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Login v. Newman

APRIL 1, 1963.

ROSE LOGIN, PLAINTIFF-APPELLANT,

v.

SELMA NEWMAN AND SADIE VOGEL, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This is an action in equity seeking the construction of the last will and codicil of Samuel Login, deceased, for the appointment of a successor cotrustee, and other relief. The Chancellor dismissed the action for want of equity after finding that "[t]he Last Will of Samuel Login is free of ambiguity or uncertainty requiring construction and it clearly sets forth that plaintiff's interest in the trust under the said will is a contingent interest, since it is contingent upon her surviving Sadie Vogel and Selma Newman; . . . ." This appeal followed. The question before us is whether plaintiff's interest in the trust under the will is sufficient to maintain this action.

Samuel Login died March 2, 1953. By his will and codicil, after making certain specific bequests, he left the residue of his estate, a medical book store, in trust. William Login and Sadie Vogel, testator's brother and sister, were named co-trustees. This action is concerned solely with those portions of the will and codicil establishing the trust.

The trust was created in paragraph nine of the will. The trustees were directed to pay specific sums of money to testator's two sisters so long as they should live. Sadie Vogel was to receive $40 per week and Selma Newman was to receive $20 per week. The trustees were given general discretionary powers designed to enable them to continue the business, and after the death of the two sisters were authorized to sell or otherwise dispose of the property in the trust fund.

Paragraph ten of the will provided for the appointment of Sheldon Login, William's son, as successor cotrustee in the event of the death of either of the two named trustees.

Paragraph eleven of the will provided as follows:

In the event of the death of my brother William, before the completion of the trust estate created herein and hereby, and upon the death of my sisters, Sadie Vogel and Selma Newman, that my Trustees shall distribute my said trust estate jointly to my sister-in-law, Rose Login and my nephew, Sheldon Login, her son, and if she be deceased at that time the said trust estate shall go to my said nephew, Sheldon Login.

Paragraph twelve provided that the trust would go to William Login if he survived the two sisters.

Sometime after the execution of the will, Sheldon Login died. On November 17, 1951, testator executed a codicil to his will. The codicil provided, in pertinent parts, as follows:

I Do reaffirm all and every clause and condition set up by me in my last will, with the exception of those references therein made to my deceased nephew, Sheldon Login; that he is named therein as beneficiary, devisee and legatee, which I do hereby direct be of no force or effect whatsoever and treated as deleted, cancelled and void in every respect because he predeceased me.

My Executors and trustees are hereby fully empowered to sell my book store and real estate, this provision being in furtherance of paragraph nine (9)(c), or in lieu of any other paragraph in my will which may or does conflict herewith, if they so decide to do, at any time after my demise, and the net proceeds therefrom shall be divided as follows:

William Login to receive fifty (50%) per cent Sadie Vogel to receive thirty (30%) per cent Selma Newman to receive twenty (20%) per cent

Should any of my aforementioned sisters or my brother or either of them predecease me, his, her or their pro rata share or shares shall be divided equally between the survivors, or if only one, then all the net proceeds are to go to that survivor.

William Login died March 7, 1960, and his widow, Rose Login, filed this action November 28, 1960. Her complaint alleged the language of the will and codicil was ambiguous and she sought a court determination of the questions which arose in the operation of the book store, including the amounts to be paid defendants. She further sought a declaration of her own interest in ...


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