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In Re Estate of Smith





APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.


Alexander Smith ("Alexander" or "testator") died on July 14, 1980, leaving no children or surviving wife. His will, drawn on May 22, 1979, was admitted to probate on October 8, 1980. In supplementary proceedings, plaintiffs, certain of the testator's nieces and nephews, filed a two-count petition, the first seeking a construction of the will, and the second seeking to set aside admission of the will to probate as alternative relief. Following argument on a motion to dismiss, count I was dismissed. A motion for rehearing was also denied. Both orders contain appropriate Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)) language. It is from the dismissal of count I and denial of the post-trial motion that plaintiffs appeal.

Alexander had two brothers, George Smith (George) and John Smith (John), as well as a sister, Mary Lyon (Mary), each of whom were designated legatees under Alexander's will. John died on July 4, 1978, about 11 months prior to the making of Alexander's will. George and Mary died after Alexander's death. Alexander also had three other sisters who predeceased him, none of whom are mentioned in Alexander's will, nor their survivors.

Plaintiffs are the heirs, children and widow, of John. Defendants, inter alios, are: George Lyon, individually and as executor of the estate of Mary; and Juanetta Turner, George Smith and Janet Croonborg, the children of George.

The issue raised is whether the circuit court erred in finding no ambiguity in the terms of the will so as to allow the admission of extrinsic evidence.

Alexander's will, attached to plaintiffs' petition as Exhibit A, provides, inter alia:

"THIRD: All the residue of my estate, wherever situated, including lapsed legacies and devises, but expressly excluding any property over which I may have power of appointment at my death, I give to the following named individuals in equal shares, share and share alike, or to the survivor of them:

TO — GEORGE SMITH, my brother

TO — JOHN SMITH, my brother

TO — MARY LYON, my sister." (Emphasis added.)

Plaintiffs allege that when Alexander executed his will on May 22, 1979, John's death on July 4, 1978, was well known to him, having attended John's funeral and having discussed his passing with others. Plaintiffs' petition further maintains that at all relevant times, it was the testator's intention that John's survivors, themselves, inherit one-third of the residue of Alexander's estate. Plaintiffs assert that the will is susceptible to different interpretations; however, they have not been included as legatees under the will in the executor Pioneer Bank's application for "letters." Plaintiffs pray that the court construe the will and declare it was the intention of the testator that they take one-third of the residue of the estate.

Defendant George S. Lyon, individually and as executor-dative of the estate of Mary Lyon, deceased, *fn1 and defendants Juanetta Turner, George Smith and Janet Croonborg (Turner), brought motions to dismiss the petition on the grounds that because the will is clear and unambiguous, circumstances surrounding the creation of the will should therefore not be introduced to create a different intention than that therein expressed. In plaintiffs' memoranda, they interpret "survivor of them" so to allow them to take John's share and claim that the naming in the will of a dead person created an ambiguity sufficient to allow evidence of circumstances surrounding execution thereof. Defendants argue that such phrase must be considered to mean that the survivor or survivors of the three legatees listed, i.e., George, John or Mary, should take. Also within their memoranda, plaintiffs offer to prove that: the testator had only a "common school education"; he was a riveter all his life; he, John and John's family (plaintiffs) were very close; and, after John's death, the testator gave John, Jr., the key to his "safety box" and a copy of his will.

After the circuit court granted defendants' motion to dismiss count I of the petition to construe the will, plaintiffs moved for a rehearing and offered additional proof, to wit, that: the testator had three sisters who predeceased the making of the will, each leaving survivors, who were not mentioned in the will; Herbert Schnitzer, an attorney and trust officer of Pioneer Bank & Trust Co., was asked by the testator on May 22, 1979, to retype an old will of his upon which instrument the testator had made changes by hand; Schnitzer had his secretary retype the old will, which was subsequently executed by the testator; and Schnitzer did not give the testator legal advice regarding the will. The motion for rehearing and offer of proof were denied. The original will, apparently, could not be found.

Plaintiffs concede on appeal that the phrase "the survivor of them" normally has a settled legal meaning, namely, the last living person or persons of those named. They contend in the instant case, however, that extrinsic evidence should be admitted which would show that an ambiguity exists that should be resolved in their favor. The ambiguity for which they contend is that because John was known by Alexander to have died when he executed his will, it is unlikely that the testator meant the phrase to have the settled legal definition since John could not, perforce, be a "survivor" under that definition. Plaintiffs ...

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