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Zimmer v. Robbins

APRIL 19, 1974.

ROY E. ZIMMER, PLAINTIFF-APPELLEE,

v.

SAMUEL A. ROBBINS, INDIVIDUALLY, AND AS EX'R OF THE ESTATE OF FRED A. ZIMMER, DECEASED, ET AL., DEFENDANTS-APPELLANTS — (ST. PAUL'S EVANGELICAL AND REFORM CHURCH, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT: Rehearing denied June 20, 1974.

This is an appeal by Samuel Robbins (defendant), individually, and as executor of the estate of Fred A. Zimmer, from a decree construing certain provisions of the will and codicil of the decedent.

The subject will was executed by the testator on July 20, 1967, to which two codicils were subsequently made, the first of which is not at issue here. The testator in the relevant dispositive articles of the will made the following bequests:

"ARTICLE FOUR *fn1

If my net taxable estate exceeds two hundred fifty thousand ($250,000.00) dollars, then I give and bequeath to my brother, ROY E. ZIMMER, an amount equal to ten percent (10%) of said net taxable estate. If my net taxable estate is less than two hundred fifty thousand ($250,000.00) dollars, and not less than one hundred thousand ($100,000.00) dollars, I give and bequeath to my said brother the sum of ten thousand ($10,000.00) dollars.

ARTICLE FIVE

If my net taxable estate is five hundred thousand ($500,000.00) dollars, I give and bequeath an amount equal to four per cent (4%) of said net taxable estate to ST. PAUL'S EVANGELICAL AND REFORM CHURCH located at Fullerton and Orchard Streets, Chicago, Illinois.

If my net taxable estate is less than five hundred thousand ($500,000.00) dollars, but exceeds two hundred thousand ($200,000.00) dollars, I give and bequeath to ST. PAUL'S EVANGELICAL AND REFORM CHURCH an amount equal to two per cent (2%) of said net estate.

If my net taxable estate is less than two hundred thousand ($200,000.00) dollars, and not less than one hundred thousand ($100,000.00) dollars, I give and bequeath to ST. PAUL'S EVANGELICAL AND REFORM CHURCH the sum of two thousand $2,000.00) dollars.

ARTICLE FOUR *fn2

If my net taxable estate exceeds four hundred thousand dollars ($400,000.00) then I give and bequeath to my brother, ROY E. ZIMMER, an amount equal to fifteen per cent (15%) of said net taxable estate. If my net taxable estate is less than four hundred thousand dollars ($400,000.00) but not less than two hundred fifty thousand ($250,000.00) dollars, then I give and bequeath to my brother an amount equal to ten per cent (10%) of said net taxable estate. If my net taxable estate is less than two hundred fifty thousand dollars ($250,000.00) and not less than one hundred thousand dollars ($100,000.00), I give and bequeath to my said brother the sum of ten thousand dollars ($10,000.00)."

Plaintiff, testator's brother and legatee under article four above, commenced the instant action by seeking a construction of the above provisions, asserting that defendant misconstrued the meaning of "net taxable estate" found in the aforementioned provisions. Plaintiff also joined St. Paul's Evangelical and Reform Church, legatee under article five, as a nominal defendant.

Plaintiff interprets the term "net taxable estate" to mean the testator's gross estate minus the costs of administration, debts and estate and inheritance taxes. *fn3 Conversely, defendant determined that the testator, by using the words "net taxable estate", intended to mean the taxable estate as computed for Federal Estate Tax purposes *fn4 (that portion of the net estate subject to estate taxes). According to plaintiff's reasoning, his bequest would have totaled 15% of $478,611.40, or ...


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