Appeal from the Circuit Court of Lake County, Probate
Division; the Hon. LAVERNE A. DIXON, Judge, presiding. Order
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 6, 1966.
This is an appeal from an order entered April 1, 1965, in the Circuit Court of the 19th Judicial Circuit, Lake County, Probate Division, construing the will of Georgine A. Lynch, deceased. The construction question was raised in a citation proceeding by the administrator de bonis non with the will annexed (herein called the administrator) against the National Boulevard Bank of Chicago (herein called the Bank) as Executor and Trustee under the will of William Maehler, the former executor of the will of Georgine A. Lynch, deceased, to recover the residuary assets of the estate.
The will in question contained the customary introductory clause, followed by Item I which provided:
"I hereby nominate, constitute and appoint my brother, William Maehler of Kenmore Avenue, Chicago, Illinois, the Executor of this my Last Will and Testament and for the purpose of converting my real estate into money I authorize and empower my said Executor to sell the same."
Items II and III contained the testator's request that her executor serve without bond, and directed the payment of her debts and funeral expenses. Item IV set forth specific bequests to her four brothers, to numerous friends and to her step-daughter, and then further provided:
"I give, devise and bequeath all the rest and residue of my property, real, personal and mixed, of which I may die seized or possessed, to my brother, William Maehler, for him to distribute amongst the other heirs or retain as he in his own best judgment may decide.
"Should my brother, William Maehler, predecease me, or be dead at the time or before my estate is settled, I nominate and appoint my brother, Richard Maehler, my Executor with the same powers as herein given the Executor including the distribution of the residue."
Georgine A. Lynch died testate on September 3, 1960, a resident of Lake County, Illinois, leaving her four brothers as her only heirs. Her will was admitted to probate December 16, 1960, and letters testamentary issued to her brother, William Maehler, on that date. He published for claims, and filed an inventory of the estate property. The claim period expired August 16, 1961, and thereafter he paid all claims against the estate. In the due course of administration of the estate, he filed income, inheritance and estate tax returns and paid the taxes assessed on such returns; paid to the proper recipient, a specific legacy of $500, as provided for under the terms of the will; and caused the specific bequests in kind, provided for in the will, to be delivered to the persons named therein.
In November 1963, he initiated the transfer of the corporate stocks, which constituted the residue of the estate, from himself as executor, to himself individually, as authorized under the residuary clause of the will. This transfer was completed in December 1963. Thereafter, on February 24, 1964, William Maehler died; his will was admitted to probate and the Bank was appointed executor and trustee of his estate.
It was the theory of the appellee, and the trial court held, that the estate was "settled" as that term was used in the will; that consequently, pursuant to the terms of the Georgine A. Lynch will, William Maehler was individually entitled to the residuary assets of her estate, which were transferred to him; that such assets were a part of his personal estate; and that the relief prayed for in the petition for citation should be denied.
The appellant-administrator contended in the trial court, and urges on appeal, that the executor was not given a gift in his own name and that he had no power to distribute the residuary assets prior to the fulfillment of the condition in the will that the "estate is settled"; and that these residuary assets should be returned to the Georgine A. Lynch estate. The administrator argues that there was no gift to William Maehler in that he died before the estate was settled and that the will specified the settlement of the estate as a condition precedent to distribution of its residuary assets.
Item I of the will nominated and appointed William Maehler as executor and gave him the power to sell the testator's real estate for the purpose of converting it into money. The last paragraph of Item IV, which reads:
"Should my brother, William Maehler, predecease me, or be dead at the time or before my estate is settled, I nominate and appoint my brother, Richard Maehler, my executor with the same powers as herein given the ...