NO. 4-01-0528

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

In the Matter of the Estate of ROBERT

CHARLES HURST, Deceased,

ALICIA E. HURST and JULIE ANN HURST,

          Petitioners-Appellees and

          Cross-Appellants,

          v.

PATSY J. HURST, Individually, PATSY J.

HURST, Administratrix With the Will

Annexed of the Estate of ROBERT

CHARLES HURST, Deceased; LORI L.

HOFFERBERT, and TODD A. REID,

          Respondents-Appellants and

          Cross-Appellees.	)

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)	  Appeal from

  Circuit Court of 

  Woodford County

  No. 98P75

  Honorable

  John B. Huschen,

  Judge Presiding.

______________________________________________________________

		JUSTICE TURNER delivered the opinion of the court:

		This appeal involves the interpretation of two written

instruments, a promissory note and a will, and the possible use

of extrinsic evidence.  Patsy J. Hurst, individually and as

administratrix of the will annexed of the estate of Robert

Charles Hurst, along with Lori L. Hofferbert and Todd A. Reid,

cross-appellees, appeal the judgment of the trial court with

respect to the promissory note and will, respectively.  Alicia E.

Hurst and Julie Ann Hurst, cross-appellants, also appeal the

trial court’s ruling concerning the Dead-Man’s Act (735 ILCS 5/8-

201 (West 2000)).  We affirm in part, reverse in part, and remand

the cause with directions.

I. BACKGROUND

		Initially, the parties involved in these appeals

necessitate an introduction.  Robert Charles Hurst (Chuck) married Diane Neises in September 1961.  Chuck and Diane had two children: Lori L. Hurst and Todd A. Hurst (Lori and Todd).  Chuck

and Diane were divorced in April 1964, and Diane remarried to

Alex Reid.  Diane and Alex legally adopted Lori (now Hofferbert)

and Todd (now Reid).  In April 1965, Chuck married his second

wife, Karan E. Hurst.  They had two children: Alicia E. Hurst and

Julie A. Hurst (Alicia and Julie).  Chuck and Karan were divorced

in April 1990.  Later, Chuck married his third wife, Patsy J.

Hurst (Patsy).

A. The Note

		In 1993, Chuck and Patsy Hurst decided to open and

operate an adult entertainment club in Tazewell County.  Thereaf

ter, with the assistance of counsel, Club Cabaret, Inc., was

formed in which the Hursts retained a 51% controlling interest. 

The stock certificate indicated the sharesy were issued to “Robert

C. Hurst and Patsy J. Hurst, Joint Tenants.”  In 1996, the Hursts

decided to sell their interest in the business to other individu

als involved with the corporation.  Attorney Richard D. McCoy

prepared a promissory note (note) and mortgage on behalf of the

Hursts.  Chuck and Patsy allegedly told McCoy they wanted the

note to be payable to both of them jointly so if one of them

died, the survivor would become the sole owner of the note. 

McCoy drafted the note which read, in part:

			“FOR VALUE RECEIVED, the undersigned,

CLUB CABARET, INC. (“Maker”), promises to pay

to the order of ROBERT C. HURST and PATSY J. HURST, or either of them, or any holder of

this note (“Payee”) the sum of U.S.

$1,140,000.00 ***.”

Similarly, the mortgage stated, in relevant part:

			“This mortgage is made this 26 day of

September 1996, by CLUB CABARET, INC., an

Illinois corporation (“Mortgagor”), *** and

delivered to ROBERT C. HURST and PATSY J.

HURST (jointly and severally (“Mortgagee”))

***.”

		Chuck and Patsy accepted the note believing it con

formed to their wishes of joint ownership with each having a full

right of survivorship.  The corporation made monthly payments in

accordance with the terms of the obligation by electronic trans

fer to an account at Morton Community Bank.  Chuck and Patsy held

the bank account as joint tenants with right of survivorship.

		In October 1997, Chuck and Patsy sought out McCoy for

his services as to their estate plans.  They sought assurance

from McCoy the proceeds of the note would be paid to the survivor

of Chuck and Patsy if one predeceased the other.  McCoy checked

the note and assured them it was owned jointly with right of

survivorship.

		In June 1998, Chuck died before completing his estate

planning.  It was believed he died without a will.  In August

1998, Patsy was appointed independent administratrix of the

estate.

		In August 1999, Alicia and Julie filed a petition for

citation to discover assets against Patsy, in her individual and

representative capacities, and against Club Cabaret, Inc.  The

petition alleged the payees of the promissory note held it as

tenants in common and not as joint tenants.  Thus, Chuck’s

undivided one-half interest in the note passed into his estate

and should be inventoried as an asset of his estate.  Patsy,

believing the note created a joint tenancy, did not include the

note in Chuck’s estate, maintaining she was the sole owner.  In

April 2000, Alicia and Julie filed a motion for summary judgment

on their petition for citation to discover assets, arguing the

note and mortgage are clear and unambiguous on their face and

create a tenancy in common.

		In February 2000, Patsy, in her individual capacity,

filed a complaint to reform the note.  The complaint sought a

reformation of the note to express the true intent of Patsy and

Chuck, by substituting the words,

			“ROBERT C. HURST and PATSY J. HURST, or

either of them, as joint tenants with right

of survivorship,”

in place of the phrase,

			“ROBERT C. HURST and PATSY J. HURST, or

either of them.”

In March 2000, Alicia and Julie filed an answer to the complaint,

admitting most of the allegations but stating the note speaks for

itself.

		In October 2000, Patsy filed a motion for summary

judgment and attached affidavits from Richard McCoy, Robert

Tudor, and James Mamer.  In his affidavit, McCoy stated Chuck

wanted the note to be drafted jointly with Patsy with right of

survivorship.  He believed he was fulfilling Chuck’s wishes by

using the language “or either of them.”  Tudor, vice-president of

Club Cabaret, Inc., stated the corporation made monthly payments

by electronic transfer to Chuck and Patsy.  Mamer, president of

Morton Community Bank, stated Chuck and Patsy held a joint

account at the bank as joint tenants with right of survivorship.

		Alicia and Julie filed a motion to strike the three

affidavits as either irrelevant or barred by the Dead-Man’s Act. 

Specifically, they alleged McCoy’s affidavit was barred by the

Dead-Man’s Act because McCoy was a person directly interested in

the action based on Patsy’s malpractice action against him. 

Patsy filed a professional negligence suit, in December 1999,

against Richard McCoy, Kirk Bode, and McCoy & Bode for the

alleged negligence in drafting the note.  Patsy argued the Dead-

Man’s Act did not apply because McCoy was not directly interested

in the action and had not been called to testify on his own

behalf.  

		Alicia and Julie also filed a cross-motion for summary

judgment arguing the note’s language created a tenancy in common. 

They argued if the McCoy affidavit was inadmissible, Patsy had no

evidence of a mistake to justify a reformation of the note.  They

claimed the mistake alleged was one of law, not fact, which was not the proper subject for reformation.

		In November 2000, the trial court denied Alicia and

Julie’s motion to strike the affidavits.  As to the McCoy

affidavit, the trial court found McCoy was not directly inter

ested in the action because, regardless of the outcome of this

case, the malpractice action would still be pending.

		In May 2001, the trial court, in an amended order,

denied Patsy’s motion for summary judgment and granted Alicia and

Julie’s cross-motion for summary judgment.  The trial court

reasoned the note was a tenancy-in-common instrument and, since

there was a mistake of law, not fact, reformation was prohibited. 

The court declared Chuck’s estate as the owner of an undivided

one-half interest in the note and the mortgage thatwhich secures it.

		Patsy filed a post trial motion to reconsider, arguing

equity provided an exception to the general rule that a mistake

of law cannot be reformed and her case fell within the exception. 

The trial court denied the motion to reconsider.  The court

acknowledged some mistakes of law may be reformed, but attorney

McCoy’s mistake was a legal one pertaining to a general rule of

law, and equity did not offer relief.  This appeal and cross-

appeal followed.

B. The Will

		In October 1999, Chuck’s original will, dated January

30, 1991, was found in the safe deposit box of the law firm of

McCoy & Bode.  The will stated, in relevant part:

			“ARTICLE II

			I give all of my personal effects,

household goods, automobiles, and all other

items of goods and chattels to my children

who survive me in shares of substantially

equal value, with the descendants of any

deceased child to take the deceased child’s

share per stirpes.  Currently I have two children whose names are as follows:

		ALICIA ELIZABETH HURST and JULIE ANN HURST

			If any child of mine has not attained

legal age at my death, the executor may de

liver his or her share of goods and chattels

to the guardian of his or her person or es

tate, or to the person with whom he or she

resides, for the benefit of the child, and

the receipt of this guardian or person shall

discharge the executor.

			ARTICLE III

			I give the residue of my estate, exclud

ing any property over which I have a power of

appointment, to my children who survive me in

equal shares with the descendants of any

deceased child to take the deceased child’s

share per stirpes.  If any child of mine is under the age of 25 years at the date of my

death, I direct the executor to give said residue to my ex-wife, KARAN E. HURST, as

trustee for the benefit of my children

(“Children’s Trust”).

***

			ARTICLE VIII

			I designate my wx-wife [sic], KARAN E. HURST, as the guardian of the persons and

estates of my children.  I direct that no

security be required on the bond of any

guardian designated by me.”

		In November 1999, Alicia and Julie filed a petition to

construe decedent’s will naming as defendants: Patsy, Lori, and

Todd.  The petition sought relief from the court by way of an

order construing decedent’s will so the word “children” is

defined to include only Alicia and Julie, and specifically to

exclude Lori and Todd.  In March 2000, Lori and Todd both filed

responses to the petition to construe decedent’s will.  The

responses sought a declaration that Lori and Todd are heirs under

the Illinois Probate Act of 1975 (755 IOCSLCS 5/1-1 et through 30-3

(West 2000))seq., and an order construing decedent’s will so the term

“children” is defined to include Lori and Todd for all purposes

except article II.

		In April 2000, Alicia and Julie filed a motion for

judgment on the pleadings, arguing decedent’s will did not

contain a latent ambiguity and demonstrated decedent’s intention

to disinherit his two children not named in the will: Lori and Todd.  In June 2000, the trial court found the will contained a

latent ambiguity and parol evidence was necessary to determine

whether Lori and Todd should be included.  In December 2000, an

evidentiary hearing was held on the petition to construe the

will.  The parties did not produce any extrinsic evidence but

relied on their arguments based on the language of the will.

		In May 2001, the trial court entered judgment in favor

of Alicia and Julie and against Lori and Todd.  The trial court

found Alicia and Julie were the only persons who take under

decedent’s will because case law tended to abolish the tradi

tional rules regarding class gifts and instead re-classify the

gift as an individual bequest when a person is specifically

identified.  This appeal followed.

II. ANALYSIS

A. The Note

		Patsy argues the trial court erred in granting summary

judgment in favor of Alicia and Julie.  We agree.  As our analy

sis of the note involves a question of law, we review the trial

court’s decision de novo.  See Subway Restaurants of Bloomington- Normal, Inc. v. Topinka, 322 Ill. App. 3d 376, 381, 751 N.E.2d 203, 208 (2001) (question of law when dealing with motion for

summary judgment).		

		The general rule is that before a court will reform an

instrument on the ground of mistake, "'"“the mistake must be of

fact and not of law, mutual and common to both parties, and in

existence at the time of the execution of the instrument, showing that at such time the parties intended to say a certain thing

and, by a mistake, expressed another.” "'  [Citations.]"=  Zannini v. Reliance Insurance Co. of Illinois, Inc., 147 Ill. 2d 437, 449, 590 N.E.2d 457, 462 (1992); see also Spies v. DeMayo, 396 Ill. 255, 272, 72 N.E.2d 316, 324 (1947) (to justify reformation,

mistake must be of fact and not of law); Ambarann Corp. v. Old Ben Coal Corp., 395 Ill. 154, 166, 69 N.E.2d 835, 841 (1946).

		While this general rule has had a long history, courts

of equity have created exceptions in the interests of justice. 

Our supreme court in Peter v. Peter, 343 Ill. 493, 498, 175 N.E. 846, 849 (1931), noted “[w]hile it has been stated as a general

rule that a mistake of law pure and simple is not adequate ground

for relief in equity, yet even when the mistake is one of law

equity sometimes intervenes.  [Citation.]  Courts of equity have

aided mistaken parties because of the demands of justice.” 

Later, the court indicated “[r]elief is not barred in a proper

case because the mistake is one of law.”  Darst v. Lang, 367 Ill. 119, 123, 10 N.E.2d 659, 662 (1937).  The court reiterated this

principle when it revisited the issue of granting relief to

mistakes that include elements of law in Barkhausen v. Continen tal Illinois National Bank & Trust Co. of Chicago, 3 Ill. 2d 254, 269-70, 120 N.E.2d 649, 657 (1954).

		In Harbaugh v. Hausman, 210 Ill. App. 3d 715, 720-22, 569 N.E.2d 523, 527-29 (1991), this court cited Barkhausen for the proposition that a court of equity can grant relief even in

cases where the mistake is one of law.  In Harbaugh, the court stated "where a person is mistaken 'as to his own antecedent

existing legal rights,' relief may be granted in regard to a

subsequent contract he enters into in reliance on his mistaken

belief as to antecedent rights."  Harbaugh, 210 Ill. App. 3d at 722, 569 N.E.2d at 528, quoting 3 J. Pomeroy, Equity Jurispru

dence §849, at 308 (5th ed. 1941).

		Unlike Harbaugh, this case does not involve a mistake as to an antecedent existing legal right.  Nevertheless, we find

the rationale of Barkhausen applicable to the circumstances presented in this case.  As the Barkhausen court stated:

			"But, appellee says that this court is

powerless to remedy the mistake, if there was

one, because it was a mutual mistake of law. 

What constitutes a mistake of law or a mis

take of fact is a subject upon which many

conflicting and irreconcilable discourses

have been written.  In Illinois there are

well-reasoned opinions that hold that relief

is appropriate whether one views a mistake to

be one of fact or one of law.  Darst v. Landg ***, 367 Ill. 119, [at 123-24, 10 N.E.2d at 662],]

is one that is peculiarly applicable.  In

that case[,] aging parents deeded to their

beloved daughter their farm, intending to

reserve unto themselves a life estate but

mistakenly failing to do so.  This daugh ter[,] after several years, upon learning of

their failure to reserve their life estate,

sought to deprive her father and mother of

the proceeds of the premises which they had

been enjoying uninterruptedly since the exe

cution of the deed.  In that proceeding[,]

reformation was sought because of a mistake,

but the daughter urged the applicability of

the rules that extrinsic evidence cannot be

considered and that a court of equity is

powerless to remedy a mistake of law.  The

court in rejecting those arguments used this

language which we believe appropriately ap

plies to the situation before us: 'Relief is

not barred in a proper case because the mis

take is one of law.'"  Barkhausen, 3 Ill. 2d at 269, 120 N.E.2d at 657.

		In the case sub judice, Chuck and Patsy Hurst were the owners of a restaurant and nightclub which they operated as a

corporation.  The Hursts owned a 51% controlling interest in the

corporation represented by a stock certificate registered in both

of their names as joint tenants with right of survivorship.  They

agreed to sell their interests in the business and hired a lawyer

to represent them in the transaction.  Their lawyer prepared the

documents necessary to consummate the sale.  The documents

included the preparation of a promissory note payable to Chuck and Patsy for the purchase of the stock.  Chuck and Patsy told

their lawyer they wanted one promissory note payable to both of

them jointly so that if one of them died, the other became the

sole owner of the note.  After the note was executed, the

corporation began making monthly payments in accordance with the

terms of the note to a bank account set up by Chuck and Patsy as

a joint tenancy with right of survivorship.  Chuck and Patsy

relied upon their legal counsel, who apparently believed that

naming Chuck and Patsy, "or either of them," as payees, was

sufficient to establish a joint tenancy.  

		Alicia and Julie argue other supreme court decisions

plainly state that no mistake of law is reformable by a court of equity (see David v. Schiltz, 415 Ill. 545, 114 N.E.2d 691 (1953); Wilcox v. Natural Gas Storage Co. of Illinois, 24 Ill. 2d 509, 182 N.E.2d 158 (1962); Zannini v. Reliance Insurance Co. of Illinois, Inc., 147 Ill. 2d 437, 509 N.E.2d 457 (1992)) and that Barkhausen has dubious precedential value.  We are not persuaded inasmuch as Wilcox and Zannini did not even cite Barkhausen, and David was decided prior to the Barkhausen decision.  Although each opinion does state that equity addresses only mistakes of

fact and not law, all three are decidedly distinguishable from

the facts present here.  In David, an erroneous legal description in a deed was deemed a mistake of fact and the court reformed the

deed some 16 years after its original delivery.  David, 415 Ill. at 554, 114 N.E.2d at 696.  In Wilcox, the mistake was unilateral in nature and reformation, therefore, was not available.  Wilcox, 24 Ill. 2d at 513, 182 N.E.2d at 160.  In Zannini, an insurance contract as issued did not set forth the true agreement entered

into between an insured and an agent of the insurance company. 

Zannini, 147 Ill. 2d at 440-41, 509 N.E.2d at 458.  The supreme court deemed the mistake to be one of fact and remanded for

reformation of the contract.  Zannini, 147 Ill. 2d at 457, 509 N.E.2d at 465-66.  Thus, the general principle of law--i.e., no mistake of law is reformable by a court of equity`--was not at

issue in any of these cases.  

		Alicia and Julie also argue that even if a mistake of

law can be remedied by a court of equity, the mistake here was a

"pure and simple" mistake which does not fall within the excep

tion allowing for reformation of a mistake of law.  We disagree.

		The supreme court in Barkhausen stated, in part:

		“'Wwhenever it is clearly shown that parties

in their dealings with each other have acted

under a common mistake of law and the party

injured thereby can be relieved without doing

injury to others, equity will afford him

redress.'"  Barkhausen, 3 Ill. 2d at 270, 120 N.E.2d at 657-58, quoting Peter, 343 Ill. at 499-500, 175 N.E. at 849.

Here, it has been clearly shown Chuck and Patsy acted under a

common mistaken belief that they were named as payees to hold the

note as joint tenants rather than as tenants in common.  Their

ownership as tenants in common defeats the right of survivorship, and thus it works an injustice upon them.  We hold that such an

injustice under these facts may be avoided by the equitable

remedy of reformation.  Our decision today finds further support

by leading authorities on the law of contracts.  See Restatement

(Second) of Contracts §151, Comment bB, at 384 (1981); 13 W.

Jaeger, Williston on Contracts §1585, at 555-56 (3d ed. 1970). 

“The desirable rule governing reformation is that if the writing

actually executed does not contain all that the parties agreed

that it should contain, it will be reformed whether the reason

why it fails to express the agreement is due to a mistake of fact

or of law.”  13 W. Jaeger, Williston on Contracts §1586, at 559

(3d ed. 1970).  

		Alicia and Julie next argue the note cannot be reformed

because (1) the mistake is unilateral only and (2) Patsy has an

adequate remedy of law.  We disagree with both of these

contentions.  

		On the question of mutuality, Alicia and Julie claim

the maker of the note, Club Cabaret, Inc., has not been shown to

be a party to the mistake.  This claim, however, avoids the heart

of the issue before this court.  The maker of the note had no

interest in whether Chuck and Patsy held the note as joint

tenants or tenants in common.  The mutual mistake at issue was

between Chuck and Patsy.  There is no claim or issue before this

court that Club Cabaret, Inc., intended for the note to be

payable to Chuck and Patsy as tenants in common rather than as

joint tenants.  Hence, the argument that no mutual mistake exists is unavailing to Alicia and Julie.  

		We also disagree Patsy is precluded from seeking

reformation because she has an adequate remedy of law in pursuing

her malpractice claim against McCoy.  The appellees cite no cases

in support of this proposition, and we decline to hold the

malpractice claim adequately remedies the ramifications of the

mutual mistake of Chuck and Patsy or justifies a windfall to

Alicia and Julie never intended by Chuck and Patsy.  

		The Hurst sisters' final argument is that Richard

McCoy's affidavit is barred by the Dead-Man's Act (735 ILCS 5/8-

201 (West 2000)).  Patsy argues the Dead-Man's Act does not apply

in this litigation and does not bar McCoy's testimony.  We agree

with Patsy.  The Dead-Man's Act provides in pertinent part:

			"In the trial of any action in which any

party sues or defends as the representative

of a deceased person or person under a legal

disability, no adverse party or person di

rectly interested in the action shall be

allowed to testify on his or her own behalf

to any conversation with the deceased or

person under legal disability or to any event

which took place in the presence of the de

ceased ***."  735 ILCS 5/8-201 (West 2000).

The trial court found, and we agree, the Dead-Man's Act does not

apply because McCoy is not a person directly interested in the

action and McCoy was not called to testify on his own behalf.  

		A witness may be disqualified from testifying if the

witness is "directly interested in the action."  The witness'

interest in the judgment must be such that a monetary “gain or

loss will come to the witness directly as the immediate result of

the judgment.”  Michalski v. Chicago Title & Trust Co., 50 Ill. App. 3d 335, 339, 365 N.E.2d 654, 657 (1977), citing Brownlie v. Brownlie, 351 Ill. 72, 76, 183 N.E. 613, 615 (1932).  

		In Michalski, the plaintiffs maintained that deeds in their favor had been executed and delivered to the defendant

trust company, but the deeds were unrecorded and lost, mislaid,

or destroyed.  Michalski, 50 Ill. App. 3d at 337, 365 N.E.2d at 655.  The attorney who drafted the deeds on behalf of the grant

ors was allowed to testify as to his conversations and consulta

tions with the grantors when the dispute arose after the death of

the grantors.  Michalski, 50 Ill. App. 3d at 338, 365 N.E.2d at 656.  Although the attorney involved had not been sued, he did

testify that he had notified his insurance company of the possi

bility of a claim against him for the handling of the deeds. 

Michalski, 50 Ill. App. 3d at 338, 365 N.E.2d at 656.  In finding the attorney's testimony was admissible, the Michalski court stated, "[n]o matter what the result of these proceedings would

be, there would be no certain, direct, or pecuniary effect on

Piggott [(the attorney)].  If an interest in an action is of a

doubtful or uncertain nature, that fact may go to the credibility

of the witness, but not to his competency."  Michalski, 50 Ill. App. 3d at 339, 365 N.E.2d at 657.  

		Although a malpractice case had not been filed against

the attorney in Michalski, and a suit has been filed against McCoy here, their positions are similar.  Neither stood to

benefit directly from the outcome of the case in which he testi

fied.  The interest of the witness must be direct and be such

that a pecuniary gain or loss will inure to the witness directly

as the immediate result of the judgment.  

		Appellees also cite Groce v. South Chicago Community Hospital, 282 Ill. App. 3d 1004, 669 N.E.2d 596 (1996), and Hoem v. Zia, 239 Ill. App. 3d 601, 606 N.E.2d 818 (1992), but neither case supports their position.  In both cases, a physician's

testimony was barred when the physicians offered testimony as to

conversations with the decedent in malpractice actions filed

against the physicians by the decedents' estates.  

		The Dead-Man's Act is also not applicable because

McCoy, as a nonparty witness, was not called to testify on his

own behalf.  McCoy specifically admitted that he had drafted the

note at issue and that he advised his clients the language in the

note established a joint tenancy with the right of survivorship. 

McCoy was not called to testify on his own behalf and his

testimony was therefore not barred by the Dead-Man's Act.  See In re Estate of Sewart, 274 Ill. App. 3d 298, 652 N.E.2d 1151 (1995); In re Estate of Henke, 203 Ill. App. 3d 975, 561 N.E.2d 314 (1990).

		Based upon our findings, we need not address the issues

pertaining to joint tenancy or the allegedly ambiguous language in the note.  Therefore, we reverse the trial court’s judgment

granting Alicia and Julie’s motion for summary judgment and

remand to the trial court to reform the note indicating a joint

tenancy with right of survivorship between Chuck and Patsy.

B. The Will

		Lori and Todd argue Chuck’s will is latently ambiguous,

and they should come within the meaning of Chuck’s “children”

under the residuary clause of article III.  We disagree.

		The cardinal rule in the construction of wills is to

ascertain the true intention of the testator as expressed in the

will.  In re Estate of Cancik, 106 Ill. 2d 11, 17, 476 N.E.2d 738, 741 (1985); In re Estate of Garrett, 325 Ill. App. 3d 123, 126, 756 N.E.2d 920, 924 (2001).  

		“'This intention is to be gathered from the

words and expressions used in the will it

self.  The different provisions and parts of

the instrument are to be compared with and

read in the light of each other, so as, if

possible, to deduce therefrom an [sic] harmo nious whole.  The general intent of the will is to be carried into effect at the expense

of any particular intent, provided such gen

eral intent is consistent with the rules of

law, for when there are conflicting intents

that which is the most important must pre

vail.’”  (Emphasis in original.)  Morrison v. Tyler, 266 Ill. 308, 319, 107 N.E. 602, 605 (1914), quoting Howe v. Hodge, 152 Ill. 252, 266, 38 N.E. 1083, 1086 (1894).

		If the language of a will is clear and unambiguous,

extrinsic evidence is not admitted to vary that language. 

Steinke v. Novak, 109 Ill. App. 3d 1034, 1038, 441 N.E.2d 883, 886 (1982).  However, where latent ambiguities exist in the will,

extrinsic evidence will be considered to determine the testator’s

intent.  In re Estate of Levin, 231 Ill. App. 3d 634, 637, 596 N.E.2d 722, 725 (1992).  “A latent ambiguity occurs when the will

appears clear on its face but some fact external to the will

reveals that a description of a bequest or of a legatee in the

will is inadequate to determine who or what was intended by the

testator.”  Coussee v. Estate of Efston, 262 Ill. App. 3d 419, 424, 633 N.E.2d 815, 818 (1994).

		In the case sub judice, Chuck devised his personal effects in article II to his children who survived him. 

Thereafter, he stated: “Currently I have two children whose names

are as follows: ALICIA ELIZABETH HURST and JULIE ANN HURST.”  By

specifically designating his children as Alicia and Julie,

Chuck’s indication was to include them within the meaning of “my

children.”

		Our supreme court has noted the “words 'child' and

'children' are not technical legal terms to which a fixed and

determined meaning must be given, regardless of the sense in

 which

they are employed, but they are flexible and subject to construction, in order to give effect to the testator’s inten

tion.”  Beall v. Beall, 331 Ill. 28, 32-33, 162 N.E. 152, 154 (1928).  When Chuck drafted his will to indicate he currently had

two children, Alicia and Julie, his further references to “my

children” were to include them and to exclude Lori and Todd, who

were alive at the time the will was drafted.  The fact that Chuck

inserted the word “currently” does not make the will ambiguous

because, although future children could have been born to Chuck,

Lori and Todd were not to be considered within the meaning of

“children.”  As the meaning of the word “children” is flexible

and not rigid, we find Alicia and Julie were to take under

Chuck’s will to the exclusion of Lori and Todd.

		Our conclusion is further supported by reading the

particular provisions of the will in light of each other to

deduce that “harmonious whole.”  As stated, article II devises

Chuck’s personal effects to his children, Alicia and Julie. 

Article III devised the residue of Chuck’s estate “to my children

who survive me.”  Further, article III states Chuck’s ex-wife,

Karan Hurst, mother of Alicia and Julie, was to be given the

residue as trustee for the benefit of his children if any child

was under the age of 25.  Article VIII also designated Karan

Hurst as the guardian of the persons and estates of Chuck’s

children.  Nowhere in Chuck’s will is there any mention of Lori

and Todd or of his first wife.  The necessary implication from

the reading of the entire will is that Chuck sought to provide

for Alicia and Julie (and perhaps a child born in the future) to

the exclusion of Lori and Todd.

		Although we are aware of the maxim: “No will has a twin

brother,” and thus analogies to other cases are less than exact

ing, we find our supreme court’s decision in Young v. Whisler, 19 Ill. 2d 501, 504, 167 N.E.2d 191, 192 (1960), to be helpful.  In

that case, the decedent devised a will which provided, in part,

that in the event his wife predeceased him, all the property

would go "to my children, Zella Lee Rath and Thelma Louise

Yoeman, in equal parts, share and share alike.”  Young, 19 Ill. 2d at 503, 167 N.E.2d at 192.  The decedent had four children:

George and Donald Young, sons by his first wife, and Zella and

Thelma, daughters by his second wife.  Young, 19 Ill. 2d at 503, 167 N.E.2d at 192.  George and Donald argued the will’s language

pertaining to “my children, Zella Lee Rath and Thelma Louise

Yoeman” was latently ambiguous and uncertain because the decedent

had two sons by a prior marriage.  Young, 19 Ill. 2d at 503, 167 N.E.2d at 192.

		The supreme court, in deciding whether the will’s

language created a latent ambiguity stated:

			“It is readily apparent that the devise,

'to my children, Zella Lee Rath and Thelma

Louise Yoeman,' falls within the rule that

where legatees are named as individuals and

also described as a class, and there is noth

ing more to show the testator’s intention,

the gift by name constitutes a gift to indi

viduals, to which the class description is added by way of identification. [Citations.]

Moreover, the natural meaning of the words

'my children' in the phrase is to identify

the legatees and their relationship to the

testator.  The words are in no way

inconsistent with the two names which follow. 

Since the named individuals are both children

of the testator, they are accurately

described, and the existence of two other

children by a former marriage does not impair

the accuracy of that description, nor render

it ambiguous.”  Young, 19 Ill. 2d at 504-05, 167 N.E.2d at 193.

The court found the clause giving the decedent’s property to

named individuals had the effect of falling under “the rule that

ordinarily a will purporting to devise and bequeath all property

of a testator to a named beneficiary is equivalent to the

expression of an intention to disinherit all other persons.” 

Young, 19 Ill. 2d at 505, 167 N.E.2d at 193.  Further, had the decedent inserted language indicating his intention to include

his sons in the will, the court noted it would have reason to not

apply the rule.  “The fact that the testator had additional

children cannot of itself bar our giving effect to his expressed

intention to devise the property to the named children.”  Young, 19 Ill. 2d at 505-06, 167 N.E.2d at 193.  Thus, the supreme court

found no latent ambiguity from the fact the testator had other children in existence.  Young, 19 Ill. 2d at 506, 167 N.E.2d at 193.

		In the present case, the fact that Chuck had other

children in existence, namely Lori and Todd, does not create a

latent ambiguity.  The will’s language in article II specifically

indicates Alicia and Julie were Chuck’s children.  Further

references to “children” in later clauses describe the identities

set forth by Chuck in article II.  The entire will, comparing the

parts and provisions and reading them in light of each other,

leads to the conclusion that Chuck’s intent in articles II and

III was to devise his property to his children, Alicia and Julie. 

It is a basic principle that courts have a duty to construe wills

as they find them rather than change or rewrite them.  In re Estate of Laas, 134 Ill. App. 3d 504, 509, 480 N.E.2d 1183, 1187 (1985).  With this in mind and based on a reading of the four

corners of Chuck’s will, we find the language is clear and

unambiguous.  Thus, the trial court’s order that only Alicia and

Julie take under the will was proper.

III. CONCLUSION

		For the reasons stated, we affirm in part, reverse in

part, and remand the trial court's judgment with directions.

		Affirmed in part and reversed in part; cause remanded

with directions.

		MYERSCOUGH and APPLETON, JJ., concur.