Legal Memorandum: Administering testamentary gifts to a class

Issue: Under Illinois law, how are testamentary gifts to a class administered?

In Estate of Carlson, 39 Ill. App. 3d 281 (1976), the will at issue was construed. There, the will provided:

"’All the rest, residue and remainder of my estate of every kind and nature, I hereby give, devise and bequeath to my wife, Adina V. Carlson. In the event that my said wife should die prior to my death, or if we both die as a result of the same accident or catastrophe, then I give, devise and bequeath all of my property of every kind and nature to my niece and nephew, Barbara Ann Carlson and Bernard D. Carlson, and the nephew of my wife, William Perry Filbert, or their survivors or survivor, share and share alike.’" Carlson, 39 Ill. App. 3d at 282.

The testator’s wife predeceased him, as did his nephew Bernard. The administrator of the will construed the quoted language to exclude Bernard’s child from the class of persons designated "’their survivors or survivor.’" Carlson, 39 Ill. App. 3d at 282.

The appellate court stated that the principal issue was "whether the words ‘their survivors or survivor, share and share alike’, viewed within the four corners of the will, create an ambiguity which requires construction of the will." Carlson, 39 Ill. App. 3d at 283. The court noted that "[w]hen the term ‘survivor’ is used in conjunction with a gift to a group or class of beneficiaries, under the common law the […]