Illinois Appellate Court
239 N.E.2d 305 (1968)
The second clause of Nelle G. Stewart’s will devised her interest in her deceased husband’s farmland to Stewart Wilson and Gene Burtle, her nephews on her husband’s side of the family, in one-half shares. In so devising, she stated in the same clause that she believed the farmland should go back to her husband’s family. Her will also devised the residue of her estate to Ina Mae and Hazel Degelow (defendants). Before Stewart died, her nephew Gene Burtle died. Stewart was aware of his death but did not revise her will. As a result, after Stewart’s death, the trial court addressed the issue of whether the gift to Burtle had lapsed, causing it to fall into the residuary under the Illinois Lapse Statute, or whether it could be construed as a class gift, in which case it would pass to Wilson as the surviving class member. Urging the latter construction, Wilson conveyed his interest in Burtle’s half share to Burtle’s children (plaintiffs). The trial court admitted extrinsic evidence to determine Stewart’s intentions because it found that Burtle dying before Stewart created a latent ambiguity. The evidence included testimony that Stewart had wanted the farmland to either return to her husband’s family or go to Wilson and Burtle with whom she had a close relationship. Although she had three other relatives on her husband’s side who were of equal degree of kinship as Wilson and Burtle, the evidence indicated that Stewart was not in contact with these other relatives. The trial court ruled that the gift to Burtle was not intended as a class gift and therefore the gift lapsed and fell into the residuary consistent with the Illinois Lapse Statute. Burtle’s children appealed.
Rule of Law
Holding and Reasoning (Jones, J.)
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