2016 IL App (1st) 142500

No. 1-14-2500 

Fifth Division

Modified opinion filed March 11, 2016 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

)

In re ESTATE OF ALBERT LELLO, Deceased ) 

 ) 

(Lawrence Webster Harris II, Virginia M. Harris, ) 

Jeanette Harris, and Marjorie Anne James, ) 

Petitioners-Appellants, ) 

 ) 

v. ) 

 ) 

Luzminda R. Lello, Ex’r of the Estate of Albert Lello, ) 

Deceased; and Rita Sapko, ) 

 Respondents-Appellees). ) 

)

Appeal from the Circuit Court 

of Cook County. 

No. 12 P 6237 

The Honorable 

John J. Fleming, 

Judge Presiding. 

______________________________________________________________________________

 JUSTICE GORDON delivered the judgment of the court, with opinion. 

 Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 The instant appeal arises from the probate court’s denial of petitioners’ petition for 

construction of decedent Albert Lello’s will upon a finding that the will was unambiguous. 

Decedent left the entirety of his estate to two of his sisters and his wife, “to share and share 

alike in equal shares or to the survivor or survivors of them.” One of the sisters predeceased 

decedent, and upon decedent’s death, petitioners, who are the sister’s children, argued that 

they were entitled to her share of decedent’s estate. The probate court disagreed, finding that 
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the will created a class gift that resulted in the deceased sister’s share being divided between 

the two remaining named legatees. For the reasons that follow, we affirm. 

¶ 2 BACKGROUND

¶ 3 Decedent Albert Lello died on October 2, 2012, at age 88, and on October 26, 2012, 

Luzminda Lello, decedent’s wife, filed a petition for probate of decedent’s June 25, 2005, 

will. On November 13, 2012, the probate court admitted the will to probate and appointed 

Luzminda as independent executor of the estate. On the same day, Luzminda filed an 

affidavit of heirship stating that she was decedent’s wife and decedent had no children, either 

from their marriage or from his former marriage; and the probate court entered an order 

declaring Luzminda to be decedent’s only heir. 

¶ 4 Decedent’s will was a three-page document, signed by decedent on June 25, 2005.1 The 

will contains two preamble paragraphs, the second of which provides: 

“In making this Will, I have borne in mind the various members of my family and 

have carefully considered all of my property, real, personal and mixed, wheresoever 

situated, and have made what I consider the wisest and most just disposition of such 

property, and it is my will and express intention that my said property be disposed of 

only as hereinafter provided, upon such trusts and for such uses and for the benefit of 

such persons as are hereinafter set forth, and such members of the family as are not 

mentioned herein have not been overlooked, but have been intentionally omitted.” 

The will then sets forth six paragraphs disposing of decedent’s property and naming 

Luzminda as the executor of his estate. The fourth paragraph is the paragraph challenged on 

appeal, and it provides in full: 

 1 The record reflects that decedent’s will was drafted by an attorney.
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“FOURTH: After the payment of all my just debts, cost of administration, taxes 

of every nature, if any, I hereby give, devise and bequeath my entire estate, be it real, 

personal or mixed, wheresoever situated, of whatsoever kind or nature, of which I 

may die seized or possessed, or to which I may be entitled to at the date of my death, 

as follows: 

To my sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my 

wife, LUZMINDA R. LELLO, to share and share alike in equal shares or to the 

 survivor or survivors of them.” 

The record reflects that decedent was one of 12 children, and that at the time of the will’s 

execution, only Virginia, Rita, and one other sister (who was not named in decedent’s will) 

remained living. The record also reflects that decedent had a number of nieces and nephews.

¶ 5 On May 7, 2013, petitioners, the four children of Virginia Harris, filed a petition for 

construction of the will, alleging that they were persons who could be entitled to an interest 

in decedent’s estate. The petition alleges that Virginia predeceased decedent and the probate 

court was required to determine whether Virginia’s share of the estate passed to her heirs or 

to Rita and Luzminda. Petitioners advocated for the former reading, arguing that petitioners, 

Virginia, and decedent “had a good and close ongoing family relationship” and that “[f]or 

many years [decedent] lived in the same building with his two (2) sisters and their families 

and [decedent] treated all of his nieces and nephews equally as though they were his own 

children.” 

¶ 6 On May 9, 2013, Luzminda renounced any benefits afforded to her under the will and 

chose to take her statutory share of the estate.
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¶ 7 On June 13, 2013, Rita filed a motion to dismiss the petition for construction of the will 

pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 

2012)), arguing that the petition was legally insufficient because petitioners’ interpretation of 

the will was unsupported by Illinois law. Rita argued that decedent’s will created a class gift, 

so upon Virginia’s death, her share passed to Rita and Luzminda, the surviving members of 

the class.

¶ 8 On September 25, 2013, the probate court denied the motion to dismiss the petition for 

construction of the will. On the same day, the probate court granted Luzminda leave to file an 

amended petition for probate of decedent’s will, which updated the value of decedent’s estate 

to approximately $8.2 million.

¶ 9 On March 21, 2014, Luzminda filed a motion to declare the will unambiguous as a matter 

of law and Rita filed a memorandum of law in support of finding no ambiguity. Also on 

March 21, 2014, petitioners filed a motion for summary judgment on their petition for 

construction of the will, asking the probate court to find that the will was ambiguous as a 

matter of law and that it should be construed such that petitioners were entitled to Virginia’s 

share of decedent’s estate per stirpes. 

¶ 10 On June 10, 2014, the probate court entered an order denying petitioners’ petition for 

construction of the will, finding that “the will of Albert Lello, deceased, is hereby declared 

UNAMBIGUOUS as a matter of law” (emphasis in original), and further finding that there 

was “no latent or patent ambiguity.”

¶ 11 On July 10, 2014, petitioners filed a motion to reconsider, which was denied by the 

probate court on July 24, 2014. In denying the motion to reconsider, the probate court made 

it clear that its June 10 ruling was limited to a finding that there was no ambiguity within the 
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four corners of the will. It expressly noted that it had not made any rulings considering 

petitioners’ hypothetical arguments about the consequences of all three named legatees 

predeceasing decedent.

¶ 12 This appeal follows. 

¶ 13 ANALYSIS

¶ 14 On appeal, petitioners argue that the probate court erred in finding decedent’s will to be 

unambiguous in creating a class gift to the named legatees. “The threshold question in a suit 

to construe a will is whether or not construction of the will is necessary.” Coussee v. Estate 

of Efston, 262 Ill. App. 3d 419, 423 (1994). “Only if a court finds that a will is ambiguous 

will it entertain an action to construe a will.” Coussee, 262 Ill. App. 3d at 423. “[O]nce a 

court determines that no ambiguity exists in a will, an action for construction should be 

dismissed.” Coussee, 262 Ill. App. 3d at 424. In the case at bar, the probate court found that 

decedent’s will was unambiguous and, therefore, dismissed petitioners’ petition for 

construction of the will. 

¶ 15 “In interpreting a will, the court’s sole purpose is to give effect to the intent of the 

testator. [Citation.] The language of a will is the best proof of that intent. [Citations.]” 

Coussee, 262 Ill. App. 3d at 423. “A will is ambiguous if the testator’s intent is unclear 

because words in the will can be given more than one meaning or are in conflict.” Coussee, 

262 Ill. App. 3d at 423. “An ambiguity can appear on the face of a will or when attempting to 

implement a will’s provision.” Coussee, 262 Ill. App. 3d at 424. “For the threshold 

determination of whether or not a will is ambiguous, the court may examine only the four 

corners of the will and evidence brought by the parties which tends to show a latent 

ambiguity.” Coussee, 262 Ill. App. 3d at 424. 
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¶ 16 In the case at bar, petitioners argue that paragraph four of decedent’s will is ambiguous

and that the proper interpretation is that decedent’s intent was for Virginia’s share of the 

estate to pass to petitioners, not to Rita and Luzminda. As noted, the fourth paragraph of 

decedent’s will provides in full: 

“FOURTH: After the payment of all my just debts, cost of administration, taxes 

of every nature, if any, I hereby give, devise and bequeath my entire estate, be it real, 

personal or mixed, wheresoever situated, of whatsoever kind or nature, of which I 

may die seized or possessed, or to which I may be entitled to at the date of my death, 

as follows: 

To my sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my 

wife, LUZMINDA R. LELLO, to share and share alike in equal shares or to the 

 survivor or survivors of them.” 

The question the probate court was asked to determine was the meaning of the phrase “to 

share and share alike in equal shares or to the survivor or survivors of them.” We agree with 

its conclusion that this language establishes a class gift, meaning that upon Virginia’s death, 

Rita and Luzminda would be entitled to Virginia’s share of the estate. See 755 ILCS 5/4-

11(b) (West 2012) (“Unless the testator expressly provides otherwise in his will, *** (b) if a 

legacy of a present or future interest is to a class and any member of the class dies before or 

after the testator, the members of the class living when the legacy is to take effect in 

possession or enjoyment take the share or shares which the deceased member would have 

taken if he were then living[.]”); In re Estate of Kirchwehm, 211 Ill. App. 3d 1015, 1019

(1991) (“When the term ‘survivor’ is used in conjunction with a gift to a group or class of 

beneficiaries as in this case, under the common law, that term is deemed to indicate the 
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7 

intention of the testator that, should any member of the class predecease the testator, the 

share of the deceased beneficiary goes to the remaining named members of the class, rather 

than to the children or issue of the deceased beneficiary.”).

¶ 17 Our supreme court has stated that “[a] gift to a class is defined *** as a gift of an 

aggregate sum to a body of persons uncertain in number at the time of the gift, to be 

ascertained at a future time, and who are all to take in equal or some other definite 

proportions, the share of each being dependent for its amount upon the ultimate number of 

persons.” (Internal quotation marks omitted.) O’Connell v. Gaffney, 23 Ill. 2d 611, 616-17 

(1962). “One of the essential features of a class gift is that the number of the persons who are 

to take the property is to be ascertained at a future time. A gift to persons who are both 

numbered and named in the language of gift is prima facie or by initial presumption a gift to 

them as individuals notwithstanding they are also designated in general terms as by 

relationship to the testator to others.” O’Connell, 23 Ill. 2d at 617. In O’Connell, for instance, 

the supreme court found no class gift where the testator’s will provided that half of his estate 

was to “ ‘be paid in equal shares, to my two brothers, James Gaffner and Edward Gaffney of 

Ireland.’ ” O’Connell, 23 Ill. 2d at 613. The court there noted that “[i]n our opinion, nothing 

appears from the general plan of disposition, or from any special relationship of [the testator] 

to his two brothers, or from the failure of [the testator] to change his will after the death of 

Edward to overcome the initial presumption that the gift was to James and Edward as 

individuals.” O’Connell, 23 Ill. 2d at 617. “The decisive inquiry is whether or not the 

testator, in making the particular gift in question, did so with group-mindedness, whether in 

other words, he was looking to the body of persons in question as a whole or unit rather than 
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to the individual members of the group as individuals; if the former, they take as a class.” 

(Internal quotation marks omitted.) Krog v. Hafka, 413 Ill. 290, 299 (1952). 

¶ 18 In the case at bar, paragraph four of decedent’s will names the three legatees. 

Accordingly, the initial presumption is that decedent’s bequest to each of them is an 

individual gift, unless there is something additional contained in the will to rebut that 

presumption. See Brown v. Leadley, 81 Ill. App. 3d 504, 507 (1980) (“Illinois cases seem 

clear that a gift to persons named is a gift to them individually and not a class gift unless 

reasons are found in the will for deciding that the testator’s intent would best be served by 

disregarding the rule.”). In the case at bar, there is: the survivorship language contained at the 

end of paragraph four, which provides that the bequest is to the three named legatees “to 

share and share alike in equal shares or to the survivor or survivors of them.” 

¶ 19 Illinois courts have considered similar language several times, and have found that such 

language indicates a class gift, with a deceased legatee’s share passing to the surviving 

legatees. For instance, in Waugh v. Poiron, 315 Ill. App. 78, 79 (1942), the court was asked 

to interpret a will containing a residuary clause that provided: 

“ ‘I give, devise and bequeath the rest, residue and remainder of my estate, real, 

personal and mixed, and wheresoever situated, to my brother, James W. Poiron, my 

sister, Minnie Hodge, my sister, Annie Enslin, and my niece Ethel Seidal [sic], share 

and share alike, and to the survivor of them.’ ” 

At the time of the testator’s death, Ethel was the only legatee still living, and contended that 

she was entitled to the entire residue of the estate. Waugh, 315 Ill. App. at 79. By contrast, 

the children of James and Minnie argued that the phrase “ ‘and to the survivor of them’ ” 
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should be construed to give each of them the portion of the estate to which their parents 

would have been entitled. Waugh, 315 Ill. App. at 79. 

¶ 20 While the probate court agreed with the children, the appellate court reversed, finding 

that Ethel was entitled to the entire residue. Waugh, 315 Ill. App. at 80. The court pointed to 

“the precise nature of the paragraph,” noting: 

“It is complete in a single sentence. The testatrix says, ‘I give the rest, residue and 

remainder to my brother James, my sister Minnie, my sister Annie, and my niece 

Ethel, share and share alike, and to the survivor of them.’ Webster says ‘survivor’ 

means ‘to live longer than’. Here the word ‘survivor’ is modified by the phrase ‘of 

them’. ‘Them’ manifestly refers to James, Minnie, Annie and Ethel. The ‘survivor of 

them’ is Ethel, because she lived after the death of the other. 2 Bouvier’s Law Dict., 

Rawle’s Third Rev., defines a ‘survivor’ as ‘the longest liver of two or more persons’. 

Of the four names in the residuary clause, Ethel Seidel lived longest and was the only 

one of the four living at the death of the testatrix. It would seem nothing could be 

clearer than that she is ‘the survivor of them’.” Waugh, 315 Ill. App. at 80-81. 

The court further noted that the will was prepared by a lawyer and that the language of the 

paragraph “is not the language a lawyer would use, assuming the testatrix made known to 

him her intention to provide for this distribution to the children in case of the death of their 

parent.” Waugh, 315 Ill. App. at 81. The court noted that, “[t]herefore, not only the actual 

language used but also the language not used makes quite impossible the construction 

adopted by the decree.” Waugh, 315 Ill. App. at 81. The court also pointed to another clause 

in which the testator had left two individuals bequests of $1, noting that “[b]y this clause she 

practically disinherits these two, who if the trial court had carried his theory of construction 
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to its logical conclusion would ([since] Annie Enslin [had died] intestate) take a substantial 

part of the estate,” a construction that “[t]he courts will not sustain.” Waugh, 315 Ill. App. at 

81. The court also dismissed citations to authority concerning the issue of whether the will 

contained a class gift, noting: “Nor is there any question here of whether the residuary legacy 

is a gift to a class or distribution to named individuals. That question is eliminated by the 

clause ‘and to the survivor of them’. The numerous cases cited involving that question are 

therefore without value.” Waugh, 315 Ill. App. at 82. 

¶ 21 Similarly, in Estate of Carlson, 39 Ill. App. 3d 281 (1976), the will at issue was construed 

in the same way. There, the will provided: 

“ ‘All the rest, residue and remainder of my estate of every kind and nature, I hereby 

give, devise and bequeath to my wife, Adina V. Carlson. In the event that my said 

wife should die prior to my death, or if we both die as a result of the same accident or 

catastrophe, then I give, devise and bequeath all of my property of every kind and 

nature to my niece and nephew, Barbara Ann Carlson and Bernard D. Carlson, and 

the nephew of my wife, William Perry Filbert, or their survivors or survivor, share 

and share alike.’ ” Carlson, 39 Ill. App. 3d at 282. 

The testator’s wife predeceased him, as did his nephew Bernard. The administrator of the 

will construed the quoted language to exclude Bernard’s child from the class of persons 

designated “ ‘their survivors or survivor.’ ” Carlson, 39 Ill. App. 3d at 282. 

¶ 22 The appellate court stated that the principal issue was “whether the words ‘their survivors 

or survivor, share and share alike’, viewed within the four corners of the will, create an 

ambiguity which requires construction of the will.” Carlson, 39 Ill. App. 3d at 283. The court 

noted that “[w]hen the term ‘survivor’ is used in conjunction with a gift to a group or class of 
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beneficiaries, under the common law the survivorship clause of the will is deemed to indicate 

the intention of the testator that, should any member of the class predecease the testator, the 

share of the deceased beneficiary goes to the remaining named members of the class, rather 

than to th[e] children or issue of the predeceased beneficiary.” Carlson, 39 Ill. App. 3d at 

284. The court also found the decision in Waugh persuasive, noting that the language used in 

that will was similar and that, like in Waugh, the bequest in Carlson was contained in a 

single sentence. Carlson, 39 Ill. App. 3d at 284. Accordingly, the court found that there was 

no ambiguity in the will and affirmed the probate court’s dismissal of the child’s suit. 

Carlson, 39 Ill. App. 3d at 285. 

¶ 23 In the case at bar, the language of decedent’s will is strikingly similar to the language 

present in both Waugh and Carlson. Here, decedent bequeathed his entire estate “[t]o my 

sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my wife, LUZMINDA R. 

LELLO, to share and share alike in equal shares or to the survivor or survivors of them.” 

Almost identical language was used in both of those cases. See Waugh, 315 Ill. App. at 79 

(bequeathing the testator’s estate to several named individuals “ ‘share and share alike, and to 

the survivor of them’ ”); Carlson, 39 Ill. App. 3d at 282 (bequeathing the testator’s estate to 

several named individuals “ ‘or their survivors or survivor, share and share alike’ ”). 

Furthermore, as in both Waugh and Carlson, decedent’s bequest in the case at bar was 

contained in a single sentence. Additionally, as in Waugh, the will in the instant case was 

drafted by an attorney and, “[t]herefore, not only the actual language used but also the 

language not used makes quite impossible the construction adopted by the decree.” Waugh, 

315 Ill. App. at 81. The will here does not use the terms “heirs,” “descendents,” “children,” 

“issue,” “per stirpes,” or any other language that would indicate that a predeceased legatee’s 
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share was intended to pass to her children.2 Indeed, the second preamble paragraph expressly 

provides that “it is [decedent’s] will and express intention that [his] said property be disposed 

of only as hereinafter provided, *** for the benefit of such persons as are hereinafter set 

forth, and such members of the family as are not mentioned herein have not been overlooked, 

but have been intentionally omitted.” Accordingly, we agree with the Waugh and Carlson

courts that this language means that a class gift was created and that upon Virginia’s death, 

her share of the estate passed to Rita and Luzminda. 

¶ 24 We do not find petitioners’ attempt to distinguish Waugh and Carlson persuasive. With 

respect to Waugh, petitioners claim that the reversal in that case “was directly attributable to 

the possibility of the two effectively disinherited $1 heirs taking half the estate though their 

Aunt Annie’s intestate share” and that the ruling merely contained “a long course in dictum

on the meaning of a survivorship clause in the absence of the testator’s intent to benefit the 

heirs of named legatees.” Petitioners misconstrue the holding in Waugh, as well as the

Waugh court’s reasoning. The court discussed the language of the survivorship clause first 

and determined that “[o]f the four names in the residuary clause, Ethel Seidel lived longest 

and was the only one of the four living at the death of the testatrix. It would seem nothing 

could be clearer than that she is ‘the survivor of them’.” Waugh, 315 Ill. App. at 81. Thus, 

rather than being “a long course in dictum,” Waugh’s discussion of the survivorship clause 

was central to its holding that Ethel was the sole beneficiary by virtue of being the sole 

legatee surviving at the testator’s death. Further, while the Waugh court did discuss the 

implications of the probate court’s conclusion in light of the effective disinheritance of the 

other two individuals, this was not the focus of the court’s decision, nor do we find that it 

 2 Petitioners argue that “the poor quality of draftsmanship is palpable” and that competence of the attorney 

should not be assumed. However, other than petitioners’ argument that this paragraph of the will is ambiguous, 

petitioners provide no evidence of the attorney’s incompetence and we will not draw such a conclusion.
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lessens the applicability of that case to the case at bar. Indeed, in light of decedent’s 

statement in the will’s prefatory clause that “such members of the family as are not 

mentioned herein have not been overlooked, but have been intentionally omitted,” reading 

paragraph four to provide a bequest to petitioners could be read as giving a bequest to 

individuals who have been expressly disinherited, a construction that the Waugh court noted 

that “[t]he courts will not sustain.” Waugh, 315 Ill. App. at 81. As the Waugh court stated: 

“These four who now claim as nieces and nephew were living at the time the will was made. 

Their parent legatees passed away while the testatrix was still living and (presumably) 

competent to change her will in case she wished to do so.” Waugh, 315 Ill. App. at 81-82. 

The exact same situation remains true here.

¶ 25 Petitioners further claim that Waugh and Carlson are distinguishable because they do not 

contain the precise language present in the instant case, pointing to the fact that the wills in 

those cases did not specify “equal shares” as in the instant case. However, the size of each 

individual’s share was not relevant to the court’s decision in either Waugh or Carlson. The 

important language was the survivorship language. The same is true here. 

¶ 26 We are similarly unpersuaded by petitioners’ arguments that there was no class created 

based on Estate of Garrett, 325 Ill. App. 3d 123 (2001), which they characterize as “[t]he 

leading case in Illinois on determining whether a class gift is created.” However, the weight 

petitioners place on Garrett is not borne out by the case itself, which is readily 

distinguishable from the case at bar. In that case, the single dispositive paragraph of the 

testator’s will provided:

“ ‘I direct the executor hereinafter named to divide my estate into twelve equal 

shares. I give, devise and bequeath one share to each of the following: Grace Ella 
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Powers, Lora Geneva Bishop, Beulah Leona Jones, Coleman William Bramlett, Cecil 

Karl Bramlett, John Lloyd Bramlett and Claude Ted Bramlett, share and share alike 

or to the survivor or survivors of them; one share to the children of my deceased 

sister, Maude May Brown, per stripes [sic] and one share to the children of my 

deceased sister, Mary Belle Clouse, per stirpes.’ ” Garrett, 325 Ill. App. 3d at 124-25. 

The executor of the will construed this language to require that only those siblings who 

survived the testator and those children of Maude May Brown and Mary Belle Clouse who 

were living at the testator’s death would inherit. Garrett, 325 Ill. App. 3d at 125. The probate 

court found that the will created a class gift that required the class members to survive the 

testator, but certified the question to the appellate court. Garrett, 325 Ill. App. 3d at 125. 

¶ 27 The appellate court considered the question of whether a class gift had been created and 

concluded that it had not. The court noted that the testator had first divided her estate into 12 

equal shares, then devised one share to each named sibling. Garrett, 325 Ill. App. 3d at 126. 

“Shares were not dependent on persons to be determined in the future; the number of 

persons, and the share to each, was already ascertained.” Garrett, 325 Ill. App. 3d at 126. 

The court further noted that she named her siblings individually, “indicating a gift to each of 

them, not to a class.” Garrett, 325 Ill. App. 3d at 126. The court found that all of these 

factors indicated that a gift to individuals was intended, not a class gift. Garrett, 325 Ill. App. 

3d at 126. After concluding that the gift was not a class gift, the court determined that the 

survivorship language present in the will was ambiguous, because “her use of the word 

‘survivor’ [was] not consistent with the rest of the dispositive clause.” Garrett, 325 Ill. App. 

3d at 127. The court noted that “[g]enerally, the use of the word ‘survivor’ in a will is 

construed to mean the person who lives the longest out of a group of named individuals.” 
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Garrett, 325 Ill. App. 3d at 127. However, the court noted that in the sole dispositional clause 

of the will, the testator left 12 equal shares of the estate to her then-living siblings and the 

children of her two predeceased sisters and concluded that “[f]rom this bequest, we can infer 

that [the testator] wished to treat her brothers and sisters and their descendants equally.”

Garrett, 325 Ill. App. 3d at 127. Thus, the Garrett court found the will ambiguous. Garrett, 

325 Ill. App. 3d at 127.

¶ 28 In the case at bar, petitioners use Garrett to show that survivorship language does not 

designate a class gift as a matter of law. We have no quarrel with that statement. However, 

petitioners also use Garrett to argue that paragraph four of decedent’s will did not establish a 

class gift. We do not find that argument persuasive, since the language of the will in Garrett

differs significantly from the language of the will in the instant case. In Garrett, as noted, the 

estate was first divided into 12 equal shares, then each of those shares was divided amongst 

the testator’s 10 living siblings, named individually, and the children of the testator’s two 

deceased siblings.. By contrast, in the case at bar, the individuals were named first, “to share 

and share alike in equal shares or to the survivor or survivors of them.” There was not a 

specific percentage of the estate apportioned to each of them. The share that the legatee 

received would depend on how many “survivors” there were at the time of decedent’s death.

Additionally, there is no reference in the will in the instant case to any children of deceased 

siblings, which would have also indicated that an individual bequest was intended as opposed 

to a class gift. Instead, there is a statement that decedent’s property should “be disposed of 

only as herinafter provided, *** for the benefit of such persons as are hereinafter set forth, 

and such members of the family as are not mentioned herein have not been overlooked, but 

have been intentionally omitted.” Thus, unlike in Garrett, where “we can infer that [the 
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testator] wished to treat her brothers and sisters and their descendants equally” (Garrett, 325 

Ill. App. 3d at 127), here, the only inference that can be drawn is that decedent did not wish 

to treat the named legatees and his remaining family equally. We find the facts of this case 

more analogous to Waugh and Carlson than to Garrett, and accordingly, agree with those 

decisions that the will in the instant case created a class gift.3

¶ 29 Additionally, it bears repeating that the second preamble paragraph of the will counsels 

against reading the will in the way petitioners urge. As noted, that paragraph provides:

“In making this Will, I have borne in mind the various members of my family and 

have carefully considered all of my property, real, personal and mixed, wheresoever 

situated, and have made what I consider the wisest and most just disposition of such 

property, and it is my will and express intention that my said property be disposed of 

only as hereinafter provided, upon such trusts and for such uses and for the benefit of 

such persons as are hereinafter set forth, and such members of the family as are not 

mentioned herein have not been overlooked, but have been intentionally omitted.”

¶ 28 Petitioners readily agree that this paragraph should be read as decedent “stat[ing]

his intent to disinherit all his other relatives.” However, petitioners appear to believe that they 

are not included in the disinheritance of “all his other relatives.” The only explanation for this 

special treatment is petitioners’ self-serving allegations in their petition for construction of 

the will, in which they claim that petitioners, Virginia, and decedent “had a good and close 

ongoing family relationship” and that “[f]or many years [decedent] lived in the same building 

with his two (2) sisters and their families and [decedent] treated all of his nieces and nephews 

equally as though they were his own children.” However, again, as the Waugh court stated: 

 3 We also find no merit to petitioners’ citation of Peadro v. Peadro, 400 Ill. 482 (1948), an Illinois Supreme 

Court case in which the court was asked to determine whether a will’s survivorship clause took effect at the time of 

the testator’s death or at the time of the death of the holder of a life estate in the property bequeathed in the will.
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“These four who now claim as nieces and nephew were living at the time the will was made. 

Their parent legatees passed away while the testatrix was still living and (presumably) 

competent to change her will in case she wished to do so.” Waugh, 315 Ill. App. at 81-82.

Decedent had a number of nieces and nephews, including petitioners here, and did not 

provide for any of them by name in his will. Given his express statement that “such members 

of the family as are not mentioned herein have not been overlooked, but have been 

intentionally omitted,” we cannot agree with petitioners that they, despite being unnamed in 

the will, were intended to be bequeathed Virginia’s share.

¶ 29¶ 30 Finally, petitioners make several arguments concerning construction of wills and 

presumptions against intestacy. Petitioners are correct that when construing a will, a court 

presumes that the testator did not intend any property to pass intestate. Coussee, 262 Ill. App. 

3d at 426. “As a rule of construction, however, the presumption against intestacy only comes 

into play after an ambiguity is found.” Coussee, 262 Ill. App. 3d at 426. In the case at bar, 

there is no ambiguity, so we have no need to consider petitioners’ arguments on this point. 

¶ 31 Moreover, even if we were to consider petitioners’ arguments, we would find them 

unpersuasive. Petitioners’ main contention is that the trial court should have looked to the 

consequences of all three named legatees predeceasing the testator. They point to the Probate 

Act of 1975’s antilapse statute, which provides that, “if a legacy lapses by reason of the death 

of the legatee before the testator, the estate so bequeathed shall be included in and pass as 

part of the residue under the will, and if the legacy is or becomes part of the residue, the 

estate so bequeathed shall pass to and be taken by the legatees or those remaining, if any, of 

the residue in proportions and upon estates corresponding to their respective interests in the 

residue.” 755 ILCS 5/4-11(c) (West 2012). Since the will made no provision for the residue 
No. 1-14-2500 

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of the estate, petitioners argue that if all three named legatees predeceased decedent, the 

estate would fall into intestacy, providing shares of the estate to those of decedent’s family 

whom decedent had expressly disinherited by the second preamble paragraph of the will.

While this may be true, in petitioners’ hypothetical situation, decedent would still be alive at 

the time that all three named legatees died, thereby affording him the opportunity to amend 

his will should be choose to do so. “[T]he testator is presumed to have known the law in 

force when the will was drafted. [Citation.] The testator is also presumed to know that if any 

devise in a will does lapse, the property becomes intestate property and all heirs of the 

testator take.” Noll v. Garber, 336 Ill. App. 3d 925, 929 (2003) (finding the testator’s failure 

to modify her will after the named legatee’s death or to employ a lapse provision in the will 

“highly probative” of her intent). Thus, even considering petitioners’ hypothetical scenario, 

the probate court did not err in finding no ambiguity in the will.

¶ 32 As a final matter, petitioners argue that the probate court erred in “finding” that the estate 

would escheat to the State if all three named legatees predeceased decedent. However, the 

probate court expressly stated that its findings were limited to a finding that there was no 

ambiguity within the four corners of the will and that it had not make any rulings considering 

petitioners’ hypothetical arguments about the consequences of all three named legatees 

predeceasing decendent. Accordingly, we will not discuss the propriety of the probate court’s 

response to hypothetical scenarios that were expressly not part of its ruling.

¶ 30¶ 33 CONCLUSION

¶ 31¶ 34 The probate court correctly determined that decedent’s will was unambiguous and 

created a class gift such that Virginia’s share of the estate passed to Rita and Luzminda, the 
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two surviving legatees. Accordingly, the probate court properly dismissed petitioners’ 

petition for construction of decedent’s will. 

¶ 32¶ 35 Affirmed.