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Spaugh v. Ferguson

DECEMBER 7, 1970.

GERTIE ETHEL SPAUGH ET AL., PLAINTIFFS-APPELLEES,

v.

AUSTIN HERMAN FERGUSON ET AL., DEFENDANTS-APPELLEES. — (BAPTIST STUDENT FOUNDATION AT UNIVERSITY OF ILLINOIS, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Piatt County; the Hon. BURL A. EDIE, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The Baptist Foundation appeals from a decree in partition involving the construction of the will of John T.A. Edmonson. The pertinent portion of the decree from which this defendant appeals is:

"11. That the true construction and meaning of the Will of JOHN T.A. EDMONSON, and particularly paragraph Third of said Will as gathered from the four corners of said Will and the circumstances existing at the time of the death of JOHN T.A. EDMONSON was that the said MABEL K. HOBART received a life estate in said real estate with the remainder therein after her death to her children or descendants of a deceased child living at the date of her death, but that if she had no child or descendants of a deceased child living at the date of her death the said real estate was to go to the heirs of JOHN T.A. EDMONSON according to the Statutes of Descent of the State of Illinois in effect at the time of her death. The court specifically finds that MABEL K. HOBART had no children or a descendant of a deceased child living at the date of her death and that the heirs of JOHN T.A. EDMONSON according to the Statutes of Descent of the State of Illinois in effect at the time of the death of MABEL K. HOBART were the brothers and sisters of the said JOHN T.A. EDMONSON and their descendants per stirpes."

In this case the testator, John T.A. Edmonson gave all of his property to trustees for the life of his wife, Valanchia Edmonson and then provided:

"THIRD. I give, devise and bequeath after the death of my wife, Valanchia Edmonson, all of my personal property, together with the aforesaid homestead property and any vacant lots in the said Village of Atwood, Illinois, remaining unsold to my said daughter, Mabel K. Hobart, to be her own absolutely, and all the rest and residue of my real estate wheresoever situated to my said daughter, Mabel K. Hobart for and during her life time, then to her children absolutely and to the decendants (sic) of any deceased child or children per stirpes, but if she has no children or there are no descendants of any child or children living at the time of her death, then to my heirs according to the Statute of Decent (sic) of the State of Illinois in effect at the time of the death of my said daughter, Mabel K. Hobart."

At the time of the death of the testator, February 24, 1924, she was survived by his wife, Valanchia Edmonson, who died intestate June 6, 1935, and his daughter, Mabel K. Hobart, who died March 4, 1969. Mabel K. Hobart had no children when the will was written or when the testator died. She had a son, Kent Hobart, born July 2, 1928, who died intestate July 28, 1952. Mabel K. Hobart's husband, Clyde Hobart, who was also the father of Kent Hobart, died March 23, 1953, leaving a will which made Mabel K. Hobart the sole legatee and devisee. By the will of Mabel K. Hobart, the Baptist Student Foundation at the University of Illinois was named residuary legatee and devisee.

Testator had seven brothers and sisters and numerous nephews and nieces, none of whom were mentioned in his will.

Defendant contends that upon the birth of Kent Hobart on July 2, 1928, the remainder became vested in him subject only to partial divestiture by the birth of other children to his mother and to complete divertiture by his death prior to that of his mother, leaving issue surviving him.

The trial court held that the will required that unless there were children or descendants of children of Mabel K. Hobart living at her death, the real estate should go to the heirs of the testator, John T.A. Edmonson, who are the plaintiffs.

Hence, defendant contends that two events must happen to divest Kent Hobart, a child of Mabel K. Hobart, of his remainder, to-wit: (1) death of Kent Hobart prior to that of his mother, the life tenant, and (2) leaving issue surviving him. It is argued that the only situation in which the testator contemplated that the grandchild's remainder would be divested would be survival of a grandchild by a great grandchild which would keep the property in the blood line. Defendant thus treats the mention of descendants of deceased children (of Mabel K. Hobart) as a gift over and contends that upon its failure (there being no descendants of Kent Hobart) the remainder in the first taken, Kent Hobart, became vested, discharged of the condition.

Since the cardinal rule of testamentary construction is the ascertainment, if possible, of the intention of the testator as expressed by the will itself (Barnhart v. Barnhart, 415 Ill. 303, 313, 114 N.E.2d 378, and Harris Trust and Sav. Bank v. Jackson, 412 Ill. 261, 266, 106 N.E.2d 188), and since the pursuit of this intention usually involves a determination whether the will discloses a plan of the testator (Burkholder v. Burkholder, 412 Ill. 535, 540, 107 N.E.2d 729) it should be helpful to examine the alternative situations which the will discloses might have been contemplated by the testator. We think they are the following situations:

(1) That Mabel K. Hobart might never have any children.

(2) That Mabel K. Hobart might have a child or children, who or all of whom, survived her.

(3) That Mabel K. Hobart might have a child, who predeceased her leaving no descendant, and also a child or children who survived her.

(4) That Mabel K. Hobart might have one or more children, who survived her, and one or more children, who predeceased her, all ...


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