FIRST DIVISION
March 14, 2005

No. 1-04-1619
 

JUSTICE GORDON delivered the opinion of the court:

This case returns to this court on appeal from a hearing to construct the will of JohnGoodkind (John) which we mandated in our decision in In re Estate of Goodkind, No. 1-02-1079(2003) (unpublished order under Supreme Court Rule 23) (Goodkind I). On appeal, appellants,William Goodkind (William) and the American Cancer Society (ACS), contend that the probatecourt erred by failing to construe the language of the will of decedent, John Goodkind, asdisposing of his entire estate, which would preclude any portion of the estate from passing viaintestacy to John's illegitimate daughter, Phoenix Harvey (Phoenix), and his son, John EdwardGoodkind (John Edward).⁽¹⁾ We reverse.

FACTUAL BACKGROUND

John died shortly after being released from the Cook County jail to receive cancertreatment. He had previously been charged with predatory criminal sexual assault of a child,namely, Phoenix.

After being charged, John initially fled Illinois, while released on bond awaiting trial, andhid out with his brother, Richard, in Nebraska, where he was ultimately apprehended by police. Before John was extradited to Illinois, Richard died, leaving his entire estate to John; this estateincluded real estate in Hawaii, a record collection, furniture, and $184,790 in bank deposits,money market accounts and stocks. John possessed nothing other than his inheritance fromRichard. Upon being returned to Illinois, and incarcerated in the Cook County jail, John was

diagnosed with cancer and sought to prepare his last will and testament. John's criminal defenseattorney, who was also a clinical law professor, agreed to draft a will for him.

This will, executed on August 25, 1998, provided, in pertinent part:

"I, JOHN S. GOODKIND, a resident of Chicago, Illinois, being of soundmind, do make, publish and declare this to be my Last Will and Testament,and I revoke all prior wills and codicils.

I.

I give all of my personal effects, household goods, automobiles, andall other goods and chattels to my brother, William Goodkind, Sr. *** andmy sister, Karen Stempinski ***, if they survive me, in shares ofsubstantially equal value. If my brother and my sister do not survive me, Igive such articles to Sandra Goodkind.⁽²⁾

II.

I give the residue of my estate, to my brother and my sister, if theysurvive me, otherwise to Sandra Goodkind. If none of those threeindividuals survives me, I give the residue to the American CancerSociety."

John subsequently executed a second will on March 26, 1999, prepared by the sameattorney. That will provided:

"I, JOHN S. GOODKIND, a resident of Chicago, Illinois, being of soundmind, do make, publish and declare this to be my Last Will and Testament,and I revoke all prior wills and codicils.

I.

I give all of my personal effects, household goods, automobiles, andall other goods and chattels to my brother, WILLIAM GOODKIND,SR.*** and the American Cancer Society to be divided, in equity, insubstantially equal shares in value as my brother shall determine.

III.

I name my brother as the executor of this Will. ***"

Thus, this will removed John's sister, Karen, and Sandra Goodkind as legatees and deleted theentire paragraph which purported to give the entire residue of his estate to them. John also, in thesecond will, reiterated the powers of the executor provided in the first will.

John died on August 7, 1999. John's parental rights for Phoenix had previously beenterminated on February 1, 1999. At the time of John's death, Phoenix was in the process of beingadopted by an unrelated, Peoria-area couple.

After John's death, William, as the executor appointed under the second will, petitionedfor construction of the will. William sought for the will to be interpreted so as to allow the entireestate to be divided between himself and ACS. William's petition primarily claimed that the term"personal effects," used in the first clause, was ambiguous, potentially encompassing the intangibleas well as the tangible assets. The probate court denied the petition to construe the will, however,as well as William and ACS' motion to reconsider. William and ACS appealed.

In that appeal, Goodkind I, we determined, based on extrinsic evidence presented byWilliam, that the term "personal effects" was latently ambiguous, meaning that it was possible that"John may very well have intended to use that term in a broader sense to include a devise of hisentire estate, rather than to employ the term's plain and ordinary meaning of tangible personalproperty only." Goodkind I, slip op. at 16. We determined that a construction of "personaleffects" as encompassing the entire estate would be legally viable as "we agree[d] with Williamand ACS that Linn [v. Davis, 223 Ill. App. 503 (1922),] does stand for the proposition that abroader interpretation of the term 'personal effects' is at least possible in a context where otherfactors are involved which tend to support a conclusion that the testator's intent in using the termwas to, in fact, mean his entire estate. [Citation.]" Goodkind I, slip op. at 13. We held that the"latent ambiguity create[d] the need for interpretation of John's will, and [that] a hearing must beheld" to determine if John intended such a broader meaning. Goodkind I, slip op. at 16.

On remand, the circuit court allowed discovery, during which William and the attorneywho drafted the will appeared for discovery depositions. At the close of discovery the circuitcourt considered and denied cross-motions for summary judgment. The court then held a willconstruction hearing at which William and the drafting attorney testified.

The drafting attorney's hearing testimony revealed that John's wills were the only two hehad ever been involved in drafting. He admitted that he never discussed with John what assetswere actually in his estate. The attorney explained that the actual will preparation was done by hisstudents and that his guidance to his students in that regard consisted merely of telling them tofollow the form used in a recent Illinois Institute for Continuing Legal Education (CLE) booklet. When asked by Phoenix's counsel whether the "personal effects" clause disposed of real property,or whether a residuary clause was necessary, the attorney answered that he did not know. Theattorney further testified:

"I told the student to put everything that everyone was going to get intothe first paragraph, that I thought that that was going to take care ofeverything. So I just told her to change-the main change was just simplyfrom the sister to the Cancer society. I told her to effect that and that itwould be done in the very first opening paragraph."

The attorney could not recall whether he reviewed the student's performance of the revisionsbefore taking the second will to John to sign. The attorney testified that John had clearly andunequivocally instructed him to revise the first will to pass all of his estate to William and ACSand that he thought the second will accomplished that purpose. In fact, the attorney counseledJohn that the second will accomplished his intentions. In response to Phoenix's counsel'squestion, inquiring if he had ever explained the provisions of the second will to John, the attorneystated:

"Yes, I would have. 'Here's the will you wanted us to sign. I know thatyou wanted half to go to Bill, and half to go to the American CancerSociety. This is what the will does. You have to sign it and then Margaretand I will be the witnesses.' So I would have done that with him, yes."

William likewise testified that John had requested that he see to it that John's attorneyrevise the first will to pass all of his estate to him and ACS. William further testified that he hadattempted to sell the record collection, but was told it was worthless.

At the conclusion of the evidence, William and ACS argued that it would be absurd tointerpret the will as providing for the disposition of worthless personal property while leavingvaluable intangible assets to pass via intestacy. They also reminded the circuit court of the rule ofwill construction under which there is a presumption against intestacy. For her part, Phoenixargued that the will was unambiguous and that to construe the clause disposing of "personaleffects" as encompassing anything other than tangible goods would be to rewrite the will.

After hearing the evidence and arguments, the circuit court stated:

"The facts of the case are that Mr. Goodkind, the testator, did not,as it has been represented to the Court in the hearing, have anything thatwould qualify, really as substantial personal effects, household goods,automobiles, and other goods and chattels.

* * *

Under [the] construction as I found it be [under its original orderdenying the petition to construe the will], he [William] would be legatee ofone half of not a whole lot.

* * *

*** [I]t is quite apparent to me that John's intention after the firstwill was written *** was that he did want to write a new will *** thatwould pass his entire estate to his brother, William, and to the AmericanCancer Society. *** Otherwise, this whole thing doesn't make a lot ofsense.

* * *

Writing the will as it stands now makes no sense unlessJohn-there's no reason do what was done if John didn't intend to pass thewhole estate.

* * *

So, again, all of the evidence comes through John's desire to write awill, a new will, or something, that he would distribute his entire estate.

* * *

Clearly, he intended to give away his whole estate, but I don't seethat he did that. To me, I would be rewriting the will, yes, to make it theway he wanted it to be. But as I understand the rules on construction, I'mnot allowed to do that.

* * *

He intended to convey the whole estate. That's what he wanted todo. But if the language doesn't do it, if the attorney didn't do it, and whatappears to me, and just as - [the drafting attorney] even said it, there was amistake made.

* * *

Now, as I say, as I understand the laws on construction, we're notsupposed to rewrite the will to make it the way that the person wanted it tobe. We're to look at the will and say, what does this will say, and not addthe missing clauses."

The circuit court therefore ruled against William and ACS, finding that the will only passed John'sphysical, tangible possessions to them, whereas everything else would pass via intestacy. Williamand ACS again appeal.

II. ANALYSIS

On appeal, William and ACS first claim that the circuit court erred by ignoring ourinstructions to it from Goodkind I. They contend that, although we identified a latent ambiguityin the will and mandated that the circuit court ascertain John's testamentary intent to resolve theambiguity, the circuit court reached the conclusion that the will was unambiguous on its face andtherefore actually refused to construe the will by failing to consider whether John actuallyintended his testamentary language to pass his entire estate or only his tangible personal property. We agree.

As the circuit court acknowledged, we previously found a latent ambiguity in the term"personal effects" as used in John's will. Goodkind I, slip op. at 16. "A latent ambiguity occurswhen the will appears clear on its face but some fact external to the will reveals that a descriptionof a bequest or of a legatee in the will is inadequate to determine who or what was intended bythe testator." Cousee v. Estate of Efston, 262 Ill. App. 3d 419, 424, 633 N.E.2d 815, 818(1994); see also Doblin v. Allison, 92 Ill. App. 3d 942, 944, 416 N.E.2d 399, 401 (1981) ("alatent ambiguity [exists] where the language employed is clear and intelligible and suggests but asingle meaning, but some extrinsic fact or extraneous evidence creates the necessity forinterpretation or choice among two or more possible meanings" (emphasis added)). We likewisedetermined that "personal effects" was susceptible to a construction that could encompass thetestator's entire personal estate. As we pointed out in Goodkind I, this interpretation was upheldin the earlier appellate decision of Linn v. Davis, 223 Ill. App. 503 (1922), which we stated stood"for the proposition that a broader interpretation of the term 'personal effects' is at least possiblein a context where other factors are involved which tend to support a conclusion that thetestator's intent in using the term was to, in fact, mean his entire estate. [Citation.]" Goodkind I,slip op. at 13. The holding of Linn was extensively discussed and analyzed in Goodkind I andtherefore need not be reiterated here. Our findings of latent ambiguity and the possibility ofdifferent meanings of "personal effects" in Goodkind I constituted the law of the case and weretherefore binding on the circuit court on remand. See Zokoych v. Spalding, 84 Ill. App. 3d 661,666, 405 N.E.2d 1220, 1225 (1980) ("where the appellate court reverses a judgment, its findingsare final upon all questions decided").

Reviewing the record in this case, we conclude that the circuit court may well havemisunderstood our holding in Goodkind I. When the circuit court stated, "[C]learly, he intendedto give away his whole estate, but I don't see that he did that. To me, I would be rewriting thewill," it sought to avoid a construction that would depart from the ordinary meaning of the wordsdeployed in the will and was reluctant to consider extrinsic evidence mandating a less obviousmeaning of those words that would nevertheless better reflect the intent of the testator. Theattempt to avoid that construction, however, is not consonant with our finding in Goodkind I andwith the principles of interpretation applicable to latent ambiguity.

When an ambiguity is found in its terms, construction of a will is required. Cousee, 262Ill. App. 3d at 424, 633 N.E.2d at 819 ("If a court finds that a will is ambiguous *** the actionfor construction continues ***"). "The purpose of construction is to give the will the meaningand interpretation which the testator intended it should have ***." Liesman v. Liesman, 331 Ill.287, 291, 162 N.E. 855, 857 (1928); see also Storkan v. Ziska, 406 Ill. 259, 264, 94 N.E.2d 185,188 (1950), quoting Armstrong v. Barber, 239 Ill. 389, 398, 88 N.E. 246, 249 (1909) (" 'Theparamount rule in the exposition of wills, to which all others must bend, is, that the intention ofthe testator as expressed in the will must be ascertained and given effect ***' "); Andrews v.Applegate, 223 Ill. 535, 538, 79 N.E. 176, 177 (1906) ("Words used in a will are to be given themeaning which the testator intended they should have ***").

In construction proceedings a court may admit extrinsic evidence to understand "thecircumstances by which the testator was surrounded" so as to understand the meaning of theterms actually used. Turek v. Mahoney, 407 Ill. 476, 480, 95 N.E.2d 330, 333 (1950); 4 W.Bowe and D. Parker, Page on Wills