Wagner v. Clauson

• Decision Date: 18 March 1948
• Docket Number: No. 30362.,30362.
• Citation: 399 Ill. 403,78 N.E.2d 203
• Parties: WAGNER et al. v. CLAUSON et al.
• Court: Illinois Supreme Court

399 Ill. 403

78 N.E.2d 203

WAGNER et al.

v.CLAUSON et al.

No. 30362.

Supreme Court of Illinois.

March 18, 1948.

Appeal from Circuit Court, Peoria County; John T. Culbertson, Jr., judge.

Suit by Bernard C. Wagner and others against Katherine Clauson and others for a construction of the last will of Elizabeth Gift, deceased. From a decree for plaintiffs, defendants appeal.

Decree affirmed.

Carl E. Phillips, London G. Middleton, Wilbur D. Dersch, Chester L. Anderson and Wayne B. Miller, all of Peoria, for appellants.

Bartley & Bartley, of Peoria, for appellees.

GUNN, Justice.

This is an appeal from a decree of the circuit court of Peoria County construing the last will and testament of Elizabeth Gift, who died February 4, 1945, leaving a considerable amount of real estate and personal property in that county. The sole heirs-at-law of Mrs. Gift are all first cousins, and are the persons named as heirs-at-law in the pleadings in this case. The appellants are Miss Katherine Clauson, who had been a confidential employee of the decedent for many years prior to her death, and the persons mentioned in the memorandum hereafter described.

Mrs. Elizabeth Gift left a last will and testament, which was executed on March 7, 1940, and the construction of which is the subject matter of this case. The will is in the usual form, and only the clauses involved in this case are set forth. The second clause is as follows: ‘Second: I give and bequeath the sum of Twenty Thousand Dollars ($20,000.00) to my good friend and faithful companion Katherine Clauson of Peoria, Illinois, and I direct that this legacy shall be paid free from any inheritance, transfer, succession, legacy or estate tax and that all such taxes be paid out of the residue of my estate.’ The third clause of the will consists of two paragraphs, the first of which is: ‘Third: All the rest, residue and remainder of my property, real, personal, and mixed and wherever situated, I give, devise and bequeath to Katherine Clauson, as Trustee, for the purpose of converting it into cash and making distribution thereof in accordancewith a memorandum of instructions prepared by me and delivered to her. I make division of the residue of my estate in this manner so that only Katherine Clauson and the distributee shall know of its disposition.’ The second paragraph of the third clause is as follows: ‘I nominate and appoint Katherine Clauson as Executrix and Trustee of this my Last Will and Testament, and request that she be not required to furnish bond for the faithful performance of her duties as such. I authorize and empower my said Executrix and Trustee to sell any or all of my property at public or private sale as in her discretion seems best, and to execute and deliver all instruments of transfer necessary to complete such sales.’

The will was witnessed and attested in the manner required by law, and Miss Clauson, as the executrix, presented the will for probate in the probate court of Peoria County. At the hearings upon the probate it developed from the testimony of Miss Clauson that when she had opened the safety-deposit box, with a representative of the Attorney General, after the death of Mrs. Gift, she found the will, and with it a sealed envelope addressed to her in the handwriting of Mrs. Gift, which she had not opened. As a result the sealed envelope was procured by an order of the probate court, and opened by the judge of that court. In it was found a paper in the handwriting of Mrs. Gift, dated March 12, 1940. It is referred to in the briefs as a memorandum of instructions and, although it contains no such title as a part thereof, it is as follows:

'I bequeath to Katherine Clauson my faithful friend and companion my autoradio, seal skin jacket, Cahrlie's diamond ring, two red rugs in living room, and any thing else you want, also the residue of my estate after all bequests are taken care of-To Jennie Colwell my marquise ring and any thing else she might want-& two thousand dollars To Julia Mihigan the largest rug in your room-& one thousand dollars, you to keep it and give her ten dollars at Christmas, birthday and Easter, if there is any left at her death you keep it-To Julia and Jennie Colwell my clothes and coats-To Mary Foster my diamond earrings To Lucile and Harriet Foster my gold bracelets To Genie King the dozen butter cut forks To Annie Spurck The blue turkey platter & the dozen dessert spoons. To Luelle Foster the onyx bracelet and clip-silver salad forks & any thing else she might like To Blanche Lyons my opal earrings-To Josephine Selby 1/2 doz silver forks and 1/2 doz pearl handled knives-To Virginia Carlin 1/2 doz silver forks and 1/2 doz pearl handle knives-To Audrey Gift Mrs. Gift's diamond ring-I am not leaving William any money for I dont want Richard and Claresa to have it-Give Clarchen Craft something He once said he would like the bronze figure on the stairs, so give it so him if he still cares for it-Give Dugan some of the silver ware-To Myrven and Lyle Gift the property in Arkansas-Give Erma Best, Virgie St. Cerney and Mrs. Fey something also Jennie Rehfuss-To Elizabeth Gift my two stone ring-to Lizzie Pople two hundred dollars-The rest of the stuff take what you want and give the rest to any friends that would care for it.

Elizabeth Gift

Mar 12-1940'

The will was admitted to probate on May 10, 1946, but the above instrument was neither offered nor admitted to probate. Thereupon this suit was instituted by appellees to construe the will, alleging that the third clause of the will was invalid for various reasons hereafter discussed, and that the residue of the estate therefore fell under the Statute of Descent to the heirs-at-law as intestate property, and that such heirs-at-law were entitled to partition of the real estate. The appellees also asked the court to determine whether, because of the invalidity of the third clause of the will, the entire will, including the $20,000 gift to Miss Clauson in the second clause of the will, was invalid. Upon a hearing the circuit court held that the second clause was valid, but that the third clause was invalid, and decreed partition of the real estate and distribution of the personal property accordingly.

The value of the real estate is estimated to be in the neighborhood of $15,000, and the personal property of approximately $85,000. Upon this appeal the only questions involved are the validity of the third clause of the will, and the rights of the appellees to partition, no question being raised as to the validity of the second clause of the will, making a bequest to Miss Clauson of the sum of $20,000. A freehold being involved, the cause comes directly to this court.

The evidence shows that several days after the will was executed the deceased gave Miss Clauson the will in question, and also the sealed envelope above referred to, and asked her to place them in the safety-deposit box of Mrs. Gift, which was done. This was some time after the will was executed, there being some doubt as to whether it was the next day or five days or more after that event, but in either case it appears that Miss Clauson did not know of the contents of the sealed envelope, and had never seen the written instrument hereinafter referred to as the ‘memorandum,’ and never knew of its existence until the envelope was opened in the probate court, after Mrs. Gift's death. It also appears that no other written memorandum of a similar kind was ever prepared, so far as appellant Clauson knew.

The appeal in this case is upon the part of Katherine Clauson as trustee under said will on behalf of those persons mentioned in the memorandum in writing above referred to, and Katherine Clauson as an individual. The contention of the appellants in brief is that the writing found in the box containing the memorandum enclosed in the envelope marked ‘Katherine Clauson,’ could properly be used to ascertain the intention and the beneficiaries of Elizabeth Gift; that if it was not legally a part of the last will it contains sufficient language to make the trust mentioned in the third clause of the will enforcible; and, in the alternative, is the separate contention by Miss Clauson that if the writing be not a part of the will, or directions to the trustee, then the words in the will designating Katherine Clauson ‘trustee’ are surplusage, or at the most precatory words not binding upon her, and, hence, there was a complete and outright gift of the residuary estate to Katherine Clauson as an individual, free from any obligation as trustee. Appellees, upon the contrary, claim the memorandum is no part of the will; that it is incapable of being used to complete or define the trust mentioned in the third clause of the will; and finally, there being no trust described, although the property is given to Katherine Clauson as ‘trustee,’ that the failure of the trust leaves such property intestate and vests the same in appellees as heirs-at-law of Elizabeth Gift.

The legal effect of the separate instrument should first be ascertained to determine what constitutes the will to be construed. A separate paper may under certain conditions be incorporated into and become a part of a will. The rule as to when such instrument may be referred to in a will and become a part thereof has been settled in this State since Keler v. Merchants Loan & Trust Co., 253 Ill. 528, 97 N.E. 1061, where the authorities were thoroughly examined, and the rule clearly established with the reason for each requirement. According to that authority, in order to incorporate a separate or extrinsic document so as to become a part of the will of the testator the following are necessary: (1) the will itself must refer to the paper to be incorporated (a) as being in existence at the time of the execution of the will, (b) in such a way as to reasonably identify such paper in the will, and (c) in such a way as to show the testator's intention to incorporate such instrument in...