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In Re Estate of Lowry

OPINION FILED FEBRUARY 26, 1981.

IN RE ESTATE OF KATHERINE BULKLEY LOWRY, DECEASED. — (TIMOTHY LOWRY, JR., ET AL., CO-EX'RS OF THE ESTATE OF KATHERINE BULKLEY LOWRY, PETITIONERS-APPELLEES,

v.

CRAIG BULKLEY ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. HENRY A. BUDZINSKI, Judge, presiding.

MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The appellants have appealed from the following rulings made by the trial court during the probate of a will:

1. the appellants were not legatees and thus were not entitled to notice of the probate of the will since the testator merely "requested" another legatee to divide certain property with the appellants;

2. the paragraph of the will stating that a specifically designated trust was revoked was effective to revoke that trust.

We find no error and affirm.

The testator, Katherine Bulkley Lowry, died March 23, 1977. She was survived by three children, 10 minor grandchildren and several second cousins, including Peter Bulkley and the appellants, Gary and Craig Bulkley, who are Peter's brothers.

Lowry's will was admitted to probate on June 6, 1977. The petition for probate of the will listed her children, grandchildren and Peter Bulkley as heirs or legatees. Neither Gary nor Craig Bulkley were listed as legatees, nor was a copy of the petition mailed to them. On May 4, 1978, several months after the period for contesting a will had expired (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 8-1), the co-executors of the estate filed, as a supplemental proceeding, a petition for an order of the court ruling that the testator's trust agreement, which had originally been executed in 1972, had been revoked by the will. Summonses as to these proceedings were issued to the appellants and they filed their answer. As already noted, the trial court, after hearing arguments, ruled that the appellants were not legatees and thus had not been entitled to notice under the will and that the will revoked the trust.

Additional facts will be set forth as needed for the discussion of our reasons for affirmance of the trial court's decision.

I.

• 1 The trial court correctly ruled that the appellants were not legatees under the will.

Section 6-4(a) of the Probate Act (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 6-4(a)), requires that heirs and legatees be given notice of the probate of the will. Under that statute, as it presently reads, notice is not required to anyone other than heirs and legatees. The appellants concededly are not heirs. Thus, unless they are legatees, they were not entitled to notice.

The appellants were only mentioned once by name in the will. That was in article II which reads as follows:

"I give all my personal and household effects not otherwise effectively disposed of, such as jewelry, clothing, automobiles, furniture, furnishings, silver, books and pictures (including policies of insurance thereon, if feasible) to PETER BULKLEY of the City of Hartford and State of Connecticut, and request that he divide said effects with his brothers, GARY BULKLEY and CRAIG BULKLEY."

• 2 While at times, under special circumstances, words in a will such as "request" and "desire" have been construed as mandatory (see, for example, Keiser v. Jensen (1940), 373 Ill. 184, 25 N.E.2d 819), it is presumed that such language is used in its ordinary, precatory sense and does not impose a trust upon the legatee but gives the legatee to whom the request was made the discretion to accept or reject the request. (5 Page on Wills § 40.5 (1960).) The rule is well settled that subsequent language, in order to reduce the legacy from an estate of inheritance to a lesser estate, must be clear and explicit so that there can be no uncertainty as to what was intended and generally this is not true of such words as "request" and "desire." (Edgar County Children's Home v. Beltranena (1949), 402 Ill. 385, 84 N.E.2d 363.) Furthermore, it is clear from other parts of the testator's will that she was aware of how to leave assets in trust or to more than one person. In article V of the will, the residuary clause, she left the residue of the estate to her co-executors "to be administered, managed and distributed under the terms and conditions which I have set forth herein as follows." Clause C of article V provided that "I give and bequeath to my aforesaed [sic] beloved grandchildren as shall survive me the rest, resdue [sic] and remainder of my estate, share and share alike." In ...


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