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Schoendienst v. Fink

MAY 21, 1965.

OSCAR SCHOENDIENST, EXECUTOR OF THE LAST WILL AND TESTAMENT OF SALLIE SADLER NORCROSS, DECEASED, PLAINTIFF-APPELLEE,

v.

JORDAN FINK, WILENE FINK SMITH, FIRST METHODIST CHURCH OF CARLYLE, ILLINOIS, A RELIGIOUS CORPORATION, IMMANUEL UNITED CHURCH OF CHRIST, CARLYLE, ILLINOIS, A DULY ORGANIZED UNINCORPORATED RELIGIOUS ASSOCIATION, FIRST BAPTIST CHURCH OF CARLYLE, ILLINOIS, A DULY ORGANIZED UNINCORPORATED RELIGIOUS ASSOCIATION, FERNANDO NORCROSS, ET AL., DEFENDANTS, AND SCOTT LODGE NO. 79, A F & A M, CARLYLE, ILLINOIS, A DULY ORGANIZED UNINCORPORATED ASSOCIATION AND CARLYLE CHAPTER ORDER OF THE EASTERN STAR 518, CARLYLE, ILLINOIS, A DULY ORGANIZED UNINCORPORATED ASSOCIATION, DEFENDANTS-APPELLANTS, AND CARLYLE CEMETERY ASSOCIATION, CARLYLE, ILLINOIS, A GENERAL NOT FOR PROFIT CORPORATION, IRENE DAVIS, ET AL., DEFENDANTS-CROSS APPELLANTS.



Appeal from the Circuit Court of Clinton County; the Hon. DANIEL H. DAILEY, Judge, presiding. Decree affirmed in part, reversed in part, and remanded with directions.

GOLDENHERSH, J.

PER CURIAM:

March 24, 1965. Supplemental opinion,

Sallie Sadler Norcross died testate on October 11, 1962. Her last will and testament executed on April 7, 1959, and a codicil dated June 12, 1961, were admitted to probate. Her executor filed suit to construe the clauses of her will hereinafter set forth.

"EIGHTEENTH — I give and bequeath our home at 710 Fairfax Street in Carlyle, Illinois, to Scott Lodge No. 79 A F & A M, of Carlyle, Illinois, and Carlyle Chapter Order of the Eastern Star 518 of Carlyle, Illinois, with all contents except moneys, stocks and bonds and other personal clothing."

As to this clause, the executor seeks to determine, since the word "devise" was not used, whether the donees were given a fee interest in the real estate, or the gift was of the home and contents only, thus effecting a severance of the improvements from the real estate.

"TWENTIETH — All the rest and residue of my property I give and bequeath to my beloved husband, Henry C. Norcross, if he lives longer than I do. In the event he dies before I do, then and only in that case all the rest and residue of my property is to be divided among the above named legatees in the same proportion as the amount of their legacy as herein specified. I do not wish my blood cousin, H.A. Williams, or his wife to participate in this residuary clause of my Estate."

As to this clause, the executor seeks to determine whether the word "legatee" limits participation in the residuary estate to beneficiaries taking only personal property under other provisions of the will, and whether the "amount of their legacy" to be considered in ascertaining their respective portions of the residuary estate is limited to the value of personal property the legatee receives.

The complaint further states that if the court construes the terms "legatee" and "legacy" as used in the residuary clause (Twentieth supra) so that only the value of the personal property received by a legatee is considered in ascertaining his share of the residuary estate, then the court must construe the following paragraphs from the codicil to testator's will:

"1. I give and devise and bequeath unto Jordan Fink of Columbus, Ohio, nephew of Henry C. Norcross, Deceased, the sum of $1,000.00, and also a proportionate residuary share in my Estate with the other devisees and legatees thereof, as set forth in my last will and testament, provided he outlives me.

"2. I give and devise and bequeath unto Wilene Fink Smith, of Columbus, Ohio, niece of Henry C. Norcross, Deceased, the sum of $1,000.00 and also a proportionate residuary share in my Estate with the other devisees and legatees thereof, as set forth in my last will and testament, provided she outlives me.",

for the purpose of determining whether the gift of "a proportionate residuary share in my estate with the other devisees and legatees thereof" changes the beneficiaries of the residuary estate to include devisees not specifically excluded, and permits considering the value of real estate received by a devisee in determining the proportionate shares in the residuary estate.

Testatrix's husband, Henry C. Norcross, predeceased her. The cousin, H.A. Williams, and his wife, referred to in Paragraph Twentieth, are the devisees of 120 acres of land in another paragraph of the will. These devisees are the only ones specifically excluded from participation in the residuary estate. In the will and codicil, there are 16 specific bequests of money in varying sums, and two devises of real estate other than that involved in Paragraph Eighteenth. In the body of the will, the gifts of money are made in paragraphs which commence "I give and bequeath." The two devises of real estate above mentioned are set out in paragraphs which commence "I give and devise." The two paragraphs in the codicil which make two gifts of money, commence in each instance, "I give and devise and bequeath."

The appellants here are Scott Lodge No. 79 A F & A M of Carlyle, and Carlyle Chapter Order of the Eastern Star 518, hereinafter referred to as appellants. The cross appellants are Carlyle Cemetery Association, Janet Rabus and Irene Davis, to whom testatrix bequeathed money, $1,000 ...


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