APPEAL from the Circuit Court of Cook County; the Hon. DONALD
J. O'BRIEN, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 13, 1972.
This is an appeal by Marilyn M. Wilmot from a decree entered in the Circuit Court of Cook County.
The First National Bank of Chicago, as trustee under the Last Will and Testament of Edith Wilmot, sought instructions from the Circuit Court of Cook County as to what payments should be made by it as trustee. Named as defendants in said action were Marilyn M. Wilmot, the decedent's daughter; Charles Schumann and his unknown heirs; Julia Schumann and her unknown heirs; Charles H. Schumann, III, a minor; Austin Methodist Church; Methodist Old Peoples Home; Liver Research Foundation of the University of Illinois Research Hospital; Unknown heirs or devisees of Edith Wilmot, deceased, and Unknown Owners.
The decedent was a widow, and Marilyn M. Wilmot, her child by adoption is her sole heir at law. The will provided for three legacies totaling $700 to the Methodist Church of Austin, the Billy Graham Evangelist Church, and the Lake Bluff Methodist Orphanage. It then provided in part:
"I give, devise, and bequeath all the rest, residue and remainder of my estate, * * * as follows: referred to as the Trust Estate, to the First National Bank of Chicago, Chicago, Illinois, * * * for the uses and purposes hereinafter expressed, as follows:
A. The Trustee shall have the power to enter into, take possession of, sell, lease, convey, manage, invest at its sole discretion, in like manner and with full power, * * * and to hold, use, dispose of and distribute the income and the principal of the Trust Estate as hereinafter provided.
C. The Testator shall pay for taking perpetual care of the graves of the Testator and her beloved husband, Frederick William Wilmot, and also for placing flowers on the graves for memorial day and mother's day, and winter evergreens over the graves.
D. I direct the Trustee to collect the income derived from this Trust Estate and from such income, the Trustee shall pay all the necessary costs and expenses of this Trust."
Part E provided for certain payments out of the trust estate: $125 per month to her daughter Marilyn, along with $500 on her 43rd birthday, $500 as a wedding gift if she married, and $250 maximum per year for the payment of her medical expenses at the discretion of the trustee. In part F, the testatrix provided that when the trust terminated at the death of her daughter, twenty per cent shares were to be paid to the Austin Methodist Church; the Methodist Old Peoples Home, Foster Avenue and Glenwood Avenue in Chicago; the Liver Research Foundation of the University of Illinois Research Hospital, Chicago, Illinois; Charles and Julia Schumann and their heirs; and the child or children of Marilyn. If Marilyn had no child or children at the termination of the trust, then the trust estate should be divided twenty-five per cent to each of the above.
The defendant, Marilyn, is the sole appellant. She contends the will failed to provide for the disposition of the trust income above costs and expenses and the excess income should be declared to be intestate property and paid to her as the heir at law. Secondly, she contends the disposition to "Charles Schumann and Julia Ann Schumann and their heirs" created a fee simple in common rather than a joint tenancy with right of survivorship. Thirdly, she argues the court erred in decreeing that a provision in the will for the perpetual care of the graves of the testator and her husband meant the trustee should pay for the care of the graves only during the term of the trust.
The defendant's argument regarding the excess trust income is the testatrix did not specifically provide for its disposition in her will. Since there was no specific language, she contends there was an omission which results in partial intestacy. She relies on Murphy v. The Northern Trust Co. (1959), 17 Ill.2d 518. In that case the will provided for the accumulation of income until the death of the testator's widow. The widow survived for more than twenty-one years. Under the Illinois Thellusson Act which was then in force, the accumulations after twenty-one years were invalid. Because of the operation of law, the income was declared to pass by intestate succession. The defendant contends the case at bar is similar in that there was an omission in the decedent's will regarding the excess trust income, and the court cannot use a presumption against intestacy to cure a situation which was overlooked by the testatrix. In Foss v. State Bank & Trust Co. (1931), 343 Ill. 94, the court stated:
"While it is true that the presumption is always against intestacy, either in whole or in part, where a party has attempted to dispose of property by will, this is only a presumption, and does not warrant this court, under the guise of construing a will, to add provisions which are offered in place of those omitted. Such presumptions cannot be indulged in either to overcome express language in a will [citation], or to supply an omission made by oversight, where no language is used to show an intention on the part of testator to dispose of the property. (Citations.) If a testator has overlooked a condition which he would perhaps have provided for if it had occurred to him, the court cannot guess at what provision he would probably have made and by construction read it into his will on the presumption that he would naturally have made such a provision if he had thought of it."
The defendant further contends it was the testatrix' intention to pay her out of the corpus of the trust alone without the accumulation of income. As evidence she points out the testatrix referred to the assets to be delivered to the trustee as the "Trust Estate" and also used the same phrase to define the fund out of which she was to receive her monthly income. She argues the same words should not be construed to mean two different things unless a ...