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Oak Park Trust & Savings Bank v. Fisher

FEBRUARY 20, 1967.

OAK PARK TRUST & SAVINGS BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED OCTOBER 8, 1964, IDENTIFIED AS TRUST NO. 4731, PLAINTIFF-APPELLEE,

v.

BERTHA GAE FISHER, DEFENDANT, JOHN H. VIEROW, THIRD-PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Affirmed.

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

This is an appeal by a third-party defendant from a decree which found that defendant, Bertha Gae Fisher, was competent when she executed a trust agreement on October 8, 1964, and that "at any time after December 9, 1964," she was not competent to revoke the trust agreement. Purported acts of revocation were found to be void because of defendant's incompetency, and the trust agreement was decreed to be valid and effective. The determinative issue is whether the decree is against the manifest weight of the evidence.

The proceedings were initiated by a complaint for instructions filed on April 27, 1965, by the Oak Park Trust & Savings Bank, as trustee under a living trust. The complaint named Dr. Bertha Gae Fisher as sole defendant and alleged that Dr. Fisher, 80 years of age, "a spinster residing alone, and [who] has been personally acquainted with officers of the Trustee [Oak Park] for a number of years," executed "a revocable living trust agreement" under date of October 8, 1964, and assigned to plaintiff Oak Park, as trustee, securities of a market value of approximately $180,000. On December 30, 1964, Dr. Fisher delivered to the plaintiff an instrument revoking the trust, and in the middle of March, 1965, "Dr. Fisher verbally withdrew her revocation and informed the Trustee that she wished the trust agreement to remain in full force and effect." On March 19, 1965, Dr. Fisher delivered a further instrument of revocation to plaintiff, and on March 22, 1965, Dr. Fisher "informed the Trustee that she did not desire to revoke the trust." On April 15, 1965, Dr. Fisher "demanded that the trust be revoked."

The complaint further alleges that during the period commencing with the month of December 1964, plaintiff had become aware that Dr. Fisher's memory had failed greatly, and "the Trustee is not certain that her direction that the trust be revoked has been made with the requisite condition in mind as to constitute an act on her part which has binding effect as a matter of law; and the Trustee is likewise uncertain as to her ability to responsibly manage her estate, and is concerned that if it is delivered to her it may be subjected to danger of waste and dissipation." Plaintiff, as trustee, prayed for instructions and "such other and further relief as equity may require."

The trust agreement, made a part of the complaint, directs the distribution of the income to Dr. Fisher during her lifetime, and at her death provides for the distribution of the corpus of the trust estate. After directing that specific amounts totaling $79,000 be paid various relatives, including a brother and a sister, a church and a clergyman, the remainder of the trust estate is to be paid to the West Suburban Hospital of Oak Park.

Summons was served on Dr. Fisher, and an appearance and jury demand were filed by her attorney, John H. Hanson. A motion to dismiss the complaint was set for hearing, and the court appointed Emanuel Morris guardian ad litem. On June 9, 1965, the court held a preliminary hearing and examination of the defendant as to her competency, and at that time appointed Dr. Harry Hoffman to examine defendant. A report of proceedings of the hearing of June 9, 1965, shows that defendant was questioned by the court, Mr. Morris and Dr. Hoffman. The report contains sixteen exhibits submitted by the guardian ad litem, including a letter by Dr. Hoffman, in which he outlines his examination of defendant and his conclusion "that the subject at this time (June 9, 1965) is incapable of handling her affairs."

On July 13, 1965, defendant answered and counterclaimed, asking (1) that the court find the revocation of December 30, 1964, fully terminated the trust, and (2) that her property be returned to her with an accounting.

On July 23, 1965, leave to intervene was granted to a brother, sister, nephew and nieces of Dr. Fisher, and they filed answers to the complaint and counterclaim and their own counterclaim. On the same day, an order was entered granting leave to John H. Hanson to withdraw as attorney for defendant — "the said Dr. Fisher representing in open court that she did not wish John H. Hanson to represent her as attorney herein. . . ."

On July 28, 1965, at the request of the guardian ad litem, the "jury demand, answer and counterclaim filed by John H. Hanson, on behalf of Dr. Bertha Gae Fisher, defendant," were struck from the files. A further order was entered, finding that Dr. Fisher was "mentally incapable of having the care, custody, and management of her property, affairs and estate and does not know her exact bounty and does not know the exact objects of her bounty," and directed Samuel Deutsch, attorney for the intervening members of the family, to proceed with a petition for the appointment of a conservator of the estate of Dr. Fisher.

On August 31, 1965, the guardian ad litem filed a petition which related the proceedings up to that time. It alleged that the counterclaim filed by Samuel Deutsch for the intervenors, the nearest relatives of the defendant, stated that they had been informed that Dr. Fisher, "due to her advanced years, is incapable of managing her estate, and that she was mentally incompetent at the time she executed the revocable trust agreement identified as Trust No. 4731, a copy of which is attached to the original complaint filed herein as Exhibit `A'; that on January 9, 1965, the said Bertha Gae Fisher executed a last will and testament whereby she bequeathed the residue of her estate to John H. Vierow, the value of which is approximately $70,000, and appointed him as executor thereof; that a copy of said last will and testament is attached hereto marked Exhibit 1 and is made a part of this counterclaim; that they have been informed and believe and upon such information and belief state the fact to be that the said Bertha Gae Fisher did not have testamentary capacity to make a will on said date of January 9, 1965, and that said John H. Vierow, residuary legatee, exercised undue influence over her in having her make said last will and testament wherein he is the principal beneficiary; . . . ."

The petition further set forth the names of the legatees of the will of January 9, 1965, and the beneficiaries under the trust agreement of October 8, 1964, and a pour-over will dated October 9, 1964, and requested that all of the legatees and beneficiaries named "should be made third-party defendants in this suit" and summonses issued against them. The petition requested that the will of January 9 "be declared null and void and destroyed in open court," and that the court determine whether Dr. Fisher "was mentally competent at the time she executed the trust agreement of October 8, 1964, and the will of October 9, 1964." Subsequently, on August 31, 1965, an order was entered directing that third-party summonses be issued against parties designated, including John H. Vierow.

Third-party defendant, John H. Vierow, appeared and on October 27, 1965, moved to strike parts of the answer and the petition of the guardian ad litem, "in that a Guardian ad Litem may not during the lifetime of his Ward maintain an action to compel one in lawful possession of a purported Will of his Ward to surrender it for cancellation on the ground that it was executed while the Ward was mentally incompetent." Third-party defendant, Vierow, also answered the petition of the guardian ad litem and counterclaimed against the trustee and other third-party defendants, and prayed (1) that the will of January 9, 1965, be not declared null and void; (2) that the court release the will, which had been impounded by the court, to John H. Vierow, the named executor therein; and (3) that the court determine whether Dr. Fisher was mentally incompetent at the time she executed the trust agreement of October 8, 1964, and whether she was mentally competent at the time she revoked the trust agreement.

On November 8, 1965, leave was granted to the intervening relatives to withdraw their counterclaim. On the same day, the court entered an order granting leave to the guardian ad litem to withdraw his petition filed on August 31, 1965, but denied "the motions to strike the counterclaim and dismiss John Vierow as defendant," and all parties were ordered to plead to the counter-claim of John Vierow. The answer of plaintiff [Oak Park] to the counterclaim of Vierow contained an affirmative defense that "John H. Vierow has not been named as a party by any pleading presently on file before this Court. . . . The instrument dated January 9, 1965 confers no rights on John H. Vierow and no standing in this litigation." In an order dated November 29, 1965, Dr. Harry R. Hoffman was authorized to further examine Dr. Fisher.

A report of proceedings heard on November 29, 1965, includes the testimony of witnesses for the plaintiff, for the guardian ad litem, and for the ...


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