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06/23/87 In Re Estate of William J. Bresler

June 23, 1987

IN RE ESTATE OF WILLIAM J. BRESLER, DECEASED (BURTON F.


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Grant, Ex'r of the Estate of Sophie J. Bresler,

Deceased, Plaintiff-Appellant, v.

Estate of William J. Bresler, Deceased, Defendant-Appellee)

510 N.E.2d 1057, 159 Ill. App. 3d 535, 110 Ill. Dec. 26 1987.IL.869

Appeal from the Circuit Court of Cook County; the Hon. Arthur C. Perivolidis, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiff appeals from summary judgment granted to defendant, thus denying plaintiff's claim for 15% of decedent's estate based on a legacy required by a property settlement incorporated into a divorce decree (judgment). Plaintiff raises for review the issue of whether an agreement to create a legacy for a former wife required by the property settlement and divorce judgment is abated when the former wife predeceases her former spouse and no contractual provision is made for such contingency.

Sophie J. Bresler (Sophie), married to William J. Bresler (William) on October 30, 1932, entered into a separation and property settlement agreement with William on December 1, 1961. The agreement was approved and incorporated in a divorce judgment entered on January 2, 1962. Both the property settlement and the divorce judgment required that William leave Sophie a legacy in his will, the judgment providing in pertinent part:

"12. It is further ordered that WILLIAM J. BRESLER shall leave to his wife, SOPHIE J. BRESLER, a legacy in the sum of fifteen (15%) per cent of his entire estate after discharge of all obligations."

The legacy clause contained in the property settlement at issue in this appeal reads as follows:

3. The husband further agrees that he will leave to the wife a legacy in the specific sum of fifteen (15%) percent of his entire estate after discharge of all obligations. Said undertaking by the husband is a specific undertaking whether or not a Decree of Divorce is ever entered by and between the husband and wife herein."

No provision appears in either document as to the legacy with respect to the situation which eventuated: that ...


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