Turek v. Mahoney
| Decision Date | 27 November 1950 |
| Docket Number | No. 31604,31604 |
| Citation | 407 Ill. 476,95 N.E.2d 330 |
| Parties | TUREK v. MAHONEY. |
| Court | Illinois Supreme Court |
H. L. Brody, and Philip A. Shapiro, both of Chicago, for appellant.
B. M. Steiner, of Chicago, for appellee.
Plaintiff, Edward C. Turek, appellant here, filed his amended complaint, seeking construction of article 2 of the last will and testament of his father, claiming that by that article of the will he is entitled to an undivided one-half interest in certain real estate in Cook County, owned at the time of testator's death by the testator and defendant, Mildred M. Mahoney, appellee here, as tenants in common. On defendant's motion the complaint was dismissed for want of equity and plaintiff brings this direct appeal, a freehold being involved.
The will in article 1 provides generally for payment of testator's debts and gives the sum of one dollar to each of three named children of testator. Article 2 then provides: Article 3 provides for the appointment of Mildred M. Mahoney as executrix and orders distribution.
The controversy arises over the construction to be placed on article 2 of the will as above set forth. The amended complaint alleges that plaintiff, Edward C. Turek, is the son of testator by his deceased first wife and that defendant, Mildred M. Mahoney is the daughter of testator's second wife, Anna Turek, deceased; that shortly after testator's marriage to Anna Turek he purchased the real estate involved here with his own funds and took title in his own name; that thereafter, without any consideration, testator, through a mesne conveyance, placed title in himself and his wife, Anna Turek, as joint tenants for the purpose of so disposing; that upon the death of himself or his wife the survivor of them should automatically have title in fee simple to the premises. It is further alleged that, without the knowledge of the testator, Anna Turek executed a quitclaim deed conveying her interest to the defendant, Mildred M. Mahoney; that Anna Turek died on June 4, 1946, and on that date the quitclaim deed was recorded. Testator died on October 4, 1947, leaving the will here in question, which has been probated and the estate closed.
It was alleged in the complaint that from the time of its purchase until his death the testator was in full and complete possession of the property; that he understood he owned it in fee simple after his said wife's death and made statements to various persons expressing such understanding; that the language of the will was used by the testator with that understanding and that the words of article 2 express an intention that the named beneficiaries should receive not one-half each of an undivided one-half interest, but that each should have an undivided interest in the whole property; that if defendant is to share in the estate under the will, she must accept the gift as testator understood and intended it to be, and she is estopped to claim any share in the estate unless she elect to renounce the interest in the property obtained by her under the quitclaim deed from her mother. The complaint asserts that the court should hear extrinsic evidence on the matter of testator's intention so that it may place itself in the position of testator and construe the will.
Defendant moved to strike the amended complaint on the ground that the language of the will is clear and unambiguous and therefore equity has no jurisdiction to construe it. The motion to strike the amended complaint was sustained and the cause was dismissed for want of equity.
The errors assigned are (1) The court erred in dismissing the amended complaint for the reason that the will, though clear and unambiguous on its face, contains a latent ambiguity when applied to the property here in controversy; (2) that the amended complaint alleges and the motion to strike admits that defendant has collected all the rents and profits from the property and has refused to account therefor to plaintiff.
The crucial question is whether there is a latent ambiguity in the language of the will which will give equity jurisdiction to construe it. It is to be observed the appellant concedes the validity of the will and that the language of the controverted article 2 is clear and unambiguous on its face The validity of the quitclaim deed from Anna Turek to defendant is not questioned, and it is conceded that the effect of that conveyance was to sever the joint tenancy and render testator a tenant in common with defendant, the grantee therein. It is also conceded that testator was charged with knowledge of the law and that he did not, in fact, have knowledge of the conveyance of Anna Turek to defendant.
It is first contended by plaintiff that equity will entertain a complaint for the construction of a will clear on its face if it involves a latent ambiguity when read in the light of extrinsic facts. As an abstract proposition of law, that is correct. Appleton v. Rea, 389 Ill. 222, 58 N.E.2d 854. The precise question is whether the facts alleged in the instant complaint are such as to invoke that rule. Article 3 of the will forms a residuary clause and, as such, purports to dispose of all the property remaining in testator's estate after satisfaction of specific bequests as contained in article 1. Plaintiff contends that, in view of the alleged understanding of the testator that he was sole owner of this property, this language must be read as giving to plaintiff, not one half of testator's one-half interest, but one half of the whole property, and great reliance is placed upon the case of Alford v. Bennett, 279 Ill. 375, 117 N.E. 89. In that case a latent ambiguity is defined as one which arises not upon the words of the will as they appear, but upon those words when applied to the object or subject which they describe. Thus, it was there said that such an ambiguity may arise either when the will names a person as the object of the gift or a thing as the subject of it and there are two persons or things that answer such name or description, or, second, when the will contains a misdescription of the object or subject, as where...
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