Lowry's Estate, Matter of

• Decision Date: 26 February 1981
• Docket Number: No. 80-500,80-500
• Citation: 93 Ill.App.3d 1077,418 N.E.2d 10,49 Ill.Dec. 366
• Parties: , 49 Ill.Dec. 366 In the Matter of the ESTATE OF Katherine Bulkley LOWRY, Deceased.
• Court: United States Appellate Court of Illinois

Page 10

418 N.E.2d 10

93 Ill.App.3d 1077, 49 Ill.Dec. 366

In the Matter of the ESTATE OF Katherine Bulkley LOWRY, Deceased.

No. 80-500.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 26, 1981.

James T. Griffin, Chicago, for appellants.

Dowd & Dowd, Ltd., Chicago (Joseph V. Dowd and Philip J. McGuire, Chicago, of counsel), for Co-Executors of the Estate of Katherine Bulkley Lowry, Deceased, appellees.

ROMITI, Presiding Justice:

The appellants have appealed from the following rulings made by the trial court during the probate of a will:

1. the appellants were not legatees and thus were not entitled to notice of the probate of the will since the testator merely "requested" another legatee to divide certain property with the appellants;

2. the paragraph of the will stating that a specifically designated trust was revoked was effective to revoke that trust.

We find no error and affirm.

The testator, Katherine Bulkley Lowry, died March 23, 1977. She was survived by three children, ten minor grandchildren and several second cousins, including Peter Bulkley and the appellants, Gary and Craig Bulkley, who are Peter's brothers.

Lowry's will was admitted to probate on June 6, 1977. The petition for probate of the will listed her children, grandchildren and Peter Bulkley as heirs or legatees. Neither Gary nor Craig Bulkley were listed as legatees, nor was a copy of the petition mailed to them. On May 4, 1978, several months after the period for contesting a will had expired (Ill.Rev.Stat.1977, ch. 1101/2, par. 8-1), the co-executors of the estate filed as a supplemental proceeding, a petition for an order of the court ruling that the testator's trust agreement, which had originally been executed in 1972, had been revoked by the will. Summonses as to these proceedings were issued to the appellants and they filed their answer. As already noted, the trial court, after hearing arguments, ruled that the appellants were not legatees and thus had not been entitled to notice under the will and that the will revoked the trust.

Additional facts will be set forth as needed for the discussion of our reasons for affirmance of the trial court's decision.

I.

The trial court correctly ruled that the appellants were not legatees under the will.

Section 6-4(a) of the Probate Act (Ill.Rev.Stat.1977, ch. 1101/2, par. 6-4(a)), requires that heirs and legatees be given notice of the probate of the will. Under that statute, as it presently reads, notice is not required to anyone other than heirs and legatees. The appellants concededly are not heirs. Thus, unless they are legatees, they were not entitled to notice.

The appellants were only mentioned once by name in the will. That was in Article II which reads as follows:

"I give all my personal and household effects not otherwise effectively disposed of, such as jewelry, clothing, automobiles, furniture, furnishings, silver, books and pictures (including policies of insurance thereon, if feasible) to PETER BULKLEY of the City of Hartford and State of Connecticut, and request that he divide said effects with his brothers, GARY BULKLEY and CRAIG BULKLEY."

While at times, under special circumstances, words in a will such as "request" and "desire" have been construed as mandatory (see for example Keiser v. Jensen (1940), 373 Ill. 184, 25 N.E.2d 819), it is presumed that such language is used in its ordinary, precatory sense and does not impose a trust upon the legatee but gives the legatee to whom the request was made the discretion to accept or reject the request. (5 Page on Wills (Bowe-Parker Revision, 1962), § 40.5.) The rule is well settled that subsequent language, in order to reduce the legacy from an estate of inheritance to a lesser estate, must be clear and explicit so that there can be no uncertainty as to what was intended and generally this is not true of such words as "request" and "desire." (Edgar County Children's Home v. Beltranena (1949), 402 Ill. 385, 84 N.E.2d 363.) Furthermore, it is clear from other parts of the testator's will that she was aware of how to leave assets in trust or to more than one person. In Article V of the will, the residuary clause, she left the residue of the estate to her co-executors "to be administered, managed and distributed under the terms and conditions which I have set forth herein as follows." Clause C of Article V provided that "I give and bequeath to my aforesaed (sic) beloved grandchildren as shall survive me the rest, resdue (sic) and remainder of my estate, share and share alike." In light of these provisions clearly showing an intent to leave property in trust for several persons, we should construe clauses not using such language but using words normally understood only in a precatory sense, in that latter sense. As the court remarked in Edgar County Children's Home v. Beltranena (1949), 402 Ill. 385, 388, 84 N.E.2d 363, 365:

"That the testator was familiar with accurate dispositive terminology is apparent from his use of the words 'give, devise and bequeath' in connection with his gift to his wife. By failing to employ words of similar import in subsequent provisions, he has indicated that the latter were intended to express a mere wish as to the future disposition of the property by his wife. The testator must be considered to have used language with ordinary intelligence, and if he did so he clearly would not adopt these different modes of expression without intending a difference of meaning. It is only by recognizing the latter terminology as mere precatory expressions that an inconsistency can be avoided."

Our conclusion is reinforced by the fact that when the testator first set up a trust in 1972 she left in trust "all my family furniture and heirlooms * * * to the descendants per stirpes, living at the time of my death, of my cousin, Roger Bulkley and Marilyn Bulkley * * *. (They presently have four children Peter Bulkley, Gary Bulkley, Craig Bulkley and Kerry Bulkley.)" and she also left two-thirds of the balance of a family trust to the Bulkley cousins, the principal to be distributed in equal shares; whereas after the final amendment to the trust, the corpus of the trust was to be given to Peter Bulkley "provided further that at his discretion I ask him to equitably distribute to his brothers, Gary Bulkley and Craig Bulkley, such funds as he deems them responsible and capable of handling * * *." This change in language demonstrates that the testator was fully aware of the difference between leaving property absolutely to certain persons to be divided between them and leaving property to one person with suggestions as to how it was to be handled and that she was capable of drafting a document to further either end. The change further indicates that as time went by the testator became less and less interested in leaving property to Gary and Craig Bulkley. The will was simply the culmination of this desire.

II.

In light of the terms of the trust, the provision in the will specifically revoking the trust was effective.

In 1972 the testator executed a declaration of trust, describing certain of her property and providing for its disposition. In that instrument the testator-settlor declared herself to be the trustee of the described property. Successor co-trustees were also named. The trust agreement also provided that the "Grantor may by signed instrument delivered to the trustee during the Grantor's life revoke this agreement in whole or in part * * *." This trust agreement was amended on several occasions but the testator-settlor remained the trustee and there was always a revocation clause. The final amendment was on February 11, 1977. In that amendment she again named herself as trustee of the property held in the trust. The amendment also provided that:

"I may at any time or times during my lifetime by instrument in writing delivered to the Trustee or Co-Trustees (hereinafter referred to as Trustees) amend or revoke this declaration in whole or in part. The Trust Property to which any revocation relates shall be conveyed to me or otherwise as I direct. This power is personal to me and may not be exercised by my legal representative or others."

A will which she executed on the same day as the declaration of trust left the residue of her estate to the acting trustee under the trust. On March 2, 1977 the testator executed her last will which was the one admitted to probate. The first paragraph of that will reads as follows:

"I, Katherine Bulkley Lowry, a resident of the city of Wilmette and State of Illinois, being of sound and disposing mind and memory declare this instrument to be my LAST WILL AND TESTAMENT, and I hereby revoke any and all other wills, codicils and trusts that I may have heretofore made, Executed or created. More particularly I wish by this instrument, my last will and testament, to revoke, set aside and nullify specifically a certain trust created by me on January 24, 1972 and known as the Katherine Bulkley Lowry Declaration of Trust No. 44995 as amended by amendments no. one through four inclusive."

The appellants contend that since a will is ambulatory and has no legal existence until it is "consummated by death," and the trust required that any revocations be by an instrument in writing executed during the settlor's lifetime, the language in the will, although clearly purporting to revoke the trust, was ineffective to do so. The appellants' contention that a will being ambulatory cannot revoke a trust which by its provisions can only be revoked during the settlor's lifetime is supported by language in several cases. Thus it was stated in Rosenauer v. Title Insurance & Trust Co. (1973), 30 Cal.App.3d 300, 303, 106 Cal.Rptr 321, 323: "Accordingly, it is settled that a power to revoke 'during the lifetime' of the settlor, which means by a revocation taking effect before the death of the settlor cannot be exercised by a will that in the nature of things...