Appeal from Interlocutory Order entered in the Superior Court
of Cook County; the Hon. JOHN J. LUPE, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order denying plaintiff-appellant's motion for a temporary injunction restraining the executor of Ira M. Pink's estate from voting 122,459 shares (about 24%) of the stock of the Englander Company, Inc., a Delaware Corporation, at a meeting of the stockholders called for May 9, 1963, to elect directors, and from interfering with the right of the trustees to vote this stock. Plaintiff, David N. Myers, deceased's brother-in-law, is one of the named trustees under the will. The defendants are deceased's widow and executor of his estate, Libbie Pink, and the other cotrustee named in the will, The First National Bank of Chicago.
Ira M. Pink, president of Englander, died on December 5, 1961, and the parties to this action are in agreement that the issue herein involved must be determined by ascertaining Mr. Pink's intention as expressed in his will. Mr. Pink's will, admitted to probate in the Probate Court of Cook County on December 19, 1961, is a lengthy document and not all of its provisions are pertinent to this appeal.
After first bequeathing his personal effects and making a devise to the Ira M. Pink Foundation (the larger of the following amounts: 2% of the net amount of the estate as adjusted and determined for Federal Estate Tax purposes or $50,000), Mr. Pink devised the residue of the estate to two testamentary trusts. The first trust, Trust A, was established in an amount equal to the marital deduction allowable. Libbie Pink was named sole beneficiary to this trust for her lifetime and was given power of appointment at her death. The rest, residue and remainder of the estate was bequeathed to a second trust, Trust B. *fn1 Mrs. Pink was named life beneficiary to this trust also and upon her death the trustees were directed to establish separate trusts for each of the deceased's two children. *fn2
Mr. Pink named as co-trustees the two parties mentioned above and then, by article eight of the will, described their authority. In pertinent part, he provided:
Section 1. The Trustees are granted the following powers with respect to the various trusts herein created and the property and interests therein, at any time forming a part of such trusts (herein called the "trust assets") to be exercised from time to time by the Trustees in a fiduciary capacity as the Trustees of the beneficiaries, except that the Trustees shall not have any power or discretion with respect to Trust A or its assets the possession of which would deprive my estate of any portion of the marital deduction allowable to my estate for Federal Estate Tax purposes, even though any particular power or discretion may not, by specific provision herein, be expressly made inapplicable to Trust A or its assets.
(f) To vote, either in person or by general or limited proxy, for any purposes (including for the election of a trustee or beneficiary as a director), or to refrain from voting any corporate securities or other trust having voting rights, and to enter into voting trusts and similar arrangements.
Mr. Pink then provided that a majority of the adults legally competent had the right to designate a corporate trustee to replace the corporate trustee acting under the will.
Testator then named his widow executor of his estate and by article fourteenth, described her powers, providing:
Section 1. During the period of the administration of my estate my Executor shall have all of the powers given to the Trustees with respect to the trusts and the trust assets and may join with the Trustees in the exercise of such powers.
Section 2. I authorize my Executor to sell, exchange, transfer and convey any and all of my property, real and personal, legal and equitable and wherever situated, at public or private sale, for such consideration (either for cash or on credit or partly for cash and partly for credit) with such security or without security and on such terms and conditions as my Executor shall determine, . . . .
Section 3. I authorize my Executor to borrow money, to extend or renew any existing indebtedness, and to mortgage or pledge any and all of my property as security therefor; to collect, pay, contest, litigate, compromise or abandon claims and demands of and against my estate; and to postpone distribution of my estate pending the final determination of all its tax liabilities.
Section 6. My Executor may act in accordance with the provisions of this will without application or confirmation by any court and shall also have all powers which are now or may hereafter be granted by law, statute or rule of court.
On April 9, 1963, the Court of Chancery of New Castle, Delaware, ordered a shareholders' meeting of the Englander Company on May 9, 1963, for the purpose of electing a new board of directors. A special master was appointed to hold the meeting. The instant action was initiated to determine who had the right to vote the shares of stock held by the ...