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Ilg v. Continental Ill. Nat. Bank & Trust Co.

APRIL 9, 1968.

PAUL F. ILG, PLAINTIFF-COUNTERDEFENDANT, APPELLANT,

v.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY, DEFENDANT-COUNTERPLAINTIFF, APPELLEE, EDENS INDUSTRIAL PARK, INC., ET AL., DEFENDANTS-COUNTERDEFENDANTS.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Judgment affirmed.

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

Plaintiff, Paul Ilg, filed this action for a declaratory judgment to establish the validity of an assignment of a partial interest in a lease of real estate. The trial court granted a motion filed by defendant, Continental Illinois National Bank and Trust Company of Chicago, hereinafter referred to as "defendant," for judgment on the pleadings. Plaintiff appeals.

Prior to October 1, 1961, Robert Ilg, Sr., was vested of the fee title to a parcel of real estate located in the Village of Niles. Under a document dated October 1, 1961, he leased said premises to Edens Industrial Park, Inc., hereinafter referred to as "Edens," for a term of forty years at a rental of $15,000 per year, with renewal options for four additional fifteen-year periods. Rental payments for the first five years of the lease were subject to a $3,000 yearly deduction for real estate broker's commissions.

Also executed by Robert Ilg, Sr., and dated October 1, 1961, were three separate assignments of interest in the Edens lease, each assignment being a 25% interest to each of his three children, plaintiff and defendants, Robert Ilg, Jr., and Virginia Ilg Houser, constituting 75% of the total interest in the lease.

From the date of execution of the lease until the death of Robert Ilg, Sr., on December 25, 1964, Edens paid the stated rentals directly to Ilg, Sr., or for his account, pursuant to the terms of the lease. It is undisputed that no notice was given to Edens of the execution of the assignments by Ilg to his three children. The record shows that on August 1, 1963, the lease was amended in certain respects, the amendment having been executed by Ilg, Sr., and assented to by his spouse; it does not appear that any of the three Ilg assignee-children were involved in the amendment. Letters testamentary issued to defendant on May 21, 1965, and Edens made the rental payments required under the lease directly to defendant as executor and trustee under the Last Will and Testament of Robert Ilg, Sr. Subsequent to the date of October 1, 1961, Robert Ilg, Sr., made disbursements to each of his three children in amounts of $2,997, $3,000 and $2,250 for the years 1962 through 1964 respectively.

The inventory filed in the estate of Robert Ilg, Sr., was approved in January 1966 and included the following items:

"2. Edens Industrial Park, Inc.

"Rent check dated October 30, 1964 $1,000.00 "Rent check dated November 27, 1964 $1,000.00

"6. Lot 9 in the Assessor's Division . . . (setting out the complete legal description of the parcel of real estate in question to which the lease to Edens is subject.)

"Unimproved.

"The above property is subject to a lease between decedent and Edens Industrial Park, Inc., dated October 1, 1961."

On March 7, 1966, plaintiff wrote a letter to defendant demanding 25% of the rentals theretofore collected and being held by defendant in connection with the lease, asserting that he was entitled thereto by virtue of the partial assignment of the Edens lease from his father on October 1, 1961. The demand was refused by defendant.

Shortly thereafter plaintiff filed the complaint herein for declaratory judgment seeking, inter alia, a declaration of rights and obligations between the parties with respect to the assignment; a declaration that the assignment was lawful, valid and binding; a judgment for plaintiff in an amount equal to 25% of the rentals theretofore collected and being held by defendant under the lease; and a decree requiring defendant to pay plaintiff 25% of all future rentals it collected with regard to the lease.

Defendant's answer denied the execution of the assignments of interest in the Edens lease as alleged in the complaint. A counterclaim set up the affirmative defense that plaintiff's cause of action constituted a claim against the estate of Robert Ilg, Sr., which had not been filed within the nine-month statutory period then provided for the filing of claims and that the cause of action was consequently barred as to all assets inventoried in the estate within the nine-month period. Ill Rev Stats 1965, c 3, par 204. (The present limitation ...


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