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03/12/87 In Re Estate of Evelyn M. Offerman

March 12, 1987

IN RE ESTATE OF EVELYN M. OFFERMAN, DECEASED (HUMANE


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Society of Will County, Appellant, v.

St. Joseph Hospital et al., Appellees)

505 N.E.2d 413, 153 Ill. App. 3d 299, 106 Ill. Dec. 107 1987.IL.293

Appeal from the Circuit Court of Will County; the Hon. Vincent J. Cerri, Judge, presiding.

APPELLATE Judges:

Justice Wombacher delivered the opinion of the court. Heiple and Scott, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Mrs. Evelyn Offerman died testate leaving her last will and testament. The will was admitted to probate in November of 1983. On August 13, 1984, the Humane Society of Will County/Joliet (Humane) intervened, as a party interested in the estate. Humane petitioned the trial court for application of the doctrine of equitable deviation with respect to what Humane alleged to be a charitable trust contained in the decedent's will. After a hearing, the trial court granted the executor's motion for summary judgment and denied the relief requested in Humane's petition for equitable deviation. Humane appeals.

The following issues are raised by Humane on appeal: (1) whether this court should make an independent analysis of the facts; (2) whether the trial court erred when it found that the decedent, Mrs. Offerman, did not have a general charitable intent in making the gift under article six of her will and that her will did not create a charitable trust to carry out that intent; (3) whether the doctrine of equitable deviation is applicable in this case; and (4) whether a bequest to the Guardian Angel Home is a bequest for a charitable purpose.

On May 4, 1970, Mrs. Offerman executed her will. Prior to the execution of the will, Mrs. Offerman, at the direction of her attorney, prepared a handwritten letter with an attached memorandum. The letter was described as a competency letter by her attorney and it contained the necessary elements to establish competency to make a will. The letter and memorandum were signed by the testator and the witnesses prior to the execution of the will. The letter and memorandum were admitted into evidence at the hearing on Humane's petition for equitable deviation on January 17, 1985.

Mrs. Offerman died on October 24, 1983. The will was admitted to probate on November 18, 1983. The American Society for the Prevention of Cruelty to Animals appeared in the probate proceeding as a beneficiary under article six of the will and disclaimed the gift stating, inter alia, that the cost of building and maintaining a shelter facility in Joliet, Illinois, was prohibitive, given the fact that they were located in New York.

The relevant parts of Mrs. Offerman's will involved in this dispute are articles six and seven. In article six of the will, Mrs. Offerman gave the residue of her estate to the American Society For The Prevention of Cruelty To Animals , on the condition that said society guarantee certain criteria be met. She then proceeded to list seven conditions which the ASPCA had to fulfill before they could receive the gift. In article seven, Mrs. Offerman stated that "[i]n the event that the American Society For The Prevention Of Cruelty to Animals shall fail to qualify" to receive the bequest "pursuant to the terms and provisions of Article Six immediately preceding," the residue of her estate was to be divided among seven other charitable organizations, including the Guardian Angel Home of Joliet.

On December 18, 1984, the trial court allowed Humane's petition for intervention. Humane then filed its petition for equitable deviation requesting that it be substituted for the ASPCA in article six of the will. The trial court held a hearing on the petition for equitable deviation on January 17 and 18, 1985. On February 4, 1986, the trial court issued a written decision denying Humane's motion for summary judgment with prejudice and granting the executor's motion for summary judgment.

Humane first argues that this court should make an independent decision on the fats and grant their petition for equitable deviation. In general, a court of review will not disturb a trial court's finding unless the holding of the trial court is against the manifest weight of the evidence. (Greene v. City of Chicago (1978), 73 ill. 2d 100, 382 N.E.2d 1205.) The construction and legal effect of an instrument, however, raises a question of law. When the material facts are not in dispute and the only question is the legal effect of an instrument, the manifest-weight-of-the-evidence standard is not applicable. (Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129, 482 N.E.2d 1085.) In addition, where ...


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