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In Re Estate of Capasso

JANUARY 25, 1965.

IN THE MATTER OF THE ESTATE OF JOHN CAPASSO, DECEASED. DAVID P. KRASNER, EXECUTOR OF THE ABOVE ENTITLED ESTATE, PETITIONER-APPELLEE,

v.

ROSE CAPASSO, RESPONDENT-APPELLANT, RICHARD MONDA, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County, Probate Division; the Hon. ROBERT JEROME DUNNE, Judge, presiding. Affirmed. MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

On the petition of the executor of the estate of John Capasso, deceased, and after hearing evidence, the Probate Division of the Circuit Court of Cook County entered a decree which construed decedent's will so as to include after acquired real estate in a devise to respondent, Richard Monda, a half-brother of the decedent. Respondent Rose Capasso, widow of the decedent, and residuary legatee, appeals from the decree, contending that the after acquired real estate should go to her under the residuary clause.

John Capasso executed his will on October 5, 1949, and died on December 27, 1963. Thereafter, the will was admitted to probate. At the time of his death, he was the beneficiary of a land trust, which held title to seven adjoining lots known as Lots 18, 19, 20, 21, 22, 23 and 24 in Block 5 in Feuerborn and Klode's Second Addition to Irvingwood, etc., improved with two buildings and a parking lot. The common address is 8348-54 West Irving Park Road.

The land trust agreement, identified as Trust No. 7123, was dated July 6, 1949, and it named John Capasso as the sole beneficiary. The corpus of the trust was comprised of three parcels of land. One of these parcels consisted of Lots 22, 23 and 24, which were identified as the "North East corner of Irving Park Road and Cumberland Road." In the following years, four contiguous lots were placed in the trust. The disposition of these after acquired lots, 18, 19, 20 and 21, forms the subject matter of the instant dispute.

In 1952, John Capasso built a building, located exclusively on Lots 22, 23 and 24. On June 15, 1953, Lots 20 and 21 were conveyed into the trust. On or about that date, the trustee executed a trust deed and note for $25,000 covering Lots 20, 21, 22, 23 and 24. In 1954, John Capasso built an addition to the 1952 building, which addition occupied the balance of Lots 22, 23 and 24, and all but three feet of Lot 21. A party wall separated these two buildings, but they were connected by an entrance way.

On June 19, 1957, Lots 18, 19 and 20, of the above description, were conveyed into the trust, and the trustee executed a note and mortgage for $22,000 on Lots 18 through 24. On Lots 18, 19 and 20, a paved parking lot was constructed for the exclusive benefit of the adjoining buildings. From 1957 to John Capasso's death, all seven lots remained in Trust No. 7123.

Subsequent to the issuance of letters testamentary, the executor filed a petition, praying for the construction of the will insofar as it relates to the four lots acquired after the execution of the will, stating that both Rose Capasso, as residuary legatee, and Richard Monda, as a specific legatee, claimed the four lots in question.

The material provisions of the will are as follows:

"Third: I hereby give, bequeath and devise unto the said Richard Monda, all of my right, title and interest in and to my beneficial interest in Trust No. 7123, specifically pertaining to the property located at the North East corner of Irving Park and Cumberland Road in Cook County, Illinois, right, title and interest to which is held by the Trust Company of Chicago, as Trustee.

"Seventh: I hereby give, devise and bequeath the rest and residue of my estate, of every kind and description, whether it be real, personal or mixed, not hereinbefore disposed of, to my beloved wife, Rose Capasso.

"Ninth: I hereby order and direct my executor to issue written instructions to the Trust Company of Chicago, as Trustee, under Trust No. 7123, directing it to transfer, assign or convey all of my right, title and interest in and to my beneficial interest to Lots 22, 23 and 24 in Block 5 in Feuerborn and Klodes Second Addition to Irvingwood . . . in Cook County, Illinois, and otherwise known as the North East corner of Irving Park and Cumberland Road, to my beloved half-brother, Richard Monda, as soon after my death as can conveniently be arranged."

The court, after hearing the evidence offered by the interested parties, found that it was the intention of John Capasso to bequeath "unto Richard Monda all of the real estate involved herein . . .," and decreed that the will be construed "to bequeath to Richard Monda all of the decedent's beneficial interest to the following described real estate, including the buildings and appurtenances located thereon: Lots 18, 19, 20, 21, 22, 23 and 24 in Block 5. . . ."

Rose Capasso argues that the will is clear and unambiguous, so that the intention of the testator must be ascertained from the language of the will itself; that paragraph 3 of the will devises to Richard Monda "the property located at the North East corner of Irving Park and Cumberland Road"; and that paragraph 9 of the will should be read as specifically defining the "North East corner" as including only Lots 22, 23 and 24. She argues that the devise to Richard Monda in paragraph 3 does not include the after acquired Lots 18 through 21, and that these lots pass to her under the residuary clause of the will, paragraph 7.

Richard Monda contends that "all of the lots are one physical unit and comprise the north east corner of Irving Park and Cumberland Road; that a gift of the same, unlimited and unqualified, is made by paragraph Third of the testator's will; that paragraph Ninth is not a bequest but administrative detail; that all of the lots are included in Trust No. 7123 . . .; that . . . after acquired property may pass by the will even though it were not described in the will; . . . and that therefore the trial court's construction that John Capasso intended that Richard Monda should have the whole of the piece — all seven lots and improvements thereon — is sound, proper and reasonable."

[1-4] At the outset, we agree with respondent, Rose Capasso, that the cardinal rule in construing the will is to give effect to the intention of the testator, and the testator's intention is to be gathered from a consideration of the language of the entire will rather than any particular clause, phrase or sentence. It is only where an ambiguity or uncertainty exists that the courts may consider the surrounding circumstances. (Watkins v. Nobiling, 22 Ill.2d 290, 292, 174 N.E.2d 858 (1961); Hoge v. Hoge, 17 Ill.2d 209, 212, 161 N.E.2d 117 (1959).) The intention of the testator, when clearly expressed, must be given effect in preference to ...


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