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Zimmerman v. Schuster

SEPTEMBER 25, 1957.

FRANCES ZIMMERMAN, ADMINISTRATOR OF ESTATE OF CATHERINE ZIMMERMAN, DECEASED, PETITIONER-APPELLEE,

v.

CLETA SCHUSTER, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of LaSalle county; the Hon. LOUIS A. ZEARING, Judge, presiding. Judgment affirmed.

JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.

This action was initially instituted by the appellee, Frances Zimmerman, Administrator of the Estate of Catherine Zimmerman, deceased, hereinafter referred to as petitioner, upon a citation proceeding against the appellant, Cleta Schuster, Trustee herein referred to as respondent, in the Probate Court of LaSalle county, Illinois, to compel respondent to turn over to petitioner certain items of personal property, including certain United States Savings Bonds. An order was entered in the Probate Court denying the citation and an appeal from said order was taken to the Circuit Court of LaSalle county. Upon hearing de novo in the Circuit Court, an order was entered upon the findings of the court ordering respondent to turn over personal property, including United States Savings Bonds, to the petitioner and impressing a resulting trust on said property for the benefit of the petitioner. From the order of the Circuit Court this appeal is taken.

There is involved herein questions concerning a certain trust agreement executed between the decedent Catherine Zimmerman and the respondent. The salient provisions of the trust agreement are as follows:

"Whereas, the Trustor desires to create a trust of the property described and set forth in the schedule hereto attached, marked `SCHEDULE A', to be held upon the terms and conditions and upon the trusts hereinafter set forth and declared, and desires the Trustee to act as trustee hereunder, and the Trustee is willing to receive and hold such property upon such trusts;

"Now, Therefore, This Indenture Witnesseth:

"That the Trustor, in consideration of the sum of One Dollar ($1.00) to her in hand paid by the Trustee, the receipt of which is hereby acknowledged, has sold, assigned, transferred, conveyed and delivered, and by these presents does sell, assign, transfer, convey and deliver the securities and property described as Schedule A, hereto attached and made a part hereof as though set forth at length herein, to the Trustee to be taken and held upon the following conditions and trusts:

"The Trustee shall have the following rights and powers with respect to the trust estate:

"To invest and reinvest the trust estate during the life of the Trustor, upon her sole and absolute direction, and the Trustee shall not be responsible or liable for any loss or depreciation in value resulting from any security purchased upon the direction of the Trustor.

"After the death of the Trustor, the Trustee is given as full and complete power and authority over the trust estate and property, and each and every part thereof, as fully and to the same extent as any individual might, could or would have owning similar properties and securities in her own right." (Italics ours)

"Any and all determinations and decisions by the Trustee under this paragraph shall be conclusive for all purposes and upon all persons." (Italics ours)

"The Trustee shall pay the Net Income derived from the Trust Estate to the Trustor during her lifetime, and such amounts from the Corpus of said Trust Estate as may be necessary, from time to time, to maintain and support the said Trustor in comfortable circumstances and surroundings.

"Upon the death of the Trustor the Trustee shall pay such of the expenses of her last illness and burial and such of her debts as the Trustee may approve.

"The Trustee shall have in her own right the opportunity to make a selection for her own use anything remaining undistributed out of the personal effects and furnishings in the home of the Trustor and shall dispose of the balance of the said ...


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