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Kenney v. Pasieka

JUNE 8, 1970.

THOMAS KENNEY, EXECUTOR OF THE LAST WILL AND TESTAMENT OF FRANK PASIEKA, DECEASED, PLAINTIFF-APPELLEE,

v.

MARY PASIEKA, SURVIVING WIFE OF FRANK PASIEKA, DECEASED, ET AL., DEFENDANT-APPELLANTS.



Appeal from the Circuit Court of LaSalle County, Probate Division; the Hon. THOMAS J. CLYDESDALE, Judge, presiding. Reversed and remanded with instructions.

JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied and supplemental opinion August 4, 1970.

This case involves three men with the same name — Frank Pasieka. The first is the deceased testator who lived at Tonica, Illinois, and was, in the argument before this Court, called "Tonica Frank"; the second, a nephew of the testator, who resided in Peoria and was called "Peoria Frank"; and the third, a cousin of the testator, who resided in Chicago and was called "Chicago Frank."

Tonica Frank died on October 5, 1966, leaving a last will which was executed November 24, 1962. Tonica Frank was twice married and left surviving him his second wife. He had one child by his first marriage, Theodore Pasieka, and none by his second marriage. Theodore died on October 11, 1964, after the making of the will in question, but before the death of his father.

During his lifetime, Tonica Frank took into his home two boys, Walter and Joseph, both of whom changed their last name to his and lived with him as his sons. Walter never married and has no children. Joseph, on the other hand, is married and is the father of three children.

Tonica Frank's will is relatively simple but the problems it creates are substantial. After providing for the payment of his debts and funeral expenses, he bequeathed all of his personal property to his second wife. He then devised all of his real estate to his son, Theodore, for life and provided that, upon the death of Theodore, the real estate would become part of the residue of his estate. The residue was then devised "one-third thereof to the children of Walter Pasieka, share and share alike; one-third thereof to the children of Joseph Pasieka, share and share alike; and one-third thereof to the children of Frank Pasieka, share and share alike." The will then provided, "In the event any child shall not be living at the time of the death of my son, Theodore Pasieka, but shall leave brothers and sisters him surviving, said brothers and sisters shall take the share of such deceased child."

The second wife renounced the will and the executor filed suit for a proper construction. There is no dispute as to the one-third share to the children of Joseph Pasieka. They do exist, and are entitled to that portion. The difficulty, however, arises in determining which "Frank Pasieka" the testator intended, since there were three, and what happens to the share devised to the children of Walter Pasieka, since he has no children.

The trial court, after considerable deliberation and effort, wrote a memorandum of decision which concluded that the testator meant himself when he devised a one-third share to the children of "Frank Pasieka" and, therefore, this share was to be divided equally between Joseph and Walter, and finally that the one-third share to the children of Walter did not fail but passed one-half to the children of Joseph and one-fourth each to Joseph and to Walter.

This appeal followed, raising the issues that the trial court erred in ruling that the testator meant himself and that the disposition of the one-third interest to the children of Walter was erroneous, since there were no such children.

Both the plaintiffs and the trial court agree that the will before us presents latent ambiguities. Even though the language is clear and suggests a single meaning, extrinsic facts show the clear necessity for an interpretation, Krog v. Hafka, 413 Ill. 290, 295-296, 109 N.E.2d 213 (1952).

In construing a will, the guiding principal is the intention of the testator, O'Connell v. Gaffney, 23 Ill.2d 611, 614, (1962), and the question for our determination is not what the testator meant to say by the language employed, but rather what he meant by what he did say, Barnhart v. Barnhart, 415 Ill. 303, 313, 114 N.E.2d 378 (1953).

Therefore, in construing this will it was proper for the trial court, and it is proper for us, to consider the surrounding circumstances. The evidence presented clearly indicates that the decedent treated his own son, Theodore, and Joseph and Walter exactly the same. Joseph and Walter were never legally adopted but they were brought into the decedent's home, they took his name and he treated them as his sons. He never indicated any desire to have one receive more than another. It was really on this basis that the trial court reached its conclusion.

While that evidence is clear, it is not very helpful in construing the decedent's will. There, he did not treat the three boys alike because he gave his son, Theodore, all of his property for life and he gave nothing to Walter or Joseph, since the devise is to their children and not to them.

In determining who is the right "Frank Pasieka," it appears clear to us that it cannot be Peoria Frank. Peoria Frank had not seen the decedent for twenty-eight years ...


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