{
  "id": 8499338,
  "name": "In re ESTATE OF RUSSELL O. HARPER, Deceased (Thelma Harper, Petitioner-Appellee, v. Beverly Humphrey, Respondent-Appellant)",
  "name_abbreviation": "Harper v. Humphrey",
  "decision_date": "1985-11-19",
  "docket_number": "No. 4\u201485\u20140263",
  "first_page": "571",
  "last_page": "573",
  "citations": [
    {
      "type": "official",
      "cite": "138 Ill. App. 3d 571"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
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      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
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    },
    {
      "cite": "54 Ill. 2d 532",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
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      "case_paths": [
        "/ill-2d/54/0532-01"
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    {
      "cite": "445 N.E.2d 77",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "112 Ill. App. 3d 198",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        5435507
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      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/112/0198-01"
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  "analysis": {
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  "last_updated": "2023-07-14T16:36:50.288778+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "WEBBER and MORTHLAND, JJ., concur."
    ],
    "parties": [
      "In re ESTATE OF RUSSELL O. HARPER, Deceased (Thelma Harper, Petitioner-Appellee, v. Beverly Humphrey, Respondent-Appellant)."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE GREEN\ndelivered the opinion of the court:\nOn February 18, 1982, petitioner, Thelma Harper, filed a petition in the estate of Russell 0. Harper, deceased, then in administration in the circuit court of McLean County, alleging that she was the surviving spouse of the deceased and requesting a surviving spouse\u2019s award. On November 14, 1984, the court entered an order fixing the award in the amount of $10,000 and ordering it paid. Beverly Humphrey, executor of the estate, has appealed. We have jurisdiction pursuant to Supreme Court Rule 304(b)(1) (87 Ill. 2d R. 304(b)(1)). We affirm.\nThe executor contends that because of the joint and mutual nature of a single will, executed by the testator and his previous wife and probated first as her will and now as his, all or most of the assets of the estate cannot be used to pay the award to petitioner.\nThe heading of the will and the introductory paragraph described the will as being joint. The will then stated:\n\u201cFIRST\nThis Joint Will is made pursuant to an agreement between ourselves which is not to be revoked by the survivor.\nSECOND\nAll of our just debts and funeral expenses shall be paid as soon after our respective deaths as is reasonably practicable.\nTHIRD\nAll of the estate of the one of us first dying, including all property, real, personal or mixed, wherever situated, shall vest in and become the absolute property of the survivor.\u201d\n\u2022 The next paragraph directed that after the death of the survivor, the then executor convert all property to cash and divide it into five \u201capproximately equal parts\u201d to be given to the five children of one or the other of the testators by a prior marriage. Provision was made for rights of survivorship of the legatees.\nSection 15 \u2014 1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. lKP/a, par. 15 \u2014 1(a)) provides for an award for a surviving spouse in order to support the spouse for a period of nine months taking into account the needs of the spouse and the condition of the estate. The award must be for at least the amount of $10,000 as awarded here. Section 15 \u2014 1(b) of the Act states that the spouse is entitled to the award unless the will \u201cexpressly provides that the provisions thereof for the surviving spouse are in lieu of the award\u201d and that spouse does not renounce the will. Section 18 \u2014 10 of the Act (Ill. Rev. Stat. 1981, ch. IIOV2, par. 18 \u2014 10) classifies a surviving spouse or child\u2019s award as a second class claim, thus giving it priority over all claims except those concerning funeral, burial, and expenses of administration.\nA decision in this case does not require us to determine whether the will was joint and mutual or whether a trust for the benefit of the legatees was created and vested upon the death of the first testator. (See Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77.) The agreement between the testators clearly provided for the claims against the estate to be paid. Section 18 \u2014 10 of the Act classifies the surviving spouse\u2019s award as a claim and one having high priority. Clearly, the surviving spouse\u2019s award is not a bequest nor a gift causa mortis. It is a short continuation of the obligation of one spouse to support the other. (See Montgomery v. Michaels (1973), 54 Ill. 2d 532, 301 N.E.2d 465.) The direction to pay all claims was a direction to pay a surviving spouse\u2019s award.\nThe only way the surviving spouse\u2019s award could have been defeated was by an express provision in the will accepted by the spouse by not renouncing the will. Here, the will contained no such provision. Moreover, the petitioner filed a document purporting to be a renunciation of the will. Regardless of whether the document has any other effect, it was an indication that she was not waiving her surviving spouse\u2019s award.\nThe fact that property was obtained by decedent from his previous wife, Dorothy Abshire Harper, under the provisions of the joint will does not prevent that property from being subject to the payment of the claims of this estate, including the widow\u2019s award. The award was proper. We affirm.\nAffirmed.\nWEBBER and MORTHLAND, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE GREEN"
      }
    ],
    "attorneys": [
      "Arthur N. Laudeman, of Bach & Laudeman, Ltd., of Bloomington, for appellant.",
      "John Naylor, of Naylor, Mueller & Willard, of Bloomington, for appellee."
    ],
    "corrections": "",
    "head_matter": "In re ESTATE OF RUSSELL O. HARPER, Deceased (Thelma Harper, Petitioner-Appellee, v. Beverly Humphrey, Respondent-Appellant).\nFourth District\nNo. 4\u201485\u20140263\nOpinion filed November 19, 1985.\nModified on denial of rehearing January 3, 1985.\nArthur N. Laudeman, of Bach & Laudeman, Ltd., of Bloomington, for appellant.\nJohn Naylor, of Naylor, Mueller & Willard, of Bloomington, for appellee."
  },
  "file_name": "0571-01",
  "first_page_order": 593,
  "last_page_order": 595
}