Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 00-CH-338 Honorable John A. Barra, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice McDADE
This appeal arises from an order entered by the circuit court of Peoria County dismissing a complaint for construction of a will and thereby finding in favor of Barbara J. Garber and other defendants. Plaintiff, Stanley V. Noll, now appeals. On appeal, plaintiff maintains the court erred in failing to recognize that the word "heirs" is a word of limitation denoting the quality of the estate granted rather than construing it as creating a class gift. Because we find dismissal on the pleadings is inappropriate in this case, we reverse and remand with directions.
Rosa E. McCoy died testate on December 11, 1997. When McCoy died, she owned certain tracts of real estate in Washburn, Illinois. In her will, McCoy bequeathed the said property to Arthur L. Garber "and his heirs." The relevant will provisions state:
"THIRD: I will, bequeath and devise the following tracts of real estate to ARTHUR L. GARBER, Route #2, Washburn, Illinois, and his heirs, absolutely and in fee, namely:
FOURTH: All of the rest, residue and remainder of my estate, whether real, personal or mixed, and whether now owned or hereafter acquired, I will, bequeath and devise to ARTHUR L. GARBER, and his heirs, absolutely and in fee."
At the end of paragraph two of the will, which contained several small specific bequests, testator stated the following:
"In the event any of the above legatees should predecease me, his or her legacy will lapse, and the amount he or she would have received if living, shall be divided equally among the remaining above legatees living at my death."
This lapse provision did not appear elsewhere in McCoy's will. McCoy subsequently executed two codicils which did not modify the above dispositive terms of the original will. Garber, who was not a descendant of McCoy, predeceased McCoy in 1996.
On September 22, 2000, Stanley Noll, a legal heir of McCoy, but nowhere a named beneficiary, filed a complaint for construction of the will. In his complaint, plaintiff alleged that the word "heirs" was used as a word of limitation denoting the quality of the estate granted and that the devise to Garber should lapse. Plaintiff named as defendants Barbara Garber, the executor of McCoy's estate and the independent executor of Garber's estate, and other persons who might or could be interested in a proper construction of the will. On November 7, 2001, defendants filed a dismissal motion pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)), arguing that the testator intended "to pass all of the property that she owned to Garber and his heirs" as a class gift. The trial court granted dismissal. In a written order, the court noted that "the testator understood the concept of a devise lapsing with the death of a legatee and how to make a provision for that devise on that occurrence, if [she] desired that the devise lapse upon death. *** [She] did not provide for the lapsing of the devises to Mr. Garber and his heirs. And in not so providing, [she] established [her] clear intent for the gifts not to lapse."
Plaintiff appeals from ...