Helms v. Darmstatter

George Lortz and his wife, Lena Lortz, on September 17, 1947, jointly executed a will giving their property after the payment of certain expenses to the surviving testator, but providing further that after the death of that survivor the property was to be sold and the proceeds distributed by specific monetary gifts to designated relatives of both. George Lortz died March 13, 1948, and the will was admitted to probate. On April 20, 1951, Lena Lortz executed a codicil which provided that certain bequests to her designated nephews and a niece under the joint will be increased from $500 to $1,000 and bequeathed to her nephew, Elias W. Darmstatter, certain preferred stock as an additional gift. The codicil specifically provided that ""in all other respects I hereby confirm my will made jointly with my husband, George Lortz, on September 17, 1947."" After Lena's death, and on December 9, 1959, the codicil was submitted for probate. The probate court refused to probate the codicil and the judgment of that court was affirmed by the appellate court on the ground that the codicil would have materially changed the joint will and since the surviving testator took property under that joint will she could not subsequently modify its terms. (In re Will of Lortz, 28 Ill. App.2d 287.) This court granted leave to appeal and held that the inquiry in probate court is confined to whether the offered instrument is the last will of the decedent and executed according to the statutory requirements, free of fraud, forgery, compulsion and improper conduct. (See In re Estate of Baughman, 20 Ill.2d 593.) We further stated that whether a joint will was executed pursuant to an agreement not to revoke or is itself a contract not to revoke should be determined in a contract action or in a chancery proceeding and not by the probate court. The judgment of the appellate court was, therefore, reversed and the cause remanded to the probate court with directions to admit the codicil to probate. (In re Will of Lortz, 23 Ill.2d 344.) The mandate in that case issued in November, 1961, and the codicil to the will of Lena Lortz was admitted to probate on December 29, 1961.