Appeal from the Circuit Court of Macoupin County; the Hon.
PAUL C. VERTICCHIO, Judge, presiding. Affirmed.
In this will construction case plaintiffs seek a decree finding Clause Two of the will of Nelle G. Stewart, deceased, is a devise to a class. Plaintiffs appeal a trial court decree rendered for defendants.
Nelle G. Stewart, of Girard, Illinois, died on May 29, 1965, leaving a duly executed will dated March 3, 1959, and containing ten dispositive clauses. The first clause directed payment of debts and funeral expenses. The second clause, the interpretation of which is the sole issue in this case, provided:
"Through the Will of my late husband, Dr. Frank A. Stewart, I received an undivided one-fifth (1/5) interest in two hundred sixty-one and thirty-eight hundredths (261.38) acres of farm lands located in Sections Twenty-eight (28), Twenty-nine (29), Thirty-two (32) and Thirty-three (33) in Township Fourteen (14) North, Range Four (4) West of the Third Principal Meridian in Sangamon County, Illinois, and believing as I do that those farm lands should go back to my late husband's side of the house, I therefore give; devise and bequeath my one-fifth (1/5) interest in said farm lands as follows: One-half (1/2) of my interest therein to Stewart Wilson, a nephew, now living in Birmingham, Michigan and One-half (1/2) of my interest to Gene Burtle, a nephew, now living in Mission, Kansas."
Clauses three and four made bequests of personalty to Ina Mae Yucus, Lola Eades, Hazel Degelow and Ella Hickey. Clauses five, six and seven made bequests of cash to charities. Clause eight provided for the payment of a reasonable allowance to Ina Mae Yucus or Hazel Degelow should illness make it necessary for the testatrix to live in either of their homes. Clause nine directed the executrix to convert all "the rest, residue and remainder of my property . . . of whatever kind and character and wheresoever situate, including void or lapsed legacies . . . into cash . . . and the proceeds divided equally between Ina Mae Yucus and Hazel Degelow, or to the survivor or survivors of them, should any of said named persons predecease me." Clause ten appoints Ina Mae Yucus executrix and waives bond.
After the will was admitted to probate, Stewart Wilson filed suit to construe the will alleging that the devise in clause two was a class gift, that Gene Burtle, one of the devisees in clause two, died after the date of execution of the will but before the testatrix and that plaintiff, as the survivor of the class, was entitled to the entire one-fifth interest in the farm. After the complaint was filed, Stewart Wilson conveyed the interest he allegedly received as survivor of the class to the two children of the deceased Gene Burtle and they were substituted as plaintiffs. The defendants, the executrix and the beneficiaries named in the residuary clause of the will, filed answer denying that clause two was a gift to a class, asserting that it was a devise to two specific individuals and that upon the death of Gene Burtle prior to that of the testatrix, the gift to him lapsed and passed into the residuary clause of the will.
At the trial the court found that the death of Gene Burtle prior to that of the testatrix created a latent ambiguity and admitted extrinsic evidence relating to testatrix' intentions. There is no serious dispute over the facts shown by the evidence presented by plaintiffs. Nelle G. Stewart was the widow of Dr. Frank A. Stewart and received as a devisee in his will a one-fifth interest in a 261-acre farm in Sangamon County. Nelle G. Stewart and Dr. Frank A. Stewart had no children. At the death of Dr. Stewart his surviving blood relatives were Gene Burtle, Stewart Wilson, William C. Stewart and Robert T. Stewart, his nephews and Patti S. Lusby, his niece. Nelle G. Stewart knew all of these relatives of Dr. Stewart. Of these relatives of Dr. Stewart, only Gene Burtle and Stewart Wilson had a close personal relationship with the testatrix. Gene Burtle died on May 15, 1963, and the testatrix knew of his death but made no changes in her previously executed will. There was evidence from four witnesses that in conversations had with testatrix she stated she wanted the one-fifth interest in the farm to go either to her husband's side of the house, or to Gene Burtle and Stewart Wilson because she felt especially close to them and none other of Dr. Stewart's relatives had any contact with her.
The trial court held, we think correctly, that clause two of testatrix' will did not create a class gift and that the gift in that clause to Gene Burtle lapsed and, pursuant to the Illinois Lapse Statute, chapter 3, section 49, IRS 1965, passed into the residue of her estate.
[1-5] The definition of class gifts and pertinent rules of construction as followed by Illinois courts are set forth in the case of Strohm v. McMullen, 404 Ill. 453, 89 N.E.2d 383:
"The definition of a class gift adopted by this court, as laid down by Mr. Jarman in his work on Wills, Vol 1, P 534, 5th Am Ed, is: `A gift to a class is defined . . . as a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.' Volunteers of America v. Peirce, 267 Ill. 406, 108 N.E. 318; Blackstone v. Althouse, 278 Ill. 481, 116 N.E. 154, LRA 1918B, 230; Henry v. Henry, 378 Ill. 581, 39 N.E.2d 18.
"`A class, in its ordinary acceptation, is a number or body of persons with common characteristics or in like circumstances, or having some common attribute, and, as applied to a devise, it is generally understood to mean a number of persons who stand in the same relation to each other or to the testator.' Blackstone v. Althouse, 278 Ill. 481, 116 N.E. 154, 157, LRA 1918B, 230. And it has been definitely decided in this State that in determining whether a devise is to a class or to individuals depends upon the language of the will. If from such language it appears that the amounts of their shares are uncertain until the devise or bequest takes effect, the beneficiaries will generally be held to take as a class; but where at the time of making the gifts the number of beneficiaries is certain, and the share each is to receive is also certain, and in no way dependent for its amount upon the number who shall survive, it is not a gift to a class, but to the individuals. Volunteers of America v. Peirce, 267 Ill. 406, 108 N.E. 318; Blackstone v. Althouse, 278 Ill. 481, 116 N.E. 154, LRA 1918B; Strauss v. Strauss, 363 Ill. 442, 2 N.E.2d 699, 105 ALR 1386; Henry v. Henry, 378 Ill. 581, 39 N.E.2d 18; Peadro v. Peadro, 400 Ill. 482, 81 N.E.2d 192.
"There is an exception to the rule that naming the individual prevents the gift from becoming a class gift, stated in Strauss v. Strauss, 363 Ill. 442, 2 N.E.2d 699, 105 ALR 1386, holding that the mere fact that the testator mentions by name the individuals who make up the class is not conclusive, and that if the intention to give a right of survivorship is collected from the remaining provisions of the will, as applied to the existing facts, such an intention must prevail. This is in accord with the general rule applying to construction of wills, that the intention of the testator, if clearly manifested from the whole will, must prevail over rules of construction. This rule was recognized in the late case of Peadro v. Peadro, 400 Ill. 482, 81 N.E.2d 192, 194, where the gift after a life estate was devised as follows: `shall be equally divided, share and share alike, between Earl D. Peadro, Berniece F. Peadro, Roy F. Peadro and Irtys A. Peadro, or the survivor of them to be their sole and absolute property.' In that case we held there was no class gift, saying: `This court recognizes the rule that a gift to persons named is a gift to them individually and not as a class, and will treat the gift as one to individuals, unless reasons are found in the language and structure of the will for deciding that the intent of the testator, which is, of course, paramount to the rule, would be best subserved by disregarding the rule and treating the gift as one to a class.'"
Also, see Restatement of Property, Future Interests, §§ 279, 280 and 281.
Admittedly the gift in clause two is not made with the usual generic class description such as "children," "brothers," "nephews," "cousins," "issues," "decedents," or "family" but is in fact to two named individuals, conditions which militate against construction of the clause as a class gift. However, plaintiffs argue that because of the death of Gene Burtle prior to that of the testatrix a latent ambiguity exists and extrinsic evidence was properly received to show the true intention of the testatrix in clause two of her will, and that the phrase in clause two, "and believing as I do ...