Appeal from the Circuit Court of Cook county; the Hon. E.J.
SCHNACKENBERG, Judge, presiding. Decree reversed and cause
remanded with directions.
MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 28, 1955.
Adaline C. Smallwood, plaintiff, filed her complaint against William H. Soutter, individually and as executor under the last will and testament of Helen I. Soutter, deceased, St. Louis Masonic Home and the University of Chicago, to construe the terms of the last will of Helen I. Soutter, deceased, sought the appointment of a trustee to protect the rights of plaintiff and other beneficiaries of a trust purported to be created under the will and other relief.
Defendant Soutter contends that the court's decree was entered as a result of findings in a report made to the court by an attorney appointed by it to represent plaintiff, which report, he says, was without authority and based on extra-judicial proceedings conducted by the attorney.
The complaint alleges that Helen I. Soutter died leaving a last will and testament. Under the will defendant Soutter was named executor. After the payment by the executor of the debts and expenses, the will successively devises and bequeaths the life income from testatrix's estate, first, to her mother, the plaintiff; second, to her aunt, Amelia D. Lukes (since deceased); and third, to her husband, the defendant. Following the death of the last life beneficiary, the estate is given in trust for specific charitable purposes to the University of Chicago medical school.
It is alleged that it was the intention of the testatrix to create a trust but no trustee is designated in the will; that if it was the intention that defendant Soutter act as trustee, he disqualified himself by acts that were inconsistent with his duties and detrimental to the other beneficiaries under the will. Among the acts alleged were an excessive widower's award and the filing by defendant of his renunciation under the will.
Defendant Soutter filed an answer admitting that the will implied a testamentary trust, admitting that a trustee was not named but stating that it was the decedent's intention that he act as trustee and that paragraphs seven and eight of the will clearly substantiate this position. These paragraphs read as follows:
"Seventh: I direct that my husband, William H. Soutter, act as Executor of this my last Will and Testament; and it is my wish that he serve without bond.
"Eighth: It is my wish that any omissions concerning any of my estate be decided by my husband; that his decision be binding, for I know from long association with him that his decision will be equitable, honest, and wise."
Defendant Soutter denied that he had disqualified himself from acting as trustee; denied that the widower's award was excessive and that his renunciation under the will affected his ability to act as trustee.
After the case was at issue, plaintiff moved for the appointment of a trustee under the will before Judge Daniel Roberts, who denied the motion. Subsequently, the cause was assigned to Judge Elmer J. Schnackenberg for hearing and determination. Plaintiff then appeared before Judge Schnackenberg and renewed her motion for the appointment of a trustee. There was also pending before Judge Schnackenberg another action, case number 53 C 4985, involving a trust of plaintiff which is neither at issue here nor involved in these proceedings. In that proceeding, on November 18, 1953, an order was entered "on agreement of the plaintiff, on her own behalf, Hugh M. Matchett, as attorney of record for Adaline C. Smallwood and as trustee of the Adaline C. Smallwood trust . . . and the defendant, William H. Soutter, by his attorney, Hector A. Brouillet. . . ." It then "appoints attorney Cassius A. Scranton to represent Mrs. Smallwood and to inquire into the powers of Mr. Matchett to represent the plaintiff, and to inquire into the powers of Mr. Matchett under a certain trust instrument dated June 21, 1952, known as the Adaline C. Smallwood Trust and to inquire into the validity thereof; and to protect her interests and to represent her in the proceedings now pending in the Probate Court of Cook County, entitled Estate of Helen I. Soutter, Deceased, Number 51 P. 2554, Docket 506, Page 357; the proceedings concerning the construction of the last will and testament of Helen I. Soutter in this cause, and the litigation entitled Adaline C. Smallwood vs. William L. Soutter, individually and as executor of the estate of Helen I. Soutter, deceased, et al., currently pending in the Circuit court of Cook county, being Case Number 53 C 4985; and in regard to a trust instrument entitled Adaline C. Smallwood Trust, dated June 21, 1952, between Adaline C. Smallwood as settlor and Hugh M. Matchett as trustee; and any litigation filed or claimed to have been filed, or which may hereafter be filed or claimed to be filed pursuant to the authority of such trust indenture; said attorney appointed herein to make written reports to this court." (Emphasis supplied.)
On December 9, 1953, Mr. Scranton made a report to the court which covered all matters set forth in the order of November 18, 1953, and as to the instant case, number 53 C 2011, recommended the appointment of a neutral bank as trustee under the will of Helen I. Soutter, deceased. The report was delivered to all parties interested. Defendant objected to the report and recommendations. The court on December 16, 1953, entered an order, which reads in part as follows:
". . . upon the motion of Cassius A. Scranton, attorney for Adaline C. Smallwood . . . and upon his Report to the Court . . . and having heard the arguments of the other counsel in this cause; and the Court being fully advised . . . finds that a bank qualified to handle trusts should be appointed as trustee under the will of Helen I. Soutter, deceased. . . .
"It is therefore ordered, adjudged and decreed that Central National Bank in Chicago, a national banking association, be and it is hereby appointed as trustee under ...