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Evans v. Debruler

MAY 7, 1964.

FLORENCE EVANS AND HAL ATCHISON, PLAINTIFFS,

v.

WANDA L. DEBRULER, INDIVIDUALLY AND AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF MAUDE E. VADAKIN, DECEASED, CHARLES M. HILL, BRYAN GREGORY, BEING THE SAME PERSON AS BRYANT GREGORY, ADLEY GREGORY, BEING THE SAME PERSON AS CHARLES ADLEY GREGORY, THE TRUSTEES OF THE FIRST PRESBYTERIAN CHURCH OF BETHANY, ILLINOIS, A RELIGIOUS CORPORATION, JANE EVANS SPARR, BEING THE SAME PERSON AS JANE EVANS, ET AL., DEFENDANTS. FLORENCE EVANS AND JACK ATCHISON, ADMINISTRATOR OF THE ESTATE OF HAL ATCHISON, DECEASED, PLAINTIFFS-COUNTERDEFENDANTS, APPELLANTS-CROSS APPELLEES,

v.

WANDA L. DEBRULER, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF MAUDE E. VADAKIN, DECEASED, AND ALICE HITPAS, DEFENDANTS-APPELLEES, AND BRYAN T. GREGORY AND CHARLES A. GREGORY, DEFENDANTS-COUNTERCLAIMANTS, APPELLEES-CROSS APPELLANTS, AND CHARLES M. HILL, DEFENDANT-APPELLEE AND CROSS APPELLEE.



Appeal from the Circuit Court of Moultrie County; the Hon. ROBERT W. MARTIN, Judge, presiding. Affirmed in part and reversed and remanded in part with directions.

SPIVEY, J.

This is an appeal from a decree of the Circuit Court of Moultrie County construing Paragraph Fifth of the last will and testament of Maude E. Vadakin, who died on May 31, 1962, widowed and childless.

Mrs. Vadakin was the youngest member of a family of nine girls and two boys. On March 7, 1947, at the age of 72 years she executed her last will and testament. On January 28, 1960, she executed a codicil to her will which in no way altered or affected the provisions of Paragraph Fifth.

Three childless sisters who preceded Mrs. Vadakin in death and the heirs of two brothers who preceded Mrs. Vadakin in death were disinherited by Paragraph Sixth of the Will.

On the date of the execution of the Will, there were only three living sisters of the family of eleven, in addition to Mrs. Vadakin. Gertrude Van Arsdol (Gertrude May Van Arsdol) was 79 years of age, widowed and childless. Clara Rose (Clara Frances Rose) was 81 years of age and likewise widowed and childless. Florence Gregory (Iskay Florence Gregory) was 85 years of age, widowed, with two living sons, Bryant Gregory (Bryant T. Gregory) and Charles Adley Gregory.

Viola Etta Atchison, a sister not named in the Will, who predeceased Mrs. Vadakin, left surviving her Florence Evans and Hal Atchison, who were both living at the time of the execution of the Will. Elizabeth Artless Hill, a sister not named in the Will, who predeceased Mrs. Vadakin, left surviving her one son, Charles M. Hill, who was living at the time of the execution of the Will.

At the time of the execution of the Codicil on January 28, 1960, her three sisters named in Paragraph Fifth were deceased. At the time of the death of Mrs. Vadakin the nephews and nieces above referred to survived.

By other clauses of her will she devised or bequeathed to Florence Evans $500; Hal Atchison $500; Charles Adley Gregory $2000; and Bryant Gregory 120 acres of land.

Paragraph Fifth of her will provided, "FIFTH: It is my further desire and I hereby direct that my Executor shall out of the remainder of my estate, pay the Federal Estate Tax, if any, and the State Inheritance Tax upon bequests previously made by me. After the payment of all claims, expenses of administration and bequests and taxes thereon, the funds remaining shall be divided into three (3) equal shares and one share given to each of my three (3) sisters, namely: Clara Rose, Gertrude Van Arsdol and Florence Gregory. In the event of the death of any of my three (3) sisters above named leaving no surviving child or children, then the share of the deceased sister shall be divided equally among the surviving sisters and the surviving child or children of other deceased sisters. In the event of the death of any of the above mentioned sisters leaving surviving child or children, then the children shall receive the share of the deceased mothers."

In addition to the facts hereinabove recited oral testimony was offered on behalf of Florence Evans and Hal Atchison to the effect that they and their families, as well as Bryant and Charles Adley Gregory on occasion visited with Maude E. Vadakin, and that the decedent had on occasion mentioned Charles M. Hill.

The Circuit Court, in construing Paragraph Fifth of the will, held that the residue provided therein should be distributed as follows:

Florence Evans, one-sixth of two-thirds of the residuum, or a total of two-eighteenths; Hal Atchison, one-sixth of two-thirds of the residuum or a total of two-eighteenths; Charles M. Hill, one-third of two-thirds of the residuum or a total of four-eighteenths; Charles Adley Gregory, one-sixth of two-thirds of the residuum and one-half of one-third of the residuum or a total of five-eighteenths; and Bryant Gregory one-sixth of two-thirds of the residuum and one-half of one-third of the residuum or a total of five-eighteenths.

Plaintiffs-appellants, Florence Evans and Hal Atchison, contend that a proper distribution would be one-third of the residue per capita to Charles Adley Gregory and Bryant Gregory, and two-thirds of the residue to Florence Evans, Hal Atchison, and Charles M. Hill per capita.

Bryant Gregory and Charles Adley Gregory, as defendants-cross appellants, contend that they should receive all of the residue per capita, or in the alternative as defendants-appellees that the distribution should be one-third of the residue to Charles Adley Gregory and Bryant Gregory per capita, and two-thirds of the residue to Florence Evans, Hal Atchison, and Charles M. Hill, Bryant Gregory and Charles Adley Gregory per capita.

Charles M. Hill, defendant-appellee and cross appellee, contends the distribution should be one-third of the residue to Charles Adley Gregory and Bryant Gregory, per capita, and two-thirds of the residue to Florence Evans, Hal Atchison, and Charles M. Hill per stirpes.

It is agreed by all parties concerned that Charles Adley Gregory and Bryant Gregory are entitled to receive one-third of the residuary per capita by virtue of the last sentence of Paragraph Fifth which reads, "In the event of the death of any of the above mentioned sisters leaving surviving child or children, then the children shall receive the share of the deceased mother."

Because the three sisters named in Paragraph Fifth of the Will predeceased Maude E. Vadakin, we are called upon to interpret the second sentence of Paragraph Fifth which provides, "In the event of the death of any of my three (3) sisters above named leaving no surviving child or children, then the share of the deceased sister shall be divided equally among the surviving sisters and the surviving child or children of other deceased sisters." In other words, we must determine the proper distribution of two-thirds of that portion of the estate passing under Paragraph Fifth of the Will of Maude E. Vadakin.

In the construction of wills the established principle which has been universally received and repeated in virtually every will construction case is that the intention of the testator will prevail and effect will be given to that intention unless it is contrary to some established rule of law or public policy. (McGlothlin v. McElvain, 407 Ill. 142, 95 N.E.2d 68; Dahmer v. Wensler, 350 Ill. 23, 182 N.E. 799.)

The intention is not that which by inference may be presumed to have existed in the mind of the testator but that which by the words used in the will has been expressed. (Pontius v. Conrad, 317 Ill. 241, 148 N.E. 17, ...


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