No. 3--01--0066

	IN THE

	APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

				A.D., 2001

In re ESTATE OF PEARL GARRETT	   )	Appeal from the Circuit Court

						   ) of the 9th Judicial Circuit

						   ) Knox County, Illinois

(Harold Bramlett,			   ) 

	Objector-Appellant,	   	   )	Nos. 97-P-206

		v.				   )	

John Bramlett, as Executor of	   ) Honorable 

the Estate of Pearl Garrett,	   ) Harry C. Bulkeley

	Appellee).				   ) Judge Presiding

	JUSTICE LYTTON delivered the opinion of the court: 

	Petitioners, nieces and nephews of the testator, Pearl

Garrett, brought this action to construe their aunt's will.  The

trial court found that the estate passed as a class to the  decedent's surviving siblings but certified two questions to us

under Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)).  We hold

that the estate passes per stirpes to the descendants of the testator's deceased siblings.

	On June 2, 1987, Pearl Garrett executed a will that divided

her estate among her 10 then-living siblings and the children of

her two deceased sisters.  The single dispositive paragraph

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 Powers, Lora Geneva Bishop, Beulah Leona Jones, Coleman William Bramlett, Alma Elizabeth LeGate, Edna Alpha

Ruggles, Clyde Harding 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 died November 12, 1997, survived by five siblings.  Her

will was admitted to probate and John L. Bramlett was appointed

executor.  

	The executor construed Garrett's will to require that only

those siblings who survived Garrett and only those children of

Maude May Brown and Mary Belle Clouse who were living at Garrett's

death would inherit under the provisions of her will.  The executor

filed a final report dividing Garrett's estate into seven shares

with one share each going to Garrett's five surviving siblings, one

share to the surviving children of Brown, and one share to the

surviving children of Clouse.

	PlaintiffPetitioners, descendants of siblings who died after Garrett

executed her will and the descendants of the predeceased children

of Brown and Clouse, objected to the final report.  The executor

then filed a motion to construe the will and approve the final

report.  The trial court found that the will created a class gift

which required class members to survive the testator.  The court

also found that the provisions providing for a bequest of a one- twelfth share "to the children *** per stirpes" of each of

Garrett's two predeceased sisters was ambiguous.

	Both parties filed motions to reconsider, which were denied. 

PlaintiffPetitioners then filed a "Motion For Rule 308(a) Appeal," which the

trial court granted.  

	DISCUSSION

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

		"a. Whether the provision in the will of the

decedent providing for a bequest to ten named brothers

and sisters 'share and share alike or to the survivor or

survivors of them' creates a class gift which imposes a

requirement that the named sibling survive the testator

and, thus, only those brothers and sisters who survived

the testator would inherit and whether there is an

ambiguity in that provision.

		b. Whether the provision in the will providing for

a bequest of 1/12 share 'to the children...per stirpes' of two of the testator's sisters who died prior to the

execution of the will, is ambiguous."

I

	The first question contains two issues: (1) Is a class gift

created? and (2) Is the language ambiguous?

A

	First, we must determine whether a class gift exists. 

PlaintiffPetitioners argue that the bequest was not a class gift.  The executor 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 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

in some other definite proportions, the share of each being

dependent 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 Trust Company 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 the

number of the persons who are to take the property is to be

ascertained at a future time.  O'Connell v. Gaffney, 23 Ill. 2d 611, 617, 179 N.E.2d 647, 650 (1962).  A gift to persons who are

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

or others.  O'Connell, 23 Ill. 2d at 617, 179 N.E.2d at 650.  A gift in equal shares to the named individuals strengthens the

conclusion 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; she

then devised one share to each named sibling.  Shares were not

dependent on persons to be determined in the future; the number of

persons, and the share to each, was already ascertained.  Further,

she named her siblings individually, indicating a gift to each of them, not to a class.  All of these factors indicate a gift to

individuals was intended.  See O'Connell, 23 Ill. 2d at 617, 179 N.E.2d at 650.  The trial court erred when it held that Garrett's

will created a class gift to her siblings.

B

	Next we address the second part of the first certified

question, that is, whether the language "share and share alike or

to the survivor or survivors of them" is ambiguous.

	Petitioners contend that the phrase is ambiguous when read in

the context of the entire bequest and that, construing the will as

a whole, Garrett's intent was to provide a per stirpes distribution to her siblings' descendants.  The executor, however, argues that

the will is not ambiguous and survivorship is required.

	"The cardinal rule of will construction, to which all other

rules yield, is the ascertainment of a testator's intention from

the will itself."  In re Estate of Kirchwehm, 211 Ill. App. 3d 1015, 1018, 570 N.E. 2d 851, 854 (1991).  Since wills are not

always alike, results in other will cases are seldom of controlling

importance in determining a testator's intent.  Stites v. Gray, 4 Ill. 2d 510, 513, 123 N.E. 2d 483, 487 (1954).  The intention of

the testator is established by examining the will as a whole to

determine whether an ambiguity exists.  See In re Estate of Carlson, 39 Ill. App. 3d 281, 284-85, 350 N.E.2d 306 309 (1976).  Whether an ambiguity exists is determined by applying established

principles of law to the will.  Binger v. Ackerman, 15 Ill. App. 2d 35, 40-41, 145 N.E.2d 277, 281 (1957).  If the meaning of the will's language is unclear after the application of established

principles of law, an ambiguity is present and a question of

construction 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 is

construed to mean the person who lives the longest out of a group

of named individuals.  Carlson, 39 Ill. App. 3d at 284-85, 350 N.E.2d at 309.  However, a different interpretation may be

appropriate if the traditional definition creates a result contrary

to 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" is

ambiguous.  As stated above, in the one dispositional clause of the

will, Garrett left 12 equal shares of her estate to her then-living

siblings and the children of her two predeceased sisters.  From this bequest, we can infer that Garrett wished to treat her

brothers and sisters and their descendants equally.  Though the

executor argues that the word "survivor" is unambiguous, citing

Carlson and Kirchwehm, he appears to rely on the holdings in those cases while disregarding their rationale.  Indeed, the analysis in

those cases is the same as ours, i.e., the court must examine the whole 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 dispositive clause, we find the will to be ambiguous.

	Once a will is determined to be ambiguous, a question of

construction 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 will

apply the presumption that testators intend property to go in

accordance with the laws of descent and distribution.  Dahmer v. Wensler, 350 Ill. 23, 28, 182 N.E. 799, 801 (1932).  Illinois law has consistently favored per stirpes distribution in the absence of a contrary intention.  Schroeder v. Benz, 9 Ill. 2d 589, 592, 138 N.E.2d 496, 500 (1956).  To disinherit heirs, a testator must

clearly indicate his intention to do so.  Harris Trust & Savings Bank 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 a

whole.  See Carlson, 39 Ill. App. 3d at 284-85, 350 N.E.2d at 309.

	Applying these rules of construction to Garrett's will, we

conclude that a per stirpes distribution is appropriate here.  No other construction can be ascertained from reading the will in its

entirety.  Thus, we hold that Garrett intended a per stirpes distribution.

II

	The second question certified to us is whether the bequests of a one-twelfth share each "'to the children...per stirpes' of two of the 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 Brown

and Mary Belle Clouse.  The executor responds that only the surviving children of Brown and Clouse take under the will, citing Goodwine State Bank v. Mullins, 253 Ill. App. 3d 980, 625 N.E.2d 1056 (1993).

	"Per stirpes" is a term used to specify the method of distribution of property.  Goodwine, 253 Ill. App. 3d at 1006, 625 N.E.2d at 1076.  The words "per stirpes" indicate a taking by right of representation of that which an ancestor would take if living. 

Goodwine, 253 Ill. App. at 1006, 625 N.E.2d at 1076.  Ordinarily the words "per stirpes" denote substitution in case of the death of the primary legatee.  Mercantile Trust & Savings Bank v. Rogers, 5 Ill. App. 2d 162, 169, 124 N.E.2d 683, 687 (1955). 

	In Goodwine, the testator gave his son a life estate in all his real estate.  The testator provided that upon the death of his

son, 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 that

survivorship was required by the use of the phrase "then[-]living

descendants," and the per stirpes distribution only applied to the shares 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 the children of Garrett's deceased sisters, who were to take "per stirpes."  The heirs of the children of Garrett's sisters take by substitution in the event of the death of a primary legatee.  See Rogers, 5 Ill. App. 2d at 169, 124 N.E.2d at 687.  Thus, if any of the sisters' children predeceased Garrett, the deceased child's

descendants receive their share by right of representation.

	Furthermore, if the language were considered ambiguous, we

would determine the intent of the testator by giving effect and

meaning 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 devised

one share each to the "children" of Brown and Clouse without the

words "per stirpes," she would have created a class gift requiring survivorship.  Under the executor's interpretation, the words "per stirpes" become superfluous, rendering them meaningless.  We must conclude that Garrett intended that all of the children of Brown

and Clouse were to take their shares of the estate per stirpes.

	The certified questions of the circuit court of Knox County are answered.			

	Certified questions answered.

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