{ "id": 5583797, "name": "DOROTHY GRIFFIN et al., Respondents-Appellants, v. HAROLD GOULD, Petitioner-Appellee", "name_abbreviation": "Griffin v. Gould", "decision_date": "1979-05-29", "docket_number": "No. 78-1977", "first_page": "747", "last_page": "753", "citations": [ { "type": "official", "cite": "72 Ill. App. 3d 747" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "132 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 2d 388", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5149156 ], "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/8/0388-01" ] }, { "cite": "159 N.E. 305", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1956, "opinion_index": 0 }, { "cite": "328 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5197122 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill/328/0179-01" ] }, { "cite": "36 N.E.2d 717", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1927, "opinion_index": 0 }, { "cite": "377 Ill. 316", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2546703 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/ill/377/0316-01" ] }, { "cite": "66 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "393 Ill. 447", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2477100 ], "opinion_index": 0, "case_paths": [ "/ill/393/0447-01" ] }, { "cite": "104 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "411 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313053 ], "year": 1946, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill/411/0493-01" ] }, { "cite": "31 Ohio Op. 2d 42", "category": "reporters:state", "reporter": "Ohio Op. 2d", "opinion_index": 0 }, { "cite": "202 N.E.2d 226", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ohio L. Abs. 140", "category": "reporters:state", "reporter": "Ohio Law. Abs.", "case_ids": [ 1820258 ], "opinion_index": 0, "case_paths": [ "/ohio-law-abs/95/0140-01" ] }, { "cite": "194 N.E. 255", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "359 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5278270 ], "weight": 2, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill/359/0046-01" ] }, { "cite": "382 A.2d 608", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "pin_cites": [ { "page": "612, 610" } ], "opinion_index": 0 }, { "cite": "38 Md. App. 661", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2294239 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/md-app/38/0661-01" ] }, { "cite": "60 A.2d 250", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "142 N.J. Eq. 366", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 903660 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nj-eq/142/0366-01" ] }, { "cite": "276 N.Y.S. 960", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1948, "opinion_index": 0 }, { "cite": "154 Misc. 216", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 845921 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/misc/154/0216-01" ] }, { "cite": "18 N.E. 852", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1935, "opinion_index": 0 }, { "cite": "111 N.Y. 270", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2218102 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ny/111/0270-01" ] }, { "cite": "320 Mo. 580", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1823126 ], "weight": 2, "year": 1888, "opinion_index": 0, "case_paths": [ "/mo/320/0580-01" ] }, { "cite": "140 N.Y.S. 648", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3386347 ], "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nys/140/0648-01" ] }, { "cite": "155 App. Div. 817", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2681822 ], "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/ad/155/0817-01" ] }, { "cite": "298 So. 2d 731", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9639862 ], "weight": 3, "pin_cites": [ { "page": "732" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/so2d/298/0731-01" ] }, { "cite": "35 N.E.2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "310 Ill. App. 622", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3375820 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-app/310/0622-01" ] }, { "cite": "133 N.E. 295", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1941, "opinion_index": 0 }, { "cite": "300 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2425712 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/ill/300/0242-01" ] }, { "cite": "86 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2770808 ], "opinion_index": 0, "case_paths": [ "/ill/86/0363-01" ] }, { "cite": "325 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2868397 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0432-01" ] }, { "cite": "109 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "348 Ill. App. 464", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5099983 ], "opinion_index": 0, "case_paths": [ "/ill-app/348/0464-01" ] }, { "cite": "218 N.E.2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "72 Ill. App. 2d 272", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2584695 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app-2d/72/0272-01" ] } ], "analysis": { "cardinality": 840, "char_count": 16118, "ocr_confidence": 0.897, "pagerank": { "raw": 8.900267076764358e-08, "percentile": 0.4999797285478806 }, "sha256": "4a06edb7bbe8c6ad75b147a7b905c7ad049991b5d329e693f3d5394aafd9fbc4", "simhash": "1:f963ebd4f78094a7", "word_count": 2686 }, "last_updated": "2023-07-14T14:39:04.921292+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOROTHY GRIFFIN et al., Respondents-Appellants, v. HAROLD GOULD, Petitioner-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE HARTMAN\ndelivered the opinion of the court:\nThis appeal is taken from that part of an order directing appellants as co-executors under the will of Benjamin Kulp, deceased, (hereinafter \u201cco-executors\u201d) to pay without right of reimbursement from Harold Gould (hereinafter \u201cGould\u201d) that portion of accrued real estate taxes upon certain real property devised to him attributable to the period of time during which either the decedent or his co-executors were in possession.\nFor the reasons hereinafter stated we reverse and remand with directions.\nBenjamin Kulp died a resident of Cook County, Illinois on May 27, 1978. His will, dated October 7, 1975, was admitted to probate and appellants herein were appointed co-executors on June 26, 1978. After decedent devised all of his right, title and interest in the residential real estate located at 814 Franklin Avenue, River Forest, Illinois, to his nephew, Gould, if living at his death, in article 5 of the will he directed:\n\u201d * \u201d that the executors shall provide for payment out of the residue of my probate estate of the following without seeking reimbursement from or charging any person therefor:\n(a) My last illness and funeral expenses and the costs of my burial.\n(b) All indebtedness owned by me at the time of my death.\n(c) All expenses in connection with the administration of my estate.\n(d) All valid inheritance, estate, transfer and succession taxes, including interest and penalties thereon, which may become payable by reason of my death\u201d \u201d \u201d.\u201d\nNo specific reference is made in the will regarding payment of real estate taxes.\nOn July 17, 1978, pursuant to section 20 \u2014 1(c) of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. llOM, par. 20 \u2014 1(c)), the circuit court entered an order granting possession of the subject real estate to Gould, who thereafter petitioned the court, inter alia, for entry of an order directing co-executors to pay 1977 and 1978 real estate taxes on the subject property out of the residue of decedent\u2019s estate. Co-executors represent said property as having a date-of-death appraised value of *148,500 which passed to Gould unencumbered save for the second installment of 1977 and the entire 1978 real estate taxes, amounting to approximately *7,500.\nThe order from which this appeal is taken directs, inter alia, that co-executors pay as the estate\u2019s obligation and without right of reimbursement from Gould the second installment of 1977 real estate taxes due and the 1978 real estate taxes from January 1 to July 17 of that year, when Gould was placed in possession of the subject property. Real estate taxes for July 17 to December 31 of 1978 and thereafter were held to be Gould\u2019s personal obligation. The court acknowledged that it was effectively pro-rating the 1978 taxes based upon the time Gould was granted possession.\nAn ower of real property on January 1 of a given year is personally liable for the real estate taxes for that year (Ill. Rev. Stat. 1977, ch. 120, par. 508a), said taxes becoming a prior and first lien upon the property in question as of the January 1 date (Ill. Rev. Stat. 1977, ch. 120, par. 697). The parties agree that since decedent was owner of the subject property on January 1 of both 1977 and 1978, he was personally liable for the real estate taxes for both years and that when he died, said liability became a debt of his estate. (In re Application of County Collector (1966), 72 Ill. App. 2d 272, 218 N.E.2d 244; In re Estate of Carlson (1952), 348 Ill. App. 464, 109 N.E.2d 461.) They further agree that the question for our consideration is whether the deceased under the terms of his will expressly provided for payment of the aforesaid real estate taxes out of the residue of his estate so as to relieve Gould of such payment under section 20 \u2014 19 of the Probate Act, reading in pertinent part as follows (Ill. Rev. Stat. 1977, ch. 110/2, par. 20 \u2014 19):\n\u201cExcept as otherwise expressly provided by decedent\u2019s will:\n(a) When any real estate * * * subject to an encumbrance 9 ' \"is specifically bequeathed 0 0 0 the legatee * * * to whom the real estate 9 9 9 is given 0 * \u00b0 takes it subject to the encumbrance and is not entitled to have the indebtedness paid from other real or personal estate of the decedent.\u201d\nThe term \u201cencumbrance\u201d is defined in the Act thus (111. Rev. Stat. 1977, ch. 110M, par. 1 \u2014 2.07): \u25a0\n\u2018Encumbrance\u2019 includes mortgage, real estate tax or special assessment, deed of trust, vendor\u2019s lien, security agreement and other lien.\u201d\nThe liens established by the 1977 and 1978 real estate taxes thus constituted encumbrances upon the subject property within the statutory definition. See Merchants National Bank v. Olson (1975), 27 Ill. App. 3d 432, 325 N.E.2d 633.\nSection 20 \u2014 19 of the Act (formerly Ill. Rev. Stat. 1967, ch. 3, par. 219b) operates in derogation of the common law doctrine of exoneration, which provided that a devisee of real estate mortgaged or otherwise encumbered by a testator in his lifetime was entitled to a discharge of the lien from testator\u2019s personal estate unless he directed otherwise in his will. (See Sutherland v. Harrison (1877), 86 Ill. 363; Merchants National Bank.) This rule was followed in Illinois and elsewhere as a corollary of the common law principle that a decedent\u2019s personalty is the primary fund for payment of his debts. (Watts v. Killian (1921), 300 Ill. 242, 133 N.E. 295; Martin v. Martin (1941), 310 Ill. App. 622, 35 N.E.2d 560; Tyler, Should the Widow Pay? 47 Ill. Bar J. 850, 851 (1959).) The adoption of section 18 \u2014 14 (formerly section 207) of the Probate Act, effective July 1, 1966 (Ill. Rev. Stat. 1977, ch. 11052, par. 18 \u2014 14, formerly Ill. Rev. Stat. 1965, ch. 3, par. 207), changed this principle, making the real and personal property of a decedent equally chargeable with claims against his estate, expenses of administration, estate and inheritance taxes and legacies without distinction except as otherwise provided in his will. Not mentioned specifically in section 18 \u2014 14, the viability of the exoneration doctrine was thus left in doubt, to be resolved by the enactment of section 20 \u2014 19 in 1967. See generally 4 W. James, Illinois Probate Law and Practice 235-37 (A. Fleming Supp. 1975).\nAbolition of the exoneration doctrine in Illinois was further to be anticipated as a result of widespread dissatisfaction with the rule among practictioners and commentators, particularly in its failure to follow a testator\u2019s probable intent. As one commentator remarked (Fleming, Will Drafting Problems Posed by Mortgage Indebtedness, 48 Ill. Bar J. 846, 848 (1960)):\n\u201c 8 8 8 this rule of exoneration thwarts intention more often than it fulfills it. One surmises that many, if not most testators, if they thought about the problem, would have said the * * * devisee, should take the property with whatever encumbrance there might be on it, and assume the debt.\u201d\nAnother also found exoneration at cross purposes with a testator\u2019s likely intentions where no specific direction as to encumbrances on devised realty has been made (Tyler, Should the Widow Pay? 47 Ill. Bar J. 850, 852-53 (1959)):\n\u00b0 8 It seems probable that a testator would believe that an encumbrance followed his devise. It would be more normal to expect him to comment if he wished it to be otherwise. The inequitable case 8 8 8 is more likely to occur where the devise is exonerated.\u201d\nGould contends that decedent\u2019s will expressly directs payment of the real estate taxes out of the residue of the estate, in particular by the provision that \u201call indebtedness\u201d is to be paid \u201cwithout seeking reimbursement from or charging any person therefor 8 8 8,\u201d in conformity with the statute. The latter phrase, being dependent upon what is covered by the term \u201call indebtedness,\u201d is relevant here only insofar as that term may include the real estate taxes in issue. In the absence of Illinois authority directly on point, Gould relies upon Succession of Waterman (La. 1974), 298 So. 2d 731, wherein the Louisiana Supreme Court held that a testamentary direction to pay from decedent\u2019s residuary estate \u201c \u20188 8 8 all my just debts 8 8 8\u2019 \u201d included a debt secured by a mortgage on a residence bequeathed to a special legatee (298 So. 2d 731, 732). The statute there construed provided for nonexoneration of mortgaged property by the estate\u2019s representative \u201c \u20188 8 8 unless he be required to [remove the encumbrance] by an express disposition of the testator\u2019 \u201d (298 So. 2d 731, 732). Gould refers in particular to the court\u2019s conclusion that since unsecured debts are taken from the residuary estate by operation of law, the quoted provision added nothing to the will unless it included secured debts, in particular the subject mortgage. By characterizing the issue to be determined as whether or not secured debts generally were covered by the language of the will under the state, the Lousisana court overlooked the question of interpretation posed by the term \u201cexpress disposition,\u201d apparently assuming that if the language of the will was sufficiently broad to cover the general category of secured debts, it expressly disposed of the encumbrance on the subject property. Waterman, therefore, is of little precedential value in this regard.\nCourts of other jurisdictions have taken a different position in interpreting comparable laws and will provisions. In Ring v. Wooley (1913), 155 App. Div. 817, 820, 140 N.Y.S. 648, 650, the court observed:\n\u201c# # # section 250 of the Real Property Law [citations] provides that, where real property is devised the devisee must satisfy and discharge any mortgage thereon unless there be express direction in the will of the testator that such mortgage be paid from his estate. The only direction in the will * * * was the ordinary one that debts and funeral expenses be paid. This is not an express direction to pay an existing mortgage upon such real property as should be devised. [Citations.] The plaintiff, therefore, by accepting the devise became primarily liable to pay and satisfy the mortgage * * (Emphasis added.)\n(Accord, Gates v. Rice (1928), 320 Mo. 580, 8 S.W.2d 614; Meyer v. Cahen (1888), 111 N.Y. 270, 18 N.E. 852; In re Dell\u2019s Estate (1935), 154 Misc. 216, 276 N.Y.S. 960.) In Fidelity Union Trust Co. v. Laise (1948), 142 N.J. Eq. 366, 375, 60 A.2d 250, 256, the court construed a New Jersey statute providing for nonexoneration of real estate subject to a mortgage \u201c \u00b0 \u00b0 unless the will of the testator shall expressly or impliedly direct that the mortgage be otherwise paid\u2019.\u201d Noting that the subject will was silent as to the payment of mortgages, the court held that the statute imposed liability on a devisee of real property subject to a mortgage debt and found a general direction in the will to executors to pay the debts and further expenses of the testator insufficient to bring the devise within the quoted exception.\nGould contends that Fidelity is distinguishable because the will considered there did not refer to \u201call\u201d debts as the one before us does. In Caruthers v. Buscher (1978), 38 Md. App. 661, 382 A.2d 608, however, a Maryland law providing for nonexoneration \u201c \u2018[u]nless a contrary intent is expressly indicated in the will, \u00b0 0 \u201d was construed as applying to a devise under a will despite the testator\u2019s general direction to pay \u201c \u00b0 \u00b0 all of my just debts,\u2019 \u201d since the direction failed to express the requisite contrary intent. (38 Md. App. 661, _, _, 382 A.2d 608, 612, 610.) (Emphasis added.) Gould finds Caruthers distinguishable because the court there was bound to follow strict interpretation guides adopted by the relevant Maryland statute and absent from the Illinois act. Our reading of that case reveals no such constraint.\nIllinois comment on section 20 \u2014 19 is illuminating in this regard. In 4 W. James, Illinois Probate Law & Practice 242 (A. Fleming Supp. 1975), it is noted:\n\u201cA question suggested by the statutory words [of what is now section 20 \u2014 19] is whether a general direction to the legal representative to pay the debts of the decedent constitutes an \u2018express provision\u2019 to the contrary. The majority rule appears to be that a general direction to pay debts is merely declaratory of the law and does not of itself indicate an affirmative or express intent to pay debts secured by a lien or encumbrance.\u201d\nRaymond, 1967 Legislative Changes Affecting Probate & Trust Law, 56 Ill. Bar J. 208, 215 (1967), is to the same effect:\n\u201cThe new statute requires an express provision in the decedent\u2019s will to overcome the effect of the statute and a mere statement to pay the testator\u2019s debts will not be sufficient to overcome it.\u201d\nAlthough we find no prior judicial interpretation of such a general testamentary direction in the context of section 20 \u2014 19, the supreme court remarked in Kelly v. Dyer (1935), 359 Ill. 46, 194 N.E. 255 that a testatrix\u2019s direction in her will to pay her debts and funeral expenses \u201c* 0 \u00b0 merely stated what the law requires to be done. The expression in the will adds nothing to the law.\u201d (359 Ill. 46, 56.) Occurring in a different context, the Kelly language nevertheless suggests an approach consonant with that adopted in Caruthers and Fidelity, one recommended by the foregoing authorities and which would discourage an excessively expansive interpretation of that expression in the present case.\nCo-executors argue that in order to \u201cexpressly provide\u201d for exoneration of real estate tax liability under section 20 \u2014 19, the testator would have had to use words that contemplated the statute in shifting accrued real estate taxes to the estate, relying upon Funkhouser v. Dorfmeier (1963), 95 Ohio L. Abs. 140, 202 N.E.2d 226, 31 Ohio Op. 2d 42. We need not go so far in coming to our conclusion that the present provision under the will does not expressly provide for shifting taxes to the estate as required by section 20 \u2014 19; something more than the stock phrase \u201call indebtedness owed by me at the time of my death,\u201d however, is required in order to effectuate that shift.\nGould suggests that the term \u201call\u201d must be regarded as including the real estate taxes in order to avoid a construction rendering the word meaningless or mere surplusage, based on Waterman. The will must be considered in its entirety to determine testator\u2019s intent and, to the extent possible, that construction should be adopted which will give effect to all the language employed. (Kiesling v. White (1952), 411 Ill. 493, 499, 104 N.E.2d 291; Glaser v. Chicago Title & Trust Co. (1946), 393 Ill. 447, 66 N.E.2d 410.) No technical rule of construction, however, will be permitted to interfere with ascertaining testator\u2019s real intention. (Kiesling; Papa v. Papa (1941), 377 Ill. 316, 36 N.E.2d 717; Pollock v. Pollock (1927), 328 Ill. 179, 159 N.E. 305; Molner v. Silbert (1956), 8 Ill. App. 2d 388, 392, 132 N.E.2d 36.) Accordingly, \u201call\u201d is of little significance in context of the entire will as affected by section 20 \u2014 19. In light of the history of exoneration as reviewed hereinabove and the record before us, it is unlikely that testator\u2019s general direction here to pay \u201call indebtedness\u201d was intended as an express provision to satisfy the 1977 and 1978 real estate taxes out of his estate in contravention of the rule embodied in section 20 \u2014 19, and we find that it does not. To hold otherwise would have the effect of introducing exoneration into a statute enacted for the very purpose of avoiding its general application.\nFor the foregoing reasons, that part of the August 30,1978, order with respect to the issue raised by this appeal is reversed and remanded with directions for entry of an order finding the subject real estate taxes in their entirety to be the obligation of Gould rather than the estate.\nReversed and remanded.\nSTAMOS, P. J., and DOWNING, J., concur.", "type": "majority", "author": "Mr. JUSTICE HARTMAN" } ], "attorneys": [ "Kirkland & Ellis, of Chicago (Donald J. Duffy and Richard A. Lang, of counsel), for appellants.", "Frank J. McLoraine and John D. Cooke, both of Chicago, for appellee." ], "corrections": "", "head_matter": "DOROTHY GRIFFIN et al., Respondents-Appellants, v. HAROLD GOULD, Petitioner-Appellee.\nFirst District (2nd Division)\nNo. 78-1977\nOpinion filed May 29, 1979.\nKirkland & Ellis, of Chicago (Donald J. Duffy and Richard A. Lang, of counsel), for appellants.\nFrank J. McLoraine and John D. Cooke, both of Chicago, for appellee." }, "file_name": "0747-01", "first_page_order": 769, "last_page_order": 775 }