The opinion
LYONS, P. J., dissenting:
I cannot concur in the result reached by the majority. At the outset, the defendants argue that plaintiff and/or plaintiff’s attorney were guilty of laches, in that plaintiff failed to assert her claim until after the filing of the final account, even though she had full knowledge of the position asserted by the executor and other heirs. Plaintiff argues that the court reached the right conclusion in denying defendants’ contentions that laches barred plaintiff’s claim.
I agree with plaintiff. The order appealed from specifically found against the defendants on the issue of laches. It is true, as defendants point out, that one, where the ruling of the trial court is correct it is of no consequence that the reason assigned may be incorrect and two, that a judgment may be sustained by any argument and by any basis appearing in the record which demonstrates that the judgment is correct. There is, however, ample evidence in the record to support the finding of no laches by the lower court. Plaintiff’s counsel filed an affidavit which stated that affiant was never informed by any party that it was the intention of the testator to exclude Joan Domke; that neither he nor his client was ever furnished a copy of the Illinois Inheritance Tax return, nor advised that plaintiff was being excluded as a residuary legatee until the final account was offered; that affiant never believed it necessary to take any steps to assert her right to distribution and that affiant and his client had no knowledge of any partial distribution other than to Dorothy Sullivan. No affidavits were filed by defendants in the instant case. Furthermore, plaintiff was prepared to offer evidence to support the allegations raised in the plaintiff’s affidavit.
The defendants next argue that the failure of plaintiff to assert her rights in the earlier proceedings of Jean Sullivan, et al., to construe the will of Agnes Graser precluded her from filing a second proceeding for a construction of the will. Essentially, the defendants are raising the issue of res adjudicata. The elements of res adjudicata, sometimes referred to as estoppel by judgment, are: (1) the identity of the cause of action; (2) the identity of the parties or their privies; (3) the identity of necessary issues of law and fact; and (4) the entry of a judgment or decree based on a determination of necessary issues.
In the instant case the second element fails in that there was no identity of parties or their privies. The plaintiffs in the first suit by Jean Sullivan, et al., were neither nieces nor nephews of the decedent and were involved in no way in the second suit.
The third element also fails in that there was no identity of factual issues. The first suit resolved one issue, namely, were Jean Sullivan and the other children of George Sullivan entitled to take the share to which George Sullivan, a nephew of the decedent, would have been entitled had he survived the testator. In the second suit, the issue was whether the words “paragraphs One to Thirteen” included paragraph Thirteen, thereby including or excluding plaintiff as a beneficiary of the residuary estate.
Furthermore, the order of the trial court specifically found contrary to the defendants’ contention, that the bar of res ad judicata did not apply.
Thus, having disposed of the procedural issues raised by the parties the issue of whether the court reached the right conclusion in construing the word “to” as a word of exclusion remains. Plaintiff contends that the word “to” is to be construed as a word of inclusion while the defendants contend that the lower court properly construed it as a word of exclusion.
In 86 CJS, 909, it is stated:
The word “to” is generally defined to be a word of exclusion unless, by necessary implication, it is manifestly used in a different sense. However, “to” is not necessarily a term of exclusion, and it is sometimes used in an inclusive sense, that is, as a word of inclusion, and thus it may have either an inclusive or an exclusive meaning, and in each case the meaning which will be attributed to it will depend on the subject matter and the manifest intention with which it is used.
In Black’s Law Dictionary, 4th ed, the word “to” is defined thusly: “This is a word of exclusion when used in describing premises; it excludes the terminus mentioned. ... It may be a word of inclusion. . . .”
It is plaintiff’s position that the will is ambiguous and to find the intent of the testatrix, the entire will, including the scheme of distribution, must be examined. It is defendants’ position that there is no ambiguity in the will and that the intent of the testator can be found by the plain language used by the testator.
The defendants contend that the use of different words in the will applying to the same subject matter indicates, or raises a strong presumption, that the testator had in mind different results, especially when associated with a qualified expression in one part of the will which is omitted in the other. The defendants point out that in Paragraph 19 the language “First to Sixteenth inclusive” and “Third to Fifteenth inclusive” was used by the testator and that in Paragraph 20 the language “One to Thirteen” was used without the use of the word “inclusive” and that testator intended a different meaning.
In 95 CJS, 815, it is stated:
Use of different words in the will applying to the same subject matter indicates or raises a strong presumption that the testator has in view different results, especially where associated with a qualifying expression in one part of the will that is omitted in the other.
This rule finds recognition in Edgar County Home v. Beltranena, 402 Ill 385, 84 NE2d 363 (1949), where the court said :
The testator must be considered to have used language with ordinary intelligence, and if he did so he clearly would not adopt these different modes of expression without intending a difference of meaning. It is only by recognizing the latter terminology as mere precatory expressions that an inconsistency can be avoided.
Plaintiff contends that this rule of construction applies only when the intent of the testator is clear and not when the will is ambiguous. Plaintiff argues that if the decedent had so clearly in mind what she meant, then following her prior language in Paragraph Nineteenth, she undoubtedly would have said in Paragraph Twentieth: “. . . among my nieces and nephews as enumerated in paragraphs 1 to 12 inclusive.” I agree. It is apparent that the testatrix thought of the word “to” as a word of inclusion in Paragraph Nineteenth and it is reasonable to assume that she did not think otherwise in Paragraph Twentieth. If, in fact, she had thought of the word “to” as a word of exclusion, certainly she would have stated in Paragraph Nineteenth, . . in Articles First to Seventeenth,” and “. . . and legacies in Paragraphs three to sixteen.”
The pleadings, however, in the instant case consisted of plaintiff’s complaint for construction of the will and the defendants’ motion to dismiss the complaint. I would hold that it was improper for the trial court to dismiss the complaint. The motion to dismiss should have been denied and the defendants given the opportunity to answer the complaint. This would have allowed the parties to introduce evidence of the testatrix’s intent.
In arriving at this conclusion, I take notice of the fact that decedent’s will was prepared by the same lawyer who is of counsel on the defendants’ brief and who referred to the words in Paragraph Twentieth of the decedent’s will as Paragraphs 1 and 13, in his motion to dismiss the amended complaint and the second amended complaint in the first supplemental proceeding. This and other facts would undoubtedly be brought out by plaintiff in the hearing regarding the construction of the testatrix’s will.
For the above reasons I would reverse the judgment of the lower court and remand for further proceedings to determine the testator’s intent.