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01/30/95 CAROL JUNE STICHTER v. LARRY JOE ZUIDEMA

January 30, 1995

CAROL JUNE STICHTER, DAVID LEE ZUIDEMA AND JACK D. JONES, AS ADMINISTRATOR OF THE ESTATE OF DIANE FAY JONES, DECEASED, PLAINTIFFS-APPELLANTS,
v.
LARRY JOE ZUIDEMA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois. Nos. 91 CH 60, 91 CH 61. Honorable Jeffrey O'Connor, Judge Presiding.

Released for Publication March 3, 1995.

The Honorable Justice McCUSKEY delivered the opinion of the court: Present - Honorable Peg Breslin, Justice, Honorable Michael P. MC Cuskey, Justice, Honorable Kent Slater, Justice.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The plaintiffs, Carol June Stichter, David Lee Zuidema and Jack D. Jones, as administrator of the estate of his mother, Diane Jones, filed an action in which they claimed third party beneficiary status under a valid antenuptial agreement (agreement). The plaintiffs' father, Elmer Zuidema (Elmer), was a party to the agreement. The circuit court of Whiteside County found the agreement did not confer third party beneficiary status on the plaintiffs.

The plaintiffs raise three issues on appeal: (1) whether the trial court properly considered extrinsic evidence when it construed the agreement; (2) whether the agreement restricted Elmer's right to make lifetime property transfers; and (3) whether the plaintiffs are third party beneficiaries of the agreement.

We conclude that the agreement is unambiguous. Therefore, the trial court should not have allowed extrinsic evidence. However, our review of the record and applicable law indicates that the court's judgment was correct in spite of the improperly admitted extrinsic evidence. The court correctly determined that the agreement did not restrict Elmer's right to make lifetime transfers of his property. Also, we agree with the court's conclusion that the plaintiffs are not third party beneficiaries of the agreement. Accordingly, we affirm.

FACTS

Elmer had four children by his first marriage: Carol Stichter (Carol); David Zuidema (David); the defendant, Larry Zuidema (Larry); and Diane Jones (Diane). On December 28, 1959, Elmer and Delsa Irene Moret (Irene) executed the agreement. The following provisions are relevant to the case at hand:

"WHEREAS Elmer Zuidema has four children * * * who have by dint of their physical efforts contributed to the aggrandizement of their father's property, and Elmer Zuidema has an obligation to conserve his estate for the benefit of his children * * *.

1. [Irene] shall * * * have full right, power, liberty and authority, as fully and in all respects the same as she would if not married, to use, enjoy, manage, convey, mortgage, grant, alienate, and dispose of all and every part of her present and also her future property and estate, of every kind and character, including also the right and power to dispose of same and all and every part thereof by last will and testament * * *.

3. [Elmer] * * * further agrees with and covenants to [Irene] that he will execute his last will and testament and therein provide that [Irene] shall receive a one-fifth interest in and to all his property (each of his children likewise to receive one-fifth) whatever its natur [sic] or value may be at the time of his death * * *." (Emphasis added.)

In the agreement, Irene explicitly reserved to herself the power to dispose of her property during her lifetime. The agreement does not contain a similar reservation of Elmer's right to retain control over his property.

On December 30, 1959, Elmer and Irene married. They had one child, Dawn Zuidema (Dawn), who is not a party to this action. Diane died in 1979, leaving a husband and three sons. Jack D. Jones (Jack), ...


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