concurring in part and dissenting in part:
While I concur with the majority that the trial court did not err in dismissing Elizabeth and Lissa’s petition for a constructive trust, I respectfully dissent from its holding that the first sentence of the second paragraph of provision 12 is unambiguous. For ease of review, the pertinent part of provision 12 reads as follows:
“In the event of the remarriage of [Elizabeth] the child [Lissa] shall be named as sole beneficiary and in addition thereto, [Lenard] agrees that upon his death [Lissa] shall be entitled to receive 50% of any Profit sharing, Pension or Death Benefits ***.” (Hereinafter benefits.)
The critical issue is whether Lissa’s entitlement to benefits is conditional upon Elizabeth’s remarriage (the majority view) or not. I, like the trial court, believe a reasonable interpretation of provision 12 is that Elizabeth’s remarriage is only a condition to Lissa’s being named sole beneficiary and that the death of Lenard is the only condition to Lissa’s right to the benefits.
The only support the majority gives for its position is that Lissa’s entitlement to benefits is part of the same sentence and follows the conditioning phrase (Elizabeth’s remarriage). Implicit in the majority position is the concept that when a conditioning phrase is followed by two separate subjects the phrase conditions both subjects. Further support for this position is the idea that had it been intended that Elizabeth’s remarriage was a condition only to Lissa’s being named sole beneficiary, and not a condition to her entitlement to benefits, the two concepts would have been set forth in separate sentences.
Although I agree that the majority’s interpretation is a reasonable one, I do not believe that it is the only reasonable interpretation. It is true that for my interpretation to be crystal clear it becomes necessary to add a period (to make the two provisions separate). On the other hand, for the majority’s position to be crystal clear, it would be necessary to replace the phrase “in addition thereto” with words such as “in that event.”
As the majority points out, where language is reasonably susceptible to more than one meaning, it is ambiguous (see In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 202, 536 N.E.2d 956) and thus parol evidence to establish the actual intent of the parties may be entertained. I am aware of no authority to the effect that this is not the result even if, arguendo, it could be said that the majority’s interpretation is somewhat more reasonable. In the case sub judice, I believe the language at issue may reasonably be interpreted to mean that while Elizabeth’s remarriage is a condition of Lissa’s being named a sole beneficiary, Lissa’s entitlement to benefits is not conditioned upon remarriage, but rather is to be provided for in any event.
For all of the foregoing reasons, I believe that the trial judge was correct in finding provision 12 ambiguous, in allowing the introduction of extrinsic evidence, and in his determination of the parties’ intent. Accordingly, I would affirm the judgment of the trial court.