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Otta v. Otta

APRIL 23, 1965.

KENNETH D. OTTA, EXECUTOR OF THE ESTATE OF HENRY A. OTTA, DECEASED, PLAINTIFF-APPELLEE,

v.

MABEL E. OTTA, ET AL., EXECUTOR OF THE ESTATE OF AUGUST T. OTTA, DECEASED, DEFENDANTS AND APPELLEES, AND OPAL TIPPITT, DEFENDANT AND APPELLANT.



Appeal from the Circuit Court of Shelby County; the Hon. RAYMOND O. HORN, Judge, presiding. Decree reversed and cause remanded with directions.

GOLDENHERSH, J.

This is an appeal from the decree of the Circuit Court of Shelby County, construing the Will of Henry A. Otta, deceased.

Henry A. Otta died, testate, on January 3, 1945. His Will, executed on January 6, 1943, was duly admitted to probate. Paragraph Third of his Will created a life estate in his widow, Lillie, in all real estate owned by him. The Will also provided:

"Sixth: Within a reasonable time after the death of my wife Lillie Otta and not to exceed one year thereafter, I direct that my Executor hereinafter named sell all my real estate then remaining undisposed of at the termination of my wife's life estate; said sale to be either public or private and on such terms as my Executor may believe to be to the best interests of my estate. After the payment of any expense of sale he shall distribute the proceeds of sale as follows: To my son August T. Otta one-eighth thereof; and the remaining seven-eighths shall be divided equally between my children Lois Hooper, Alice Shuff, and Kenneth D. Otta. If either of my four last named children is not then living, his or her share shall go to his or her child or children, if any then living, share and share alike. If either of said four children leaves no child or children then surviving, the share of such child shall pass in equal parts to such of my four said children last mentioned as may be then living. In making the foregoing division I have in mind various advancements and financial aid that I have heretofore given to my son August, as well as other considerations which are to me material."

Paragraph Eighth of the Will appointed the executor, empowered him to make, execute and deliver any and all deeds and papers essential to the administration of the estate and concluded:

"I further direct that he shall have full authority as Executor or Trustee to manage and control any and all real estate following my wife's death and until the same is disposed of, collecting rents, paying taxes, and otherwise managing the same; the proceeds thereof to be distributed in the manner in which the proceeds of sale of said real estate is to be divided."

Lillie Otta, testator's widow, died on January 7, 1963. At the time of her death all four of Henry A. Otta's children named in the above quoted paragraph, namely, August T. Otta, Lois Hooper, Alice Shuff and Kenneth D. Otta, were living.

August T. Otta, one of the four children named, died testate on March 25, 1963. His will was admitted to probate and defendant, Shelby Loan & Trust Company, was appointed executor. August T. Otta left surviving him his widow, Mabel E. Otta, and three daughters, Helen Bigos, Lillian Neihl and Opal Tippitt.

On July 29, 1963, at public sale, the executor of the estate of the testator, Henry A. Otta, sold the lands owned by the testator. The defendant, Shelby Loan & Trust Company, as executor of the estate of August T. Otta, claims it is entitled to the one-eighth (1/8) share of the proceeds of the sale to which August T. Otta would have been entitled, were he living. Lillian Neihl and Opal Tippitt, two of August's three surviving daughters, contend that the one-eighth (1/8) of the proceeds of the sale is payable to the surviving children of August T. Otta and not to his estate.

Kenneth D. Otta, executor of the estate of Henry A. Otta, filed this suit to construe the will, naming as parties defendant, Mabel E. Otta, widow of August T. Otta, Helen Bigos, Lillian Neihl and Opal Tippitt, daughters of August T. Otta, Alice Shuff, Lois Hooper and Kenneth D. Otta, the three children of the testator to whom he gave seven-eights (7/8) of the proceeds of the sale of the land, and Shelby Loan and Trust Company, executor of the Estate of August T. Otta. Separate answers were filed on behalf of Mabel E. Otta, the widow, and Shelby Loan and Trust Company, the executor of the estate of August T. Otta. The defendants Kenneth D. Otta, Alice Shuff, Lois Hooper and Helen Bigos entered their appearances and filed no pleadings. The defendants Lillian Neihl and Opal Tippitt filed a joint answer asserting that the children of August T. Otta, and not his estate, were entitled to the one-eighth (1/8) portion of the proceeds of the sale. The plaintiff and the defendants who had answered stipulated the facts as hereinabove set forth, and the cause was submitted to the trial court on the stipulation of facts and pertinent exhibits. The Court rendered its decree construing the Will and held therein that it was the intent of the testator that Lillie Otta, wife of Henry A. Otta, should have a life estate in said real estate, that within one year after her death, the executor of the estate of Henry A. Otta was to sell said real estate and divide the proceeds, after the payment of the expense of the sale, as follows: one-eighth (1/8) thereof to August T. Otta, the remaining seven-eighths (7/8) to be divided equally between Lois Hooper, Alice Shuff and Kenneth D. Otta, if living at the time of the death of Lillie Otta. The Court further found that August T. Otta, Lois Hooper, Alice Shuff, and Kenneth D. Otta were each living at the time of the death of Lillie Otta, and that in accordance with the intent of the testator, one-eighth (1/8) of the funds for distribution was payable to the defendant, Shelby Loan & Trust Company, as executor of the estate of August T. Otta. This appeal is prosecuted by Opal Tippitt, one of the children of August T. Otta.

The issue presented is whether it was the intent of the testator, Henry A. Otta, that the recipients of the proceeds of the sale be determined as of the time fixed for distribution, that is, subsequent to sale of the land, or at some prior time.

The paramount rule of testamentary construction is that the intention of the testator as expressed in his Will governs the distribution of his estate, and the intention of the testator, once it has been ascertained will be given effect unless to do so would violate some settled rule of law or would be contrary to public policy. Sloan v. Beatty, 1 Ill.2d 581, 116 N.E.2d 375.

In the case of Jennings v. Jennings, 44 Ill. 488, the testator, Israel Jennings, Sr., died testate on August 7, 1860. His Will directed his executors to sell such of his lands as were not specifically devised, at public sale, after such notice as his executors thought necessary, the sale to take place as soon after his death as convenient. It further provided that after payment of debts, expenses, and bequests, the residue be divided equally between four named children, and in the event of their death or deaths, their children to take their respective interests. The testator's son, Israel Jennings, Jr., died intestate on September 19, 1861, leaving a widow and several children. The testator's lands were sold on May 25, 1863. The Supreme Court held that no present interest passed to Israel Jennings, Jr., as the land was not converted into money until after his death, and that by the express terms of the Will of Israel Jennings, Sr., Israel Jennings, Jr.'s share went to his children.

In the case of Banta v. Boyd, 118 Ill. 186, 8 N.E. 671, Elijah Iles died testate on September 4, 1883. His Will authorized and empowered his executors to sell his property, both real and personal, "in manner and on such terms as they may deem best," and pay the proceeds to certain named children of testator's sister and other named relatives. It further provided that in the event of the death of any one named, his portion be paid to his offspring, and if no offspring, it be deemed lapsed. Spencer Boyd, one of the named nephews died on September 17, 1883, thirteen (13) days after the testator, leaving surviving children. The Court held that it was not the property which was ...


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