239 N.E.2d 305 (Ill. App. Ct. 1968)
Nelle G. Stewart of Girard, Illinois, died on May 29, 1965, leaving a will dated March 3, 1959, that contained ten dispositive clauses.1 The first clause directed payment of debts and funeral expenses.2 The second clause devised her one-fifth interest in 261.38 acres of farm land in Sangamon County, stating that through the will of her late husband Dr. Frank A. Stewart she had received an undivided one-fifth interest and believed the lands should go back to his side of the house.3
Clause Two gave one-half of that interest to Stewart Wilson, a nephew living in Birmingham, Michigan, and one-half to Gene Burtle, a nephew living in Mission, Kansas.4 Clauses three and four made bequests of personalty to Ina Mae Yucus, Lola Eades, Hazel Degelow, and Ella Hickey.5 Clauses five through seven made cash bequests to charities.6 Clause eight provided for an allowance to Yucus or Degelow if the testatrix needed to live in their home due to illness.7 Clause nine directed conversion of the residue into cash for equal division between Yucus and Degelow or the survivor.8 Clause ten appointed Yucus executrix.9
Gene Burtle died on May 15, 1963.10 After the will was admitted to probate, Stewart Wilson filed suit alleging that Clause Two created a class gift and that as the survivor he was entitled to the entire one-fifth interest.11 Wilson then conveyed his claimed interest to the two children of Gene Burtle, who were substituted as plaintiffs.12 The defendants, executrix Ina Mae Yucus and the residuary beneficiaries named in Clause Nine, answered that the devise was to two specific individuals and that the gift to Burtle lapsed into the residue.13
At trial the court found a latent ambiguity arising from Gene Burtle's death and admitted extrinsic evidence.14 The evidence showed that Nelle G. Stewart and Dr. Stewart had no children.15 Dr. Stewart's surviving blood relatives were nephews Gene Burtle, Stewart Wilson, William C. Stewart, and Robert T. Stewart and niece Patti S. Lusby.16 Only Burtle and Wilson had a close personal relationship with the testatrix.17 She knew of Burtle's death but made no changes to her will.18 Four witnesses testified that she had stated she wanted the farm interest to go to her husband's side of the house or specifically to Burtle and Wilson.19
The trial court rendered a decree for the defendants.20 Plaintiffs appealed.21
Whether Clause Two of the will of Nelle G. Stewart created a class gift to Stewart Wilson and Gene Burtle?22
A gift to a class is defined as 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.23 In determining whether a devise is to a class or to individuals depends upon the language of the will.24 If from such language it appears that the amounts of their shares are uncertain until the devise or bequest takes effect, the beneficiaries will generally be held to take as a class; but where at the time of making the gifts the number of beneficiaries is two and the share each is to receive is also fixed, and in no way dependent for its amount upon the number who shall survive, it is not a gift to a class, but to the individuals.25 There is an exception to the rule that naming the individual prevents the gift from becoming a class gift if the intention to give a right of survivorship is collected from the remaining provisions of the will, as applied to the existing facts, such an intention must prevail.26
No. Clause Two named Stewart Wilson and Gene Burtle specifically and allotted each an exact one-half share of the one-fifth farm interest, rendering both the number of takers and the quantum of each share fixed and independent of any future survival count at the moment the will was signed on March 3, 1959.27 The testatrix learned of Gene Burtle's death on May 15, 1963, yet left the text unchanged, confirming that no right of survivorship had been contemplated.28 Although the prefatory language expressed a wish that the land return to her husband's side of the house, that purpose was satisfied by the two named nephews.29 Three additional relatives of identical degree were omitted, showing that the devisees were selected individuals rather than an open class.30 Clause Nine separately created an express survivorship gift for the residue in favor of Ina Mae Yucus and Hazel Degelow. This demonstrates that the testatrix knew how to draft a class gift when she wished and that the contrasting language of Clause Two was deliberate.31
Because the devise was therefore made to individuals distributively, the Illinois Lapse Statute applied and the lapsed half passed into the residue.32
Clause Two did not create a class gift; the devise to Gene Burtle lapsed and passed under the residuary clause.33