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In Re Estate of Macleish





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT JEROME DUNNE, Judge, presiding.


Rehearing denied March 3, 1976.

This appeal is by Hugh MacLeish (respondent), adopted son of Bruce MacLeish (testator) from a portion of an order and decree entered by the probate division of the circuit court on January 29, 1974 (referred to in this opinion as the "1974 order"). In the portion of the 1974 order contested by the respondent the circuit court found that a power of appointment granted to the testator by his wife's will had been effectively exercised. Although, as noted below, the respondent contends that the court should have deferred decision on whether the testator had exercised the power of appointment, the core issue in this appeal is whether the court's decision that he had was correct. We address that question first, acknowledging that the respondent's position is that it is improper for this court, as it was for the circuit court, to resolve this issue at this state of the proceedings.

The issue arose when the executors filed a petition in the circuit court for instructions alleging that problems concerning the collection and distribution of the assets of the estate necessitated the court's guidance. All of the parties to the proceeding in the circuit court, except the respondent, admitted in their pleadings that the testator effectively exercised the power of appointment. The respondent denied that the testator had complied with the requirements of the will which granted the power. The respondent filed a motion to vacate the portion of the 1974 order relating to the exercise of the power of appointment, and his appeal is from the order denying his motion to vacate. Administration of the testator's estate is continuing in the probate division, and the circuit court certified in the 1974 order that there is no just reason for delaying enforcement of or appeal from it.

The facts which relate to the exercise of the power can be stated briefly. Elizabeth Moore MacLeish, wife of the testator, predeceased him. She executed a first codicil to her will which added a new Article Va immediately following Article V and before Article VI of her will. Article Va created Trust One, the assets of which are the subject matter of this appeal. Paragraph (b) of Article Va of Mrs. MacLeish's will provided:

"(b) Upon the death of BRUCE MacLEISH the Trustee shall distribute the entire remaining principal of Trust One, and any accrued and undistributed income therefrom, as BRUCE MacLEISH shall direct and appoint in and by his last Will expressly exercising such power, either to his estate or to or for the benefit of any person or persons, in such proportions and such manner and either free of trust or upon such trusts and conditions as he shall direct. Such power shall be exercisable by BRUCE MacLEISH alone and in all events. In default of such express testamentary direction and appointment, or insofar as it shall not extend or become effective, the Trustee shall add the remaining principal of Trust One and any accrued and undistributed income therefrom to the principal of Trust B created under Article VI of this Will, to be held, administered and disposed of in all respects as a part thereof in accordance with the terms and conditions governing Trust B upon the death of BRUCE MacLEISH."

The testator died on October 7, 1973, leaving as his only heirs, the respondent and the surviving children of his daughter, Jean MacLeish Dern, who had predeceased him. Article II of his will, which was admitted to probate on October 24, 1973, provided:

"Under the provisions of paragraph (b) of Article V added to the Will of my wife, ELIZABETH MOORE MacLEISH, by the First Codicil thereto, executed the 22nd day of January, 1961 and duly admitted to probate by the Probate Court of Cook County at Chicago, Illinois, on the 8th day of February, 1961, I am given the power to appoint the entire remaining principal of Trust Number One and any accrued and undistributed income therefrom by my Will. Expressly exercising said power, I hereby appoint all of said assets to my estate and direct the Trustee of Trust Number One under the Will of Elizabeth Moore MacLeish to distribute the principal and any accrued and undistributed income of Trust Number One to the Executors of my Will."

• 1 For an exercise of a testamentary power of appointment to be valid and effective, two requirements must be satisfied. First, the intention of the testator to exercise the power must be shown. Second, there must be compliance with any conditions established by the donor for its exercise. Northern Trust Co. v. House (1954), 3 Ill. App.2d 10, 120 N.E.2d 234.

The testator's intention to exercise the power of appointment is clear. After describing the power given to him under his wife's will, Article II of his will provides that "expressly exercising said power, I hereby appoint all of said assets to my estate * * *." Consideration of the second requirement calls for an examination of the provision of the codicil granting the power. The only conditions established by Mrs. MacLeish were that the power be exercised by her husband's will, and that the exercise be express. The requirement for an express exercise of the power was obviously intended to assure that the power would be exercised as a deliberate, considerate act, and to prevent an inadvertent exercise of the power by a residuary clause. The power was exercised by the testator by his will. Article II not only referred to an express exercise of the power, but went even further by describing the power as being in paragraph (b) of Article V added to the will of his wife "by the First Codicil," specifying the date of the execution of the codicil and the date and place of its admission to probate, and describing the scope of the power and the assets over which it was to be exercised. The language used by the testator in his will is almost identical with the language used by Mrs. MacLeish in granting the power. The testator, therefore, expressly exercised the power.

The only defect the respondent points to in the exercise of the power was testator's reference to paragraph (b) of Article V, while the power granted to him was actually set forth in paragraph (b) of Article Va of Mrs. MacLeish's will. The respondent argues that the exercise was ambiguous because of the testator's reference to Article V instead of Va despite the otherwise clear identification of the power. The testator referred to the addition of Article V to Mrs. MacLeish's will be a first codicil of the stated date, but there was no Article V added to her will by the described codicil. Neither Article V nor any other provision of Mrs. MacLeish's will other than Article Va added by the first codicil granted any power of appointment. Nor did Mrs. MacLeish's will require that in exercising the power the testator make specific reference to Article Va. Excluding the reference in the testator's will to Article V of his wife's will, the rest of the description in Article II of his will is more than adequate to identify the power and expressly exercise it.

• 2-4 Where the intention of the testator is clear and the formalities set up by the donor have been met, an exercise of a power should not be held void because of an insignificant ambiguity in the exercise. To do so emphasizes formality and technicality over substance. It is permissible to strike, insert or transpose words to determine and effectuate the intention of a testator. (Burkholder v. Burkholder (1952), 412 Ill. 535, 107 N.E.2d 729; Hunt v. Mitchell (1951), 409 Ill. 321, 99 N.E.2d 347; Cahill v. Michael (1942), 381 Ill. 395, 45 N.E.2d 657.) A basic principle of will construction is that a testator's intent must control and without adopting an unreasonable or absurd construction, a court should harmonize clauses which appear inconsistent or repugnant so as to give effect to a testator's general intention. (Peters v. Gebhardt (1955), 6 Ill.2d 534, 129 N.E.2d 731.) A devise or bequest should not be voided because of errors in describing the subject matter provided enough remains to show what it was that was intended. (Stevens v. Felman (1930), 338 Ill. 391, 170 N.E. 243.) Equity will remedy any defect which is not of the essence, but is only technical. (Merchants' Loan & Trust Co. v. Patterson (1923), 308 Ill. 519, 139 N.E. 912.) Applying these principles, there is no difficulty in construing Article II of the testator's will as referring to Article Va of Mrs. MacLeish's will since the omission of the letter "a" was obviously an oversight or a typographical error. There is also no difficulty in reading Article II of Mr. MacLeish's will as if it did not contain the words "* * * of paragraph (b) of Article V * * *." Either construction permits this court to follow the clear intent of the testator, and hold, as we do, that the power of appointment was validly and effectively exercised.

• 5 The respondent also argues that there was insufficient evidence to support the circuit court's determination that the power had been properly exercised. The only point respondent made on the proper construction of the will was that Article II referred to Article V instead of Article Va of Mrs. MacLeish's will. The circuit court examined both wills to determine the formalities required by the donor and the intent of the testator. The language of the wills was adequate to support the finding set forth in the 1974 order. If respondent had other evidence indicating that the intent of the testator was not to exercise the power, he had ample opportunity to introduce that evidence at the hearing on the petition of the executors.

• 6 We turn now to the other objections raised by the respondent. He argues that the portion of the 1974 order to which he objected went beyond the scope of the oral ruling by the circuit court judge and was, therefore, unauthorized. The court stated in the oral announcement of its decision that the testator had exercised the power and also instructed the trustees of Trust One to turn over the assets to the executors. That the written order more fully expressed the court's ruling than its oral statement does not render the written finding unauthorized or improper. The court signed the ...

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