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No. 3-02-0096

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

This appeal arises from an order entered by the circuitcourt of Peoria County dismissing a complaint for construction ofa will and thereby finding in favor of Barbara J. Garber andother defendants. Plaintiff, Stanley V. Noll, now appeals. Onappeal, plaintiff maintains the court erred in failing torecognize that the word "heirs" is a word of limitation denotingthe quality of the estate granted rather than construing it ascreating a class gift. Because we find dismissal on the pleadingsis inappropriate in this case, we reverse and remand withdirections.

FACTS

Rosa E. McCoy died testate on December 11, 1997. When McCoydied, she owned certain tracts of real estate in Washburn,Illinois. In her will, McCoy bequeathed the said property toArthur L. Garber "and his heirs." The relevant will provisionsstate:

"THIRD: I will, bequeath and devise the followingtracts of real estate to ARTHUR L. GARBER, Route #2,Washburn, Illinois, and his heirs, absolutely and infee, namely:

***

FOURTH: All of the rest, residue and remainder of myestate, whether real, personal or mixed, and whethernow owned or hereafter acquired, I will, bequeath anddevise to ARTHUR L. GARBER, and his heirs, absolutelyand in fee."

At the end of paragraph two of the will, which contained severalsmall specific bequests, testator stated the following:

"In the event any of the above legatees shouldpredecease me, his or her legacy will lapse, and theamount he or she would have received if living, shallbe divided equally among the remaining above legateesliving at my death."

This lapse provision did not appear elsewhere in McCoy's will.McCoy subsequently executed two codicils which did not modify theabove dispositive terms of the original will. Garber, who was nota descendant of McCoy, predeceased McCoy in 1996.

On September 22, 2000, Stanley Noll, a legal heir of McCoy,but nowhere a named beneficiary, filed a complaint forconstruction of the will. In his complaint, plaintiff allegedthat the word "heirs" was used as a word of limitation denotingthe quality of the estate granted and that the devise to Garbershould lapse. Plaintiff named as defendants Barbara Garber, theexecutor of McCoy's estate and the independent executor ofGarber's estate, and other persons who might or could beinterested in a proper construction of the will. On November 7,2001, defendants filed a dismissal motion pursuant to section2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West1996)), arguing that the testator intended "to pass all of theproperty that she owned to Garber and his heirs" as a class gift. The trial court granted dismissal. In a written order, thecourt noted that "the testator understood the concept of a deviselapsing with the death of a legatee and how to make a provisionfor that devise on that occurrence, if [she] desired that thedevise lapse upon death. *** [She] did not provide for thelapsing of the devises to Mr. Garber and his heirs. And in not soproviding, [she] established [her] clear intent for the gifts notto lapse."

Plaintiff appeals from this order.

ANALYSIS A cause of action will not be dismissed on the pleadingsunless it clearly appears that the plaintiff cannot prove any setof facts that will entitle it to relief. Board of Directors ofBloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill.2d 419, 712 N.E.2d 330 (1999); 735 ILCS 5/2-619 (West 1996). If acause of action is dismissed pursuant to a motion to dismiss onthe pleadings, questions on appeal are whether a genuine issue ofmaterial fact exists and whether the moving party is entitled toa judgment as a matter of law. Epstein v. Chicago Board ofEducation, 178 Ill. 2d 370, 687 N.E.2d 1042 (1997). A reviewingcourt exercises de novo review of orders granting motions todismiss. Zurich Insurance Co. v. Amcast Industrial Corp., 318Ill. App. 3d 330, 742 N.E.2d 337 (2000).

The principal issue in this case is whether the words "toARTHUR L. GARBER, and his heirs, absolutely and in fee," viewedwithin the four corners of the will, create an ambiguity whichrequires construction of the will. Plaintiff argues that the word"heirs" was used as a word of limitation denoting the quality ofthe estate granted and the devise to Garber should lapse.Defendants contend that there is no ambiguity in the will andMcCoy clearly intended the devise to Arthur Garber and his heirsbe a class gift.

It has been long held that the word "heirs" in a will doesnot necessarily have a fixed meaning. Peacock v. McCluskey, 296Ill. 87, 129 N.E. 561 (1920). The word "heirs" in its primarymeaning designates the person appointed by law to succeed to theestate in case of intestacy. Himmel v. Himmel, 294 Ill. 557, 128N.E. 641 (1920). In situations "[w]here a devise is made to aperson and his heirs or his heirs and assigns, the word 'heirs'is a word of limitation unless superadded words make it a word ofpurchase." Pool v. Pool, 300 Ill. 557, 562, 133 N.E. 273 (1921).

This rule was clearly explained in Winter v. Dibble, 251Ill. 200, 95 N. E. 1093 (1911), where the Illinois Supreme Courtsaid:

"The ordinary form of a conveyance of a fee at commonlaw was to the grantee and his heirs. A conveyance tothe grantee alone gave a life estate, only. The addedwords, 'and his heirs,' indicated a fee simple. Theword 'heirs' was not used to describe the persons whowere to take the estate after the grantee's death, butthe quality of the estate granted, which was a fee. Theestate granted was not different if given to thegrantee for life with remainder to his heirs. Theaddition to the ordinary formula for granting a fee, ofthe words 'for life,' was regarded merely as an effortto restrict the grantee's enjoyment of the fee grantedto him by restraining his power of alienation, and thelaw would not permit this to be done. The word 'heirs'had[,] therefore, long before Shelley's Case arose,been regarded as a word descriptive of the estate andnot of the person, and the rule called by Shelley'sname was merely the announcement of a legal principlewhich had then been applied by the courts for more thantwo hundred years." (Emphasis omitted.) Dibble, 251Ill. at 221.

We also find it useful to refer to the analysis found inPool v. Pool, 300 Ill. 557,133 N.E. 273 (1921). In Pool, theSupreme Court of Illinois held that the phrase 'to my brother,Henry Pool, and to his heirs and assigns forever' (Pool, 300 Ill.at 559) are not words of substitution but designate that thetestator intended to bequeath to his brother, if living, aremainder in fee simple. The court explained: "The usual form ofcreating a grant or devise of a fee at common law was by givingthe property to the grantee or devisee and his heirs. In suchcase the word 'heirs' is a word of limitation and the fee vestsin the grantee or devisee." Pool, 300 Ill. at 562.

As defendants point out, it is true that in some cases theword "heirs" is not used in its technical sense. In finding thatthe testator clearly intended the devise to be a class gift, thetrial court relied on the case of Harris Trust & Savings Bank v.Beach, 118 Ill. 2d 1, 513 N.E.2d 833 (1987). The Beach caseinvolved the construction of the terms of a trust which conveyeda life estate interest in certain stocks and left the remainderto be divided among the heirs of the settlor. The disputed trustprovision stated that the trust was to be divided between thetestator's "heirs ***, share and share alike." Beach, 118 Ill.2d at 5. The supreme court held that unless a clearpresumption as to the contrary exists, when gifts are made to aclass of beneficiaries who stand in unequal degrees ofrelationship to the testator, then the law presumes a per stirpesdistribution was intended. Beach, 118 Ill. 2d at 21-22. The courtalso noted that the word "heirs" refers to "those personsappointed by the law to inherit an estate in case of intestacy."Beach, 118 Ill. 2d at 10. Our case is factually distinguishable.Here, McCoy expressly bequeathed the tract of real estate toGarber in fee simple. Defendants do not claim the bequest createdany life estate or remainder interest.

However, we also acknowledge that the testator is presumedto have known the law in force when the will was drafted. In reEstate of Hughlett, 113 Ill. App. 3d 910, 913, 446 N.E.2d 887(1983). The testator is also presumed to know that if any devisein a will does lapse, the property becomes intestate property and all heirs of the testator take. In the instant case, Garberpredeceased McCoy. Assuming her knowledge of the law ofintestacy, McCoy's failure to modify the will after Garber'sdeath or to employ a lapse provision after her bequest to Garberand his heirs may be, as the trial court aptly points out, highlyprobative, although not dispositive, of her intent.

In light of the foregoing discussion, we find that the willis ambiguous due to the conflict created by the absence of alapse provision after the devise to Garber. It is unclear,therefore, whether McCoy intended to pass her said property toGarber's heirs as a class gift when Garber predeceased her.Consequently, McCoy's intent cannot be determined from thelanguage used in the will. We, therefore, believe the trial courterred when it granted defendants' motion to dismiss.

The fundamental tenet of will construction is to give effectto the intent of the testator. Beach, 118 Ill. 2d at 3. A courtdetermines such intention from the terms of the instrument, bygiving words employed their plain and ordinary meaning. HarrisTrust & Savings Bank v. Donovan, 145 Ill. 2d 166, 582 N.E.2d 120(1991). When, however, the face of the instrument fails to makethe testator's intention clear, courts often resort to rules ofconstruction to determine the meaning of the terms used in thedocument. Beach, 118 Ill. 2d at 4, citing Hull v. Adams, 399Ill. 347, 352, 77 N.E.2d 706 (1948). In addition to rules ofconstruction, the court may consider extrinsic evidence of atestator's intent to resolve an ambiguity in a will. Larison v.Record, 117 Ill. 2d 444, 512 N.E.2d 1251 (1987). We arereluctant to apply the previously discussed presumptionsregarding the usual use of the term "and his heirs" here toresolve the ambiguity when the parties have not been given anopportunity to present evidence of testator's intent. In reEstate of Shaw, 182 Ill. App. 3d 847, 538 N.E.2d 643 (1989).

CONCLUSION

Accordingly, we reverse the judgment of the trial

court and remand with directions for the trial court to considerextrinsic evidence, if any, of the testator's intent.

HOLDRIDGE and SLATER, JJ., concur.