IN

Petitioner and cross-respondent, Joseph Zenkus (petitioner), appeals the judgment of thecircuit court of McHenry County denying his petition for letters of administration for the estate ofdecedent, Charles Edward Zenkus, and granting the cross-petition for letter of administration ofrespondent and cross-petitioner, Kathleen Zenkus (respondent), decedent's ex-wife. We affirm.

On February 11, 1995, decedent and respondent were married. On July 20, 1996, their sonwas born. In December 1996, decedent and respondent separated. On October 12, 1999, they weredivorced, with a judgment of dissolution that incorporated a marital settlement agreement beingentered on that date. The settlement agreement provided:

"13.3 Waiver of Estate Claim: Except as herein otherwise provided, each of theparties hereto hereby wavies [sic] and relinquishes all rights to act as administrator oradministrator with the will annexed of the estate of the other party, and each of the partiesdoes further relinquish all rights to inherit by intestate succession any of the property of whichthe other party may die seized or possessed, and should either of the parties hereto dieintestate, this agreement shall operate as a relinquishment of all right of the surviving partyhereafter to apply for letter [sic] of administration in any form, and the estate of suchdeceased party, if he or she dies intestate, shall decend [sic] to the heirs at law of suchdeceased party, in the same manner as though the parties hereto had never been married, eachof the parties hereto respectively reserving the right to dispose, by testament or otherwise,of hos [sic] or her respective property in any way that he or she may see fit, without anyrestriction or limitation whatsoever; provided, however, that nothing herein contained shalloprate [sic] or be construed as a waiver or release by either party of the obligations of theother to comply with the terms of this agreement."

In addition, the marital settlement agreement provided that respondent was to have sole care,custody, and control of the minor child, and that the child would reside with respondent.

On September 4, 2002, decedent was killed in an automobile accident. As decedent did notprepare a will following his divorce, he died intestate. After decedent's death, his brother, petitioner,filed a petition for letters of administration, seeking to be appointed as administrator of decedent'sestate. Respondent filed a cross-petition, in her capacity as guardian of the minor child, for lettersof administration, seeking to appoint a bank as the administrator of decedent's estate.

On January 7, 2003, the trial court heard argument on the pending petition and cross-petition. The trial court granted respondent's cross-petition and struck petitioner's petition, finding that theprovision of the marital settlement agreement waiving one spouse's right to administer the otherspouse's estate applied only to the spouse individually and not in some other capacity, such asguardian of the couple's child.

Petitioner moved the trial court for a stay of its order pending appeal, which the trial courtdenied. On January 22, 2003, petitioner filed a timely notice of appeal.

On appeal, petitioner contends that the trial court erred in denying his petition for letters ofadministration. Petitioner argues that the waiver of estate claim provision of the marital settlementagreement precludes respondent from applying for letters of administration in any capacity, eitherindividually or as a representative. Petitioner argues that, when the marital settlement agreement isproperly interpreted, respondent has surrendered her right to apply for letters of administration in therepresentative capacity of guardian of the couple's minor child, as well as in any other capacity. Wedisagree.

As this case involves the construction of the marital settlement agreement, we begin ouranalysis there. General rules of contract interpretation apply to the interpretation of a maritalsettlement agreement. In re Marriage of Sweders, 296 Ill. App. 3d 919, 922 (1998). The cardinalrule of contract interpretation is to ascertain and give effect to the intent of the parties. Sweders, 296Ill. App. 3d at 922. The language employed in the contract or marital settlement agreement is thebest indication of the parties' intent. Sweders, 296 Ill. App. 3d at 922. The interpretation of a maritalsettlement agreement presents a question of law, which we review de novo. Sweders, 296 Ill. App.3d at 922.

Petitioner points specifically to two phrases in the waiver of estate claim at issue: (1) eachparty "hereby waives and relinquishes all rights to act as administrator" of the other's estate; and (2)"should either of the parties [to this marital settlement agreement] die intestate, this agreement shalloperate as a relinquishment of all right of the surviving party hereafter to apply for letters ofadministration in any form." Petitioner argues that these phrases evidence a clear and unambiguousintent that both parties agreed that the survivor would not interfere in the estate of the deceasedparty. Nevertheless, it is not clear from these phrases that the parties contemplated and incorporatedthe instant factual situation into their agreement. In other words, we must determine whether theparties meant to foreclose their ability, in a representative capacity, to apply for letters ofadministration, or to nominate an administrator.

Petitioner attempts to clinch his argument by pointing to the release clause of the maritalsettlement agreement. We directly quote petitioner's argument to illustrate precisely wherepetitioner's contentions fail:

"As a general proposition, it is safe to say that no one wants their ex-spouse wielding controlover the administration of their estate, which is why the [marital settlement agreement]provides:

'To the fullest extent by law permitted to do so *** each of the parties does herebyforever relinquish, release, waive all rights to or against the property and assets ofthe other, real personal or mixed, or his or her estate, whether now owned orhereafter in any manner acquired by the other party, or whether in possession orin expectance, and whether vested or contingent.' [Citation.]

In addition, because this waiver was made on behalf of each party and 'his or herheirs,' the waiver cannot simply be dismissed on the grounds that it is being asserted on behalfof [respondent's] heirs, namely her son. The [marital settlement agreement] expressly statesthat:

'[E]ach party further covenants and agrees for himself or herself, his or her heirs,personal representative and assigns, that neither of them will at any time hereafter suethe other, or his or her heirs, personal representatives and assigns, for the purposeof enforcing any and all of the rights relinquished under this agreement. ***'[Citation.]" (Emphases in original.)

While petitioner quotes at length from the release clause, he omits from the quoted materialthe very provision that, in our view, helps to illuminate the intent of the parties to the maritalsettlement agreement. The release clause provided:

"To the fullest extent by law permitted to do so, and except as herein otherwiseprovided, each of the parties does hereby forever relinquish, release, waive and forever quitclaim and grant to the other, his or her heirs, personal representatives and assigns, all tights[sic] to maintenance, alimony, dower, inheritance, descent, distribution, community interestand all other right, title, claim interest and estate as husband and wife, window [sic] orwidower, or otherwise by reason of the marital relations existing between said parties hereto,under any present or future law, or which he or she otherwise has or might have or be entitledto claim in, to or against the property and assets of the other, real, personal, or mixed, or hisor her estate, whether now owned or hereafter in any manner acquired by the other party, orwhether in possession or in expectancy, and whether vested or contingent." (Emphasisadded.)

In construing a contract or marital settlement provision, the court is to ascertain and giveeffect to the intent of the parties. Cress v. Recreation Services, Inc., 341 Ill. App. 3d 149, 169(2003). When interpreting the contract, the court is to consider the document as a whole, and notmerely to focus on isolated portions. Cress, 341 Ill. App. 3d at 170.

The foregoing quoted passage reveals why petitioner's argument fails. Contrary to petitioner'scontention, the parties' intent is illuminated by the phrase, "by reason of the marital relations existingbetween said parties hereto." From the plain language of the release clause, we hold that the partiesintended that the agreement apply to each other individually and only in capacities arising out of themarital relation that was being dissolved.

Further, considering the marital settlement agreement as a whole, and particularly, whenviewing the release provision in conjunction with the waiver of estate claims provision, we see thatthe parties intended to limit only their individual capacities to apply for letters of administration. Theydid not intend to limit the ability of the survivor to apply for letters of administration of the deceased'sestate in a capacity that does not arise out of the marital relation between respondent and decedent. Thus, as respondent applied for letters of administration as guardian of the couple's child, the capacityin which she applied did not arise out of the marital relation between respondent and decedent. Asa result, respondent's action was not prohibited by the marital settlement agreement.

This case presents an issue of first impression in Illinois. Aside from the textual supportidentified in our analysis of the marital settlement agreement, there also is support from otherjurisdictions for our reading of the marital settlement agreement. Where there is no Illinois authorityon a particular issue, we look to the determinations of the courts of foreign jurisdictions to providepersuasive authority for our analysis of the issue. Cooper v. Hinrichs, 10 Ill. 2d 269, 275 (1957); Inre Marriage of Raski, 64 Ill. App. 3d 629, 633 (1978).

In Estate of Nicoll v. Nicoll, 79 Cal. App. 2d 48, 49, 179 P.2d 95, 95 (1947), the decedenthad left a will but did not nominate an executor. The decedent's ex-wife (there was an interlocutoryorder of divorce, but no final order) sought letters of administration as the guardian of the child ofher marriage with the decedent. The decedent's brother opposed the ex-wife and sought issuance ofletters of administration in his own behalf. Nicoll, 79 Cal. App. 2d at 49, 179 P.2d at 96. In theproperty settlement agreement, the decedent and the ex-wife waived their rights to act asadministrator of the other's estate. Nicoll, 79 Cal. App. 2d at 50, 179 P.2d at 96. The court held :

"Under the provisions of the property settlement agreement [the ex-wife] individuallywaived her right to act as administratrix. Such waiver, however, is not to be construed as awaiver by her in her representative capacity, as guardian of the minor, of his right, if any, tohave letters of administration granted to her as his guardian." Nicoll, 79 Cal. App. 2d at 52,179 P.2d at 98.

In Estate of Porrata, 89 Misc. 2d 663, 664, 392 N.Y.S.2d 221, 222 (1977), the petitioner,who was the decedent's ex-wife, sought to vacate limited letters of administration issued to thedecedent's mother. The decedent died intestate, and his sole distributee was his minor child, of whomthe petitioner was the guardian. Porrata, 89 Misc. 2d at 664, 392 N.Y.S.2d at 222. As part of thesettlement agreement, the petitioner waived her rights "to be administrator or executor of [thedecedent's] estate." Porrata, 89 Misc. 2d at 664, 392 N.Y.S.2d at 222. The court held that thewaiver was limited to the petitioner's individual right to letters of administration, and did not extendto her status as the representative of the minor child. Porrata, 89 Misc. 2d at 665, 392 N.Y.S.2d at222. The court noted that the minor was the only interested person in the decedent's estate, and thatthe petitioner was not otherwise ineligible to serve as a fiduciary in the matter. Porrata, 89 Misc. 2dat 665, 392 N.Y.S.2d at 223. The court also questioned whether the decedent's mother had standingto challenge the petitioner's right to receive letters of administration in her representative capacity asguardian of the minor child. Porrata, 89 Misc. 2d at 665, 392 N.Y.S.2d at 223.

Last, in In re Estate of Williams, 153 N.E.2d 727 (Probate Ct. Ohio 1958), the decedent'sbrother sought to vacate the appointment of the decedent's estranged wife as administrator of hisestate. The estranged wife had executed a separation agreement in which she waived "any rightwhich *** she may have to administer the estate of the other party upon the death of such otherparty." Williams, 153 N.E.2d at 727. The court held that, because the estranged wife had appliedfor letters of administration as guardian of her minor children, the waiver in the settlement agreementdid not preclude her appointment as administrator. Williams, 153 N.E.2d at 728.

Thus, in several instances, under factually similar situations, courts have interpreted waiverclauses contained in settlement agreements narrowly to apply only to the party's individual right toreceive letters of administration, not to that party's right to act in a representative capacity for thechild or children of the marriage. These cases support our analysis of the settlement agreement here. Therefore, we hold that the waiver of estate claim provision in the marital settlement agreementapplies only to respondent's individual right and does not extend to her representative capacity asguardian of the couple's minor child.

Petitioner attaches paramount significance to the phrase, "in any form," in the estate claimwaiver provision of the marital settlement agreement. Petitioner asserts that this precludesrespondent from applying for letters of administration as guardian of the couple's child. We disagree. As noted above, when viewing the marital settlement agreement as a whole, it is clear that decedentand respondent intended that the right to apply for letters of administration is waived only if it isrooted in the marital relationship. Thus, because respondent's capacity as guardian of the couple'schild was not an incident of her marital relationship with decedent, the waiver does not apply.

We recognize that the "in any form" language is not contained in the marital settlementagreements interpreted in Nicoll, Porrata, and Williams. Our review of those cases, however,convinces us that the language employed in the marital settlement agreements limiting one party'sright to act as administrator of the other party's estate was equally as broad and inclusive as the "inany form" language in the marital settlement agreement at issue here. Thus, these cases remainundiminished in their persuasive effect and continue to support our determination here.

Petitioner argues that, under section 9--3 of the Probate Act of 1975 (755 ILCS 5/9--3 (West1998)), respondent could not have been considered a "surviving spouse." According to petitioner,respondent therefore had no individual right to apply for letters of administration. As a result, thewaiver of estate claim provision must have been designed to apply to some other capacity, such asa representative one, like the guardian of the couple's child. In support, petitioner notes that theparties easily could have inserted a provision to allow them to apply for letters of administration ina representative capacity. Because "[a] strong presumption exists against provisions that could easilyhave been included in the agreement but were not" (Sweders, 296 Ill. App. 3d at 922), petitionerconcludes that the parties intended to preclude any involvement in the other's estate. We disagree.

We address petitioner's second point first. The presumption cited by petitioner in support ofhis position also cuts against him with equal force. A provision specifically precluding respondentor decedent from applying for letters of administration in a representative capacity easily could havebeen included in the marital settlement agreement. Thus, the agreement's silence, of itself, does notgive rise to a presumption that supports petitioner's argument. Further, as our reading of the maritalsettlement agreement demonstrates that the parties intended to waive rights arising out of the maritalrelationship, had the parties intended to waive other rights, such as those arising out of otherrelationships, they easily could have included specific provisions to do so. Thus, the presumptioninvoked by petitioner actually supports respondent's argument. As she and decedent intended towaive their rights to apply for letters of administration in a capacity arising out of the maritalrelationship (i.e., individual rights), and because a provision waiving their rights to apply for lettersof administration in a representative capacity easily could have been included in the marital settlementagreement, its absence raises a presumption that respondent and decedent did not intend to relinquishthose rights.

Petitioner's first point presents a more difficult issue. While petitioner correctly notes thatrespondent did not have any right under section 9--3 of the Probate Act to nominate an administratorfor decedent's estate, that does not change our reading of the marital settlement agreement. As theagreement clearly intended to limit only those rights arising from the marital relationship, we viewthe waiver of estate claim provision as a safeguard against any unforeseen development wherebyrespondent would later become eligible somehow to be involved in decedent's estate. Further, asnoted above, the agreement's silence as to the limitation of any rights other than those arising out ofthe marital relationship gives rise to the presumption that only those individual rights were intendedto be limited by the terms of the agreement, because the parties could have very easily insertedspecific language to cover those other situations. Therefore, we reject petitioner's argument.

Petitioner also argues that, by analogy to beneficial rights in a life insurance policy,respondent's right to apply for letters of administration as guardian of the couple's minor child wasan expectancy that the waiver of estate claim provision was designed to forestall. In support,petitioner cites to Principal Mutual Life Insurance Co. v. Juntunen, 189 Ill. App. 3d 224 (1989). Thatcase, however, dealt with the waiver of an interest in a life insurance policy. Here, by contrast, thewaiver is of respondent's right to apply for letters of administration in a capacity arising out of hermarital relationship with decedent. We find Juntunen to be inapposite.

Next, petitioner attempts to attach some testamentary intent to the marital settlementagreement in arguing (again) that the waiver of estate claim provision manifests an intent to precluderespondent from any involvement with decedent's estate. We find this argument unavailing. Theintent we discern from the marital settlement agreement was to waive any rights in the estate oradministration of the estate that would have arisen from the marital relationship of respondent anddecedent. To make the marital settlement agreement stand in the place of a will is improper. Further,the waiver of estate claim provision of the marital settlement agreement was narrowly drawn. Wesee no reason to allow the marital settlement agreement to stand as a proxy for decedent'stestamentary intent, especially where decedent died intestate.

Last, petitioner argues that respondent's application for letters of administration for decedent'sestate in a representative capacity is merely a subterfuge to avoid the intent of the marital settlementagreement. We disagree. Both the law and the marital settlement agreement support respondent'saction. Petitioner's argument is without merit.

For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

CALLUM and GILLERAN JOHNSON, JJ., concur.