Smith's Estate, Matter of

• Decision Date: 23 January 1979
• Docket Number: No. 14977,14977
• Citation: Smith's Estate, Matter of, 385 N.E.2d 363, 68 Ill.App.3d 30, 24 Ill.Dec. 451 (Ill. App. 1979)
• Parties: , 24 Ill.Dec. 451 In the Matter of the Estate of Alma I. SMITH, Deceased. Paul D. OGLE, Edna Ogle Eden, James H. Ogle, Joyce O. Carr, Becky O. McDannald, Vernon Ogle, Keith Ogle, Ruth Chambers, Carol Dilks, and Lloyd G. Ogle, Plaintiffs-Appellees- Cross-Appellants, v. James Elvin OGLE, Individually and as Executor under the Will of Alma I. Smith, Deceased and Leland W. Ogle, Defendants-Appellants-Cross- Appellees, (Two cases.) In the Matter of the Estate of Oscar H. SMITH, Deceased.
• Court: Appellate Court of Illinois

Page 363

385 N.E.2d 363

68 Ill.App.3d 30, 24 Ill.Dec. 451

In the Matter of the Estate of Alma I. SMITH, DeceasedPaul D. OGLE, Edna Ogle Eden, James H. Ogle, Joyce O. CarrBecky O. McDannald, Vernon Ogle, Keith Ogle, Ruth Chambers, Carol Dilks, and Lloyd G OglePlaintiffs-Appellees- Cross-Appellants, v.James Elvin OGLE, Individually and as Executorunder the Will of Alma I. Smith, Deceased and Leland W. Ogle, Defendants-Appellants-Cross- Appellees, (Two cases.)In the Matter of the Estate of Oscar H. SMITH, Deceased.

No. 14977.

Appellate Court of Illinois, Fourth District.

Jan. 23, 1979.

Rehearing and Certificate of Importance Denied Feb. 21, 1979.

Bellatti, Fay, Bellatti & Bone, Jacksonville, Robert M. Bellatti, Springfield, for appellants.

Barber & Barber, Carl O. Hoffee, Springfield, for appellees.

MILLS, Justice:

Will construction.

The court below--on the pleadings--found that the provisions of the will did not cover the events that occurred and that the laws of intestacy must govern.

The trial judge was correct.

We affirm.

Oscar Smith died suddenly of a stroke on April 10, 1977, and his wife, Alma, died fifteen days later from a lingering cancer illness.The following dispositive provisions were contained in their reciprocal wills:

"SECOND: I give, devise and bequeath all of my estate, real, personal and mixed wheresoever situated to my wife, ALMA I. SMITH, if she(my husband, OSCAR H. SMITH, if he) shall survive me within thirty (30) days from the date of my death.

THIRD: I direct that if my wife, ALMA I. SMITH, (my husband, OSCAR H. SMITH) and I die in or from a common disaster that my estate be equally divided between my nephews, JAMES ELVIN OGLE, and LELAND OGLE, share and share alike."

James Ogle was named executor in section 4 of their wills.

The plaintiffs, who are Alma's living brothers and sister and the children of her deceased brother, reason that since Oscar and Alma did not die in a common disaster, the provisions of section 3 did not take effect.Because there is no other dispositive provision in the will, they take Alma's estate by intestacy, just as she would take Oscar's estate by intestacy since she did not survive him by thirty days.The defendants, who are the nephews James and Leland Ogle, argue the will shows a gift of the entire estate by implication.

Illinois courts have been confronted with similar dispositions in Bradshaw v. Lewis(1973), 54 Ill.2d 304, 296 N.E.2d 747;Schuyler v. Zwiep(1976), 42 Ill.App.3d 91, 355 N.E.2d 554;andIn re Estate of Blansett(1975), 28 Ill.App.3d 552, 328 N.E.2d 593.In all of these casesthe courts have refused to recognize a gift by implication, holding that the provisions of the wills did not create an implication so strong as to leave no reasonable doubt as to the testators' intentions.However, defendants claim the present case is distinguishable because it involves reciprocal wills and not joint and mutual wills as was the case in Bradshaw, Schuyler, and Blansett.

We do not agree.Under either type of instrument there still exists a reasonable doubt concerning the testator's intent.

Defendants also note that James Ogle was nominated executor, that the will contained both a thirty-day and a common disaster provision, and that the testators were fond of the defendants but disliked certain of the plaintiffs.The Blansett case recognized that the naming of an executor is not conclusive of donative intent because they are usually chosen because of their availability, skill, and trustworthiness.And although by the use of both the thirty-day and common disaster provisions the testators may have intended that section 3 gifts should become effective if no spouse survived by thirty days, that intention is not expressed clearly in the will.Finally, Blansett held that the testator's intent should be ascertained from the will itself.In the case before us, even if the defendants' well pleaded allegations were considered, we do not believe they show that the testators intended that the estate should go to the defendants upon their deaths.Thus, the holding of these three cases compels us to affirm the trial court's decision that the estate pass by intestacy.

The next issue presented concerns defendants' attorneys' fees allowed by the trial court.After defendants had filed the wills for probate noting themselves as devisees of the estates, plaintiffs filed a suit for declaratory judgment contending that defendants had no interest in the estate.James Ogle, as executor, filed a counter-claim seeking construction of the will and he and Leland Ogle, as individuals, also filed a counter-claim alleging that a genuine controversy existed as to the proper construction of the wills.Although the trial court found for the plaintiffs, the court awarded defendants attorneys' fees because there was a genuine controversy concerning the meaning of the wills.

As a general rule the costs of litigating a will construction case are...