                          No. 3-07-0688
_________________________________________________________________
Filed September 5, 2008
                             IN THE

                      APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                                 A.D., 2008

In re the Matter of the Estate)    Appeal from the Circuit Court
of Bernice A. Light, deceased,)    of the Tenth Judicial Circuit
                              )    Peoria County, Illinois
DAVID B. RADLEY, Executor,    )
                              )
     Plaintiff-Appellee,      )
                              )
     v.                       )
                              )    No. 06-P-161
DONALD WOLLAND and VIRGINIA   )
WOLLAND,                      )
                              )
     Beneficiaries and        )
     interest persons of the )
     Estate of Bernice A.     )
     Light,                   )    Honorable
                              )    Richard E. Grawey
     Defendants-Appellants.   )    Judge Presiding
_________________________________________________________________

       JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________

     In her last Will and Testament, Bernice Light bequeathed to

Donald and Virginia Wolland her two residences "and the contents

thereof."   Following Light’s death, the executor of Light’s estate

sought instructions from the court regarding what should be done

about (1) paper certificates representing securities that were

found in one of Light’s homes, and (2) payment of the 2005 and 2006

real estate   taxes   on   the   residences   Light   bequeathed   to   the

Wollands. The trial court ruled that the proceeds from Light’s
securities would not go to the Wollands and that the Wollands were

responsible for paying the 2005 and 2006 real estate taxes on the

residences they received under Light’s will.             We affirm.

                                 BACKGROUND

       In 1964, Bernice Light hired attorney Carol Baymiller to help

her execute her first Will and Testament.                From time to time

thereafter, Light instructed Baymiller to prepare new wills for

her.    When Baymiller retired, his nephew, David Radley, took over

his practice.      In 2003, Radley prepared Light’s last Will and

Testament.     The pertinent paragraphs of that will state:

             "FIRST: I direct that my Executor hereinafter named

       * * * shall pay all taxes assessed or imposed against my

       estate or against any beneficiary of my estate, any

       surviving joint tenant or donee of any gift, that said

       Executor shall not apportion such tax and shall not have

       the right, power, authority or duty to recover any

       portion of any tax from any beneficiary under my will or

       under any insurance policy that I may own or from any

       other person, firm or corporation. * * *

             SECOND:   I give and bequeath * * * my residences at

       5625 North Sheridan Road, Peoria, Illinois and at 3005

       Ash   Street,   Lake   Placid,   Florida,   and    the   contents

       thereof, all personal and chattel property to my friends,

       DONALD WOLLAND and VIRGINIA WOLLAND * * *


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            THIRD: I give and bequeath my white mink jacket, my

     autumn haze jacket, and my leather jacket to my friend, DONISE

     BROWN * * *

            FOURTH: I give and bequeath the sum of three hundred

     sixty thousand dollars ($360,00.00) in equal shares as a class

     to: my cousins * * *

                                 * * *

            SIXTH: All the rest, residue and remainder of my

     property, after payment of all debts, taxes, bequests,

     costs of administration and other expenses thereof, I

     give and bequeath as follows:

            One-half (½) thereof to PEORIA RESCUE MISSION, of

            Peoria, Illinois;

            One-half (½) to TRINITY LUTHERAN CHURCH, 135 N.E.

            Randolph Avenue, Peoria, Illinois."

Radley was named executor of the will.

     In March 2006, Light passed away. Soon thereafter, Radley

filed   a   Petition   for   Probate       of   Light’s   Will   and   Letters

Testamentary.

     In September 2006, Donald and Virginia Wolland filed a claim

against the Estate of Bernice Light for costs advanced on behalf of

the Estate.   Those costs included 2005 real estate taxes they paid

for 5625 North Sheridan Road, Peoria, Illinois and 3005 Ash Street,

Lake Placid Florida.


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     Paper certificates for various stocks and bonds were found in

Light’s Peoria residence.   Radley sold the securities represented

by the certificates for $98,595.40.       In September 2006, Radley

filed a Petition for Instructions to determine what should be done

with the proceeds of the securities. In January 2007, Radley filed

a Supplement to Petition for Instructions asking whether the

executor should pay all or any part of the 2005 and 2006 real

estate taxes for the Peoria and Florida residences that Light

bequeathed to the Wollands.

     At a hearing in June 2007, Radley testified that the language

in the first paragraph of Light’s will "can be found in virtually

all of the wills prepared, and it was not invented by me certainly

when I prepared this will, but it was adopted from previous wills

of Bernice Light’s that Carol Baymiller had originated." According

to Radley, that language was "rather boilerplate" and was intended

to address the Illinois inheritance tax and the federal estate tax,

not real estate taxes.

     Radley also testified that Light wanted the Wollands to

receive the tangible contents of her homes.       Thus, when Radley

drafted the second paragraph of the will, his intent was that the

Wollands receive tangible property found in the residences, but not

intangible property.

     The trial court ruled that the phrase "all taxes" in Light’s

will did not include real estate taxes.    The court also ruled that


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Light intended for the securities represented by certificates found

in her Peoria home to be distributed to the charities pursuant to

the residuary clause in the will.

                                ANALYSIS

     A court’s primary objective when construing a will is to give

effect to the testator’s intent.         In re Estate of Miller, 230 Ill.

App. 3d 141, 145, 595 N.E.2d 630, 632-33 (1992).               A court must

ascertain    the   testator’s   intent    from   the   terms   of   the   will.

Miller, 230 Ill. App. 3d at 145, 595 Ill. App. 3d at 633.

     Words used in a will are construed according to their plain

and ordinary meanings.     Sverid v. First National Bank of Evergreen

Park, 295 Ill. App. 3d 919, 922, 693 N.E.2d 423, 424 (1998).

Courts are charged with ascertaining a testator’s intent by,

wherever possible, giving effect to every word, phrase and clause

in a will.    Sverid, 295 Ill. App. 3d at 922, 693 N.E.2d at 424-25.

While the language itself is the best proof of the testator’s

intent, when an ambiguity exists, evidence extrinsic may be used to

determine the testator’s intent.         Cain v. Finnie, 337 Ill. App. 3d

318, 320, 785 N.E.2d 1039, 1041 (2003); Miller, 230 Ill. App. 3d at

146, 595 N.E.2d at 633.

                                    I.

     The Wollands contend that Light’s bequest of "all personal and

chattel   property"    contained   in    her   homes   includes     intangible

property found in the residences, such as stock certificates.


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Peoria Rescue Mission, Trinity Lutheran Church and Radley respond

that the bequest only included tangible property.

     No Illinois court has construed the phrase "personal and

chattel property"   in   a   will.        However,   Illinois   courts   have

separately interpreted the terms "chattel", "personal property" and

similar words and phrases.

     In Illinois, the term "chattel" extends only to tangible

articles of personal property that may be possessed and delivered;

it does not include securities.          See City of Nokomis v. Smith, 74

Ill. App. 2d 211, 212-13, 219 N.E.2d 776, 777 (1966), citing Davis

v. Hincke, 264 Ill. 46, 105 N.E. 708 (1914); In re Estate of

Berman, 39 Ill. App. 2d 175, 179, 187 N.E.2d 541, 544 (1963).            When

a testator conjoins a bequest of "chattel" to another bequest, this

indicates an intent to convey only tangible property.           See Sverid,

295 Ill. App. 3d at 923, 693 N.E.2d at 425 (bequest of "all my

personal effects * * * and all other goods and chattels" showed

decedent’s desire to convey only tangible personal property).

     Likewise, Illinois courts have construed "personal property"

and similar terms to include only tangible personal property.            See

Estate of Lindsey v. Taylor, 13 Ill. App. 3d 717, 718, 300 N.E.2d

572, 573 (1973)("personal property in or about said motel" did not

include money in motel bank account); see also Sverid, 295 Ill.

App. 3d at 923, 693 N.E.2d at 425 (bequest of "personal effects"

includes only tangible personal property); Landstrom v. Krettler,


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105 Ill. App. 3d 863, 866, 435 N.E.2d 149, 151-52 (1982) (same);

Mokros v. Blackman, 312 Ill. App. 346, 38 N.E.2d 514, 516 (1941)

(same).

     The expression "personal property" is ordinarily and popularly

used in a restrictive sense embracing only tangible goods and

chattel, not money, notes or securities.   Blakeman v. Harwell, 198

Ga. 165, 176, 31 S.E.2d 50, 56-57 (Ga. Sup. Ct. 1944); Bryant v.

Bryant, 129 Me. 251, 151 A. 429, 432 (Maine Sup. Ct. 1930).   Thus,

courts generally hold that a bequest of "personal property" does

not include intangible property, such as securities. See Turner v.

Reed, 518 S.E.2d 832 (Va. 1999); Estate of McKenna, 340 Pa. Super

105, 489 A.2d 862; LeRoy v. Kirk, 262 Md 276, 277 A.2d 611 (Md.

App. Ct. 1971); In re Whetmath’s Estate, 216 Cal. App. 2d 430, 30

Cal. Rptr. 875 (Cal. App. Ct. 1963); Wachovia Bank & Trust Co. v.

Wolfe, 245 N.C. 535, 96 S.E.2d 690 (N.C. Sup. Ct. 1957); Blakeman

v. Harwell, 198 Ga. 165, 31 S.E.2d 50 (Ga. Sup. Ct. 1944).

     Courts are particularly reluctant to find that a bequest of

"personal property" includes intangible property when it includes

a description of the property by location, e.g., "located in my

house."   See LeRoy v. Kirk, 262 Md. 276, 283, 277 A.2d 611, 614

(Md. App. Ct. 1971); Cameron v. Frazer, 187 Md. 368, 374, 50 A.2d

243, 246 (Md. App. Ct. 1946); Bryant, 129 Me. 251, 151 A. at 431-

32; see also Lindsey, 13 Ill. App. 3d at 718, 300 N.E.2d at 573.

In finding that a bequest of "personal property belonging to me in


                                7
the home" did not include bonds, the Maine Supreme Court explained:

     "When we speak of personal property in a 'home,' the mind

     more naturally visualizes books, pictures, furnishings,

     furniture, and all such things as are generally found in

     and contribute to the enjoyment and utility of one’s

     abode.     To extend the meaning of the words 'personal

     property' so as to include rights and credits is neither

     easy nor natural."        Bryant, 151 A. at 432.

     Here, Light conveyed to the Wollands her residences "and the

contents thereof, all personal and chattel property." Based on the

plain language of this bequest, the trial court properly concluded

that Light intended the Wollands to receive only the tangible

property found in her residences and not her securities.                      See

Sverid,     295 Ill. App. 3d at 923, 693 N.E.2d at 425; Lindsey, 13

Ill. App. 3d at 718, 300 N.E.2d at 573.

     Even if we were to find the phrase "personal and chattel

property"    was    ambiguous,   extrinsic         evidence   established     that

Light’s intent was to leave the Wollands only tangible property.

According to Radley, Light did not discuss leaving any stocks or

securities    to    the   Wollands.     Thus,      the   trial   court   properly

concluded    that    Light   intended       that   the   Wollands   receive    the

tangible personalty found in her homes and that the residue of her

estate, including all stocks and securities, would go to the two

charities named in the residuary clause of her will.                See McKenna,


                                        8
340 Pa. Super at 115, 489 A.2d at 868.

                                       II.

     The    Wollands    argue   that   Light’s      will   expressly    required

Radley to pay from the proceeds of the Estate the 2005 and 2006

real estate taxes for the residences bequeathed to them.

     Real estate taxes constitute a lien against the property on

which the taxes have been assessed. Forman Realty Corp. v. Brenza,

11 Ill.2d 531, 540, 144 N.E.2d 623, 628 (1957); Gamble v. People,

117 Ill. App.3d 784, 786, 454 N.E.2d 26, 27 (1983); 35 ILCS 200/21-

75 (West 2006).        Real estate taxes are an encumbrance on real

property. 755 ILCS 5/1-2.07 (West 2006). When real estate subject

to an encumbrance is bequeathed, the legatee takes the property

subject    to   the   encumbrance   and      is   not   entitled   to   have   the

indebtedness paid from the decedent’s estate.                755 ILCS 5/20-19

(West 2006).

     Here, the Wollands were bequeathed Light’s real estate.                   The

2005 and 2006 real estate taxes constituted encumbrances upon the

properties.     See 755 ILCS 5/1-2.07 (West 2006).            The Wollands, as

the owners of the properties, were responsible for paying the real

estate taxes unless Light expressly provided for payment of the

taxes out of her estate.         See 755 ILCS 5/20-19(a) (West 2006);

Griffin v. Gould, 72 Ill. App. 3d 747, 749, 391 N.E.2d 124, 125

(1979).

     In her will, Light directed her executor to pay "all taxes


                                        9
assessed or imposed against my estate or against any beneficiary of

my estate."   The real estate taxes on the properties bequeathed to

the Wollands do not fall within this mandate because the real

estate taxes were assessed and imposed against the real property,

not against Light’s estate or the Wollands.          See Gamble, 117 Ill.

App.3d at 786, 454 N.E.2d at 27.            Thus, according to the plain

language of Light’s will, the Wollands are responsible for paying

the 2005 and 2006 real estate taxes on the properties that Light

bequeathed to them.

                                  CONCLUSION

     The    judgment   of   the   circuit   court   of   Peoria   County   is

affirmed.

     Affirmed.

     MCDADE, PJ., and WRIGHT, J., concurring.




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