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Vollmer v. Mcgowan

OPINION FILED MAY 24, 1951.

LAUREN VOLLMER ET AL., APPELLANTS,

v.

VIRGIL B. MCGOWAN, EXR., ET AL., APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. MARTIN E. MORTHLAND, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Lauren Vollmer, James D. Vollmer, and Marjorie Robinson, filed their amended complaint in the circuit court of Macon County against the defendant, Virgil B. McGowan, executor of the will of Thomas McGowan, deceased, the two testamentary trustees, and twelve others, seeking a construction of Thomas McGowan's will. The executor, the trustees, and six individual defendants interposed a motion to dismiss plaintiffs' pleading. Two minor defendants made a like motion, the motions were allowed, plaintiffs elected to abide by their pleading, and a decree was entered dismissing the amended complaint for the want of equity. Plaintiffs prosecute this appeal, a freehold being necessarily involved.

Thomas McGowan, a resident of the city of Decatur, died testate on August 20, 1948. He left surviving as his only heirs-at-law, three sons, Emmett J., Edwin C., and Virgil B. McGowan, three daughters, Nellie F. Talbott, Mary E. Rief and Elizabeth J. White, and three grandchildren, Lauren and James D. Vollmer, and Marjorie Robinson, the children of Katherine I. Vollmer, who predeceased her father on April 5, 1947. McGowan's will was admitted to probate in the county court of Macon County. The estate consists of real and personal property valued in excess of $200,000.

By his will, dated August 17, 1942, McGowan bequeathed all of his household goods and furniture to his daughter, Elizabeth J. White. By article 3, he devised to her the family residence in Decatur. To his daughter, Katherine I. Vollmer, by article 4, he devised the residence occupied by her in Dalton City. Plaintiffs' complaint alleges that, for many years prior to his death, McGowan, a widower, lived in the family residence in Decatur with his daughter, Mrs. White, his son-in-law, and his son, Virgil McGowan; that this property is worth approximately $25,000, and that, on July 1, 1943, the testator conveyed the premises to Mrs. White by a deed which was caused to be recorded on November 6, 1947; that the property devised to Mrs. Vollmer is worth upwards of $10,000; that she and her family resided on the premises from the time of her marriage until her death; that she and her husband farmed a tract of land owned by her father for many years until her husband became ill, and that, thereafter, she farmed the land for her father until shortly before her death when her son, James D. Vollmer, took over the farming of the land for Thomas McGowan.

By article 5, McGowan bequeathed to his three sons, and his daughters, Nellie F. Talbott and Mary E. Rief, two thousand dollars each "to equalize for the real estate" given to Elizabeth J. White and Katherine I. Vollmer, as stated in articles 3 and 4.

By article 7, the testator directed his executor, after the items described in the preceding articles have been paid or performed, to convert into cash the remainder of his personal property, with the exception of his one-third interest in the partnership of the Kraft Hotel Company — both real and personal — and divide the proceeds equally among his seven children, naming them.

The testator, by the eighth article, devised and bequeathed to two sons, Virgil B. and Emmett J. McGowan, as trustees, the testator's one-third interest in the Kraft Hotel Company — both real and personal — and all of his real estate of which he died seized and possessed. Article 9 authorizes the trustees to manage, rent and control the property. Article 10 directs the division annually of the net income from the trust property equally among McGowan's surviving children. Article 12 grants the trustees power to sell all or any part of the real estate or to dispose of the interest in the Kraft Hotel Company, subject, however, to the condition that the trustees, before making any sale of property held in trust, obtain the consent in writing of a majority of McGowan's seven children or surviving children not under legal disability. Article 12 provides, further, that, upon the completion of any sale of property held in trust, the net proceeds shall immediately be divided among his surviving children, share and share alike.

By the fourteenth article, the trustees are directed to sell and dispose of all the testator's property for cash within five years after the death of his four daughters. Then follows article 15, "In case any child above named should depart this life, either with or without heirs of his or her body, at any time previous to my demise, then and in that case, the surviving children under this Will shall become seized equally of the property specified of such deceased child or children so departing this life aforesaid, and the property interest so accruing of such deceased child or children under this will."

The next article names Virgil B. McGowan, one of the testator's sons, executor. Virgil B. McGowan, a lawyer, prepared his father's will.

Article 17 provides that in the event any of testator's children shall die after his death leaving lawful issue surviving, then the share of the deceased child shall be divided between the issue of such child per stirpes. The eighteenth article makes provision for the appointment of successor trustees by the judge of the county court of Macon County, who is directed by McGowan to follow the wishes of the majority of "my surviving children, then living and not under legal disability," in making the appointment. Article 19 declares lawful the purchase by Virgil B. and Emmett J. McGowan, the trustees, of any part of the trust property, at any public sale or by private contract, provided, in the latter case, that the sale shall be agreed to by "the rest of my children then living who are under no legal disability, and the evidence of such agreement may be either by deed or deeds from the other children who are under no legal disability, or written consent to such private sale signed by all of my surviving children who are under no legal disability at that time."

The last section of the will, article 20, is an in terrorem provision. It provides that the distributive share of any beneficiary, who directly or indirectly resists the probate or contests the validity of the will, shall be paid to "my other surviving children, share and share alike."

Plaintiffs alleged that Thomas McGowan was fond of and generous with all of his children and grandchildren, without discrimination; that he died without knowledge of the death of his daughter, Katherine I. Vollmer, more than sixteen months earlier, and that the executor and the trustees claim that McGowan's will excludes them, plaintiffs, from any right or interest in his property and estate. The complaint charges that the language of the will is ambiguous, inconsistent, uncertain and conflicting; that the will does not exhibit a clear intent by the testator to exclude his grandchildren from participation in the estate, and that the asserted ambiguity can be resolved by either of two constructions, — under one of which they would be entitled to an undivided one-seventh of the trust estate created under article 8 of the will, and under the other they would be entitled to the property specifically devised to their mother by article 4. The relief sought was a decree construing the will of Thomas McGowan according to one of the suggested alternatives.

Plaintiffs state that the single issue presented is, "Does Article 15 of the Will of Thomas McGowan completely disinherit Plaintiffs?"

The cardinal rule of testamentary construction to which all other rules must yield is to ascertain the intention of the testator from the will itself and effectuate this intention, unless contrary to some established rule of law or public policy. (In re Estate of Reeve, 393 Ill. 272; Norton v. Jordan, 360 Ill. 419; Dahmer v. Wensler, 350 Ill. 23.) In ascertaining the testator's intention, the words of the will are to be read in the light of the circumstances under which the will was made, including the nature, extent and condition of the testator's property as well as his relation to his family and to the beneficiaries named. (Monarski v. Greb, 407 Ill. 281; Knisely v. Simpson, 397 Ill. 605; Dahmer v. Wensler, 350 Ill. 23.) The process of ascertaining the testator's intention requires a consideration of all the provisions of the will taken as a whole and not by isolating certain language without regard to its relation to the entire will. Each part must be read in connection with every other part and with the general plan of the testator. (Dyslin v. Wolf, 407 Ill. 532; Monarski v. Greb, 407 Ill. 281; Jackman v. Kasper, 393 Ill. 496; Papa v. Papa, 377 Ill. 316.) Again, the testator's intention must be ascertained from the words of the will itself, and effect must be given to the intention or meaning so expressed rather than to some other intention which, from surrounding circumstances, the testator may be presumed to have had but failed to express. (Norton v. Jordan, 360 Ill. 419; Hampton v. Dill, 354 Ill. 415; Bushman v. Fraser, 322 Ill. 579.) Construction of a will cannot ...


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