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Domke v. Mccue

OCTOBER 15, 1968.

JOAN DOMKE, PLAINTIFF-APPELLANT,

v.

ETHEL MCCUE, INDIVIDUALLY, AND AS EXECUTOR OF THE WILL OF AGNES S. GRASER, DECEASED, DOROTHY GERDING AND DOROTHY SULLIVAN, AS EXECUTOR OF THE WILL OF JAMES H. SULLIVAN, DECEASED, PETER J. SULLIVAN, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding. Judgment affirmed.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

ON REHEARING

This appeal is taken from a judgment entered against plaintiff, Joan Domke, on her complaint for the construction of a will.

Testatrix, Agnes S. Graser, died on September 13, 1964, and her will was admitted to probate on October 22, 1964. The pertinent paragraphs of the will read as follows:

"THIRTEENTH: I give and bequeath unto ROSE SULLIVAN, a widow of DR. F.J. SULLIVAN, deceased, now residing [sic] at 4501 North Malden Street, Chicago, Illinois, if living at the time of my death, the sum of FIVE THOUSAND DOLLARS ($5,000.00). In the event of the death of MRS. ROSE SULLIVAN prior to my decease, then and in such event, I give and bequeath unto her daughter, MRS. HERBERT (JOAN S.) DOMKE, now residing c/o Kane Hospital, Pittsburgh 16, Pennsylvania, if living at the time of my death the sum of ONE THOUSAND DOLLARS ($1,000.00).

"NINETEENTH: In the event of insufficiency of the assets contained within my estate to pay in full the legacies mentioned in articles first to sixteenth, inclusive, then and in such event, the legacies enumerated in the preceding two paragraphs shall lapse and legacies in paragraph [sic] three to fifteen inclusive shall be abated pro rata.

"TWENTIETH: All of the rest, residue and remainder of my estate, real, personal or mixed, or [sic] which I may die, [sic] seized or possessed or in any wise entitled to, I give unto ANDREW W. SULLIVAN, now residing at Buena Park Hotel, 4145 Broadway, Chicago, Illinois, if living, otherwise to be distributed equally among my nieces and nephews as enumerated in Paragraphs 1 to 13 or the survivors thereof." (Emphasis supplied.)

Andrew W. Sullivan, testatrix's brother and only living collateral relative at the time the will was executed, predeceased testatrix and, pursuant to paragraph 20 of the will, the residual estate was to be shared equally by her "nieces and nephews as enumerated in Paragraphs 1 to 13" of the will.

On July 8, 1965, Jean Sullivan, et al., heirs of George Sullivan (who was one of the legatees named in the will and who predeceased the testatrix), filed a complaint to construe the will. Plaintiff entered her appearance in those proceedings, but filed no pleadings nor took any action to establish herself as a residuary legatee or otherwise assert a claim in the estate. Motions to dismiss the Sullivan will construction proceedings were filed by several of the defendants therein; the motions were sustained by the trial court on March 30, 1966.

The executor of the estate elected to construe paragraph 20 of the will to exclude paragraph 13, thereby excluding plaintiff, a niece of the testatrix, from participation in the residual estate. This was reflected in the executor's final account which was filed on August 16, 1966. Apparently on the same day plaintiff filed objections to the final account, contending that the wording of paragraph 20 includes paragraph 13, thereby entitling her to a share in the residual estate. Some of the defendants herein filed answers, together with an affidavit and exhibits, to plaintiff's objections and plaintiff filed a reply thereto.

On October 7, 1966, plaintiff commenced this proceeding for the construction of the will. Her complaint was dismissed on motion of the defendants, the judgment stating in part that "the words `paragraphs 1 to 13' set forth in Paragraph 20 of the will exclude the plaintiff Joan Domke as a beneficiary of the residuary estate of the testatrix, in light of all the language of the entire will." It was further held that defendants' claim of res judicata and laches on plaintiff's part was without merit. From this judgment plaintiff prosecutes this appeal.

Plaintiff maintains that the word "to" in the phrase "Paragraphs 1 to 13" in paragraph 20 of the will is to be construed as a word of inclusion in keeping with the intention of the testatrix to benefit all her nieces and nephews as manifest by the provisions in the will, and that the trial court erred in construing the word as one of exclusion.

[1-3] Courts are without power, under the guise of interpretation, to alter a testator's will or to make a new will for him. Vollmer v. McGowan, 409 Ill. 306, 99 N.E.2d 337. In every will construction case, the question for the court is "not what the testator meant to say, but what he meant by what he did say." Hull v. Adams, 399 Ill. 347, 352, 77 N.E.2d 706. In Turek v. Mahoney, 407 Ill. 476, 95 N.E.2d 330, the court stated at pages 481 and 482.

"The intention of a testator is to be ascertained in two ways, either from the words employed by him, to which all rules of construction give way, or by finding his presumed intention gathered by the application of rules of construction applicable to ...


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