APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 6, 1973.
This appeal involves a controversy between two brothers concerning the meaning of three paragraphs in a land trust created by their parents. After they had survived the other members of their immediate family, the brothers differed with respect to the construction of the trust provisions that governed succession in the trusteeship and those that limited the authority of the trustee to deal with the trust property. In a suit by appellant, the trial court construed these provisions as appellees contended. The sole issue is whether this construction was correct.
Christ J. Lambos and his wife Diamanto were the parents of four sons: James C., Nicholas C., George C. and Thomas C. Lambos. On July 11, 1951, using a printed form that had spaces for insertion of needed detail, they created what is commonly called an Illinois land trust and conveyed to their son James, as trustee, a parcel of real estate situated in Chicago. In the blank space for designation of beneficiaries, there was typewritten language that these were to be "Christ J. and Diamanto Lambos, his wife, not as tenants in common but as joint tenants and upon the death of either, then to the survivor, and upon the death of both, then to James C. Lambos, Thomas C. Lambos, Nicholas C. Lambos and George Lambos, or the survivors among them in equal shares, share and share alike [sic]."
In the printed part of the trust form, it was provided that
"* * * in the event of * * * the death, dissolution, incapacity or inability to act of any trustee, a successor or successors may be appointed by the person or persons then entitled to direct the trustee in the disposition of the trust property, and the trust property shall thereupon pass to and vest in such successor or successors in trust."
Then, with the names typewritten, the trust agreement contained this paragraph:
"It is understood and agreed by the parties hereto and by any person who may hereafter become a party hereto, that the trustee will deal with said real estate only when authorized to do so in writing and that the trustee will, (notwithstanding any change in the beneficiary or beneficiaries hereunder, unless otherwise directed in writing by the beneficiaries,) on the written direction of Christ J. and Diamanto Lambos or the survivor of them, and upon their death on the written direction of James C. Lambos, Thomas C. Lambos, Nicholas C. Lambos and George Lambos, or the survivor among them or on the written direction of such person or persons as may be beneficiary or beneficiaries at the time * * *."
Finally, in the last paragraph, there were these typewritten words:
"In the event of the inability or refusal of James C. Lambos to act when directed to do so then George Lambos shall act as successor trustee with all powers and rights given to the Trustee herein * * *."
Christ J. Lambos died in 1954. James died on December 5, 1960. George assumed the duties of successor trustee. On October 1, 1962, he conveyed the trust property to his mother, Diamanto. Nicholas predeceased his mother in 1967. Then on October 2, 1967, Diamanto Lambos died leaving appellant Thomas and appellee George as her survivors. In her will, she devised the trust real estate, a hotel worth $60,000, to George and his wife Pauline. She devised another parcel of real estate, a two-flat building worth $30,000, to Thomas.
On July 23, 1968, appellant filed a complaint to construe the land trust, appoint a successor trustee and for other relief. He alleged that in 1960 when James died, no successor trustee was appointed; that when in 1962, George conveyed the trust property to his mother, there was no written direction from her; therefore, the conveyance was void and the real estate was still in the trust. Appellant prayed that the trust property be sold and the proceeds be divided among the owners of the beneficial interests.
Appellees, George and his wife Pauline, appeared and answered the complaint. Later, appellant made a motion for summary judgment on the issue of George Lambos' right to assume the duties of trustee after the death of James in 1960. The motion was overruled but appellant elected to stand on his motion. Evidence was then heard which consisted of two witnesses called by appellees in an attempt to prove that in October 1962 when George conveyed the trust property to his mother, he had a written direction from her. After hearing the parties, the trial court entered a decree which found that the trust was created in 1951; that it contained the three paragraphs in question; that the trustee died in 1960 and George Lambos assumed the trusteeship; that in October 1962, Diamanto Lambos had the authority to direct the trustee or ...