{ "id": 3158529, "name": "PAUL H. ROESKE, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAKE FOREST et al., Defendants-Appellees", "name_abbreviation": "Roeske v. First National Bank", "decision_date": "1980-11-26", "docket_number": "Nos. 79-645, 79-808 cons.", "first_page": "669", "last_page": "674", "citations": [ { "type": "official", "cite": "90 Ill. App. 3d 669" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "31 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2711002 ], "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0278-01" ] }, { "cite": "32 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840415 ], "year": 1975, "pin_cites": [ { "page": "59-60" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0055-01" ] }, { "cite": "414 Ill. 361", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314301 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0361-01" ] }, { "cite": "19 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2694911 ], "pin_cites": [ { "page": "543-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0542-01" ] }, { "cite": "28 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409688 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "109-10" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0107-01" ] }, { "cite": "69 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3239620 ], "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0158-01" ] }, { "cite": "46 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971820 ], "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0394-01" ] }, { "cite": "372 Ill. 397", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2528626 ], "weight": 2, "pin_cites": [ { "page": "403" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill/372/0397-01" ] } ], "analysis": { "cardinality": 533, "char_count": 10382, "ocr_confidence": 0.891, "pagerank": { "raw": 1.6362510488864306e-07, "percentile": 0.6903421782505467 }, "sha256": "2248d8ad178dcdc8834cb1531129024cc71fe201c5573d4c6a38de75cb297405", "simhash": "1:a377bec3e80682cd", "word_count": 1747 }, "last_updated": "2023-07-14T22:48:32.356040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PAUL H. ROESKE, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAKE FOREST et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nPaul H. Roeske, plaintiff, sued the executor and the legatees named in the will of his brother, John F. K. Roeske, deceased. In one action he sought to contest the will, and in the other to impose a constructive trust upon the decedent\u2019s assets. The cases have been consolidated for appeal. The second amended complaint in the will contest suit and the amended chancery complaint were both dismissed on motion of the defendants and plaintiff appeals.\nIn his amended complaint in the will contest action plaintiff alleged in count I that the decedent died on June 3, 1976, leaving the plaintiff as his sole heir at law; that by virtue of the decedent\u2019s large and excessive consumption of alcohol, his memory was substantially impaired and debilitated so that he no longer remembered executing the will which he signed in 1963; that the defendant First National Bank of Lake Forest, in whose trust department the will was filed, did not advise the decedent of the existence of his will subsequent to 1963; and that decedent had no contact with his former wife\u2019s relatives after a 1970 divorce and by reason of his loss of memory did not know that they would be legatees of his estate pursuant to the forgotten will. Plaintiff prayed that the court declare the 1963 document to be null and void.\nThe thrust of plaintiff\u2019s argument as to count I is that since decedent and his wife were divorced in 1970, it would be unjust to permit decedent\u2019s estate to pass to the wife\u2019s sister and brothers, excluding the decedent\u2019s brother, the plaintiff. The argument has appealing qualities but does not support a cause of action. The issue in a will contest action is whether the writing produced is the will of the decedent; and any ground which, if proved, would invalidate the instrument as a will, may state a cause of action. (Shelby Loan & Trust Co. v. Milligan (1939), 372 Ill. 397, 403.) Revocation is one ground which may be asserted for the purpose of invalidating an instrument. (In re Estate of Minsky (1977), 46 Ill. App. 3d 394, 399.) Undue influence which is directly connected with the procurement and execution of the will may also invalidate a will. (In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 168.) Plaintiff alleges no facts in count I that would support a finding that the testator had revoked the 1963 instrument, nor are there allegations that would establish a prima facie case of undue influence. The allegations of the complaint are directed to events subsequent to the time that the will was executed. There is no allegation that the testator was in any way incapable of executing the document in 1963.\nAs to the divorced wife named in the will, of course, section 46 of the 1965 Probate Act establishes that the interest given to the wife is revoked, stating in pertinent part:\n\u201cNo will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator, except that divorce or annulment of the marriage of the testator shall revoke every devise, legacy, or interest or power of appointment given to or nomination to fiduciary office of the testator\u2019s former spouse in a will executed before the entry of the decree of divorce or annulment, and the will shall take effect in the same manner as if the former spouse died before the testator.\u201d Ill. Rev. Stat. 1967, ch. 3, par. 46.\nThe decedent\u2019s March 8, 1963, will provided in article II that the residue of the decedent\u2019s estate passed to Maurine Culbertson Roeske, the then wife. Article III provided that in the event that his wife predeceased him, one-half of his entire residuary estate should pass to his parents or the survivor of them, and the remainder, in equal shares, should pass to his wife\u2019s sister and two brothers. Article III further provided that if the decedent\u2019s parents predeceased him, the entire residuary estate should be distributed to his wife\u2019s sister and two brothers. The plaintiff, Paul Roeske, received nothing under the 1963 will.\nAs decedent and Maurine Culbertson Roeske were divorced in 1970, pursuant to the statute the will would take effect as if Maurine Culbertson Roeske had predeceased the testator. The possibility of the testator\u2019s wife predeceasing him was dealt with in article III of the 1963 will. As testator\u2019s parents both predeceased the testator, and as the testator\u2019s former wife is treated as having predeceased him the result would be that the residue of the testator\u2019s property would pass to the sister and brothers of the testator\u2019s ex-wife. (In re Estate of Zimmerman (1975), 28 Ill. App. 3d 107, 109-10. See also In re Estate of Shelton (1974), 19 Ill. App. 3d 542, 543-44.) Plaintiff asserts that this result is unjust, in view of allegations that the decedent had forgotten that he had executed the will due to substantial impairment of his memory as a result of his alcoholic condition, the 1970 divorce and the subsequent lack of communication between the decedent and his ex-wife relatives. Whether the testator intended a different result requires\" considerable speculation. The plaintiff urges that he would, of course, have preferred his brother to his wife\u2019s relatives, and, therefore, intended to die intestate. Rut this, in effect, amounts to an argument to the legislature which could have provided, but did not, that a divorce revokes a will completely.\nThe additional allegations in count IV of the second amended petition in the probate proceedings are that decedent\u2019s ex-wife knew or should have known that the decedent had no memory of having executed the will and that the decedent would have revoked and changed his will if he had received a copy of it from her when she returned other of his papers. This again is mere speculation. Further, pursuant to statute, and without knowledge of the earlier will, the decedent could have revoked the 1963 will by executing another will.\nThe only allegation of interference with revocation was that decedent\u2019s ex-wife failed to return to him a copy of the 1963 will after the divorce. This fact is not sufficient to support the plaintiff\u2019s contention that decedent was prevented from revoking his will, particularly in view of the fact that decedent need not have any memory of or possession of the will in order to revoke it and further in view of the fact that the wife merely had a copy, not the original.\nNor can we accept the argument that the defendant bank also somehow deprived decedent of the opportunity to revoke his will. In count III of the complaint plaintiff alleged that the bank maintains a large trust department, knew that changes in decedent\u2019s circumstances could cause a will to become obsolete or ineffective, and therefore had a duty to apprise decedent of the potential problem or to notify him that it was still holding an instrument which might affect a disposition of property contrary to his intention. The plaintiff cites no authority in support of his argument that the bank owed such a duty to the decedent and we have found none. Further, there was no allegation that the bank had participated in drafting the will, or had any knowledge of the substantive provisions of the will. The plaintiff has not alleged any facts from which a duty to notify the decedent that he should consider reviewing his will could be said to arise.\nIn count II of his petition the plaintiff allege that article 3 of decedent\u2019s will should be construed consistently with the intention of the decedent as manifested by the language in the will. Plaintiff alleged that article 3, which devised the residue of decedent\u2019s estate to his wife\u2019s sister and brothers in the event that decedent\u2019s wife predeceased him, should be declared inoperative by reason of the failure of the stated precondition, that is that Maurine predecease him. Plaintiff contends that while an ex-wife is treated as having predeceased the spouse for purposes of specific devises and legacies in a will, this statutorily assumed death should not satisfy a condition in the will itself by which a spouse must predecease the testator. However, a will contest is purely statutory having the purpose, as we have previously noted, of determining whether the writing proffered is in fact the will of the testator-decedent. (Shelby Loan & Trust Co. v. Milligan (1939), 372 Ill. 397, 403. See also Mount v. Dusing (1953), 414 Ill. 361, 365.) Therefore, interpretation of the will at this point in the proceedings is inappropriate.\nFurther, we have held that where a will contains a provision for a gift over in the event that one spouse predeceases the other, the assumed death under the Probate Act is equivalent to actual death, and that therefore the condition has been met. In re Estate of Zimmerman (1975), 28 Ill. App. 3d 107, 109.\nFor these reasons the petition in the probate proceedings failed to state a cause of action and was properly dismissed on the motion of the defendants.\nWe also conclude that the amended complaint in chancery was properly dismissed. Both the second amended petition in the probate proceeding and the amended complaint in chancery joined the same parties defendant and the allegations of the complaints are substantially similar. Section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (c)) provides as a ground for dismissal \u201cthat there is another action pending between the same parties for the same cause.\u201d The words \u201csame cause\u201d and \u201csame parties\u201d have been construed to mean substantially the same, but not identical. Actions are for the \u201csame cause\u201d when in both cases the relief requested is on substantially the same set of facts. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 59-60; Baker v. Salomon (1975), 31 Ill. App. 3d 278, 282.) Therefore, as the parties and the cause are substantially the same in both the probate petition and the chancery complaint, the trial court properly dismissed the chancery complaint. The judgments are affirmed.\nAffirmed.\nUNVERZAGT and NASH, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SEIDENFELD" } ], "attorneys": [ "Richard J. Smith, of Sullivan, Smith & Hauser, of Waukegan, for appellant.", "Semmelman & Lombardi, Ltd., of Lake Forest (Wylie B. Douglas, of counsel), for appellees." ], "corrections": "", "head_matter": "PAUL H. ROESKE, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAKE FOREST et al., Defendants-Appellees.\nSecond District\nNos. 79-645, 79-808 cons.\nOpinion filed November 26, 1980.\nRichard J. Smith, of Sullivan, Smith & Hauser, of Waukegan, for appellant.\nSemmelman & Lombardi, Ltd., of Lake Forest (Wylie B. Douglas, of counsel), for appellees." }, "file_name": "0669-01", "first_page_order": 691, "last_page_order": 696 }