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Continental Ill. Nat. Bank v. Llewellyn

JULY 28, 1967.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY, ETC., PLAINTIFF-APPELLEE,

v.

MARY ISABELLE LLEWELLYN, ET AL., DEFENDANTS-APPELLEES, AND RICHARD KADISH, ET AL., FIDELITY-PHILADELPHIA TRUST CO., AS TRUSTEE, ETC., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, Chancery-Divorce Division; the Hon. JOHN J. LUPE, Judge, presiding. Decree affirmed in part and reversed in part and cause remanded with directions.

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

ON REHEARING

This is an appeal from a decree denying attorneys' fees to defendants-appellants, (hereinafter referred to as the assignees), in an action brought to construe a will and to determine the validity of certain assignments executed by one Mary Isabelle Llewellyn, a beneficiary under the will of Silas J. Llewellyn.

Issues pertaining to the construction of the will and the validity of the assignments were disposed of in Continental Illinois Nat. Bank v. Llewellyn, 67 Ill. App.2d 171, 214 N.E.2d 471 (1966). The attorneys' fees, for services rendered in determining the above issues, are the subject matter of this appeal.

Silas J. Llewellyn died in 1925. He was survived by a wife, Mary E. Llewellyn, who died in 1933, and by three children:

(1) Paul P. Llewellyn

(2) Gertrude Llewellyn Stone

(3) Elizabeth Llewellyn Warner

(1) Paul P. Llewellyn died in 1956 and was survived by his only child, Mary Isabelle Llewellyn. Mary Isabelle was the offspring of Paul's first marriage to Mary Catherine Elphicke, from whom he was divorced in 1924. Paul entered into three other marriages but no children were born to him of any of these three subsequent marriages. Mary Isabelle Llewellyn married Emil Frank in 1936 and was divorced from him the following year. She married Ross H. Callison in 1937 and was divorced from him in 1942. A child, Charles Callison, was born to Mary Isabelle in 1951. The child was placed for adoption and was legally adopted under the laws of the State of Maryland. A guardian ad litem was appointed to represent any interest which Charles Callison might have in the estate of Silas J. Llewellyn.

(2) Gertrude Llewellyn Stone died in 1956 and was survived by her husband. No children were born to Gertrude Stone during her lifetime.

(3) Elizabeth Llewellyn Warner was alive at the time of these hearings and had two children, Barbara Warner Fentress and Silas Warner. Both children are married and have children.

During the years 1941 through 1950, Mary Isabelle Llewellyn executed 14 assignments, to the assignees herein, involving her remainder interests in the Paul P. Llewellyn and in the Gertrude Llewellyn Stone portions of the trust estate.

In March 1956, upon the death of Paul P. Llewellyn, a will construction suit was filed by the trustee of the Silas J. Llewellyn trust, seeking instructions as to how a substantial portion of the estate was to be distributed. Answers were filed by the various parties who claimed an interest in the estate, including the surviving life tenant, her descendants, the representatives of the deceased life tenants, defendant-appellee Mary Isabelle Llewellyn, (the daughter of a deceased life tenant) and her assignees. The pleadings raised numerous questions of construction. These construction issues were:

(a) Whether accrued, but undistributed income, should be distributed to the remainderman or to the estate of a deceased life tenant. Irene Eleanor Llewellyn, the widow and executrix of Paul Llewellyn, a deceased life tenant, and the estate of Gertrude Stone contended that such income was distributable to them.

(b) Whether the trustee had power to make distribution of the trust only in cash, or in cash or in kind. Certain of the assignees contended that the trustee had power to distribute in kind.

(c) Whether the life estates were determinable fees followed by invalid executory devises, with the result that one-third of the estate indefeasibly vested in each of the life tenants and, upon their deaths, passed to their personal representatives. This issue was first raised in the Answer of Irene Eleanor Llewellyn, the widow of Paul Llewellyn, and in the Answer of the estate of Gertrude Stone. This was contested by the surviving life tenant, Elizabeth Warner, and by her ...


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