APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN E. NOVOSELSKY, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant Harold Gould (defendant) appeals a finding that certain statutes passed under the residuary clause of a will. He contends that the trial court erred (1) in holding that article one of the will, disposing of "house furniture and furnishings and articles of household or personal use or ornament of all kinds" was unambiguous and did not operate to pass the statutes; and (2) in ruling that extrinsic evidence could not be considered to clarify the testator's intention.
Plaintiff's, co-executors of the estate of Benjamin J. Kulp (testator), petitioned for a construction of his will which, in article one, gave his residence and all "house furniture and furnishings and articles of household or personal use or ornament of all kinds" to defendant, and in article two gave the residue of his estate to the trustees of testator's trust. The beneficiaries of the trust were named as parties defendant.
The bill of appraisement filed with the court by plaintiffs listed 284 items of tangible personal property, including the six statutes in question — of which four depict Abraham Lincoln, one is a bronze bust of an unidentified person, and the sixth is a bronze sculpture entitled "The Woodcarver." Following distribution to defendant of the tangible personal property, including the six statutes, it appears that two beneficiaries, Griffin and Camp, took the position that one of the statutes, which depicted a seated Lincoln appraised at $30,000 and located at testator's club, passed as part of the residue of the estate under article two of the will. Plaintiff then petitioned for a construction of the will and instructions as to the proper distribution of the statutes. Defendant moved to strike and dismiss on the grounds that article one unambiguously included all the statutes.
Following a hearing on the petition, the trial court on January 16, 1981, denied defendant's motion to strike and dismiss and, in ruling that all the statutes passed as part of the residuary estate under article two, the court found that there was no ambiguity in the terms of the will — stating that the statutes were not mentioned in the will and that the absence of unequivocal descriptive language meant that the testator did not intend to include them in article one. The court also ruled that it did not "need extrinsic evidence to clarify the question" and, although it permitted defendant to make an offer of proof concerning the testator's intention, it stated that such evidence would have no bearing on its decision. The trial court then denied a motion for reconsideration which included a request by defendant to present pictures of the items under consideration showing "their location and surroundings in the home of the decedent" and "offers of proof of non-interested persons" concerning the intention of the testator as to the statutes. This appeal is from the order of January 16, 1981.
Defendant essentially contends that the trial court erred in finding that article one was unambiguous and did not include the statutes or, alternatively, that extrinsic evidence should have been admitted to determine the intention of the testator. Plaintiffs contend, on the other hand, that article one is unambiguous and, since it does not specifically describe and bequeath the statutes to defendant, the trial court properly found that they passed as part of the residuary estate under article two. *fn1
The relevant provisions of the will are as follows:
(a) All jewelry, wearing apparel, silver, silverware, china, pictures, paintings, books, house furniture and furnishings and articles of household or personal use or ornament of all kinds owned by me at my death to my nephew, HAROLD GOULD * * *.
All the rest of my estate, real and personal, wherever located, but expressly excluding any property over which I now or hereafter may have power of appointment, I give and devise to the acting trustee of that certain trust created by me known as the Benjamin Kulp Trust, Dated January 6, 1966, as heretofore amended by me on April 30, 1973, and Oct. 7th, 1975, of which The First National Bank of Chicago, of Chicago, Illinois, now is acting as trustee, to be held and disposed of after my death as provided in the said trust agreement as so amended."
The interpretation of wills is governed by certain general principles, preeminent of which is to ascertain and give effect to the intention of the testator (Krog v. Hafka (1952), 413 Ill. 290, 109 N.E.2d 213), which is to be determined from the will itself (Cahill v. Michael (1943), 381 Ill. 395, 45 N.E.2d 657), but where its language leaves doubt as to such intention, as where an ambiguity or uncertainty exists, the court considers the circumstances surrounding ...