delivered the opinion of the court:
Plаintiff, Gertrude R. Williams, a residuary legatee under an instrument admitted to probate purporting to be the last will and testament of Florence M. East, filed a will contest in the circuit court of Piatt County. In the action, she sought a declaration that one paragraph in the instrument, allegedly executed as a result of the undue influence of defendant Jеrald A. Crickman and decedent’s attorney, Wayne L. Bickes, is null and void. The circuit court ruled that the sole issue in a will contest is the validity of the instrument as a whole and that it was without authority to invalidate one provision only. In addition, the court found that plaintiff, not an heir of decedent, could take only under the provisions of the instrument and therefore rulеd that she was not an interested person under section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 8 — 1) and dismissed the action with prejudice. The appellate court, relying upon Snyder v. Steele (1922),
Florence M. East, a resident of Piatt County, died on May 17, 1978. On June 1, 1978, defendant Crickman filed a petition for probate of a will and the issuance of letters testamentary in the circuit court of Piatt County. Crick-man alleged in his petition that Florence M. East had died testate and that he had been nominated, in a will dated March 14, 1968, as exеcutor of decedent’s estate. On July 13, 1978, the court entered an order admitting the instrument to probate and issued letters testamentary to Crickman. Plaintiff, a residuary legatee under the instrument, filed a will contest in the circuit court of Piatt County on October 12, 1978. Plaintiff alleged in her complaint that Crickman had influenced decedent’s actions as her farm mаnager and financial advisor for many years prior to the execution of this instrument. The complaint further charged that Crickman had employed Wayne L. Bickes, the attorney who drafted decedent’s will, as his own attorney for many years prior to the execution of this instrument and that decedent, as a result of her age, health, and business comрetence, was unable to resist the combined efforts of Crickman and Bickes to influence her to create an option in favor of defendant Crickman to purchase certain farmland. In addition, the complaint charged that both Crickman and Bickes stood in a fiduciary and confidential relationship to decedent and that they hаd breached their duties in influencing decedent to create the option to purchase at an unconscionably low price. The complaint further charged that the acts of undue influence of Crickman and Bickes affected only that provision in the will which created the option in favor of Crickman.
The instrument which purports to bе the last will and testament of decedent contains bequests to various relatives, friends and charitable institutions. The residuary clause of the instrument contains 22 separate provisions for distribution of the residue of decedent’s estate. The portion of the instrument which plaintiff seeks to invalidate creates in favor of defendant Crickman an option to purchase 320 acres of farmland alleged by plaintiff to have a value of $1,280,000. The terms of the tmst allow defendant Crickman to purchase 320 acres of farmland for a total purchase price of $200,000, to be paid in installments of $8,000 per year, for a period of 26 years, at an interest rate of 3% per annum. The instrument also рrovides that, if defendant Crickman fails to exercise the option within six months of the death of Miss East or forfeits his interest under the terms of the trust, the property is to be sold and the proceeds distributed among the residuary legatees.
The determination of whether plaintiff is an interested person under section 8 — 1 of our probate act and therefore eligible to contest the validity of this testamentary instrument turns on the question of whether the relief sought, a declaration of the partial invalidity of the instrument, can be granted. Plaintiff does not desire invalidation of the entire will; as a residuary legatee who is not an heir of decedent, plaintiff would gain only by invalidation of a portion of the will. The narrow issue thus presented by this appeal is whether our courts have the power to declare a testamentary instrument partially invalid under the provisions of our probate act where only part of the instrument is alleged to be the product of undue influence.
Defendant Crickman, in seeking to sustain the judgments of the circuit and appellаte courts, relies principally upon the decision of this court in Snyder v. Steele (1922),
Plaintiff arguеs, relying principally upon the decision of this court in Wolf v. Bollinger (1872),
We agree with defendant that “ ‘the legislature is presumed to know the construction the statute has been given, and by re-enactment, is assumed to have intended for the new statute to have the same effect.’ ” (Stryker v. State Farm Mutual Automobile Insurance Co. (1978),
In the case relied upon by Crickman, Snyder v. Steele, defendant Steele, an attorney, had drafted an instrument in which he was named executor of the estate and a legatee. Plaintiff, an heir of decedent, sought to have the will declared null and void due to the exertion of undue influence by defendant. In the first appeal in the cause, Snyder v. Steele (1919),
Subsequent to this appeal, defendant Steele resigned as executor of the estate and renounced his legacy under the instrument. On remand, the probate court allowed Steele to testify, and the jury rеturned a verdict sustaining the validity of the will. On appeal, this court held in Snyder v. Steele (1922),
Notwithstanding the adverse ruling on Steele’s effort to testify, other interested parties sought to sustain the validity of the will as to other bequests and argued that only those portions of the will tainted by undue influence should be stricken. The court stated that, under the statute, the sole issue in a will contest is whether or not the instrument “is the will оf the testator, and the question is as to the validity of the will as a whole. Testimony which defeats one defendant, one devisee or one legatee defeats all, and a judgment against one is necessarily a judgment against all.” (
Our examination of the opinion in Snyder leads us to conclude that the language of the court which addressed the issue of partial validity of the instrument under the statute is dicta and in error. A holding of the court in the first decision in the cause, that the instrument in question had not been attested to in the manner prescribed by the statute, renders superfluous the discussion of partial validity in the second decision; there was no competent evidеnce presented at the second trial of the cause on the question of attestation which would warrant a different conclusion on that issue. It is true that this dicta is entitled to consideration by the court as persuasive, but it is not binding authority within the rule of stare decisis. Department of Public Works & Buildings v. Butler Co. (1958),
We are not, however, persuaded by the reasoning еmployed by the court on the question of partial invalidity. In refusing to recognize the possibility of a partial invalidation, the court stated that “the greater weight of authority,” including Illinois precedents, suggested the view that the will could only be passed upon as a whole. (Snyder v. Steele (1922),
Section 8 — 3 of thе Probate Act of 1975 provides in relevant part:
“An issue shall be made whether or not the instrument produced is the will of the testator.” (Ill. Rev. StaL 1977, ch. llOFa, par. 8-3.)
Substantially similar language was construed in Wolf v. Bollinger (1872),
“It is said that, under this sixth section, the issue is to be, whether the writing produced and probated is the will of the testator or not; that the instrument can only be passеd upon as a whole, and that the court cannot adjudge a part to be, and a part not to be, the will of the testator. But this is a distinction which is only verbal; it does not exist in reason.
The power to try and determine whether the writing produced be the will of the testator or not, includes the power to adjudge upon the validity of any part of the instrumеnt, as well as the whole.”
Consistent with this construction, cases both before and after Snyder have recognized that part of an instrument may be declared invalid and the remainder allowed to stand where the invalid portions can be separated from the instrument as a whole without defeating the intent of the testator. (See Millikin National Bank v. Wilson (1931),
“If a part of the will is caused by undue influence, and such undue influence does not affect the remaining provisions of the will, the validity of the provisions which are not caused by such undue influence depends, in part, on whether it is possible to ascertain which portions are caused by the undue influence, and whether such portions, if ascertained, can be held to be invalid without destroying the intention of the testator. If it is not practicable to ascertain what portions of the will were caused by undue influence and what were free from it, or if effect cannot be given to such provisions as are not caused by undue influence, without defeating the intention of the testator, the entire will is invalid.
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Where it can be shown that a part of the will was caused by undue influence, and that the rest of the will was not caused thereby, and the part of such will caused by undue influence can be separated from the rest, leaving it intelligible and complete in itself, it is held in most states, that only such part of the will as is caused by undue influence is invalid, and the rest is valid.” (1 W. Page, Wills sec. 15.12, at 741 (3d rev. ed. (1960), citing, inter alia, Wombacher v. Barthelme (1902),194 Ill. 425 .)
On remand, the circuit court should consider these questions as they relate to this case, i.e., whether the alleged undue influence affected only the provision granting the option to defendant Grickman and, if so, whether invalidation of that provision would defeat the entire testamentary scheme as intended by Miss East.
We accordingly hold that plaintiff, who as a residuary legatee would benefit from partial invalidation of this instrument, is an interested person within the meaning of the Probate Act of 1975. To the extent that Snyder v. Steele (1922),
The judgments of the circuit and appellate courts are reversed, and the cause is remanded to the circuit court of Piatt County for further proceedings not inconsistent with the views expressed herein.
Judgments reversed; cause remanded.