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Continental Ill. Nat. Bank v. Eliel





APPEAL from the Superior Court of Cook County; the Hon. JOHN A. SBARBARO, Judge, presiding.


This suit was filed in the superior court of Cook County by the successor trustee of a testamentary trust established by the provisions of the will of Rosa G. Newman, deceased, to construe the terms of that will. A decree was entered in the trial court upon a finding of facts by the court from the allegations of the complaint which were admitted by all the parties and the uncontested statement of facts made by counsel at the hearing. The findings are that Rosa G. Newman died February 21, 1923, and her last will and testament was executed February 4, 1922. By the terms of her will, after making certain specific legacies, she left the remainder of her estate in trust, and the trustee was directed to pay to her nephew, Joseph A. Kulscar (also known as Joseph A. Newman) the sum of $234 per month for his lifetime. She provided that upon his death, if he married and left issue, her "interest in the B. Grossman Estate" should be paid to the surviving legal issue of Joseph A. Kulscar. Joseph A. Kulscar did not marry and he died February 13, 1957. In such event, the will provided that upon his death the testatrix's "interest in the B. Grossman Estate should revert back to the heirs of the B. Grossman Estate."

Rosa G. Newman was one of the nine children and heirs-at-law of B. Grossman, who died in 1890, leaving certain real estate at 114 South State Street in Chicago. He devised this real estate equally to his nine children who were his heirs-at-law. The devise was outright to eight of his children, but the interest of his daughter, Hannah Kulscar, was placed in trust for her benefit, to pass on her death equally to her brothers and sisters. Hannah Kulscar died in 1891, and her interest therein passed to her eight brothers and sisters. Thus at the time of her death, Rosa G. Newman was the owner of an undivided one-eighth interest in said property.

At the death of Rosa G. Newman, six children of B. Grossman survived, namely, Edward Grossman, Herman Grossman, Theresa Eliel, Fannie Byfield, Antonia Maas, and Lena Fernbach. At Joseph A. Kulscar's death, only Theresa Eliel survived of all the children of B. Grossman.

All of the defendants in this cause, being all of the persons who could or might claim an interest in the trust estate by descent, purchase, or assignment, defaulted except Theresa Eliel and Hortense Yondorf. Hortense Yondorf is the only heir-at-law of Herman Grossman, a brother of Rosa G. Newman and a son of B. Grossman. These two defendants are in dispute as to the meaning and legal effect of the term "heirs of the B. Grossman Estate" as used in the will of Rosa G. Newman.

Theresa Eliel contends that the word "heirs" was used in its ordinary legal sense to designate those persons who were the heirs of B. Grossman at the time of his death — his nine then living children. However, at the death of Rosa G. Newman only six of the children who were members of the class designated as the "heirs of the B. Grossman Estate" were alive. She insists that only such heirs were meant to be contingent beneficiaries under said will; and at the time of the death of Joseph Kulscar she, Theresa Eliel, was the only one of such contingent beneficiaries alive.

Defendant Hortense Yondorf advances several different theories to support her claim to a part of the estate of Rosa G. Newman. The first was that Rosa G. Newman, by her will, made a gift of a contingent remainder to a class of persons to be ascertained as if the ancestor, Benjamin Grossman, had died at the same time as Joseph Kulscar, and that all persons who would have been the heirs of Benjamin Grossman if he had died at such time should share in the remainder interest in the trust on that basis.

The second alternative theory of Hortense Yondorf is that if the "heirs of the B. Grossman Estate" are to be ascertained in a technical sense, then the gift is not one to a class but to specific identified individuals — the nine heirs of Benjamin Grossman — to vest upon the death of Joseph Kulscar. She claimed then that the gift to Theresa Eliel was only a one-eighth interest in her estate, and the remaining seven-eighths would lapse due to the death of the devisees, and would descend to the legal heirs-at-law of Rosa G. Newman as intestate property.

She finally contends that the gift was to a class composed of the heirs of B. Grossman, meaning those who would have been his heirs at the death of Joseph Kulscar, vesting according to representation, per stirpes, of the individual members of the original heirs of B. Grossman. Thus she contends that both she and Theresa Eliel would be entitled to a one-seventh interest.

The trial court decreed that the gift was a gift to a class determined as of the date of the death of B. Grossman, that the surviving members of the class receive the shares of any deceased members at the time of distribution, and Theresa Eliel being the only surviving member is entitled to the entire gift. The corpus of the trust including an interest in real estate, a freehold is involved, and appeal is brought directly to this court.

The paramount rule of testamentary construction of a will is to ascertain the intention of the testator as expressed in his will, and to give effect to such intention in the distribution of his estate, unless to do so would violate some settled rule of law or be contrary to public policy. Stites v. Gray, 4 Ill.2d 510; Golstein v. Handley, 390 Ill. 118; Peck v. Drennan, 411 Ill. 31.

Hortense Yondorf agrees that this is a correct statement of the law. In accordance with this principle she insists that the expression "the heirs of the B. Grossman Estate" as used in this will was not used in its technical sense as meaning those who were the heirs of Benjamin Grossman at the time of his death, but those who would have been his heirs had he died at the date of the death of Joseph Kulscar, the life annuitant. She contends that this is a more reasonable interpretation of the testatrix's intention, gathered from the words used in light of the language of the will, the nature of the will, and the circumstances of her family. She argues that the testatrix could not reasonably have expected any of her brothers and sisters to survive her nephew, Joseph Kulscar, and it is unreasonable that she intended her estate to go to persons whom she would expect to be dead by the date of distribution.

Theresa Eliel contends, however, that since the testatrix used the words "heirs of the B. Grossman Estate" in describing the contingent remaindermen, without the use of any language inconsistent with the technical meaning of the word "heirs," it is presumed that she used it in its technical sense, and that it thus refers to those persons appointed by law to inherit the estate of Benjamin Grossman at his death — his nine children. Hull v. Adams, 399 Ill. 347, 351; Gridley v. Gridley, 399 Ill. 215; Stites v. Gray, 4 Ill.2d 510.

We have carefully examined the many and various cases cited to this court by Hortense Yondorf in support of her assertion that the technical and commonly accepted and generally understood legal meaning of the word "heirs" should and must give way to a "more reasonable" meaning upon which she relies. In support of her assertion that the words in a will should be given the most reasonable meaning in view of the facts of the particular case, she cites the cases of Auger v. Tatham, 191 Ill. 296; Abrahams v. Sanders, 274 Ill. 452; Ward v. Caverly, 276 Ill. 416; Levings v. Wood, 339 Ill. 11; and Stagg v. Phenix, 401 Ill. 134. We do not disagree with the statements contained therein that the reasonable interpretation of the testator's intent is to govern, but in all of those cases the construction found to be reasonable is that ...

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