APPEAL from the Superior Court of Cook County; the Hon. JOHN
J. LUPE, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
This appeal comes from the superior court of Cook County wherein a decree was entered construing the last will and testament of Mrs. Augusta Czerwenka. Edde K. Hays, executor, filed the complaint herein requesting an interpretation of the will and an instruction as to what distribution to make under the will. The appeal is properly directed to the court since it relates to a matter in which the State has an interest.
Mrs. Czerwenka's will and codicil were admitted to probate in the probate court of Cook County, December 28, 1955, and letters testamentary were issued to the plaintiff, Hays. Article VI of the will, among other things, provides that a part of the residue should be disposed of as follows:
"One-third thereof to The Illinois Industrial Home for the Blind (commonly called Lighthouse for the Blind) 1900 Marshall Boulevard, Chicago 23, Illinois."
The executor, through his attorneys, petitioned the superior court for a construction of this provision. The trial court after hearing extrinsic evidence on the matter decided that there was a latent ambiguity created by the language used in the provision. The court then admitted additional extrinsic evidence in order to remove the ambiguity and construed the will as passing a one-third interest to the Chicago Lighthouse for the Blind.
The following facts were established by this additional evidence. In November, 1952, Mrs. Czerwenka, a widow nearing ninety years of age, consulted with Edde K. Hays, her business adviser, in connection with the drawing of a new will. She advised Hays that she wished to leave her residuary estate to charity, one third thereof to the Lighthouse for the Blind. She then asked Hays to have her attorney draft the will in accordance with her wishes. She did not mention the name of Illinois Industrial Home for the Blind during that conversation or at any other time in Hays's presence, nor did she mention an address for the Lighthouse for the Blind.
The next day Hays wrote and mailed a letter to Mrs. Czerwenka's attorney outlining in general terms the disposition she wished for her estate. With respect to the residuary clause, the letter stated:
"The remainder of the estate to be divided equally among The Lighthouse for the Blind, The Crippled Children and the German Orphan's Home."
The attorney turned this letter over to his secretary for the purpose, among others, of verifying the accuracy of the name "The Lighthouse for the Blind." The following day the attorney's secretary handed him a memorandum which stated in part:
"The Lighthouse for the Blind: correct name is The Illinois Industrial Home for the Blind, 1900 Marshall Boulevard, Chicago 23, Illinois."
The attorney having received no further instructions as to the drafting of the will, prepared the will, and, relying on the information furnished him by his secretary, he drafted the provision in question as follows:
"One-third thereof to The Illinois Industrial Home for the Blind (commonly called Lighthouse for the Blind), 1900 Marshall Boulevard, Chicago 23, Illinois."
The Industrial Home contends that the trial court erred in admitting this extrinsic evidence as an aid in construing article VI of the will for the following reasons: (1) that the language of the article is not ambiguous but clearly and plainly provides that it is to receive the one-third share, (2) that if the article is ambiguous, the ambiguity is patent and calls for construction by the court without the aid of extrinsic evidence; and (3) that if extrinsic evidence is admissible to remove a patent ambiguity, it is limited to showing the circumstances under which the testatrix published the will. These three contentions will be considered together because of their interrelation.
The issue raised in all three contentions is whether the trial court erred in deciding that the language as used in the questioned provision created a latent ambiguity. In Krog v. Hafka, 413 Ill. 290, a latent ambiguity is defined as 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 of a choice among two or more possible meanings. It is necessary, then, to decide whether the language used in article VI of the will is clear and intelligible and suggests but a single meaning. No one reading the will could know that the language used was defective, obscure and insensible. It is clear and intelligible and ...