Find Legal Information

We are presented with the task of interpreting a simple, one-line will, the likes ofwhich still create a split among authorities. In this instance, the circuit court of SalineCounty agreed with the plaintiffs' interpretation and granted their motion for a summaryjudgment. The defendant appeals, and we affirm.

In 1949, C.E. Spurlock died. His will, as admitted to probate, provided in its entiretyas follows: "I, C.E. Spurlock, leave all my property and holdings to Blanche Spurlock so longas she remains my widow." Blanche Spurlock never remarried and died as the widow of C.E.Spurlock in 1986. Barbara Finnie (defendant) is the daughter of Blanche and C.E. Spurlock. Rae Cain, Sue Jones, Grattena Ponce, and Erma Farley (plaintiffs) are the grandchildren ofC.E. Spurlock from his first marriage. They are not heirs of Blanche Spurlock. The realproperty at stake consists of approximately 200 acres in Saline County.

On July 23, 1997, plaintiffs filed their complaint to quiet title to the real property. They subsequently moved for a summary judgment on the first count of their complaint. Theyrequested that the court declare that C.E.'s will devised to Blanche only a life estate in the200 acres. Defendant filed a cross-motion for a summary judgment and requested that thecourt declare that the will devised a determinable fee in the property to Blanche whichripened into a fee simple absolute at the time of her death. The court granted plaintiffs'motion for a summary judgment, declaring that it had been the intent of C.E. to devise a lifeestate in the property to Blanche.

We initially note that a summary judgment should be entered when the pleadings,depositions, and admissions on file, together with any affidavits, show that there is nogenuine issue on any material fact and that the moving party is entitled to a judgment as amatter of law. In re Estate of Lind, 314 Ill. App. 3d 1055, 1057, 734 N.E.2d 47, 49 (2000). A trial court's ruling on a motion for a summary judgement is subject to de novo review. Inre Estate of Lind, 314 Ill. App. 3d at 1057, 734 N.E.2d at 49.

We further note that when a court construes a will, the challenge is to ascertain thetestator's intent and, provided that intention is not against public policy, give it effect. In reEstate of Miller, 230 Ill. App. 3d 141, 145, 595 N.E.2d 630, 632-33 (1992); Raasch v. Meier,171 Ill. App. 3d 226, 230, 524 N.E.2d 1206, 1208 (1988). While the language itself is thebest proof of the testator's intent (In re Estate of Lind, 314 Ill. App. 3d at 1058, 734 N.E.2dat 50), when a latent ambiguity exists, evidence extrinsic to the will, such as thecircumstances under which the instrument was drafted and the state of the testator's propertyand his family, may be utilized (In re Estate of Miller, 230 Ill. App. 3d at 145-46, 595 N.E.2dat 633; Raasch, 171 Ill. App. 3d at 230, 524 N.E.2d at 1208). Accordingly, we first turn tothe language of the will itself.

The critical phrase in C.E.'s will is "so long as she remains my widow." At firstglance, one would believe that C.E. devised to Blanche a life estate in the property on thecondition she never remarry. See, e.g., Wiltfang v. Dirksen, 295 Ill. 362, 129 N.E.159(1920); Mulberry v. Mulberry, 50 Ill. 67 (1869); see also Wetzel v. Besecker, 77 Ohio App.235, 64 N.E.2d 602 (1945). The ambiguity arises because there is no gift-over to others ofthe remainder interest upon the death of Blanche. Normally, when only a life estate isintended, a gift-over provision is included. See, e.g., Kratz v. Kratz, 189 Ill. 276, 59 N.E. 519 (1901); Green v. Hewitt, 97 Ill. 113 (1880). Some courts have concluded that when nogift-over provision exists, the devise created a fee simple determinable or determinable feesimple. See, e.g., Becker v. Becker, 206 Ill. 53, 69 N.E. 49 (1903); see also Anderson v.Anderson, 150 Or. 476, 46 P.2d 98 (1935). A fee simple determinable is a fee simple estatethat has a condition or contingency attached thereto and that must be determined wheneverthe condition or contingency annexed to it is at an end, being a fee for the reason that it maylast forever if the contingency does not happen but it could terminate because its durationdepends upon collateral circumstances which qualify or debase it. See McIntyre v. Dietrich,294 Ill. 126, 130, 128 N.E. 321, 322 (1920); Marenholz v. County Board of School Trustees,93 Ill. App. 3d 366, 375, 417 N.E.2d 138, 145 (1981). The condition or contingency uponwhich the fee simple estate would terminate in this instance, Blanche remarrying, neveroccurred, because she remained C.E.'s widow for the remainder of her lifetime, and it cannever occur, because Blanche is now deceased. The language of C.E.'s will clearly supportsboth interpretations. We therefore turn to extrinsic evidence, and this is where defendantloses.

Defendant offered absolutely no evidence to show the circumstances under which thewill was made or the relationship of the family members, particularly the offspring fromC.E.'s first marriage. Plaintiffs, on the other hand, specifically alleged in their complaint thatBlanche in her will, which was dated October 13, 1961, and was admitted to probate in 1986,acknowledged that she only held a life estate to the property, with the remainder interestbeing left to all of the children equally. Plaintiffs further alleged that since 1990 defendanthas recognized plaintiffs as heirs of C.E. Spurlock's estate with an interest in the property. Plaintiffs point out that the property was inventoried in Blanche's estate, and plaintiffsobjected at that time to the property being so inventoried, on the basis that Blanche held onlya life estate in the property. Defendant admitted each of these allegations in her answer.Plaintiffs next alleged that after making demands for an accounting, plaintiffs beganreceiving accountings for the rents and profits from the property. Plaintiffs also asserted thatin 1995 they shared in the losses incurred from the property and that it was only after timberwas cut from the property that defendant no longer recognized them as heirs. Defendant'sresponse to such allegations, other than a general denial, was that any sharing of profits wasa gift.

We further note that when a court construes a will, the presumption is againstdisinherison. Mokros v. Blackman, 312 Ill. App. 346, 355, 38 N.E.2d 514, 518 (1941). Atestator's heirs cannot be disinherited on mere conjecture, and when the testator seeks todisinherit them, he must express his intention clearly, either by express words or necessaryimplication. Vollmer v. McGowan, 409 Ill. 306, 312-13, 99 N.E.2d 337, 340 (1951). Tofollow defendant's interpretation in this instance requires conjecture that C.E. intended todisinherit any offspring from his first marriage. The extrinsic evidence set forth supportsplaintiffs' interpretation of C.E.'s will, as well as the court's ruling. Given that Blancheherself considered her interest in the property to be only a life estate, we cannot say, undersuch circumstances, that the court erred in similarly interpreting the intent of the will and ingranting a summary judgment in favor of plaintiffs.

For the aforementioned reasons, we affirm the judgment of the circuit court of SalineCounty.

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.