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In Re Estate of Breckenridge

OPINION FILED JANUARY 13, 1978.

IN RE ESTATE OF JENNIE BRECKENRIDGE, DECEASED. — (RAYMOND ZINN ET AL., PETITIONERS-APPELLEES,

v.

D.W. MCGINNIS ET AL., DEFENDANTS. — (VERLA CRAIN ET AL., DEFENDANTS-APPELLANTS.))



APPEAL from the Circuit Court of Sangamon County; the Hon. EUGENE O. DUBAN, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal lies from an order of the circuit court of Sangamon County construing the will of Jennie Breckenridge.

The testator executed the instrument on February 23, 1971, and died March 12, 1976. The estate consisted of about $30,000 in cash, and $170,000 in real estate, situated partially in Illinois, but some in other States.

In pertinent parts, the will provided:

"SECOND: For my cash I give and bequeth [sic] and hereby make the following bequests."

Then follow 16 cash bequests, totaling $19,700, 1 to a cemetery, and 15 to named individuals. Six of the individuals are shown on the table of heirship as being heirs of the testator.

"THIRD: All of the rest and residue of monies remaining after payment of the aforementioned legacies, I bequeath to D.W. McGinnis, Elma Schneider, and Raymond Zinn in equal shares to be theirs absolutely, forever and in fee simple."

Each of the three residual beneficiaries are found to be heirs of the testator, but only McGinnis shared in the cash bequests.

D.W. McGinnis and Raymond Zinn, residuary beneficiaries as above stated, were named as co-executors and qualified as such. In the process of administration, they filed a petition to sell real estate and as part of that petition alleged the need for construction of the will, particularly item THIRD, the residue clause. No questions are raised as to the pleadings.

Five of the answering defendants, who are the appellants in this cause, alleged that title to the real estate had already vested in the heirs of the testator. These defendants were three persons found to be heirs but omitted in the will; one person found to be an heir and also a pecuniary legatee under the will; and one person, also a pecuniary legatee, but found not to be an heir although the will describes her as a "great-niece."

The trial court entered an order construing the will which order provided in part as follows:

"It was the intention of the decedent to die testate with respect to all her assets; and, therefore, her real estate as well as all other of her assets passed pursuant to her said will."

The effect of the order is, then, to vest the real estate under the residuary clause in the three named residuary beneficiaries.

The appellant-heirs' principal theory is that the residuary clause operated only on money items and not on real estate. The appellee-residuary beneficiaries claim that "monies" is a broad enough term to include real estate ...


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