonable time before or after the execution of the will is competent and will be received when it will tend to show mental condition at the time of the execution of the will. [Citation.] This court has held that proof of the mental condition of the testator two years before the execution of a will was properly received. [Citation.]” 1 Ill. 2d 160,176,115 N.E.2d 226, 235.

Defendant claims that her motion for judgment n.o.v. should have been granted because the plaintiffs failed to prove anything more than that the testatrix suffered from certain physical impairments. Defendant correctly notes that evidence of physical impairment standing alone is insufficient to prove a lack of testamentary capacity. (Tidholm v. Tidholm (1945), 391 Ill. 19, 62 N.E.2d 473; Anthony v. Anthony (1960), 20 Ill. 2d 584, 170 N.E.2d 603.) Defendant suggests that the mere fact that testatrix was disinclined to converse, feeble, unable to move, and incontinent, is insufficient proof of a lack of testamentary capacity. Defendant asserts that plaintiffs’ expert’s opinion is entitled to little weight since he was a paid witness and had never seen the testatrix, unlike Dr. McNeal, who was testatrix’s treating physician. Defendant notes that 11 defense witnesses observed Mrs. Willis near the time the will was executed and testified favorably regarding her mental competence. According to defendant, this overwhelmingly favors her position and no verdict for plaintiffs could ever stand.

It should first be pointed out that when ruling on a motion for judgment n.o.v. or for a directed verdict, neither a trial or reviewing court can consider conflicts in the evidence or questions relating to credibility. (Wrigley.) Plaintiffs’ witnesses testified that testatrix was not capable of formulating a list of 40 to 60 beneficiaries, was not capable of knowing her relatives, and was not aware of the nature and extent of her property. Other witnesses testified that decedent’s business affairs were handled by others, she was not aware of the time of the year, would often sit and stare at the television without expression, seldom communicated, and had difficulty in recognizing persons who worked in the nursing home. We conclude that the trial court acted correctly in submitting the issues to the jury and denying judgment n.o.v.

Defendant Blomquist next charges that the trial court erred in denying her motion for a new trial because the verdict of the jury on the issue of testamentary capacity was against the manifest weight of the evidence. The standard to be applied in reviewing a ruling on a motion for a new trial is whether the trial court abused its discretion or whether its ruling was against the manifest weight of the evidence. (Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936.) A reviewing court will not set aside a verdict merely because the evidence is conflicting, nor can a reviewing court usurp the function of the jury by substituting its judgment for the jury’s in passing on the credibility of the witnesses and the weight to be given their testimony. Butter v. O’Brien (1956), 8 Ill. 2d 203, 133 N.E.2d 274.

We first note that the jury returned a general verdict after being instructed on three possibilities to overturn the will. It is thus not clear from the record whether the jury in fact found that the testatrix lacked testamentary capacity. Nevertheless, we conclude that the evidence is sufficient to uphold the verdict on this ground. We have outlined the evidence of testatrix’s mental capacity above, and cannot say that the jury’s verdict is against the manifest weight of the evidence.

Defendant also assigns error to the trial court’s refusal to direct a verdict on count II of plaintiffs’ complaint. Count II charged that defendant Mock was a fiduciary of testatrix; that testatrix reposed confidence and trust in him, and that Mock devised and procured the execution of testatrix’s last will to secure for himself and others a substantial benefit. At the close of plaintiffs’ case and at the close of all the evidence, the defendant requested a directed verdict on this count which was denied.

The standard for ruling on a motion for a directed verdict or for a judgment n.o.v. is governed by Pedrick. The above recitation of the allegations of count II shows that such count was directed toward the creation of a legal presumption of undue influence. The requisite proof required to raise this presumption consists of a showing that a fiduciary and dominant party in whom testator reposed trust and confidence directly participated in the preparation of a will under which he stands to gain a substantial benefit. (Peters v. Catt (1958), 15 Ill. 2d 255, 154 N.E.2d 280; In re Estate of Basich (1979), 79 Ill. App. 3d 997, 398 N.E.2d 1182.) Defendant Blomquist does not dispute that all of these elements were established except the requirement that a fiduciary receive a substantial benefit under the will. Defendant argues that the benefit must be received by a legatee or devisee and must be substantial. Defendant contends that the 30 shares of stock which Mock would receive under the will is not substantial. We disagree.

The parties agree that the mere fact that defendant Mock receives a fee for services as an executor is not a substantial benefit sufficient to raise a presumption of undue influence. (See Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 247 N.E.2d 894.) The evidence in the case at bar discloses not only the fact that Mock would receive executor fees, but also that he would receive $3,000 worth of stock. We agree with defendant that $3,000 is not substantial when compared to the total value of testatrix’s estate, but cannot agree that this is the proper comparison to be made. The only issue is whether the $3,000 is a substantial sum in and of itself. We think it is and affirm the trial court’s ruling denying defendant’s motion for a directed verdict.

Defendant contends that the issue of undue influence should not have been submitted to the jury since sufficient proof was presented to rebut the presumption of undue influence as a matter of law. Defendant cites Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872, as authority for this proposition. In that case the supreme court held that the presumption of undue influence arising from the fact that decedent’s attorney drafted a will in which he was a substantial beneficiary was rebutted as a matter of law on proof of, inter alia, the long-term personal relationship between the attorney and the decedent and the circumstances of its execution which disclosed the decedent had obtained independent legal advice. Unlike Franciscan Sisters, very little evidence was presented showing the circumstances of the will’s execution and to show defendant Mock’s relationship with the testatrix. What proof was presented was insufficient to negate the presumption as a matter of law. Moreover, when the presumption is rebutted, the trier of fact must still decide the issue of undue influence upon the whole of the evidence. Rebutting the presumption of undue influence does not take the issue from the jury where conduct, apart from the fiduciary relationship, is relied upon to show undue influence. (Franciscan Sisters.) The trial court correctly denied defendant’s motion for a directed verdict on count II.

Defendant Blomquist also argues that error was committed in denying her motion for a directed verdict on count III of the plaintiff’s complaint. This count alleged that decedent did not in fact sign the will. The uncontradicted evidence shows that testatrix was given the will and a pen, signed her first name, had difficulty in continuing to write, and was assisted by Ina Green, a beneficiary under the will, in signing her name. Green stated that she either steadied or guided the pen, after she realized that testatrix was having difficulty in writing. Relying on In re Estate of Weaver (1977), 50 Ill. App. 3d 223, 365 N.E.2d 1038, defendant contends that no verdict could ever stand on count III. We believe the trial court properly denied defendant’s motion, but it is unnecessary to decide this issue, since the trial court’s judgment is fully supported by the other grounds of invalidity which we have discussed.

The final issue raised by defendant Blomquist is her contention that the trial court erred in denying defendant Mock’s motion for post-trial discovery. We treat this issue as waived, since Blomquist never moved for post-trial discovery, and defendant Mock has not challenged the trial court’s denial of his motion on appeal. Wells v. Web Machinery Co. (1974), 20 Ill. App. 3d 545, 315 N.E.2d 301.

For the foregoing reasons, the judgments of the circuit court of Coles County are affirmed.

Affirmed.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE HOPE

text:
    COLLINS OIL COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Second District
    No. 82—935
    Opinion filed November 22, 1983.

      G. William Richards, of Aurora, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

Plaintiff, Collins Oil Company, brought an action for administrative review of an Illinois Department of Revenue (the Department) final assessment that determined plaintiff’s liability for unpaid taxes. In seeking review, plaintiff sought to have a lien imposed in lieu of posting a bond, as authorized by section 12 of the Retailers’ Occupation Tax Act (hereinafter the Act) (Ill. Rev. Stat. 1981, ch. 120, par. 451). The Kane County circuit court denied plaintiff’s motion for a lien, dismissed its complaint and entered an order in favor of the Department. Plaintiff appeals.

Plaintiff, a wholesale and retail dealer in oil products, was charged with liability for nonpayment of retailers’ occupation tax and municipal retailers’ occupation tax for January 1, 1976, through August 31, 1978; regional transportation authority tax for December 1, 1977, through October 31, 1979; and motor "fuel tax for January 1, 1976, through August 31, 1978. Plaintiff protested each of the notices of liability and requested a hearing with the Department. A hearing summary, prepared by the hearing referee, noted that the Department had presented a prima facie case through the testimony of the auditor and admission of the auditor’s work papers. The auditor testified that the taxpayer (plaintiff, president of corporation) refused to allow his books and records to be examined and would not cooperate in preparing the audit. The audit was based on Federal tax returns and State sales tax returns that had been filed by plaintiff. Resale, exemptions and loss due to spillage deductions were disallowed, but the auditor testified on cross-examination that they would have been allowed if the taxpayer had provided evidence to support them.

The hearing referee repeatedly requested the taxpayer, through his counsel, to produce books and records in order to clarify the record. Counsel gave no indication he intended to produce any records. The referee held that the Department’s prima facie case was not overcome by the taxpayer, and the taxpayer’s protest was denied. The assessment was made final. In February of 1982 a final assessment showed a liability of $1,231,432 for plaintiff with interest continuing to accrue.

On March 12, 1982, plaintiff filed its complaint for administrative review, challenging the final assessment. Thereafter, on April 2, 1982, plaintiff filed a motion seeking imposition of a lien in lieu of the bond required by section 12 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 451). Section 12 requires that a suit for administrative review be dismissed, on motion of the Department, unless the person filing such suit posts a bond, or unless the court enters an order imposing a lien on the taxpayer’s property. Plaintiff in the case at bar did not file a bond and sought to have a lien imposed in lieu of the bond.

A hearing was held and plaintiff was directed to furnish financial information about its assets. The hearing was continued. Plaintiff provided a four-page unverified financial statement. This statement indicated that plaintiff’s assets were less than its tax liability. At the renewed hearing the Department argued it would not be protected by a lien on plaintiff’s assets. After argument, the court denied plaintiff’s motion for imposition of a lien in lieu of a bond, and stated that plaintiff’s complaint was dismissed for failure to comply with section 12 of the Act. Judgment was entered against plaintiff in the amount of the final assessment, plus interest.

Plaintiff filed a motion for rehearing, urging “the court may have failed to consider the constitutional issues inherent in its ruling” in denying the requested lien. The motion also urged that it was not necessary that plaintiff furnish “full and complete inventories” of its property in order for the Department’s liens to be effective because the liens would have been effective upon entry of the court’s order. Plaintiff’s motion for rehearing was denied.

Prior to considering the issues raised by plaintiff on appeal, we will address a point raised by the Department which urges that plaintiff failed to file his motion regarding the bond within the required 20-day limit. Although the Department did not raise this issue before the trial court, it is now urged that the trial court should be affirmed because of plaintiff’s failure to make a timely motion regarding the bond.

Section 12 of the Act provides that any suit filed for administrative review shall be dismissed on motion of the Department, unless the petitioner, within 20 days after filing the complaint, files a bond with good and sufficient surety, or unless the court enters an order imposing a lien on petitioner’s property. In the instant case plaintiff filed its complaint for administrative review on March 12, 1982, and filed its motion for a lien in lieu of bond 21 days later, on April 2, 1982. Thus, plaintiff’s motion was one day late. The Department contends that plaintiff’s failure to meet this time requirement allows this court to affirm the trial court findings, despite the fact the argument was not presented to the trial court. The Department urges that, unlike the appellant, the appellee may raise any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for the point was before the court below. Shaw v. Lorenz (1969), 42 Ill. 2d 246, 248, 246 N.E.2d 285, 287.

We believe the Department has waived this issue for purposes of appeal. It has been held that the failure to file an appeal bond under section 12 is not jurisdictional in character, though it is mandatory. In Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 350, 427 N.E.2d 90, the supreme court found that the Department had waived the 20-day requirement where the Department agreed to allow the taxpayer to file the bond late and thereafter filed an answer to the complaint. In Glaseo, as in the case at bar, the Department filed its answer and failed to raise the 20-day limit as an issue. Because the instant case parallels the circumstances described in Glaseo, we believe the Department waived this issue both below and on appeal. (See also City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 439 N.E.2d 1301, where the court analogized from Glaseo and held that a 35-day issuance of summons requirement should be liberally construed; Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 93, 367 N.E.2d 173, 176, where the court gave a liberal construction to 20-day rule of section 12.) For these reasons the Department’s contention that plaintiff’s motion was untimely must fail.

The Department also contends plaintiff failed to preserve for review the issue of the constitutionality of section 12 of the Act. At trial, plaintiff made only very slight reference to the question of the constitutionality of section 12. Further, in its petition for rehearing, plaintiff made only a vague reference to the constitutional issues it now raises on appeal. The petition stated that the court “may have failed to consider the constitutional issues inherent in its ruling.” Further, we note that plaintiff’s motion for lien in lieu of bond made no reference to constitutional issues.

Plaintiff contends on appeal that the trial court violated its constitutional rights of equal protection and due process. Plaintiff’s contention is that the denial of its motion for lien in lieu of a bond deprived it of its constitutional right to have judicial review of the assessment of tax liability imposed by the administrative body. Plaintiff did contend, in its motion for rehearing, that there were “questions of whether or not there would be violations of both the Illinois and United States Constitutions on questions of equal protection.” Though the courts prefer that objections to the constitutionality of a statute be “specific and complete” (Biggs v. Cummins (1955), 5 Ill. 2d 512, 516, 126 N.E.2d 208), the scope of our review is not confined solely to the issues preserved for review. Supreme Court Rule 366 (87 Ill. 2d R. 366) is analogous to the plain error doctrine in criminal cases, and gives this court the discretion to review orders and grant relief “that the case may require.” (87 Ill. 2d R. 366(a)(5).) (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211, 443 N.E.2d 563, 564.) Therefore, despite the apparent waiver of the constitutional issues, we will consider them on appeal.

Turning to the merits of the case, plaintiff contends that the trial court’s interpretation of section 12 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 451) deprived plaintiff of due process and equal protection in that it was denied access to judicial review under the Administrative Review Act. The contention is that by refusing to allow a lien in lieu of bond the court dismissed plaintiff’s complaint and left it in the position of an indigent party unable to seek redress of an “incorrect” finding of tax liability.

Plaintiff contends that the legislature never intended section 12 to be used by the court to determine whether the taxpayer has sufficient assets to pay the tax. It contends that the legislature only intended to indicate that the court had authority to impose a lien on taxpayers’ assets, and protect the Department’s interests in that manner. Plaintiff contends that the trial court abused its discretion in this regard. Contrary to this contention, section 12 clearly gives the court discretion in this area — it provides:

“Any suit under the ‘Administrative Review Act’ to review a final assessment or revised final assessment issued by the Department under this Act shall be dismissed on motion of the Department or by the court on its own motion, unless the person filing such suit files, with the court, within 20 days after the filing of the complaint and the issuance of the summons in the suit, a bond with good and sufficient surety or sureties residing in this State or licensed to do business in this State or unless the court, in lieu of said bond, shall enter an order imposing a lien upon the plaintiff’s property as hereinafter provided. When dismissing the complaint, the court shall enter judgment against the taxpayer and in favor of the Department in the amount of the final assessment or revised final assessment, together with any interest which may have accrued since the Department issued the final assessment or revised final assessment, and for costs, upon which judgment execution may issue as in other cases. ***
If the court finds in a particular case that the plaintiff cannot procure and furnish a satisfactory surety or sureties for the kind of bond required herein, the court may relieve the plaintiff of the obligation of filing such bond, but shall enter an order, in lieu of such bond, subjecting the plaintiff’s real and personal property (including subsequently acquired property), situated in the county in which such order is entered, to a lien in favor of the Department.” Ill. Rev. Stat. 1981, ch. 120, par. 451.

We believe this language indicates the legislature’s intent to grant the trial court the discretion to either relieve a plaintiff from the obligation of filing a bond and order a lien, or to require such a bond. It is a primary rule of statutory construction that legislative intent is ascertained primarily from a consideration of the statutory language (Droste v. Kerner (1966), 34 Ill. 2d 495, 503, 217 N.E.2d 73, cert, denied (1967), 385 U.S. 456, 17 L. Ed. 2d 509, 87 S. Ct. 612), and the words in a statute should be given their plain, ordinary or commonly accepted meaning, unless to do so would defeat the legislature’s intent. (Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 907, 445 N.E.2d 827, 832.) Thus, we believe the legislature intended the imposition of a bond to be discretionary.

If, in the course of considering plaintiff’s bond request, the court determined that plaintiff had insufficient assets to furnish the bond or furnish a satisfactory lien, then it was within the authority conferred on it by section 12 to grant the Department’s motion to dismiss. Plaintiff contends that, at the same time, the court determined plaintiff would also be unable to pay the tax due. Despite this, however, section 12 requirements are mandatory and do not amount to a denial of due process. Avondale Liquor Store, Inc. v. Department of Revenue (1983), 116 Ill. App. 3d 804, 807, 452 N.E.2d 607.

The obvious purpose for the requirement of a review bond is to protect the Department from having the taxpayer dissipate assets during the period of administrative review. In the case at bar the trial court noted that dissipation of the plaintiffs assets was a real concern. By contrast, where there is no danger that the State would suffer a loss of tax revenue, because of dissipation or disposition of assets, it has been held that the filing of a review bond is not mandated. (Fredman Brothers Furniture Co. v. Department of Revenue (1982), 110 Ill. App. 3d 479, 480, 442 N.E.2d 627.) In Fredman the taxpayer’s overpayments eliminated the danger that the State would suffer a loss of tax revenue. In the instant case, such a danger clearly exists. The bond requirement was a more secure alternative because plaintiff had failed to reveal the location, identity or scope of any assets upon which a lien could be imposed. We believe the trial court acted within the discretion conferred on it by the legislature in denying plaintiff’s request, and we find no abuse of that discretion.

The plaintiff urges that it was denied its constitutional right to administrative review. However, it is not clear that such a right exists under the circumstances presented. In fact, the right to administrative review is a limited right. The Illinois Constitution of 1970 provides that “Circuit Courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, sec. 9.) Thus, absent legislation, administrative review is not a matter of right under section 9. (Glasco Electric Co. v. Department of Revenue (1980), 87 Ill. App. 3d 1070, 1072, 409 N.E.2d 511, 513, aff’d (1981), 86 Ill. 2d 346, 427 N.E.2d 90.) Section 12 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 451) is the source of the circuit court’s administrative review powers, and it makes that review conditional upon the filing of a bond. We do not believe the dismissal of plaintiff’s complaint was violative of his due process or equal protection rights. The legislature has chosen to make administrative review conditional upon the filing of a bond and it is necessary to protect the Department from subsequent acts of delinquent taxpayers. (Avondale Liquor Store, Inc. v. Department of Revenue (1983), 116 Ill. App. 3d 804, 808, 452 N.E.2d 607.) In fact, in a case analogous to the case at bar, a taxpayer urged that section 12 was unconstitutional because it denied him his day in court. The taxpayer had failed to file a bond within the required 20-day period. The court characterized the section 12 bond requirement as a “reasonable procedural requirement” and stated it did not violate due process. (Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 95, 96, 367 N.E.2d 173, cert, denied (1978), 435 U.S. 970, 56 L. Ed. 2d 61, 98 S. Ct. 1610.) It has also been held that the hearings conducted under the Retailers’ Occupation Tax Act (the Act) meet the requirements of due process. (Department of Finance v. Gandolfi (1940), 375 Ill. 237, 240, 30 N.E.2d 737.) We see no change in the Illinois Constitution of 1970 that would alter the conclusion reached by the court in Gandolfi. We defer to the legislature’s determination on this point and find no due process or equal protection violations. See also Board of Education v. Gates (1974), 22 Ill. App. 3d 16, 20, 316 N.E.2d 525.

The case law plaintiff discusses in support of his argument is inapposite. In one such case, Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780, the court held that it was unconstitutional to deny, because of the inability to pay, access to the courts to seek judicial dissolution of a marriage. However, Boddie differs from the case at bar in two important regards. First, even if it is assumed section 12 operates to deny plaintiff review of the merits of its case, it is undisputed that it did have a hearing before the Department of Revenue. In Boddie there had been no hearing. Secondly, the right of the individual to an initial hearing on a dissolution of marriage concerns a fundamental right. In the case at bar, the interests plaintiff seeks to protect fall short of the fundamental rights discussed in Boddie.

The instant case is analogous to United States v. Kras (1973), 409 U.S. 434, 34 L. Ed. 2d 626, 93 S. Ct. 631, where an indigent contended that the fee required for filing a bankruptcy petition was violative of his equal protection and due process rights. The court distinguished Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780, by noting that the interests of one seeking a bankruptcy do not rise to the level of a fundamental interest such as marriage. The filing fee requirement does not constitute a fundamental right, nor does it touch on the suspect classifications of race, nationality or alienage. Hence, for purposes of equal protection analysis, the applicable standard for measuring the propriety of Congress’ classification is that of rational justification. (409 U.S. 434, 446, 34 L. Ed. 2d 626, 636, 93 S. Ct. 631, 638.) The court found no constitutional right to obtain a discharge of one’s debts in bankruptcy.

Once a party has received an evidentiary hearing through which he can seek redress, due process does not require that, even in criminal cases, a State provide an appellate system. (Ortwein v. Schwab (1973), 410 U.S. 656, 660, 35 L. Ed. 2d 572, 576, 93 S. Ct. 1172, 1174; Griffin v. Rlinois (1956), 351 U.S. 12, 18, 100 L. Ed. 891, 898, 76 S. Ct. 585, 590.) In Ortwein, as in the case at bar, plaintiff contended that the inability to make a required payment by an indigent resulted in a denial of due process and equal protection rights. The requirement of payment was viewed as a rational means of effecting the State’s goal of offsetting some expenses of the court system. Thus, the rationality requirement was met.

In the instant case the legislature’s goal was to protect the Department’s right to payment. The court in the instant case sought to avoid a situation where whatever assets plaintiff had would be dissipated. The Department contends that plaintiff continued to operate Collins Oil at a loss. Thus, the denial of plaintiff’s lien request bore a rational relationship to the State’s goal of nondissipation of the tax due. For these reasons we believe section 12 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 451) is constitutional, both on its face, and as applied.

Plaintiff’s final contention is that section 12 must be given a liberal construction, so as to permit its case to be considered on its merits. However, plaintiff’s reliance on Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 352, 427 N.E.2d 90, is misplaced. Glaseo did find that section 12 requirement of filing an appeal bond within 20 days after the complaint for review was filed was not jurisdictional. Thus, the circuit court was not divested of jurisdiction by plaintiff’s failure to have filed its bond within 20 days. However, the Glaseo court went further and stated that while the filing of a bond is not jurisdictional, the legislature intended the filing of such bond to be mandatory. The court noted that this construction was required to protect the Department’s interest in keeping a taxpayer from dissipating assets while review was pending. While the Glaseo court gave section 12 a liberal construction, so as to permit the case to be construed on its merits, its decision was based on the fact that the Department had waived the 20-day filing period by allowing the taxpayer to file his bond after the 20-day period had run. By contrast, in the case at bar the State made no such waiver. Even Glaseo, which gave section 12 a liberal construction, stated that filing a bond is mandatory. We agree with the Glaseo holding.

Plaintiff cited no authority for the proposition that a lien must or should be imposed when a taxpayer is unable to post a bond. In the instant case, we see no reasonable justification for allowing a lien to stand during administrative review. Plaintiff’s contention that it should have been allowed a lien in lieu of bond is further undermined by its failure to supply sufficient information about its business assets so that a lien could attach.

We believe the circuit court’s exercise of discretion was allowed by section 12 of the Act and that it is violative of neither the due process or equal protection clauses of the Constitution. Thus, the trial court properly denied plaintiff’s motion for lien in lieu of bond and granted the Department’s motion to dismiss.

For the reasons stated the judgment of the trial court of Kane County is affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.