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September 21, 2001

Petitioners, nieces and nephews of the testator, PearlGarrett, brought this action to construe their aunt's will. Thetrial court found that the estate passed as a class to the decedent's surviving siblings but certified two questions to usunder Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)). We holdthat the estate passes per stirpes to the descendants of thetestator's deceased siblings.

On June 2, 1987, Pearl Garrett executed a will that dividedher estate among her 10 then-living siblings and the children ofher two deceased sisters. The single dispositive paragraphprovided:

"I direct the executor hereinafter named to divide myestate into twelve equal shares. I give, devise andbequeath one share to each of the following: Grace EllaPowers, Lora Geneva Bishop, Beulah Leona Jones, ColemanWilliam Bramlett, Alma Elizabeth LeGate, Edna AlphaRuggles, Clyde Harding Bramlett, Cecil Karl Bramlett,John Lloyd Bramlett and Claude Ted Bramlett, share andshare alike or to the survivor or survivors of them; oneshare to the children of my deceased sister, Maude MayBrown, per stripes [sic] and one share to the children ofmy deceased sister, Mary Belle Clouse, per stirpes."

Garrett died November 12, 1997, survived by five siblings. Herwill was admitted to probate and John L. Bramlett was appointedexecutor.

The executor construed Garrett's will to require that onlythose siblings who survived Garrett and only those children ofMaude May Brown and Mary Belle Clouse who were living at Garrett'sdeath would inherit under the provisions of her will. The executorfiled a final report dividing Garrett's estate into seven shareswith one share each going to Garrett's five surviving siblings, oneshare to the surviving children of Brown, and one share to thesurviving children of Clouse.

Petitioners, descendants of siblings who died after Garrettexecuted her will and the descendants of the predeceased childrenof Brown and Clouse, objected to the final report. The executorthen filed a motion to construe the will and approve the finalreport. The trial court found that the will created a class giftwhich required class members to survive the testator. The courtalso found that the provisions providing for a bequest of a one-twelfth share "to the children *** per stirpes" of each ofGarrett's two predeceased sisters was ambiguous.

Both parties filed motions to reconsider, which were denied. Petitioners then filed a "Motion For Rule 308(a) Appeal," which thetrial court granted.

The trial court certified two questions of law for our review:

"a. Whether the provision in the will of thedecedent providing for a bequest to ten named brothersand sisters 'share and share alike or to the survivor orsurvivors of them' creates a class gift which imposes arequirement that the named sibling survive the testatorand, thus, only those brothers and sisters who survivedthe testator would inherit and whether there is anambiguity in that provision.

b. Whether the provision in the will providing fora bequest of 1/12 share 'to the children...per stirpes'of two of the testator's sisters who died prior to theexecution of the will, is ambiguous."

I

The first question contains two issues: (1) Is a class giftcreated? and (2) Is the language ambiguous?

A

First, we must determine whether a class gift exists. Petitioners argue that the bequest was not a class gift. Theexecutor agrees that the provision does not create a class gift. We agree with the parties.

A class gift is "'a gift of an aggregate sum to a body ofpersons uncertain in number at the time of the gift, to beascertained at a future time, and who are all to take in equal orin some other definite proportions, the share of each beingdependent for its amount upon the ultimate number of persons.' [Volunteers of America v. Peirce, 267 Ill. 406; Levings v. Wood,339 Ill. 11.]" Continental Illinois National Bank and TrustCompany of Chicago v. Eliel, 17 Ill. 2d 332, 339, 161 N.E.2d 107(1959). One of the essential features of a class gift is that thenumber of the persons who are to take the property is to beascertained at a future time. O'Connell v. Gaffney, 23 Ill. 2d611, 617, 179 N.E.2d 647, 650 (1962). A gift to persons who arenamed in the language of gift is prima facie or by initialpresumption a gift to them as individuals notwithstanding they arealso designated in general terms as by relationship to the testatoror others. O'Connell, 23 Ill. 2d at 617, 179 N.E.2d at 650. Agift in equal shares to the named individuals strengthens theconclusion that a class gift was not intended. O'Connell, 23 Ill.2d at 617, 179 N.E.2d at 651.

Garrett first divided her estate into 12 equal shares; shethen devised one share to each named sibling. Shares were notdependent on persons to be determined in the future; the number ofpersons, and the share to each, was already ascertained. Further,she named her siblings individually, indicating a gift to each ofthem, not to a class. All of these factors indicate a gift toindividuals was intended. See O'Connell, 23 Ill. 2d at 617, 179N.E.2d at 650. The trial court erred when it held that Garrett'swill created a class gift to her siblings.

B

Next we address the second part of the first certifiedquestion, that is, whether the language "share and share alike orto the survivor or survivors of them" is ambiguous.

Petitioners contend that the phrase is ambiguous when read inthe context of the entire bequest and that, construing the will asa whole, Garrett's intent was to provide a per stirpes distributionto her siblings' descendants. The executor, however, argues thatthe will is not ambiguous and survivorship is required.

"The cardinal rule of will construction, to which all otherrules yield, is the ascertainment of a testator's intention fromthe will itself." In re Estate of Kirchwehm, 211 Ill. App. 3d1015, 1018, 570 N.E. 2d 851, 854 (1991). Since wills are notalways alike, results in other will cases are seldom of controllingimportance in determining a testator's intent. Stites v. Gray, 4Ill. 2d 510, 513, 123 N.E. 2d 483, 487 (1954). The intention ofthe testator is established by examining the will as a whole todetermine whether an ambiguity exists. See In re Estate ofCarlson, 39 Ill. App. 3d 281, 284-85, 350 N.E.2d 306 309 (1976). Whether an ambiguity exists is determined by applying establishedprinciples of law to the will. Binger v. Ackerman, 15 Ill. App. 2d35, 40-41, 145 N.E.2d 277, 281 (1957). If the meaning of thewill's language is unclear after the application of establishedprinciples of law, an ambiguity is present and a question ofconstruction remains for the court. Binger, 15 Ill. App. 2d at 41,145 N.E.2d at 281.

Generally, the use of the word "survivor" in a will isconstrued to mean the person who lives the longest out of a groupof named individuals. Carlson, 39 Ill. App. 3d at 284-85, 350N.E.2d at 309. However, a different interpretation may beappropriate if the traditional definition creates a result contraryto the testator's intent. See Carlson, 39 Ill. App. 3d at 284-85,350 N.E.2d at 309.

We must review the entire will to determine if the language"share and share alike or to the survivor or survivors of them" isambiguous. As stated above, in the one dispositional clause of thewill, Garrett left 12 equal shares of her estate to her then-livingsiblings and the children of her two predeceased sisters. Fromthis bequest, we can infer that Garrett wished to treat herbrothers and sisters and their descendants equally. Though theexecutor argues that the word "survivor" is unambiguous, citingCarlson and Kirchwehm, he appears to rely on the holdings in thosecases while disregarding their rationale. Indeed, the analysis inthose cases is the same as ours, i.e., the court must examine thewhole will to determine the intent of the testator. See Carlson,39 Ill. App. 3d at 284-85, 350 N.E.2d at 309; Kirchwehm, 211 Ill.App. 3d at 1018, 570 N.E. 2d at 854. Since her use of the word"survivor" is not consistent with the rest of the dispositiveclause, we find the will to be ambiguous.

Once a will is determined to be ambiguous, a question ofconstruction remains for the court. Binger, 15 Ill. App. 2d at 41,145 N.E.2d at 281. When construing an ambiguity in a will, we willapply the presumption that testators intend property to go inaccordance with the laws of descent and distribution. Dahmer v.Wensler, 350 Ill. 23, 28, 182 N.E. 799, 801 (1932). Illinois lawhas consistently favored per stirpes distribution in the absence ofa contrary intention. Schroeder v. Benz, 9 Ill. 2d 589, 592, 138N.E.2d 496, 500 (1956). To disinherit heirs, a testator mustclearly indicate his intention to do so. Harris Trust & SavingsBank v. Donovan, 145 Ill. 2d 166, 173, 582 N.E.2d 120, 123 (1991). To determine the testator's intent, we must examine the will as awhole. See Carlson, 39 Ill. App. 3d at 284-85, 350 N.E.2d at 309.

Applying these rules of construction to Garrett's will, weconclude that a per stirpes distribution is appropriate here. Noother construction can be ascertained from reading the will in itsentirety. Thus, we hold that Garrett intended a per stirpesdistribution.

II

The second question certified to us is whether the bequests ofa one-twelfth share each "'to the children...per stirpes' of two ofthe testator's sisters who died prior to the execution of the will,is ambiguous." Petitioners argue that the words "per stirpes"apply to all the descendants of the two sisters, Maude May Brownand Mary Belle Clouse. The executor responds that only thesurviving children of Brown and Clouse take under the will, citingGoodwine State Bank v. Mullins, 253 Ill. App. 3d 980, 625 N.E.2d1056 (1993).

"Per stirpes" is a term used to specify the method ofdistribution of property. Goodwine, 253 Ill. App. 3d at 1006, 625N.E.2d at 1076. The words "per stirpes" indicate a taking by rightof representation of that which an ancestor would take if living. Goodwine, 253 Ill. App. at 1006, 625 N.E.2d at 1076. Ordinarilythe words "per stirpes" denote substitution in case of the death ofthe primary legatee. Mercantile Trust & Savings Bank v. Rogers, 5Ill. App. 2d 162, 169, 124 N.E.2d 683, 687 (1955).

In Goodwine, the testator gave his son a life estate in allhis real estate. The testator provided that upon the death of hisson, the real estate would go to "the then[-]living descendants of[his] son *** per stirpes and not per capita." Goodwine, 253 Ill.App. 3d at 1003, 625 N.E.2d at 1074. The court held thatsurvivorship was required by the use of the phrase "then[-]livingdescendants," and the per stirpes distribution only applied to theshares of the remaindermen. Goodwine, 253 Ill. App. 3d at 1005-06,625 N.E.2d at 1076.

We do not find the provision in Garrett's will ambiguous. There is no limiting language similar to "then living descendants"as there was in the Goodwine will. The primary legatees are thechildren of Garrett's deceased sisters, who were to take "perstirpes." The heirs of the children of Garrett's sisters take bysubstitution in the event of the death of a primary legatee. SeeRogers, 5 Ill. App. 2d at 169, 124 N.E.2d at 687. Thus, if any ofthe sisters' children predeceased Garrett, the deceased child'sdescendants receive their share by right of representation.

Furthermore, if the language were considered ambiguous, wewould determine the intent of the testator by giving effect andmeaning to each and every clause of the will, if possible. Stites,4 Ill. 2d at 513, 123 N.E. 2d at 486-87. If Garrett had devisedone share each to the "children" of Brown and Clouse without thewords "per stirpes," she would have created a class gift requiringsurvivorship. Under the executor's interpretation, the words "perstirpes" become superfluous, rendering them meaningless. We mustconclude that Garrett intended that all of the children of Brownand Clouse were to take their shares of the estate per stirpes.

The certified questions of the circuit court of Knox Countyare answered.

Certified questions answered.

HOMER, P.J., and BRESLIN, J., concur.