APPEAL from the Circuit Court of Will County; the Hon. C.D.
HENRY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This appeal comes from the circuit court of Will County wherein a decree was entered construing the last will and testament of Frieda Studtmann. G.F. Krog, administrator with the will annexed of her estate, filed the complaint herein requesting an interpretation of the will. All legatees and heirs were made parties defendant.
The will was a brief and simple one, the first paragraph directing the payment of debts and funeral expenses; the second contained a specific legacy to the Trinity Lutheran Church of New Lenox, Illinois; the third paragraph, the one under scrutiny here, reads as follows: "Third: I hereby give, devise and bequeath to Harry E. Hafka and his wife Ethel May Hafka of New Lenox, Illinois all of my estate both real and personal of every kind and nature whatsoever to have and to hold the same, to them and to their heirs and assigns forever."; the last paragraph appointed Harry E. Hafka executor of the will.
The testatrix died on May 22, 1950, and Harry E. Hafka, one of the named beneficiaries in paragraph 3 of the will, died eight months previously. This fact gives rise to the present legal controversy. On the hearing in the circuit court, the plaintiff introduced in evidence only the record of the probate court. The defendants-appellants offered in evidence the testimony of four witnesses which would tend to demonstrate extrinsically the facts and circumstances surrounding the testatrix at the time of the execution of her will. The trial court ruled that the language of the will was plain and unambiguous and, therefore, the proffered extrinsic evidence was held inadmissible. The court also ruled that paragraph 3 should be construed to be a devise to Harry and Ethel Hafka, individually, rather than as a group or class, and consequently the devise to Harry Hafka lapsed and his share became intestate property which descended to the heirs-at-law of the testatrix.
Miss Studtmann left surviving her as heirs three cousins, namely, Meta C. Mueller and Walter H. Mueller of Aurora, Illinois, and Henry A. Keitel of St. Louis, Missouri, her family of five brothers and sisters having all predeceased her.
Frieda Studtmann, a spinster, spent the latter part of her life residing on her 170-acre farm, valued at $40,000.00 and located a mile south and two miles west of New Lenox. Approximately seven years prior to the death of the testatrix, Harry Hafka and his wife, Ethel Mae Hafka, moved out to the Studtmann farm. The dwelling house situated thereon was converted into two apartments, the Hafkas residing in one, Miss Studtmann living in the other. Miss Studtmann, who was under the doctor's attention for four or five years with a goitre and heart ailment, was cared for in a kindly fashion by Mrs. Hafka, and Mr. Hafka tended the farm.
Appellees claim that paragraph 3 of the will under consideration presents no ambiguity and that the court was correct in refusing to consider extrinsic evidence in deciding the issues presented herein; that the devise to Harry and Ethel Hafka was to them individually and since Harry predeceased the testatrix, his devise lapsed and became intestate property and thus descended to the heirs-at-law of Frieda Studtmann. The appellants entertained in the court below two alternative theories, but the one asserted on this review is that the entire residuary estate as devised under the third paragraph of the will should survive to Ethel Mae Hafka.
The extrinsic evidence sought to be adduced on behalf of appellants consisted of the following which throws considerable light on the intention of the testatrix if considered. Frieda Studtmann did not care particularly for her cousins; their paths crossed infrequently, and she entertained resentment toward them which was caused when she one time drove to Aurora to see the cousins, but was not invited into their home. G.F. Krog, the assistant cashier of the bank at New Lenox, had been the family adviser of the Studtmann family for years; and after the death of her brother, the last of her family, in August, 1948, she discussed the making of a will with Krog and Mr. Laraway, a lawyer. She told them that she was not interested in leaving her estate to her relatives inasmuch as they had more money than she did, and, shortly thereafter, in August, 1948, she went to see Frank Kohlhagen of Frankfort, Illinois, a retired businessman, notary public, 80 years of age, and a lifelong acquaintance. She asked him to prepare a will, and he said that he would do so if it was not too complicated. She replied that it was not too complicated as she wanted to leave everything to Mr. and Mrs. Hafka. On August 12, 1948, Miss Studtmann, with two neighbors to act as witnesses, returned to Kohlhagen's home where the will in question was prepared and duly executed. On that occasion she told Kohlhagen that she was living with the Hafkas; she liked them well; that it was her desire that everything should go to them; that they had agreed to take care of her until she died and to give her a decent burial. She also mentioned her relatives and stated that she did not owe them anything and "they are not going to get any of my estate." Miss Studtmann told Dr. W.H. Carr, her personal physician for years, that she was the last of the Studtmanns, and that she wanted everything she had to go to the Hafkas for they had taken good care of her. Later, she had a conversation with Dr. Carr after Mr. Hafka had died, wherein she said that she must change her will as she had meant to leave her property to Harry and Ethel.
Walter Mueller, one of the cousins, also testified. He stopped in to see Krog at the bank shortly before the death of the testatrix. He was told by Krog that his cousin had made a will leaving everything to the Hafkas, whereupon he went to see her about changing the will. He said that he was not interested in having any of the property but wanted to see to it that the church received a larger share. They talked for two and one-half hours, but they did not discuss the subject that prompted his visit. He did not explain his unusual interest in the Trinity Lutheran church at New Lenox, nor did he refute the testimony of the several witnesses that indicated the disaffection that existed between him and his cousin. Another witness, Harold Jacobs, a neighbor farmer, testified that Miss Studtmann told him that Harry and Ethel Hafka were the only ones that treated her right and the only ones that cared anything for her, and that she was going to see to it that all of her property went to the Hafkas. Timely objections were made at the hearing to the competency of the foregoing testimony.
The two legal issues to be resolved on this appeal are: First, was the court in error in striking all the foregoing extrinsic evidence? Second, did it err in interpreting the will of Frieda Studtmann so that Ethel Mae Hafka took only an undivided one-half of the residuary estate? These two questions are so interrelated that they may be considered as one.
The cardinal rule of construction of wills is to ascertain the true intent of a testator. This intention is to be gathered from the words of the will itself, considering the entire will as a whole. However, courts in construing wills have not always limited themselves to the words expressed in the instrument. Where there is an ambiguity, a court is obliged to place itself as nearly as possible in the position of the testatrix to truly ascertain the intent of the testatrix. The will being studied is a simple one; it presents no ambiguous language; and were it not for the death of Harry Hafka, it could not be seriously contended that an ambiguity developed.
If the death of Harry Hafka raises a latent ambiguity, there seems to be no question under the authorities in this State that extrinsic evidence is appropriate to explain, interpret or construe such latent ambiguity. What is a latent ambiguity? Black's Law Dictionary, Third Edition, says: "* * * a latent ambiguity is one where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings." Higinbotham v. Blair, 308 Ill. 568.
In one of the earlier cases frequently cited on this subject, Decker v. Decker, 121 Ill. 341, at page 350, the court said: "While the general rule undoubtedly is, that the intention of the testator is to be gathered from an inspection and consideration of the will, and from no other source, in case of latent ambiguity courts do and must listen to extrinsic evidence, not for the purpose of contradicting or adding to the terms of the will, nor to wrest the words of the testator from their natural operation, but for the purpose of determining the existence or nonexistence of latent ambiguity, (for a latent ambiguity can only be shown by extrinsic evidence,) and for the further purpose of enabling the court to look upon the will in the light of the facts and circumstances surrounding the testator at the time the will was made, whereby to determine the intention of the testator." (Felkel v. O'Brien, 231 Ill. 329; Koelmel v. Kaelin, 374 Ill. 204, 29 N.E.2d 106; Norton v. Jordan, 360 Ill. 419.
This court in the case of Hedlund v. Miner, 395 Ill. 217, 69 N.E.2d 862, evidenced a degree of liberality in the reception of extrinsic evidence in order that it would be in a better position to construe the will under consideration. The testator therein had left his entire estate to his wife, and at the time had no children but was shortly expecting one. The will was executed on October 11, 1941, and the child was born on November 3, 1941. Section 48 of the Probate Act provides that a will making no provision for an after-born child is not effective in regard to such child unless it appears by the will that it was the intention of the testator to disinherit the child. The court considered extrinsic evidence to clarify the plain and unambiguous language of a will made ambiguous by operation of section 48 of the Probate Act. Such evidence indicated that the testator and his wife were happily married and were joyously anticipating the arrival of the child. The will when construed in light of those circumstances evidenced no intention on the part of the testator to disinherit his child born subsequent to his death. Concerning their reliance upon facts not contained in the instrument, the court said: "but the same may be drawn from the language of the will when ...