Appeal from the Circuit Court of Cook County; the Hon. JOHN J.
LUPE, Judge, presiding. Affirmed.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
The complaint as amended sought construction of certain provisions of a property settlement agreement entered into on June 29, 1953, between decedent and his then wife, Katherine Healy Johnson, presently Katherine Healy Adamson. No testimony was heard, the relevant facts being presented by a stipulation between the parties.
Decedent and Mrs. Adamson were married on April 1, 1935. Two children were born of the marriage, Ray Prescott Johnson III, in November of 1937 (hereinafter referred to as Prescott) and Wendy Katherine Johnson in June of 1949 (hereinafter referred to as Wendy). In June of 1953 the property settlement agreement was executed and a short while thereafter Mrs. Adamson filed her complaint for divorce. The following August a decree of divorce was entered and the property settlement agreement was incorporated as part of the decree. The agreement provided, inter alia, that Mrs. Adamson should have custody of Prescott and Wendy, aged 15 and 4, respectively, at the time of the agreement; that the decedent purchase a home in Michigan for use as the residence of Prescott and Wendy; that decedent contribute $600 monthly toward the maintenance of the home; that decedent provide by will that no less than 50% of his net estate should be placed in trust for the benefit of Prescott and Wendy, subject to certain express conditions; and that any inter vivos gifts made by decedent to Prescott and Wendy after the date of the agreement could be deducted from the 50% share referred to above.
In April of 1956 decedent was married to Alice Boyd Johnson and a son, Boyd, was born of that marriage in 1957. Mrs. Adamson was married to Patrick Adamson in June of 1956. Since the divorce decree in 1953, Wendy has resided with Mrs. Adamson in the Michigan home, but Prescott has married and no longer resides there.
Decedent died in March of 1964 leaving a will dated July 8, 1958, and a codicil dated February 21, 1963, both of which were admitted to probate by the Circuit Court of Cook County, Probate Division, and letters testamentary were issued in May of 1964.
In November of 1964, plaintiffs filed the complaint herein to construe several provisions of the property settlement agreement, namely, whether Paragraph V of the agreement which provided for the creation of the trust for Prescott and Wendy by decedent's will requires the 50% share of the estate to be determined after claims, expenses of probate, attorneys' and executors' fees, and the like; whether the agreement permits decedent to provide by will that certain inter vivos gifts made by him to Prescott and Wendy after execution of the agreement to be deducted from the 50% share; and whether decedent's estate is obligated to continue to pay the monthly home maintenance which decedent was obligated to pay under the agreement. The chancellor found, and the decree recited, that Prescott and Wendy's share should be calculated after deduction of claims, expenses of probate, attorneys' and executors' fees, etc.; that the inter vivos gifts made by decedent to Prescott and Wendy after the execution of the agreement were to be deducted from their 50% share of the estate; and that decedent's estate was not obligated to continue the $600 home maintenance contributions, from which determinations plaintiffs appeal.
The first argument raised by plaintiffs is that the chancellor erred in determining that Prescott and Wendy's share of decedent's estate should be calculated after deduction of claims, expenses of probate, fees, and the like. Plaintiffs maintain that the wording of the settlement agreement requires that the 50% share should be determined only after decedent's debts alone are deducted from the gross estate.
That part of Paragraph V of the property settlement agreement which provides for the creation of the trust for the benefit of Prescott and Wendy sets out:
"Ray Johnson agrees that he will provide by his will that no less than 50% in actual value of his net extate (sic) as composed at the time of his death shall be placed in trust for the benefit of his children, Prescott Johnson and Wendy Johnson . . .; that in the event that only one of said children shall survive [him], that no less than 25% of his net estate as composed at the time of his death will be placed in trust for the benefit of such child, provided he or she survives him."
Plaintiffs contend the words "50% in actual value of his net extate (sic) as composed at the time of his death" and the similar wording near the end of the above quotation, clearly indicate decedent's intention to benefit his two children by providing that the 50% share be calculated after debts alone are deducted from decedent's gross estate. Plaintiffs attempt to buttress their position in this regard by comparing the above quoted wording in Paragraph V of the agreement to that employed in Paragraph IV, which paragraph relates to the alimony payments to be made to Mrs. Adamson. Paragraph IV provides in part:
". . . or if said sum of Two Hundred Forth (sic) Thousand Dollars ($240,000.00) exceeds one-third of the value of Ray Johnson's net estate after payment of all claims, expenses of probate and all estate or inheritance taxes, state and federal. . . .
". . . provided, however, that in no event shall more than one-third of the net estate of Ray Johnson after payment of all claims, expenses of probate and inheritance and estate taxes, state and federal, be used for payments to Katherine Johnson [Mrs. Adamson] hereunder."
Plaintiffs state that the words "actual value of his net extate (sic) as composed at the time of his death" are not synonymous with the words "net estate after payment of all claims, expenses of probate and all estate or inheritance taxes, state and federal," and argue that the absence from Paragraph V of the wording used in Paragraph IV relative to the definition of "net estate" is evidence of an intention of the parties to the settlement agreement that the 50% share be calculated as of the time of decedent's death after debts alone are deducted from the gross estate. We agree with plaintiffs' position that a court, in construing a document, will not add thereto matters about which the document is silent, nor will it reject matters contained therein as mere surplusage, (DeTienne v. S.N. Nielsen Co., 45 Ill. App.2d 231, 234, 195 N.E.2d 240; Weger v. Robinson Nash Motor Co., 340 Ill. 81, 92, 172 N.E. 7). The primary object of judicial construction is to establish the intention of the parties at the time the document was executed from a consideration of the entire document. Gay v. S.N. Nielsen Co., 18 Ill. App.2d 368, 374, 152 N.E.2d 468.
A consideration of the entire property settlement agreement reveals that the parties contemplated remarriage and the possibility of a second family on decedent's part. Paragraph IV specifically limits the alimony to be received by Mrs. Adamson to no more than one-third of decedent's estate after all claims, expenses of probate, taxes, etc., were deducted therefrom, no more than she would have been entitled under the statutes of descent and distribution. In Paragraph V, Prescott and Wendy were given the benefit of 50% of decedent's estate, with the possibility of their receiving less than 50% at the option of decedent. The agreement permits decedent to provide by will that the alimony payments due Mrs. Adamson could be paid one-half out of the Prescott share and the other half out of the Wendy share of the 50% trust. Thus, decedent had the power to provide less than 50% of his net estate to Prescott and Wendy and to limit the portion of his net estate which his first family, Mrs. Adamson, Prescott and Wendy, would receive to 50%. Furthermore, Paragraph V permits decedent to provide that certain inter vivos gifts made by him to Prescott and Wendy after the date of the agreement be deducted from the share to be held in trust for them, indicating that decedent could, by his own choosing, limit ...