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04/14/88 In Re Estate of Frank Krotz

April 14, 1988

IN RE ESTATE OF FRANK KROTZ, DECEASED (NORMA DOWDLE,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Plaintiff-Appellee and Cross-Appellant, v.

Edward Krotz, Executor, Defendant-Appellant and

Cross-Appellee

522 N.E.2d 790, 168 Ill. App. 3d 545, 119 Ill. Dec. 128 1988.IL.535

Appeal from the Circuit Court of McLean County; the Hon. James A. Knecht and the Hon. William T. Caisley, Judges, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant Edward Krotz, executor of the estate of his father, Frank Krotz, decedent, appeals from an order of the circuit court of McLean County holding that decedent's will was ambiguous and in need of construction and further holding that certain shares of stock of decedent should pass according to the residuary clause of the will. Plaintiff Norma Dowdle, a daughter of decedent, cross-appeals from the award of attorney fees.

According to the record, the last will of Frank Krotz provided that his wife should have the right to reside in his residence and to use the tangible personal property in the residence until her death or remarriage or permanent vacation of the premises, after which the residence was to be sold and the proceeds divided equally among his three children. Decedent made specific bequests of numerous items of personalty, including coins, tools, and sporting equipment, and provided for each of his 16 grandchildren to receive $1,000. Decedent bequeathed all his stock in F. Krotz Food Company to his son Edward, with no restrictions. The provision which is being litigated is as follows:

"ITEM VII. I bequeath all my stock in BLOOMINGTON EAST GATE PLAZA, INC., a corporation, to my son, EDWARD KROTZ, subject to the provision that for two (2) years after my death, he does not dispose of said stock nor the assets in said corporation, and that from that portion of the net rental monies that I would have received (net rental monies being defined as after the payment of necessary maintenance, taxes, utilities, insurance and other expenses that are not paid by the Lessee of the premises) shall be divided equally amongst my three (3) children, EDWARD KROTZ, FRANCES SKAPEK, and NORMA DOWDLE. Prior to making this distribution to my said three children, in the event there is insufficient cash to pay the legacies in Item V Par. J above (the $1,000 to each of my grandchildren living at my death), then said net rental monies shall be used first to satisfy this bequest and the balance then distributed to my three children named above, in equal shares."

Additional provisions included a residuary paragraph which provided that the residue of decedent's estate should be divided equally among his three children, per stirpes ; a provision which disinherited any of his children who contest any provision of the will; and a final paragraph, as follows:

"In the past few years, I have made several gifts to my children or grandchildren, and I want it specifically understood that any gifts that I have made prior to my death are in addition to the gifts made in this Will."

It appears from the record that decedent owned 4,800 shares of stock in the Bloomington Eastgate Plaza, Inc., that he controlled an additional 500 shares as trustee, and that the remaining 4,700 shares were owned by his son, Edward Krotz. According to the terms of the trust, the 500 shares passed to Edward Krotz immediately upon the death of decedent. It also appears from the record that decedent's daughter, Frances Skapek, sold ...


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