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In Re Estate of Carlson

OPINION FILED JUNE 14, 1976.

IN RE ESTATE OF JOHN E. CARLSON, DECEASED. — (MARY CARLSON, A MINOR, BY HER MOTHER AND NEXT FRIEND, MARIE CARLSON, PLAINTIFF-APPELLANT,

v.

BARBARA BRADT ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of plaintiff's amended complaint for construction of the will of John E. Carlson. Plaintiff alleges that her complaint informs defendants of the nature of the claim asserted and raises a material issue of fact, and that it should not therefore have been dismissed; that defendants' motion to dismiss was defective in that it did not list any of the specific grounds under section 45 or section 48 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, pars. 45, 48) and thus fails under each of these sections; and that plaintiff's attorneys are entitled to an award of reasonable attorneys' fees from the estate. On appeal, defendants concede that plaintiff's complaint adequately informs them of the nature of plaintiff's claim.

John E. Carlson died in 1974, leaving a two-page will. There were but three dispositional paragraphs in this will: the first contained the usual direction to the executor to pay all just debts of the testator; the second bequeathed to the testator's niece and nephew, Barbara Ann Carlson (Bradt) and Bernard D. Carlson, and the nephew of his wife, William Perry Filbert, the sum of $1000 each. Paragraph THIRD, in question here, provides:

"All the rest, residue and remainder of my estate of every kind and nature, I hereby give, devise and bequeath to my wife, Adina V. Carlson. In the event that my said wife should die prior to my death, or if we both die as a result of the same accident or catastrophe, then I give, devise and bequeath all of my property of every kind and nature to my niece and nephew, Barbara Ann Carlson and Bernard D. Carlson, and the nephew of my wife, William Perry Filbert, or their survivors or survivor, share and share alike."

The construction of the quoted paragraph has been put in issue by this case.

The testator's wife predeceased him, thereby removing the contingency from the residuary gift to the class which consists of his niece and nephew and the nephew of his wife. Also prior to testator's death, his nephew, Bernard Carlson, died leaving one minor child, Mary Carlson, who, by her mother and next friend, is the plaintiff in this suit. The administrator, the niece (Barbara Carlson Bradt), and the nephew of testator's wife (William Perry Filbert) are the defendants herein. The suit arose because the administrator of the estate read the language of the residuary clause to exclude Mary Carlson from that class of persons designated "their survivors or survivor." When the will was admitted to probate, the guardian ad litem for the minor stated that plaintiff had no financial interest in the estate of the decedent, and the court so found. Plaintiff thereafter filed her complaint and, on a motion to strike the same, the motion was allowed and plaintiff was given leave to file an amended complaint. An amended complaint was filed, plaintiff requested a change of venue, and a different judge was assigned. The defendants once again filed a motion to dismiss. The court heard arguments and, after submission of briefs, allowed the motion. The court did not set out the specific grounds for its order; however, the primary issue argued before that court regarded the alleged ambiguity of "survivors or survivor, share and share alike." It appears the court found there was no such ambiguity to be construed.

A major part of plaintiff's appeal is addressed to alleged deficiencies in defendants' motion to dismiss, such insufficiencies stemming from defendants' alleged failure to state or prove any of the grounds for dismissal listed under sections 45 or 48 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, pars. 45, 48.) We find this argument to be without merit.

Section 45(1) provides that all motions regarding the pleadings shall point out specifically the defects complained of and shall ask for appropriate relief. Subsection (2) provides:

"If a pleading or division thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading, because it is substantially insufficient in law, the motion must specify wherein the pleading or division thereof is insufficient."

Subsection (5) provides that "Any party may reasonably move for judgment on the pleadings."

The opening paragraph of defendants' motion to dismiss asks the court to dismiss plaintiff's amended complaint for "want of equity appearing on the face of the complaint," and moves that judgment be entered in favor of the defendants against the plaintiff. Paragraph two of the motion alleges "that it appears on the face of the amended complaint that there is no ambiguity in the last will and testament of John E. Carlson, deceased, and therefore nothing to be construed." This motion was, in effect, a motion for judgment on the pleadings. It apparently was treated as such by the trial court as revealed by the briefs and arguments made to that court by the parties. We find that defendants' motion to dismiss adequately met the requirements of section 45 of the Civil Practice Act.

• 1 The principal issue in this case is whether the words "their survivors or survivor, share and share alike," viewed within the four corners of the will, create an ambiguity which requires construction of the will. As the court in Binger v. Ackerman, 15 Ill. App.2d 35, 40 (1957), observed:

"It is basic that a court of equity will not assume jurisdiction to construe a will which is neither ambiguous nor uncertain where there is no equitable estate to be protected or equitable right to be enforced. The court does not acquire jurisdiction to construe a will merely by allegations that a question requiring construction exists, where the record shows that there is no such question. A motion to dismiss ...


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