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In Re Estate of Smith

OPINION FILED JANUARY 23, 1979.

IN RE ESTATE OF ALMA I. SMITH, DECEASED. — (PAUL D. OGLE ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

JAMES ELVIN OGLE, INDIV. AND AS EX'R UNDER THE WILL OF ALMA I. SMITH, ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES. — IN RE ESTATE OF OSCAR H. SMITH, DECEASED. — (PAUL D. OGLE ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

JAMES ELVIN OGLE, INDIV. AND AS EX'R UNDER THE WILL OF OSCAR H. SMITH, ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.)



APPEAL from the Circuit Court of Sangamon County; the Hon. HARVEY BEAM, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 21, 1979.

Will construction.

The court below — on the pleadings — found that the provisions of the will did not cover the events that occurred and that the laws of intestacy must govern.

The trial judge was correct.

We affirm.

Oscar Smith died suddenly of a stroke on April 10, 1977, and his wife, Alma, died 15 days later from a lingering cancer illness. The following dispositive provisions were contained in their reciprocal wills:

"SECOND: I give, devise and bequeath all of my estate, real, personal and mixed wheresoever situated to my wife, ALMA I. SMITH, if she [my husband, OSCAR H. SMITH, if he] shall survive me within thirty (30) days from the date of my death.

THIRD: I direct that if my wife, ALMA I. SMITH, [my husband, OSCAR H. SMITH] and I die in or from a common disaster that my estate be equally divided between my nephews, JAMES ELVIN OGLE, and LELAND OGLE, share and share alike."

James Ogle was named executor in section 4 of their wills.

The plaintiffs, who are Alma's living brothers and sister and the children of her deceased brother, reason that since Oscar and Alma did not die in a common disaster, the provisions of section 3 did not take effect. Because there is no other dispositive provision in the will, they take Alma's estate by intestacy, just as she would take Oscar's estate by intestacy since she did not survive him by 30 days. The defendants, who are the nephews James and Leland Ogle, argue the will shows a gift of the entire estate by implication.

Illinois courts> have been confronted with similar dispositions in Bradshaw v. Lewis (1973), 54 Ill.2d 304, 296 N.E.2d 747; Schuyler v. Zwiep (1976), 42 Ill. App.3d 91, 355 N.E.2d 554; and In re Estate of Blansett (1975), 28 Ill. App.3d 552, 328 N.E.2d 593. In all of these cases the courts> have refused to recognize a gift by implication, holding that the provisions of the wills did not create an implication so strong as to leave no reasonable doubt as to the testators' intentions. However, defendants claim the present case is distinguishable because it involves reciprocal wills and not joint and mutual wills as was the case in Bradshaw, Schuyler, and Blansett.

• 1 We do not agree. Under either type of instrument there still exists a reasonable doubt concerning the testator's intent.

Defendants also note that James Ogle was nominated executor, that the will contained both a 30-day and a common-disaster provision, and that the testators were fond of the defendants but disliked certain of the plaintiffs. The Blansett case recognized that the naming of an executor is not conclusive of donative intent because they are usually chosen because of their availability, skill, and trustworthiness. And although by the use of both the 30-day and common disaster provisions the testators may have intended that section 3 gifts should become effective if no spouse survived by 30 days, that intention is not expressed clearly in the will. Finally, Blansett held that the testator's intent should be ascertained from the will itself. In the case before us, even if the defendants' well pleaded allegations were considered, we do not believe they ...


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