{ "id": 1472420, "name": "In re ESTATE OF ROBERT CHARLES HURST, Deceased (Alicia E. Hurst et al., Petitioners-Appellees and Cross-Appellants, v. Patsy J. Hurst, Indiv. and as Adm'x With the Will Annexed of the Estate of Robert Charles Hurst, Deceased, et al., Respondents-Appellants and Cross-Appellees)", "name_abbreviation": "Hurst v. Hurst", "decision_date": "2002-04-16", "docket_number": "No. 4\u201401\u20140528", "first_page": "326", "last_page": "341", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 326" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "480 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1187" } ], "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636088 ], "year": 1985, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0504-01" ] }, { "cite": "167 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1960, "pin_cites": [ { "page": "192" }, { "page": "192" }, { "page": "192" }, { "page": "192" }, { "page": "193" }, { "page": "193" }, { "page": "193" }, { "page": "193" } ], "opinion_index": 0 }, { "cite": "19 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743197 ], "weight": 8, "year": 1960, "pin_cites": [ { "page": "504" }, { "page": "503" }, { "page": "503" }, { "page": "503" }, { "page": "504-05" }, { "page": "505" }, { "page": "505-06" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0501-01" ] }, { "cite": "162 N.E. 152", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1928, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "331 Ill. 28", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5210076 ], "year": 1928, "pin_cites": [ { "page": "32-33" } ], "opinion_index": 0, "case_paths": [ "/ill/331/0028-01" ] }, { "cite": "633 N.E.2d 815", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "818" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852329 ], "year": 1994, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0419-01" ] }, { "cite": "596 N.E.2d 722", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "725" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202228 ], "year": 1992, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0634-01" ] }, { "cite": "441 N.E.2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5449811 ], "year": 1982, "pin_cites": [ { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/1034-01" ] }, { "cite": "38 N.E. 1083", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1894, "pin_cites": [ { "page": "1086" } ], "opinion_index": 0 }, { "cite": "152 Ill. 252", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 835356 ], "year": 1894, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill/152/0252-01" ] }, { "cite": "107 N.E. 602", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1914, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "266 Ill. 308", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4783747 ], "year": 1914, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill/266/0308-01" ] }, { "cite": "756 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "325 Ill. 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App. 3d", "case_ids": [ 2580821 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0975-01" ] }, { "cite": "652 N.E.2d 1151", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291701 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0298-01" ] }, { "cite": "606 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5149412 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0601-01" ] }, { "cite": "669 N.E.2d 596", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 1004", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5642669 ], "weight": 5, "year": 1977, "pin_cites": [ { "page": "339" }, { "page": "337" }, { "page": "338" }, { "page": "338" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0335-01" ] }, { "cite": "509 N.E.2d 457", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "458" }, { "page": "465-66" } ], "opinion_index": 0 }, { "cite": "182 N.E.2d 158", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "24 Ill. 2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2803244 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0509-01" ] }, { "cite": "114 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "415 Ill. 545", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2684651 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill/415/0545-01" ] }, { "cite": "569 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "527-29" }, { "page": "528" } ], "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2532882 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "720-22" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0715-01" ] }, { "cite": "120 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1954, "pin_cites": [ { "page": "657" }, { "page": "657" }, { "page": "657-58" } ], "opinion_index": 0 }, { "cite": "3 Ill. 2d 254", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2695848 ], "weight": 3, "year": 1954, "pin_cites": [ { "page": "269-70" }, { "page": "269" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/3/0254-01" ] }, { "cite": "10 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1937, "pin_cites": [ { "page": "662" }, { "page": "662" } ], "opinion_index": 0 }, { "cite": "367 Ill. 119", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2575977 ], "weight": 2, "year": 1937, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill/367/0119-01" ] }, { "cite": "175 N.E. 846", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1931, "pin_cites": [ { "page": "849" }, { "page": "849" } ], "opinion_index": 0 }, { "cite": "343 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5254615 ], "weight": 2, "year": 1931, "pin_cites": [ { "page": "498" }, { "page": "499-500" } ], "opinion_index": 0, "case_paths": [ "/ill/343/0493-01" ] }, { "cite": "69 N.E.2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "395 Ill. 154", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2469035 ], "year": 1946, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill/395/0154-01" ] }, { "cite": "72 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1947, "pin_cites": [ { "page": "324", "parenthetical": "to justify reformation, mistake must be of fact and not of law" } ], "opinion_index": 0 }, { "cite": "396 Ill. 255", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2465554 ], "year": 1947, "pin_cites": [ { "page": "272", "parenthetical": "to justify reformation, mistake must be of fact and not of law" } ], "opinion_index": 0, "case_paths": [ "/ill/396/0255-01" ] }, { "cite": "590 N.E.2d 457", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278105 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "449" }, { "page": "440-41" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0437-01" ] }, { "cite": "751 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "208", "parenthetical": "question of law when dealing with motion for summary judgment" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126353 ], "year": 2001, "pin_cites": [ { "page": "381", "parenthetical": "question of law when dealing with motion for summary judgment" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0376-01" ] } ], "analysis": { "cardinality": 1321, "char_count": 33714, "ocr_confidence": 0.752, "pagerank": { "raw": 1.2023063869192083e-07, "percentile": 0.5939687989531436 }, "sha256": "23f9d40fa3e76ffc534049909db2b1750c896cbb12acca4db045f360d7e4b8c8", "simhash": "1:1bd238563c7f141d", "word_count": 5813 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF ROBERT CHARLES HURST, Deceased (Alicia E. Hurst et al., Petitioners-Appellees and Cross-Appellants, v. Patsy J. Hurst, Indiv. and as Adm\u2019x With the Will Annexed of the Estate of Robert Charles Hurst, Deceased, et al., Respondents-Appellants and Cross-Appellees)." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nThis 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\u2019s ruling concerning the Dead-Man\u2019s Act (735 ILCS 5/8\u2014201 (West 2000)). We affirm in part, reverse in part, and remand the cause with directions.\nI. BACKGROUND\nInitially, 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).\nA. The Note\nIn 1993, Chuck and Patsy Hurst decided to open and operate an adult entertainment club in Tazewell County. Thereafter, with the assistance of counsel, Club Cabaret, Inc., was formed in which the Hursts retained a 51% controlling interest. The stock certificate indicated the shares were issued to \u201cRobert C. Hurst and Patsy J. Hurst, Joint Tenants.\u201d In 1996, the Hursts decided to sell their interest in the business to other individuals 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:\n\u201cFOR 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 ***.\u201d\nSimilarly, the mortgage stated, in relevant part:\n\u201cThis 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)) ***.\u201d\nChuck and Patsy accepted the note believing it conformed 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 transfer to an account at Morton Community Bank. Chuck and Patsy held the bank account as joint tenants with right of survivorship.\nIn 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.\nIn 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.\nIn 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\u2019s 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\u2019s 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.\nIn 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\n\u201cROBERT C. HURST and PATSY J. HURST, or either of them, as joint tenants with right of survivorship\u201d in place of the phrase\n\u201cROBERT C. HURST and PATSY J. HURST, or either of them.\u201d In March 2000, Alicia and Julie filed an answer to the complaint, admitting most of the allegations but stating the note speaks for itself.\nIn October 2000, Patsy filed a motion for summary judgment and attached affidavits from Richard McCoy, Robert Tudor, and James Ma-mer. 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\u2019s wishes by using the language \u201cor either of them.\u201d 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.\nAlicia and Julie filed a motion to strike the three affidavits as either irrelevant or barred by the Dead-Man\u2019s Act. Specifically, they alleged McCoy\u2019s affidavit was barred by the Dead-Man\u2019s Act because McCoy was a person directly interested in the action based on Patsy\u2019s 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\u2019s Act did not apply because McCoy was not directly interested in the action and had not been called to testify on his own behalf.\nAlicia and Julie also filed a cross-motion for summary judgment arguing the note\u2019s 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.\nIn November 2000, the trial court denied Alicia and Julie\u2019s motion to strike the affidavits. As to the McCoy affidavit, the trial court found McCoy was not directly interested in the action because, regardless of the outcome of this case, the malpractice action would still be pending.\nIn May 2001, the trial court, in an amended order, denied Patsy\u2019s motion for summary judgment and granted Alicia and Julie\u2019s 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\u2019s estate as the owner of an undivided one-half interest in the note and the mortgage that secures it.\nPatsy filed a posttrial 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\u2019s mistake was a legal one pertaining to a general rule of law, and equity did not offer relief. This appeal and cross-appeal followed.\nB. The Will\nIn October 1999, Chuck\u2019s 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:\n\u201cARTICLE II\nI 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\u2019s share per stirpes. Currently I have two children whose names are as follows: ALICIA ELIZABETH HURST and JULIE ANN HURST\nIf any child of mine has not attained legal age at my death, the executor may deliver his or her share of goods and chattels to the guardian of his or her person or estate, 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.\nARTICLE III\nI give the residue of my estate, excluding 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\u2019s 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\u2019s Trust).\n* * *\nARTICLE VIII\nI designate my wx-wife [szc], 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.\u201d\nIn November 1999, Alicia and Julie filed a petition to construe decedent\u2019s will naming as defendants Patsy, Lori, and Todd. The petition sought relief from the court by way of an order construing decedent\u2019s will so the word \u201cchildren\u201d 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\u2019s will. The responses sought a declaration that Lori and Todd are heirs under the Illinois Probate Act of 1975 (755 ILCS 5/1\u20141 through 30\u20143 (West 2000)) and an order construing decedent\u2019s will so the term \u201cchildren\u201d is defined to include Lori and Todd for all purposes except article II.\nIn April 2000, Alicia and Julie filed a motion for judgment on the pleadings, arguing decedent\u2019s will did not contain a latent ambiguity and demonstrated decedent\u2019s 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 paroi 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 w\u00fcl.\nIn 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\u2019s will because case law tended to abolish the traditional rules regarding class gifts and instead reclassify the gift as an individual bequest when a person is specifically identified. This appeal followed.\nII. ANALYSIS\nA. The Note\nPatsy argues the trial court erred in granting summary judgment in favor of Alicia and Julie. We agree. As our analysis of the note involves a question of law, we review the trial court\u2019s decision de nova. 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).\nThe general rule is that before a court will reform an instrument on the ground of mistake, \u201c \u2018 \u201cthe 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.\u201d \u2019 [Citations.]\u201d 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).\nWhile 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 \u201c[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.\u201d Later, the court indicated \u201c[r]elief is not barred in a proper case because the mistake is one of law.\u201d 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. Continental Illinois National Bank & Trust Co. of Chicago, 3 Ill. 2d 254, 269-70, 120 N.E.2d 649, 657 (1954).\nIn 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 \u201cwhere a person is mistaken \u2018as to his own antecedent existing legal rights,\u2019 relief may be granted in regard to a subsequent contract he enters into in reliance on his mistaken belief as to antecedent rights.\u201d Harbaugh, 210 Ill. App. 3d at 722, 569 N.E.2d at 528, quoting 3 J. Pomeroy, Equity Jurisprudence \u00a7 849, at 308 (5th ed. 1941).\nUnlike 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:\n\u201cBut, 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 mistake 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. Lang, 367 Ill. 119, [123-24, 10 N.E.2d 659, 662 (1937)] 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 daughter[,] 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 execution 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 applies to the situation before us: \u2018Relief is not barred in a proper case because the mistake is one of law.\u2019 \u201d Barkhausen, 3 Ill. 2d at 269, 120 N.E.2d at 657.\nIn 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, \u201cor either of them,\u201d as payees was sufficient to establish a joint tenancy.\nAlicia 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 \u2014 i.e., no mistake of law is reformable by a court of equity \u2014 was not at issue in any of these cases.\nAlicia and Julie also argue that even if a mistake of law can be remedied by a court of equity, the mistake here was a \u201cpure and simple\u201d mistake which does not fall within the exception allowing for reformation of a mistake of law. We disagree.\nThe supreme court in Barkhausen stated, in part:\n\u201c \u2018[W]henever 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.\u2019 \u201d 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.\nHere, 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 \u00a7 151, Comment b, at 384 (1981); 13 W Jaeger, Williston on Contracts \u00a7 1585, at 555-56 (3d ed. 1970). \u201cThe 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.\u201d 13 W Jaeger, Williston on Contracts \u00a7 1586, at 559 (3d ed. 1970).\nAlicia 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.\nOn 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.\nWe 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.\nThe Hurst sisters\u2019 final argument is that Richard McCoy\u2019s affidavit is barred by the Dead-Man\u2019s Act (735 ILCS 5/8\u2014201 (West 2000)). Patsy argues the Dead-Man\u2019s Act does not apply in this litigation and does not bar McCoy\u2019s testimony. We agree with Patsy. The Dead-Man\u2019s Act provides in pertinent part:\n\u201cIn 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 directly 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 deceased ***.\u201d 735 ILCS 5/8\u2014201 (West 2000).\nThe trial court found, and we agree, the Dead-Man\u2019s 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.\nA witness may be disqualified from testifying if the witness is \u201cdirectly interested in the action.\u201d The witness\u2019 interest in the judgment must be such that a monetary \u201cgain or loss will come to the witness directly as the immediate result of the judgment.\u201d 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).\nIn 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 grantors was allowed to testify as to his conversations and consultations 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 possibility 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\u2019s testimony was admissible, the Michalski court stated, \u201c[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.\u201d Michalski, 50 Ill. App. 3d at 339, 365 N.E.2d at 657.\nAlthough 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 testified. 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.\nAppellees 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\u2019s testimony was barred when the physicians offered testimony as to conversations with the decedent in malpractice actions filed against the physicians by the decedents\u2019 estates.\nThe Dead-Man\u2019s 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\u2019s 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).\nBased 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\u2019s judgment granting Alicia and Julie\u2019s 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.\nB. The Will\nLori and Todd argue Chuck\u2019s will is latently ambiguous, and they should come within the meaning of Chuck\u2019s \u201cchildren\u201d under the residuary clause of article III. We disagree.\nThe 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).\n\u201c \u2018This intention is to be gathered from the words and expressions used in the will itself. 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] harmonious whole. The general intent of the will is to be carried into effect at the expense of any particular intent, provided such general intent is consistent with the rules of law, for when there are conflicting intents that which is the most important must prevail.\u2019 \u201d (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).\nIf 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\u2019s intent. In re Estate of Levin, 231 Ill. App. 3d 634, 637, 596 N.E.2d 722, 725 (1992). \u201cA 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.\u201d Coussee v. Estate of Efston, 262 Ill. App. 3d 419, 424, 633 N.E.2d 815, 818 (1994).\nIn the case sub judice, Chuck devised his personal effects in article II to his children who survived him. Thereafter, he stated: \u201cCurrently I have two children whose names are as follows: ALICIA ELIZABETH HURST and JULIE ANN HURST.\u201d By specifically designating his children as Alicia and Julie, Chuck\u2019s indication was to include them within the meaning of \u201cmy children.\u201d\nOur supreme court has noted the \u201cwords \u2018child\u2019 and \u2018children\u2019 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\u2019s intention.\u201d 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 \u201cmy children\u201d 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 \u201ccurrently\u201d 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 \u201cchildren.\u201d As the meaning of the word \u201cchildren\u201d is flexible and not rigid, we find Alicia and Julie were to take under Chuck\u2019s will to the exclusion of Lori and Todd.\nOur conclusion is further supported by reading the particular provisions of the will in light of each other to deduce that \u201charmonious whole.\u201d As stated, article II devises Chuck\u2019s personal effects to his children, Alicia and Julie. Article III devised the residue of Chuck\u2019s estate \u201cto my children who survive me.\u201d Further, article III states Chuck\u2019s 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\u2019s children. Nowhere in Chuck\u2019s 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.\nAlthough we are aware of the maxim: \u201cNo will has a twin brother,\u201d and thus analogies to other cases are less than exacting, we find our supreme court\u2019s 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 \u201cto my children, Zella Lee Rath and Thelma Louise Yoeman, in equal parts, share and share alike.\u201d 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\u2019s language pertaining to \u201cmy children, Zella Lee Rath and Thelma Louise Yoeman\u201d 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.\nThe supreme court, in deciding whether the will\u2019s language created a latent ambiguity stated:\n\u201cIt is readily apparent that the devise, \u2018to my children, Zella Lee Rath and Thelma Louise Yoeman,\u2019 falls within the rule that where legatees are named as individuals and also described as a class, and there is nothing more to show the testator\u2019s intention, the gift by name constitutes a gift to individuals, to which the class description is added by way of identification. [Citations.] Moreover, the natural meaning of the words \u2018my children\u2019 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.\u201d Young, 19 Ill. 2d at 504-05, 167 N.E.2d at 193.\nThe court found the clause giving the decedent\u2019s property to named individuals had the effect of falling under \u201cthe 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.\u201d 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. \u201cThe 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.\u201d 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.\nIn the present case, the fact that Chuck had other children in existence, namely Lori and Todd, does not create a latent ambiguity. The will\u2019s language in article II specifically indicates Alicia and Julie were Chuck\u2019s children. Further references to \u201cchildren\u201d 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\u2019s 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\u2019s will, we find the language is clear and unambiguous. Thus, the trial court\u2019s order that only Alicia and Julie take under the will was proper.\nIII. CONCLUSION\nFor the reasons stated, we affirm in part, reverse in part, and remand the trial court\u2019s judgment with directions.\nAffirmed in part and reversed in part; cause remanded with directions.\nMYERSCOUGH and APPLETON, JJ., concur.", "type": "majority", "author": "JUSTICE TURNER" } ], "attorneys": [ "John A. Bernardi (argued), of Pekin, for appellant Patsy J. Hurst.", "David G. Lubben (argued), of Davis & Campbell, L.L.C., of Peoria, and David M. House, of Canton, for appellants Lori L. Hofferbert and Todd A. Reid.", "Barry M. Barash and Jamie L. Ross (argued), both of Barash & Everett, L.L.C., of Galesburg, for appellees Alicia E. Hurst and Julie Ann Hurst." ], "corrections": "", "head_matter": "In re ESTATE OF ROBERT CHARLES HURST, Deceased (Alicia E. Hurst et al., Petitioners-Appellees and Cross-Appellants, v. Patsy J. Hurst, Indiv. and as Adm\u2019x With the Will Annexed of the Estate of Robert Charles Hurst, Deceased, et al., Respondents-Appellants and Cross-Appellees).\nFourth District\nNo. 4\u201401\u20140528\nArgued January 23, 2002.\nOpinion filed April 16, 2002.\nJohn A. Bernardi (argued), of Pekin, for appellant Patsy J. Hurst.\nDavid G. Lubben (argued), of Davis & Campbell, L.L.C., of Peoria, and David M. House, of Canton, for appellants Lori L. Hofferbert and Todd A. Reid.\nBarry M. Barash and Jamie L. Ross (argued), both of Barash & Everett, L.L.C., of Galesburg, for appellees Alicia E. Hurst and Julie Ann Hurst." }, "file_name": "0326-01", "first_page_order": 344, "last_page_order": 359 }