APPEAL from the Circuit Court of Morgan County; the Hon.
SAMUEL O. SMITH, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Plaintiffs appeal directly to this court from a decree of the circuit court of Morgan County entered in a will construction suit wherein a freehold is involved.
These are the material facts in the case which were stipulated by counsel:
The will of Owen Kiernan, which was duly probated, was executed in 1921, in the second clause of which he devised 80 acres of land as follows:
"* * * to my nephew Owen Gaffney for use during his natural life, and after his decease I give, devise and bequeath the said land to the wife and children of my said Nephew, Owen Gaffney, should any survive him, share and share alike, and in the event no wife or children survive him, I give devise and bequeath the said land to my next eldest nephew surviving for his sole use and benefit forever." (Emphasis supplied.)
At that time and at the time of Kiernan's death on December 10, 1923, he had numerous nephews living, including two nephews younger and eleven older than Owen Gaffney, who died testate on June 12, 1958, leaving no wife, children or descendants him surviving. At the time of Owen Gaffney's death, only two nephews of Owen Kiernan were still living, James Gaffney and Eugene Kiernan, both of whom were older than Owen Gaffney, and none of Owen Kiernan's nephews who were younger than Owen Gaffney survived Owen Gaffney.
It was also stipulated that the residuary clause of Owen Gaffney's will reads as follows:
"All the rest, residue and remainder of my estate of every kind and nature whatever, real or personal, I direct my said executors to convert into cash and divide the same in two equal parts. I direct that one part be paid in equal shares, to my two brothers, James Gaffney and Edward Gaffney of Ireland. I direct that the other part be divided equally between Our Saviour's Hospital of Jacksonville, Illinois, and Our Saviour's Church, Jacksonville, Illinois."
It was further stipulated that both of Owen Gaffney's brothers were living at the time of execution of the will but only James Gaffney survived, Edward having predeceased Owen.
The executor of Owen Gaffney's will and others, as plaintiffs, contend as to Owen Kiernan's will that the term "next eldest nephew" could mean only one younger than Owen Gaffney and that, since there were none living at Owen Gaffney's death answering this description, the devise of the remainder after the life estate lapsed and went to the persons described in the residuary clause of the will, who were all the heirs-at-law of Kiernan, including the Owen Gaffney estate and the defendant James Gaffney. In the alternative, plaintiffs assert such designation is so vague and uncertain as to be void, and thus the remainder falls into the residuary clause.
As to Owen Gaffney's will, plaintiffs contend that the 1/4 share devised to Edward Gaffney lapsed and under section 49 of the Illinois Probate Act (Ill. Rev. Stat. 1959, chap. 3, par. 200) goes to the three remaining residuary legatees in proportions according to their respective interests in the residue.
The defendants James Gaffney and Eugene Kiernan, as surviving nephews of Owen Kiernan, each claim he was the person described in the will as "the next eldest nephew surviving." Eugene Kiernan was born April 9, 1872 and James Gaffney was born September 20, 1874.
James Gaffney also contends that under the will of Owen Gaffney the residuary gift to himself and Edward Gaffney was a "class gift" and that he should receive the full share of Edward Gaffney as sole survivor of the class.
The trial court entered a decree finding that James Gaffney was the person described as the "next eldest nephew surviving" in the will of Owen Kiernan, and that the gift in the residuary clause of Owen Gaffney's will to "my two brothers, James Gaffney and Edward Gaffney" ...