APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
524 N.E.2d 1206, 171 Ill. App. 3d 226, 121 Ill. Dec. 158 1988.IL.857
Appeal from the Circuit Court of Cook County; the Hon. Arthur C. Perivolidis, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. McNAMARA and FREEMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Plaintiffs, Mary Diane Raasch and Glen Raasch, appeal from an order of the trial court denying their motion for summary judgment. Mary Diane and Glen contend that the trial court erred in granting motions for judgment on the pleadings in favor of defendants, Gladys S. Meier, individually and as executor of the estate of Arthur F. Meier, deceased; Glenview State Bank, individually and as trustee under the last will and testament of Arthur F. Meier, deceased; Arthur J. Meier; Patricia A. Opethal; and Jyl Frances Levine and Robert Levine, her husband, beneficiaries under the trust created by the last will and testament and codicil thereto of Arthur F. Meier. We affirm.
Arthur F. Meier died testate on July 6, 1980. His last will and testament, along with the codicil thereto, was admitted to probate in the circuit court of Cook County on September 24, 1980. Arthur's wife, Gladys S. Meier, was appointed executor of his estate. According to the will and codicil (will), Gladys was to receive a pecuniary amount equal to 50% of the adjusted gross estate. Article 4 of the will established a trust for the benefit of Gladys, and Glenview State Bank was named trustee. The trust was to consist of the residue of Arthur's estate. Pursuant to paragraph A of article 4, Gladys, as beneficiary of the trust, was entitled to receive the income from the trust in monthly installments during her lifetime. In addition, the trustee was allowed to disburse portions of the principal when deemed necessary or advisable for Gladys' medical care, comfortable maintenance and welfare. However, no principal was to be disbursed until after all sources of Gladys' income known to the trustee were considered.
The portion of the will at issue in the present case is article 4, paragraph B. This paragraph essentially provides for the distribution of Gladys' trust following her death. It also states that "[in] the event that any of my children or their spouses are indebted to me at the time of my death, such indebtedness shall be set off in satisfaction of said child's share of the estate and said indebtedness thereby forgiven." This portion of the will was executed as a codicil in 1978. Thereafter, in June 1979, Arthur loaned his daughter, plaintiff Mary Diane Raasch, and her husband, plaintiff Glen Raasch, $92,500. Gladys was not a party to the loan. According to the terms of the loan, Mary Diane and Glen were required to make payments of $1,000 per month to Arthur. At the time of Arthur's death, Mary Diane and Glen owed $87,312.39 in principal and $287.10 in accrued interest on the loan. The outstanding balance of the loan became an asset of Arthur's estate.
Following Arthur's death, Gladys, as executor, continued to collect payments from plaintiffs pursuant to the terms of the loan for over two years. In July 1984, plaintiffs allegedly learned of the language of article 4, paragraph B, of the will. Plaintiffs then filed a supplemental proceeding in the probate court seeking a judicial construction of the meaning of the will.
In count I of their complaint, plaintiffs alleged that the executor and the trustee failed to properly interpret the language of article 4, paragraph B, of the will by requiring plaintiffs to continue paying on the loan after the death of Arthur. In count II, plaintiffs alleged that the meaning of article 4, paragraph B, is clear and unambiguous and that the loan should therefore be declared fully paid. Plaintiffs requested the issuance of a release deed, an accounting, the return of any sums wrongfully collected and attorney fees and costs. Defendants filed their responses to the complaint. Plaintiffs later filed a motion for summary judgment and defendants filed motions for judgment on the pleadings.
After hearing argument of counsel and considering the parties' briefs on this issue, the trial court entered an order denying plaintiffs' motion for summary judgment and granting defendants' motions for judgment on the pleadings. Thereafter, plaintiffs filed a motion for rehearing and a petition for attorney fees and costs. Upon further briefing by the parties and additional argument, the trial court denied plaintiffs' request for attorney fees and costs. The court then entered an order specifically finding that the "will and codicil are not ambiguous and do not require construction." This appeal followed.
We initially address plaintiffs' argument that the trial court erroneously construed article 4, paragraph B, of Arthur's will as requiring them to continue repayment of the loan from Arthur. Article 4, paragraph B, states in pertinent part:
"Upon the death of my wife, the trust created herein shall be terminated and distributed to my children . . . per stirpes and not per capita. In the event that any of my children or their spouses are indebted to me at the time of my death, such indebtedness shall be set off in satisfaction of said child's share of the estate and said indebtedness thereby forgiven."
At issue here is the last sentence of this paragraph: "In the event that any of my children or their spouses are indebted to me at the time of my death, such indebtedness shall be set off in satisfaction of said child's share of the estate and said indebtedness thereby forgiven." It is plaintiffs' position that based upon the plain and ordinary meaning of the language of this paragraph, the time for calculation of a child's indebtedness to Arthur was at his death, and any indebtedness due and owing at that time would be set off against the child's share of the ...