                                                                     FIRST DIVISION
                                                                     December 26, 2006




No. 1-05-1607

ESTATE OF ARSHAD MALIK                                        )   Appeal from
                                                              )   the Circuit Court
       Plaintiff-Appellant,                                   )   of Cook County
                                                              )
               v.                                             )   No. 95 P 4347
                                                              )
JAFAR LASHKARIYA,                                             )   Honorable
                                                              )   Henry A. Budzinski,
       Defendant-Appellee.                                    )   Judge Presiding.


       JUSTICE CAHILL delivered the opinion of the court:

       Arshad Malik (decedent) died testate in 1995. His estate was opened by plaintiff Sohail

Khan, his executor. The first provision of decedent's will provided: "If my estate is subject to any

taxes, Federal Estate Tax or any inheritance tax, all taxes shall be paid by my estate.” Decedent's

fiancée, Zarka Khan, also known as Afshan Khan, was named as the sole beneficiary of his estate.

Other persons, including defendant Jafar Lashkariya, received nonprobate assets. The estate filed

an amended petition in the probate court to apportion taxes between the estate and the recipients

of nonprobate assets. The trial court dismissed plaintiff's petition for apportionment, finding that

taxes were to be paid from the residue of the estate under the language of the will based on the

"burden of the residue" rule. We affirm.

       Plaintiff alleged in his petition for apportionment that the beneficiaries and value of the
1-05-1607


nonprobate assets were: (1) to defendant - $139,300 from a 50% interest in a real estate contract

and $202,402 from a life insurance policy; (2) to decedent's brother Parunez Malik - $300,180

from a life insurance policy; and (3) to decedent's fiancée Zarka - a residence owned in joint

tenancy with decedent with a net value of $94,000. Plaintiff stated the probate estate's assets as

$185,000, derived from a 50% interest in real estate, 500 shares of stock in the decedent's retail

business and his personal property. Plaintiff claimed that after $112,845 in claims and

administrative expenses, the estate was worth $72,155. Plaintiff alleged that the estate had paid

$54,605.79 in federal taxes and $23,137.65 in state taxes. Plaintiff asked that the estate be

reimbursed under the principle of equitable apportionment for its payment of taxes in the amounts

of $33,196 by defendant, $19,154 by Parunez and $15,393 by Zarka.

       “ 'Equitable apportionment' is the term *** used to describe the process of distributing

the burden of certain estate expenses among those beneficiaries in the same proportion as they

respectively cause such expenses to be incurred." Landmark Trust Co. v. Aitken, 224 Ill. App. 3d

843, 852, 587 N.E.2d 1076 (1992). Illinois has no statutory provisions on equitable

apportionment, but our supreme court has allowed the apportionment of taxes among probate and

nonprobate assets where the decedent died intestate or did not provide direction for the payment

of taxes in his will. Landmark, 224 Ill. App. 3d at 852. Where the decedent specifically directs

that taxes be paid from his residuary estate, the direction has the same effect as the application of

the burden-of-the-residue rule and renders the equitable apportionment doctrine inapplicable.

Landmark, 224 Ill. App. 3d at 854. The residuary estate must be used to satisfy taxes without

contribution from the recipients of tax-generating nonprobate property, including joint tenancy

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interests or life insurance proceeds. Landmark, 224 Ill. App. 3d at 854.

       Defendant filed a motion to dismiss plaintiff's petition for apportionment under section 2-

619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2004)). The circuit court

granted the motion, denied apportionment and ordered the estate to pay all taxes, including

federal estate tax, inheritance tax and state tax. The court relied on In re Estate of Maierhofer,

328 Ill. App. 3d 987, 989-90, 767 N.E.2d 850 (2002), for the rule that taxes are to be treated as

expenses of administration and paid from the residue of the estate unless there is a contrary

indication in the will. Plaintiff appeals.

       We review de novo the dismissal of a complaint under section 2-619 of the Code (735

ILCS 5/2-619 (West 2004). King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 12, 828

N.E.2d 1155 (2005). Dismissal is proper under section 2-619 where the complaint raises only

issues of law or easily proven issues of fact. Wright v. Pucinski, 352 Ill. App. 3d 769, 772, 816

N.E.2d 808 (2004). The complaint is properly dismissed where there is no genuine issue of

material fact and the defendant is entitled to judgment as a matter of law. Wright, 352 Ill. App.

3d at 773.

        "The cardinal rule of will construction *** is the ascertainment of a testator's intention

from the will itself." In re Estate of Smith, 107 Ill. App. 3d 1038, 1042, 438 N.E.2d 553 (1982).

The testator's intent must be drawn from the language of the will and, if the language has a settled

legal meaning, that meaning must be applied. Smith, 107 Ill. App. 3d at 1042. Surrounding

circumstances may not be considered so as to give a meaning other than that expressed in the will

unless the language is ambiguous or uncertain. Smith, 107 Ill. App. 3d at 1042. "The intention of

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the testator is determined by ascertaining the actual meaning of the words used in the will before

applying rules of construction." Smith, 107 Ill. App. 3d at 1042. "[W]here the language on its

face has a clear and unmistakable meaning, that meaning will be taken as the expression of the

[testator's] intention." In re Estate of Wheeler, 65 Ill. App. 2d 201, 205-06, 213 N.E.2d 35

(1965). "Tortured constructions will not negate the intention expressed on the face of the will."

Wheeler, 65 Ill. App. 2d at 206.

        Here, decedent directed: "all taxes shall be paid by my estate." The question we must

answer is whether the phrase "my estate" contained in the will is broad enough to include the

recipients of nonprobate assets in determining liability for estate taxes. No precise answer is

readily apparent in Illinois case law. In the absence of a statutory or precedential direction, we

believe, as did the trial court, that the word "estate" used in a will without a modifier means the

assets passing under the will, and should not be broadened to include assets not passing under the

will.

        Plaintiff disputes this result by arguing that Maierhofer does not control because the estate

there contained only probate assets, while here, there were both probate and nonprobate assets.

Plaintiff's characterization of the facts in Maierhofer is not quite accurate. The court in

Maierhofer characterized the estate as consisting "almost entirely of probate assets." (Emphasis

added.) Maierhofer, 328 Ill. App. 3d at 991. That detail aside, there is nothing in Maierhofer or

in other authority cited by plaintiff to support the conclusion that an estate with probate and

nonprobate assets is subject to equitable apportionment even if the testator manifested a clear

intent that estate taxes be paid by the estate. The language of the will here precludes

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apportionment of the tax burden.

       Plaintiff argues that under In re Estate of Rosta, 111 Ill. App. 3d 786, 444 N.E.2d 704

(1982), and In re Estate of Fender v. Fender, 96 Ill. App. 3d 1029, 422 N.E.2d 107 (1981), the

burden of the residue rule should not be applied. In Rosta, the court concluded that the doctrine

of equitable apportionment applied where there were nonprobate assets in an estate which

generated federal estate taxes and there was no direction from the decedent that precluded

apportionment. Rosta, 111 Ill. App. 3d at 799. Here, there was direction from the decedent that

estate taxes were to be paid by the estate. In Fender, the court determined that the decedent's

provision that the executrix pay all legitimate debts " 'out of the first monies available therefore' "

was not a clear direction to exhaust the residue and so estate taxes were subject to apportionment

among the beneficiaries of the probate and nonprobate estates. Fender, 96 Ill. App. 3d at 1034.

Here, there was a clear direction from the decedent that estate taxes were to be paid from the

estate. Neither Rosta nor Fender requires equitable apportionment of the taxes here.

       Plaintiff's cause of action was properly dismissed under section 2-619 of the Code. 735

ILCS 5/2-619 (West 2004). The judgment of the circuit court is affirmed.

       Affirmed.

       R. GARCIA and R.E. GORDON, JJ., concur.




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