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Knight v. Bardwell





APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding.


Rehearing denied March 17, 1965.

By her will and codicils Maud Bayless bequeathed 150 shares of stock of the Texas Corporation to each of the plaintiffs, Helen Knight and Raymond Willis, Jr., and named the Christian Science Pleasant View Home of Concord, New Hampshire, as residuary legatee. Plaintiffs brought this will construction action against the Home and William U. Bardwell, the executor, to determine how many shares each plaintiff is to receive. The controversy is the result of two 2-for-1 stock splits. The first split occurred after the execution of the will but before the execution of the first codicil and the second occurred after the execution of all the codicils but before the death of the testatrix. The trial court awarded 600 shares to each of the plaintiffs but denied both party's petitions for the allowance of attorney's fees. The Appellate Court affirmed, (45 Ill. App.2d 332), and we granted leave to appeal.

The testatrix was the third wife of Benjamin Bayless. The plaintiffs are grandchildren of her husband, and step-grandchildren of the testatrix. During his lifetime Bayless had made a gift to the testatrix of 100 shares of Texas Corporation stock. At the time of his death in 1920 these shares had increased in number to 400 as the result of a stock split. On July 14, 1950, at which time her total Texaco holdings amounted to 1040 shares, (by virtue of stock dividends and additional purchases), the testatrix executed her will which included the following bequest:

"SECOND: Whereas, I have in my safety deposit box in the First National Bank and Trust Company of Evanston, Illinois, among other securities, three hundred (300) shares of the Texas Corporation, which securities came to me from my husband, Benjamin Bayless, and which, other than the Greenwood Inn situated in Evanston, Illinois, comprised a considerable portion of the liquid estate at the time of his death and which, at the present time (July, 1950), are worth approximately $20,000; and

"Whereas, the will of my husband, Benjamin Bayless was set aside as a result of action taken by his son, George Wood Bayless, and his wife, and a new contract was made whereby I have heretofore released to said George Wood Bayless, at his request, all my right, title and interest in and to said Greenwood Inn, except such as according to the contract and also by the original will of my husband, I have by way of annuity; and

"Whereas, my deceased husband's granddaughter, WILHELMINA C. BAYLESS, his only other heir, since deceased without issue, was amply provided for by the terms of his will and by the terms of a subsequent contract relating thereto;

"Therefore, without any obligation on my part but because of my desire to do as I would wish to be done by, I hereby give, devise and bequeath unto WILHELMINA B. WILLIS, daughter of my said deceased husband, the three hundred (300) shares of said Texas Corporation. In case the said WILHELMINA B. WILLIS should die before my death, then I give, devise and bequeath the said shares of stock to such of her two children as may survive me, share and share alike. Certificates for said three hundred (300) shares will be found in an envelope, properly marked, in said safe deposit box."

On May 16, 1951 there was a 2-for-1 split which increased testatrix's holdings to over 2000 shares. On April 12, 1952, she wrote a letter containing the following language to her lawyer: "The 300 shares of Texas must be changed to $12,000 as a bequest to Wilhelmina Willis or her heirs — now that she is gone, — and perhaps the balance of the wordings must also be changed." Approximately two weeks later on May 1, 1952, she executed the following codicil:

"FIRST: In the second provision of my Will I bequeathed three hundred shares of the capital stock of the Texas Corporation unto WILHELMINA B. WILLIS, the daughter of my deceased husband, BENJAMIN BAYLESS, or, in case of her prior decease, to such of her children as might survive me and related my reasons for such legacy. The said WILHELMINA B. WILLIS is deceased and left her surviving HELEN KNIGHT, her daughter and RAYMOND WILLIS, JR., her son. My attitude toward the two grandchildren of my deceased husband has not changed since I signed my Will July 14, 1950, and out of love for my husband I give one hundred and fifty shares of the capital stock of the Texas Corporation as constituted when my will and codicil become effective unto said HELEN KNIGHT and an equal number of said shares of the Texas Corporation stock unto said RAYMOND WILLIS, JR."

Subsequently the testatrix executed two other codicils, neither of which bears upon the issues in this case. In May of 1956 the stock again was split 2 for 1, so that on the date of her death in December, 1956, she owned approximately 4000 shares.

Plaintiffs contend, and the trial and Appellate courts held, that the legacy of 150 shares carried with it the additional shares resulting from the two splits, so that they are each entitled to receive 600 shares. Since the two splits present distinct problems we will analyze them separately. The first split is controlled by the principle that a will and all codicils are to be "read together as one instrument of the date of the execution of the last codicil." (Jackman v. Kaspar, 393 Ill. 496, 511.) Because it is assumed that when a testator executes a codicil he re-examines his entire will and makes whatever changes are necessary, the will and codicil combined are regarded as expressing his intent as of the date of execution of the codicil, even though the codicil does not refer to the specific provision of the will that is in question. In the present case, the codicil dealt specifically with the stock in question. The testatrix had received the additional stock resulting from the 1951 split and, as the Appellate Court held, her awareness seems to have been proved.

The Appellate Court disposed of the fact that this testatrix knew of the stock split when she provided in her codicil that each of the plaintiffs should receive 150 shares upon the ground that there is "uncertainty in predicting what action should be taken because of such awareness, and that very uncertainty has previously led this court to discount the value of awareness as determinative of intent." In the case relied upon by the Appellate Court (Heckler v. Young, 264 Ill. App. 34,) the testatrix, although she knew of the stock split, took no action. But because awareness followed by inaction does not dispel uncertainty, it does not follow that action based upon awareness is to be disregarded. Here the testatrix acted, and the action that she took negates uncertainty. We see no basis in this record upon which a court would be justified in rewriting the bequest of 150 shares to each of the plaintiffs so that it would read, 300 shares to each of the plaintiffs.

The second stock split presents a different problem, for the testatrix did not again alter her testamentary disposition. The issue therefore depends upon what the testatrix intended by her codicil of May 1, 1952. The most noteworthy aspect of the codicil is that the testatrix did not give each of the plaintiffs "150 shares of the capital stock of the Texas Corporation." She gave each of them "150 shares of the capital stock of the Texas Corporation as constituted when my will and codicil become effective." It will not do, we think, to say as the trial court said, that the "as constituted" phrase modifies "Texas Corporation," for that interpretation deprives the phrase of any significance. Its only purpose would then be to prevent ademption if there was a reorganization or recapitalization of the corporation, but under the ...

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