Appeal from the Circuit Court of the 9th Judicial Circuit Knox County, Illinois Nos. 97-P-206 Honorable Harry C. Bulkeley Judge Presiding
The opinion of the court was delivered by: Justice Lytton
Petitioners, nieces and nephews of the testator, Pearl Garrett, brought this action to construe their aunt's will. The trial court found that the estate passed as a class to the decedent's surviving siblings but certified two questions to us under Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)). We hold that the estate passes per stirpes to the descendants of the testator's deceased siblings.
On June 2, 1987, Pearl Garrett executed a will that divided her estate among her 10 then-living siblings and the children of her two deceased sisters. The single dispositive paragraph provided:
"I direct the executor hereinafter named to divide my estate into twelve equal shares. I give, devise and bequeath one share to each of the following: Grace Ella Powers, Lora Geneva Bishop, Beulah Leona Jones, Coleman William Bramlett, Alma Elizabeth LeGate, Edna Alpha Ruggles, Clyde Harding Bramlett, Cecil Karl Bramlett, John Lloyd Bramlett and Claude Ted Bramlett, share and share alike or to the survivor or survivors of them; one share to the children of my deceased sister, Maude May Brown, per stripes [sic] and one share to the children of my deceased sister, Mary Belle Clouse, per stirpes."
Garrett died November 12, 1997, survived by five siblings. Her will was admitted to probate and John L. Bramlett was appointed executor.
The executor construed Garrett's will to require that only those siblings who survived Garrett and only those children of Maude May Brown and Mary Belle Clouse who were living at Garrett's death would inherit under the provisions of her will. The executor filed a final report dividing Garrett's estate into seven shares with one share each going to Garrett's five surviving siblings, one share to the surviving children of Brown, and one share to the surviving children of Clouse.
Petitioners, descendants of siblings who died after Garrett executed her will and the descendants of the predeceased children of Brown and Clouse, objected to the final report. The executor then filed a motion to construe the will and approve the final report. The trial court found that the will created a class gift which required class members to survive the testator. The court also found that the provisions providing for a bequest of a one-twelfth share "to the children *** per stirpes" of each of Garrett's two predeceased sisters was ambiguous.
Both parties filed motions to reconsider, which were denied. Petitioners then filed a "Motion For Rule 308(a) Appeal," which the trial court granted.
The trial court certified two questions of law for our review:
"a. Whether the provision in the will of the decedent providing for a bequest to ten named brothers and sisters 'share and share alike or to the survivor or survivors of them' creates a class gift which imposes a requirement that the named sibling survive the testator and, thus, only those brothers and sisters who survived the testator would inherit and whether there is an ambiguity in that provision.
b. Whether the provision in the will providing for a bequest of 1/12 share 'to the children...per stirpes' of two of the testator's sisters who died prior to ...