United States District Court, Northern District of Illinois, E.D
June 2, 1952
The opinion of the court was delivered by: Campbell, District Judge.
This is a suit to recover federal estate taxes which the
plaintiff alleges were erroneously collected by the defendant.
The plaintiff also seeks to require the defendant to allow
certain deductions from the decedent's gross estate. The matter
is now before the Court on plaintiff's motion for summary
The decedent was a contingent beneficiary of a trust created by
his spouse, and the defendant has included the corpus of said
trust in decedent's gross estate. In an affidavit submitted with
defendant's statement opposing motion for summary judgment, it is
alleged that decedent and his spouse created "reciprocal trusts,"
and so, defendant contends, the corpus of the trust created by
decedent's spouse is properly taxable to decedent. This argument
is not contained in the answer, and so plaintiff urges it should
not be considered in ruling on his motion for summary judgment.
The allegations in defendant's affidavit raise a genuine issue
as to a material fact, and cast doubt on whether plaintiff is
entitled to judgment as a matter of law. Issues of fact or law
raised in affidavits must be considered when ruling on a motion
for summary judgment, even though such issues are not contained
in the formal pleadings. Rossiter v. Vogel, 2 Cir., 1943,
134 F.2d 908. For the purposes of trial, however, all issues of fact
must appear in the pleadings. Campana Corp. v. Harrison, 7 Cir.,
1943, 135 F.2d 334.
Plaintiff's motion for summary judgment is denied.
Defendant is ordered to amend his answer within twenty days
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