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June 1, 1965


The opinion of the court was delivered by: Marovitz, District Judge.

This is the third of a series of cases involving the purported will of Oscar J. Breault, who died on July 16, 1959 and whose purported will was admitted to probate in the Probate Court of Cook County on October 14, 1959. For convenience Oscar's purported will is hereinafter sometimes called his will. The first of these cases to be decided was appealed to the Illinois Supreme Court which held that Oscar, in purporting to exercise a power of appointment conferred upon him by the will of his mother (Kathryn M. Breault who died on August 3, 1952), did not make the appointive property a part of his estate. In re Estate of Breault, 29 Ill.2d 165, 193 N.E.2d 824. That holding has a bearing in this court, for there is pending here, as No. 60 C 1060, a suit filed on July 1, 1960 to set aside Oscar's will on the ground that it was procured by undue influence. In No. 60 C 1060 the jurisdiction of this court, invoked on the basis of diversity, is challenged on the ground that Oscar's probate estate is insolvent and the requisite jurisdictional amount is therefore lacking. If that is so, No. 60 C 1060 would have to be dismissed unless the setting aside of Oscar's will would entitle the plaintiffs (who are the same in this case as in No. 60 C 1060) to all or some part of the substantial trust estate created by the will of Oscar's mother, Kathryn M. Breault, thus providing the necessary jurisdictional amount.

In the instant case, in the first Count of the Amended Complaint, the plaintiffs, who are children of Oscar Breault by the second of three marriages (the first two ended in divorce), seek declaratory relief pursuant to Title 28, Sections 1332 and 2201 of the United States Code. They contend in substance, as will be detailed below, that they are equitably entitled to all of their grandmother's estate. In the second Count they seek an accounting from the defendants Feigenholtz and Dahm, individually and as trustees under the will of Kathryn M. Breault, with respect to certain stock which is or was a part of Kathryn's estate. Obviously, if the plaintiffs have no interest in their grandmother's estate and if they can establish none even if Oscar's will is declared invalid, they have no right to the relief sought under Count II, nor indeed could this court entertain No. 60 C 1060 should Oscar's probate estate be shown to be worth less than $10,000. It is therefore desirable to dispose of Count I at this juncture, i.e., to determine what rights, if any, the plaintiffs might acquire in Kathryn's estate whether or not it be determined that Oscar's will was in fact procured by undue influence.

Kathryn M. Breault's will was admitted to probate by the Probate Court of Cook County on August 12, 1952. The defendants Feigenholtz and Dahm were named as her executors, administered her estate and were discharged in 1953. The will gave the residue of Kathryn's estate to Feigenholtz and Dahm as trustees during Oscar's lifetime and they in fact acted as trustees until Oscar's death. The will provided, inter alia, as follows:

"SIXTH: Payments to all beneficiaries of the trust estate, excepting minors and persons under disability, shall be made to such beneficiaries in person or upon their personal receipt and to no one else and no interest of any beneficiary shall be assignable in anticipation of payment nor be liable in any way for such beneficiaries' debts or obligations.

"EIGHTH: In the event of any suit, directly or indirectly instituted by any beneficiary or beneficiaries hereunder against the Trustees to construe this trust or to terminate this trust, the cost, expenses and charges in connection with the said litigation shall be paid by the said beneficiary or beneficiaries' distributive share.

"TENTH: The Trust Estate shall be distributed both as to income and principal in the following manner:

(A) The Trustees shall pay over and distribute to my son, OSCAR J. BREAULT, all of the net income from the Trust Estate in installments not less frequently than quarter annually from the time of my death and as long as he shall live.

(B) I hereby direct and provide that no part of the income from the trust estate, and no part of the corpus of said trust estate hereinbefore created for the benefit of my son, OSCAR J. BREAULT, shall ever be liable in any way for any debts that my said son may at any time contract, or for any debts that he may have contracted, and shall never be liable for any other claim of any kind against him.

(C) If at any time, for the proper support and maintenance of my said son, or for any other purpose deemed expedient to my said Trustees, it shall be advisable to pay unto said OSCAR J. BREAULT any sums greater than the annual net income derived from my said estate so held for the benefit of my said son, then I direct my said Trustees, to pay such sums unto said OSCAR J. BREAULT, and in order to raise additional sums, I direct and empower my said Trustees, in their discretion, to mortgage, pledge, or sell any portion of the said Trust Estate for their benefit; if such action seems necessary.

I desire my Trustees to so administer the trust herein created so that in their dealings with my said son, they shall as nearly as possible deal with and treat him as I would myself were I living.

(D) Upon the death of my son, OSCAR J. BREAULT, the property of the Trust Estate shall be distributed according to the provisions and terms of the Last Will and Testament of my said son, OSCAR J. BREAULT, and if he shall fail to execute a Will, or if such Will shall not be admitted to probate, I hereby direct distribution of the said Trust Estate in the following manner:

  One-third (1/3) thereof to the LITTLE SISTERS OF
  THE POOR of Chicago. One-third (1/3) thereof to
  No. Harlem Avenue, Niles, Illinois.
  One-third (1/3) thereof to the POLISH MANUAL
  TRAINING SCHOOL FOR BOYS, 7135 No. Harlem Avenue,
  Niles, Illinois.

(E) If in the sole judgment of the Trustees, the income payable to my son, OSCAR J. BREAULT shall at any time be, in their judgment insufficient to provide for any unusual expense caused by illness, operation, or other physical incapacity, or to provide for proper support, then the Trustees are authorized to apply for such purposes, such sum or sums from the principal of the Trust Estate as in their judgment appears to be necessary.

(F) All payments of income or distribution of principal to OSCAR J. BREAULT hereunder, shall be made to said OSCAR J. BREAULT in person, or upon his personal receipts, and not be liable or taken for any obligation of said beneficiary, including alimony.

(G) At any time after three years of administration of this Trust, the Trustees named herein or their successors, feel that my said son, OSCAR J. BREAULT, has become competent to personally handle the corpus of this Trust, the aforesaid Trustees are hereby given the power to terminate this ...

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