{ "id": 5251944, "name": "In re ESTATE OF EDWARD J. BULGER, Deceased (Estate of Edward J. Bulger, Deceased, Appellee, v. Emmett Bulger, Jr., et al., Appellants)", "name_abbreviation": "Estate of Bulger v. Bulger", "decision_date": "1991-12-31", "docket_number": "No. 1\u201490\u20140991", "first_page": "456", "last_page": "460", "citations": [ { "type": "official", "cite": "224 Ill. App. 3d 456" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "300 N.E.2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5340758 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0595-01" ] }, { "cite": "92 N.E. 965", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1934, "pin_cites": [ { "page": "966" } ], "opinion_index": 0 }, { "cite": "246 Ill. 563", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3402706 ], "year": 1934, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill/246/0563-01" ] }, { "cite": "4 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "364 Ill. 434", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2586443 ], "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill/364/0434-01" ] }, { "cite": "438 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3022459 ], "weight": 2, "pin_cites": [ { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/1038-01" ] }, { "cite": "190 N.E. 121", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 4, "pin_cites": [ { "page": "122-23" }, { "page": "122-23" } ], "opinion_index": 0 }, { "cite": "356 Ill. 89", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5805674 ], "weight": 5, "pin_cites": [ { "page": "91-93" }, { "page": "93" }, { "page": "91-93" } ], "opinion_index": 0, "case_paths": [ "/ill/356/0089-01" ] } ], "analysis": { "cardinality": 428, "char_count": 8863, "ocr_confidence": 0.797, "pagerank": { "raw": 4.46765605076141e-08, "percentile": 0.28011691029090885 }, "sha256": "39b32adae50670cb21016971b59e9da8aaec2b99f91f17bfc6a7f2b2ed67b85c", "simhash": "1:a969b8d76c098e9e", "word_count": 1517 }, "last_updated": "2023-07-14T21:10:25.672470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF EDWARD J. BULGER, Deceased (Estate of Edward J. Bulger, Deceased, Appellee, v. Emmett Bulger, Jr., et al., Appellants)." ], "opinions": [ { "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nThe executor, Anthony A. DiGrazia, filed a supplemental proceedings petition to construe testator Edward J. Bulger\u2019s will. The trial court ordered that the estate vests in the surviving children of testator pursuant to the will. Plaintiffs Emmett Bulger, Jr., Susan Sea, Dolores Bauer, Christine Torres, and Michael Bulger, who are testator\u2019s grandchildren, appeal that order.\nPlaintiffs make the following allegations on appeal: (1) that where there is a testamentary disposition to a class composed of testator\u2019s descendants, and one of testator\u2019s children predeceases testator leaving descendants, the disposition is governed by section 4 \u2014 11(b) of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411(b)), unless it clearly appears from the will that testator provided for the contingency of a prior death of one of his children; (2) that the phrase \u201cor to the survivor or survivors of them\u201d in testator\u2019s will is not a sufficiently clear indication that testator provided for the contingency of the prior death of one of his children necessary to avoid the aforementioned \u201canti-lapse\u201d provision; and (3) that Schneller v. Schneller (1934), 356 Ill. 89, 190 N.E. 121, is applicable to the present case. Testator\u2019s children maintain that the issue on appeal is whether the phrase \u201cor to the survivor or survivors of them\u201d in testator\u2019s will, viewed within the four comers of the will, creates an ambiguity which requires judicial construction.\nThe following issues are before this court for review: (1) whether the phrase contained in testator\u2019s will, \u201cto share and share alike, or to the survivors of them in equal shares,\u201d creates an ambiguity which requires construction of the will; and (2) if so, whether by this clause the grandchildren may take their father\u2019s share pursuant to section 4 \u2014 11(b) of the Act. We reverse.\nTestator died a resident of Cook County, Illinois, on July 28, 1989. On August 16, 1989, his will, dated November 29, 1972, was admitted to probate in proceedings filed in the circuit court of Cook County. Paragraph 2 of said will makes the following provision:\n\u201cAll the rest, residue, and remainder of my property, *** I give, devise and bequeath to my wife, ESTHER Z. BULGER, and in the event my wife, ESTHER Z. BULGER, shall predecease me *** all of my said property shall go and the same is hereby given, devised and bequeathed to my children, EDWARD G. BULGER, VERONICA STEDMAN, EMMETT BULGER and CHARLES BULGER, to share and share alike, or to the survivor or survivors of them, in equal shares.\u201d\nEmmett Bulger predeceased his father, testator, and was survived by plaintiffs.\nAt the time of testator\u2019s death, section 4 \u2014 11(b) of the Act was in effect. (Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411(b).) Section 4 \u2014 11(b) makes the following relevant provision:\n\u201cLegacy to a deceased legatee: 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, except that if the deceased member of the class is a decedent of the testator, the descendants of the deceased member then living shall take per stirpes the share or shares which the deceased member would have taken if he were then living ***.\u201d Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411(b).\nOn or about September 20, 1989, testator\u2019s grandchildren made a demand upon counsel for the executor of testator\u2019s estate for their deceased father\u2019s share of the estate. On or about November 22, 1989, during pending probate proceedings, the executor filed a petition for supplemental proceedings to construe the will.\nOn or about March 8, 1990, the court ordered that the estate was to be distributed to the surviving children of testator only, and not the grandchildren. Upon pronouncing its decision, the trial court stated, \u201cThere is no ambiguity here. The will very clearly says it goes to the children or the survivors of them, and I cannot interpret the will in any other way.\u201d Plaintiffs appeal that order.\nTestator\u2019s children concede that section 4 \u2014 11 states that it is applicable to all wills unless the testator \u201cexpressly provides otherwise in his will.\u201d (Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411.) Testator\u2019s children also acknowledge that the will states that testator\u2019s four named children are to \u201cshare and share alike, or to the survivor or survivors of them in equal shares.\u201d Testator\u2019s children, however, in reliance upon Estate of Smith (1982), 107 Ill. App. 3d 1038, 438 N.E.2d 553, argue that the language \u201csurvivor or survivors of them\u201d means \u201cthe last living person or persons of those named.\u201d (Estate of Smith, 107 Ill. App. 3d at 1041, 438 N.E.2d at 557.) Testator\u2019s children contend that section 4 \u2014 11(b) of the Act is therefore inapplicable to the will in the present case because testator has expressly provided that only his children living at the time of his death may take under his will. We disagree.\nAt common law, when a testator made a devise or bequest by will to a class composed of his children, and a member of the class predeceased the testator leaving descendants, the share of the deceased member would not go to his descendants, but to the remaining members of the class. In order for a member of the class to take, he had to survive the testator. If a member of the class predeceased the testator, the gift lapsed because it never vested in the deceased class member and was thus not available to his descendants. See 4 W. Bowe & D. Parker, Page on the Law of Wills \u00a735.15 at 539-40 (3d ed. 1961); Carter v. Lewis (1936), 364 Ill. 434, 438, 4 N.E.2d 853, 856.\nIn order to overcome the harsh result of common law, the General Assembly of the State of Illinois enacted legislation commonly referred to as the \u201canti-lapse\u201d statute (Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411(b)). The Act provides that the descendants of the deceased member of a class would take under the same set of circumstances described above. Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411(b).\nIn addition, the Illinois Supreme Court has ruled that \u201cwhere a gift to survivors is preceded by a life or other prior interest it takes effect in favor of those who survive the period of distribution, and those only, unless a special contrary intent is found in the will.\u201d (Burlet v. Burlet (1910), 246 Ill. 563, 566, 92 N.E. 965, 966.) Later in Schneller v. Schneller (1934), 356 Ill. 89, 190 N.E. 121, our supreme court ruled that where a testator\u2019s will provided, \u201cI give, devise and bequeath to my three children, *** or to the survivors or survivor of them to be distributed equally share and share alike,\u201d the words \u201csurvivors or survivor\u201d did not by themselves indicate an intent on the part of the testator to bar application of the \u201canti-lapse\u201d statute. (Schneller, 356 Ill. at 91-93, 190 N.E. at 122-23.) The court in Schneller further ruled that in order to avoid an \u201canti-lapse\u201d statute, a will must clearly manifest an intention on the part of the testator to disinherit any grandchildren whose parents predeceased the testator. Schneller, 356 Ill. at 93, 190 N.E.2d at 123; see In re Estate of Wood (1973), 13 Ill. App. 3d 595, 300 N.E.2d 560.\nWe find that the above rule of construction is applicable to the case at bar. The trial court erred when it ruled that testator\u2019s will clearly stated that testator\u2019s grandchildren who were children of testator\u2019s deceased son Emmett Bulger could not take under the will. The phrase \u201cor to the survivor or survivors of them\u201d in testator\u2019s will is not a sufficiently clear indication that testator provided for the contingency of the prior death of his son necessary to avoid section 4\u2014 11(b) of the Act. (See Schneller, 356 Ill. at 91-93, 190 N.E. at 122-23.) Therefore, the phrase in question contained in testator\u2019s will requires construction of the will in accordance with section 4 \u2014 11(b) of the Act.\nSection 4 \u2014 11(b) provides that living children of a deceased class member inherit per stirpes the share which the decedent would have taken had he survived. (See Ill. Rev. Stat. 1989, ch. 110\u00bd, par. 4\u201411(b).) Therefore, plaintiffs take their father\u2019s share pursuant to section 4 \u2014 11(b) of the Act.\nAccordingly, the judgment of the circuit court is reversed.\nReversed.\nCERDA, P.J., and GREIMAN, J., concur.", "type": "majority", "author": "JUSTICE RIZZI" } ], "attorneys": [ "Thomas J. Georgis & Associates, Ltd., of Palos Hills, for appellants.", "John Roth, of McHenry, for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF EDWARD J. BULGER, Deceased (Estate of Edward J. Bulger, Deceased, Appellee, v. Emmett Bulger, Jr., et al., Appellants).\nFirst District (3rd Division)\nNo. 1\u201490\u20140991\nOpinion filed December 31, 1991.\nThomas J. Georgis & Associates, Ltd., of Palos Hills, for appellants.\nJohn Roth, of McHenry, for appellee." }, "file_name": "0456-01", "first_page_order": 480, "last_page_order": 484 }