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06/10/87 Joan Grace Larison Et Al., v. Donna Kay Record

June 10, 1987

JOAN GRACE LARISON ET AL., APPELLEES

v.

DONNA KAY RECORD, APPELLANT



SUPREME COURT OF ILLINOIS

512 N.E.2d 1251, 117 Ill. 2d 444, 111 Ill. Dec. 614 1987.IL.774

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Mercer County, the Hon. Edward Keefe, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

Plaintiffs, Joan Grace Larison and Carol Jean Schaubroeck, filed in the circuit court of Mercer County a complaint for construction of the mutual will of their father and stepmother. Following the plaintiffs' amendment of their complaint, the trial Judge granted the motion of defendant, Donna Kay Record, to dismiss the complaint. The trial Judge denied plaintiffs' motion for reconsideration and request for leave to file a second amended complaint. The appellate court reversed the dismissal and remanded the case to the trial court, finding that the will granted plaintiffs a gift by implication. (141 Ill. App. 3d 477.) We allowed the defendant's petition for leave to appeal pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315(a)).

George C. Berge and his wife, Anna, executed a document entitled "Mutual Will of George C. Berge and Anna C. Berge," on January 21, 1961. George had two children, Joan Grace Larison and Carol Jean Schaubroeck, the plaintiffs in this action, by his previous marriage; Anna, in her previous marriage, had one child, defendant Donna Kay Record.

George Berge died July 19, 1977, leaving his two daughters and his wife, Anna, as his only heirs. The mutual will of George and Anna was filed with the circuit clerk of Mercer County on August 1, 1977, but was not probated. Subsequently, Anna died July 19, 1983, leaving her daughter as her only heir. On November 22, 1983, the mutual will of George and Anna was admitted to probate.

Following Anna's death, plaintiffs requested that the defendant account for all property owned by George and Anna. The defendant refused. The plaintiffs then filed the present lawsuit, requesting the court to determine their interests under the will.

The will stated that George and Anna, "desirous of disposing of our property, real and personal, joint and several, after our deaths, respectively, do hereby Make, Ordain, Publish and Declare this to be our, and each of our joint and reciprocal Last Will and Testament." The testators, George and Anna, then stated that their funeral expenses and all of their debts, both joint and several, were to be paid after their deaths, respectively.

The second provision of the will declared that the survivor between George and Anna was to take the real and personal property possessed by the other, "at the time of our deaths, respectively . . . to be his or her sole and absolute property forever." The third paragraph provided that, "In the event that we meet our death in a common disaster and under such circumstances that there is no presumption, in law, of survivorship, then and in that event, we hereby give, devise and bequeath all of our property of which we die seized or possessed to our beloved children, JOAN GRACE HEADLEY, CAROL JEAN SCHAUBROECK, and DONNA KAY RECORD, to share equally." (Joan Grace Headley is now known as Joan Grace Larison.) Finally, the fourth paragraph related that the survivor between George and Anna was to be the executor of the will. The will made no mention of who was to serve as executor if George and Anna died simultaneously.

Plaintiffs, the daughters of George, contend that the will created a gift by implication on their behalf. They argue that the will is ambiguous as written, and requires this court to apply rules of will construction and examine evidence showing that George would not have intended to disinherit his daughters.

Extrinsic evidence of a testator's intent is admissible only to resolve an ambiguity in a will. (See Schuyler v. Zwiep (1976), 42 Ill. App. 3d 91.) This will, however, is not ambiguous. It provides for Dispositions of the testators' property under two circumstances. It does not provide for the Disposition of property after the death of the surviving testator. The silence of the testators in the will as to the Disposition of property after the death of the survivor of them does not make the will ambiguous. (Bradshaw v. Lewis (1973), 54 Ill. 2d 304; Schuyler v. Zwiep (1976), 42 Ill. App. 3d 91.) Extrinsic evidence of the testators' intent, therefore, is inadmissible.

The fundamental rule of testamentary construction is to ascertain the testator's intention from the terms of the will itself. (Bradshaw v. Lewis (1973), 54 Ill. 2d 304, 308.) It is an established rule, however, that when a testator fails to provide in the will for a contingency which the testator most likely would have provided for if he had considered it, the court cannot guess or speculate as to the Disposition the testator likely would have made. (In re Estate of Cancik (1985), 106 Ill. 2d 11; Hampton v. Dill (1933), 354 Ill. 415.) The court cannot create a wholly new gift under the guise ...


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