Appeal from the Circuit Court of Macon County; the Hon. Jerry
L. Patton, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Petitioner Ilmar Palm-Leis (Executor), appeals from a judgment granting summary judgment to respondents Anna Reiman and Asta Pill on their counterpetition for the construction of the last will and testament of Paul Reiman. The effect of that judgment is that most of the estate must pass through intestate succession to decedent's heirs. We affirm.
Paul Reiman died testate on January 9, 1981, leaving as his only heirs at law his mother, Anna Reiman, and his sister, Asta Pill. Each heir resides in Estonia, U.S.S.R., and was notified that Reiman's last will and testament had been admitted to probate by written notice required by section 6-10 of the Probate Act of 1975. Ill. Rev. Stat. 1979, ch. 110 1/2, par. 6-10.
After the will was duly admitted to probate, Palm-Leis was awarded letters testamentary and filed a petition for will construction in the circuit court seeking a judicial determination of the effect of paragraph 4 of the last will and testament of Reiman. The will is a one-page instrument with only five operative paragraphs. Paragraph 1 provides for payment of expenses and debts by the executor; paragraphs 2 and 3 are specific bequests of $10,000 to each respondent; and paragraph 5 nominates Ilmar Palm-Leis as executor. The disputed provision, paragraph 4, provides as follows:
"4. My executor hereinafter named, shall execute and administrate this will and shall make all distributions of all my tangible and real property in accordance with the aforegoing paragraphs and the verbal guide lines last given by me, and in accord with his best judgment."
The petition for will construction prayed that paragraph 4 be construed as a general power of appointment in favor of the executor so as to avoid a partial intestacy. The heirs filed an answer to the petition, and counterpetitioned the court to declare paragraph 4 an improper testamentary disposition in violation of the statute of wills and to strike it accordingly. They then filed a motion for summary judgment praying that an order issue rejecting the construction of the executor, that the court find the verbal guidelines provision to be void and paragraph 4 an invalid trust for failing to create enforceable rights in ascertainable beneficiaries, and prayed that the residue of the estate be distributed in accordance with the law of descent and distribution. See Ill. Rev. Stat. 1981, ch. 110 1/2, par. 2-1.
Before the court ruled on the motion for summary judgment, the executor filed a motion for hearing, requesting the court to take testimony on the circumstances surrounding the will's execution, including decedent's relationship with the executor, the effect of a distribution to the heirs who live behind the Iron Curtain, and decedent's relationship with his heirs at law. The trial court entered a written order granting the heirs' motion for summary judgment and denying the executor's motion for hearing. The court found paragraph 4 to be in violation of the statutory requirements for making wills and an incomplete trust since it failed to specify enforceable rights in ascertainable beneficiaries. The court explicitly rejected the executor's argument that a general power of appointment was created, finding instead that the testator's intention was to create a trust with the executor as trustee. The court ordered that the estate, except the two specific bequests, be distributed to the testator's heirs at law in accordance with Illinois law.
On appeal, the executor's central argument is that paragraph 4 created a valid testamentary general power of appointment in his favor. The heirs advance the same arguments here as below, and raise further the issue that the petitioner has no standing to prosecute this appeal as executor when the relief requested by him would benefit him individually.
No argument has been made by the executor that the direction to him to distribute in accordance with the testator's verbal guidelines as provided in paragraph 4 is a valid testamentary disposition. No such argument could, in fact, be made since it is fundamental that any disposition by way of verbal guidelines is prohibited by section 4-3 of the Probate Act of 1975. Ill. Rev. Stat. 1981, ch. 110 1/2, par. 4-3.
In Wagner v. Clauson (1948), 399 Ill. 403, 78 N.E.2d 203, the testatrix provided in her will for distribution "in accordance with a memorandum of instructions prepared by me and delivered to her [trustee]." 399 Ill. 403, 405-06.) The supreme court found an improper incorporation by reference since the separate document was not in existence when the will was executed, and it was not clear that the document introduced at trial was the same one referred to in the will. The court concluded that the clause at issue attempted to create a trust which failed because it lacked specificity and ordered distribution to the heirs of the testatrix. In discussing the rules for a valid incorporation by reference, the court noted:
"The law requires a will to be in writing and attested as provided by statute. As shown above, under certain conditions a separate writing may become a part of the will, if properly identified, and this constitutes no evasion of the statute on wills, requiring an attested writing, since it is considered a part of the will, to which the attested signatures are attached. * * *
* * * [A] bequest or devise in trust, which is subject to the testator's future directions, or directions which may be at any time changed after the execution of the will, are void unless the directions are in writing and attested in conformity with the statute on wills." 399 Ill. 403, 411-13, 78 N.E.2d 203, 207-08.
• 1 Decedent's attempt to create an oral plan of testamentary devise by requesting the executor to follow "verbal guidelines" must fail for these reasons. On this view of things, we entertain serious doubt that the remainder of paragraph 4 could be carried out as a result of declaring void such provision, without doing violence to the testator's intention that these guidelines be followed. (Cf. In re Estate of Gerbing (1975), 61 Ill.2d 503, 337 N.E.2d 29.) Nevertheless, we will consider the executor's related argument that it was testator's intention to create a general power of appointment.
• 2 In cases involving the construction of wills, the cardinal rule of construction, to which all others yield, is to determine and to effectuate the intent of the testator so far as such is not contrary to law or public policy. (Cickyj v. Skeltinska (1981), 93 Ill. App.3d 556, 417 N.E.2d 699.) We agree with the executor that a partial intestacy should be guarded against (see Wise v. First National Bank (1957), 10 Ill.2d 623, 141 N.E.2d 1; Schuyler v. Zwiep (1976), 42 Ill. App.3d 91, 355 N.E.2d 554), but point out that such a principle is a guide in the construction of a will and not an absolute principle. A review of the decisions involving ...