APPEAL from the Circuit Court of Richland County; the Hon. ROY
O. GULLEY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
The executors of the will of Lottie Lucas Lutz, deceased, filed a petition for construction of her will, and joined the beneficiaries thereunder as defendants. They alleged that the beneficiaries named in clause III of the will claim the oil royalty and mineral interest described therein, while the residuary beneficiaries claim the same property. Seven of the residuary beneficiaries appeal the decree of the circuit court of Richland County awarding the oil royalty and mineral interest to the clause III beneficiaries.
Lottie Lucas Lutz, a resident of Olney, Illinois, died testate August 19, 1961, and her will was duly admitted to probate. Letters testamentary were issued to John C. Weber and Emanuel Miller. Her will provides:
"I. [Payment of expenses and debts.]
II. [Specific devises of real estate to her niece, Florence Hawkins, and to Nelle Miller, respectively.]
III. Upon my death it is my will that the Lucas Farm, consisting of 340 acres more or less, be sold and proceeds divided equally between Dorothea Burgener, Karl McWilliams and Alden Fleming. And should any of these beneficiaries be deceased at the date of my death, their respective interests in said bequests shall pass to their heirs at law to be determined at the date of my death. It is my will that the oil royalty and other mineral interests underlying said premises be reserved to beneficiaries named hereafter, for a period of 15 years from the date of my death or in the event production of any such minerals or oil is obtained, extend that period as long thereafter as such minerals and/or oil may be produced in commercial quantities. Be it further provided that said Executor shall, before offering said property for sale, give the three named beneficiaries first opportunity to purchase any part or all of said property at appraised value.
IV. [Specific bequests of furniture or keepsakes to Nelle Miller, Florence Hawkins, Dorothea Burgener, Gloria Mlekush, Helen McLaughlin and Beulah Clements.]
V. Upon my death it is my will and I hereby devise all of my shares in the Olney Loan and Building Association or Olney Savings and Loan Association, Olney, Illinois, to Beulah Clements; all of my stock in the First National Bank in Olney, Olney, Illinois, to Nelle Miller; and all my livestock and farm equipment to Emanuel Miller; provided that should either or both Nelle Miller or Emanuel Miller fail to survive me, their respective bequests shall pass under the residuary clause of this will, to my heirs at law. Upon my death it is my will and I hereby devise and bequeath to my sister, Lora Bowlby, $5000.00 in E Bonds conditioned upon my sister surviving me. If she should fail to survive me, they shall be divided among my other heirs, as provided in the residuary clause of this Will.
VI. All the rest and residue of my estate of whatsoever nature and description I hereby order and direct that same be sold and converted into cash and the proceeds thereof distributed and divided as follows: a one-fifteenth share each to Frank West, Lowell West, James West, Helen McLaughlin, William Cazel, Robert E. Cazel, Austin Cazel, Beulah Clements, Lora Bowlby, Leo Bowlby, Clara Honecker, Joseph Bowlby, John Bowlby, Florence Hawkins and Carl Bowlby. And be it further provided that it is my intention, desire, and will that should any beneficiary named in this will predecease me in death, their interest in my estate shall pass to their surviving heirs at law to be determined as of the date of my death and this provision shall be used as construing the entire will unless otherwise designated.
VII. [Disposition of clothing and personal effects.]
VIII. [Nominates Executor.]"
At the time of her death Lottie Lucas Lutz owned the "Lucas Farm", a 340-acre farm situated in Richland County, and on which were located producing oil wells.
John C. Weber and Emanuel Miller, co-executors, filed their petition for construction of the will with the circuit court of Richland County and named all 21 beneficiaries under the will as defendants. They alleged that the residuary beneficiaries construed the will as devising the oil royalty and mineral interest described in clause III to them, while the beneficiaries named in clause III, Dorothea Burgener, Karl McWilliams and Alden Fleming, construed the will as giving this interest to them. The appellants and Lora Bowlby, who died during the pendency of the action and whose interest passed to her children, six of the appellants, answered alleging that the oil royalty and mineral interest devised by clause III passed to them as the named beneficiaries in the residuary clause. Dorothea Burgener, Karl McWilliams and Alden Fleming answered, asserting that the phrase "named hereafter" was a scrivener's mistake and that the will, properly construed, gave them the reserved oil royalty and mineral interest. The remaining defendants defaulted or filed disclaimers.
Upon hearing, the parties stipulated that the testatrix had been married to Dr. Clinton E. Lucas, who died in 1958. In 1954 Dr. Lucas had placed the "Lucas Farm" in joint tenancy with his wife, the testatrix. The "Lucas Farm" had been owned by the Lucas family for many years, and a large portion was inherited by Dr. Lucas from his father; parts were acquired by the Lucas family as early as 1882. Dorothea Burgener, Karl McWilliams and Alden Fleming were niece and nephews to Dr. Lucas, but no relation to testatrix. The 15 residuary beneficiaries are all ...