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In Re Estate of Gerbing

SEPTEMBER 17, 1974.

IN RE ESTATE OF HATTIE GERBING, DECEASED — (FRANK GERBING, JR., EX'R OF THE WILL OF HATTIE GERBING, PETITIONER-APPELLEE,

v.

KATHERINE SIEBOLD GRIGG ET AL., RESPONDENTS-APPELLEES — (FRANK GERBING, JR., RESPONDENT-APPELLANT.))



APPEAL from the Circuit Court of Cook County; the Hon. ALVIN KVISTAD, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 21, 1974.

Frank Gerbing, Jr., as the executor of the will of Hattie Gerbing, (hereinafter petitioner), filed a petition in the court below for instructions seeking a determination of whether a provision of the will violated public policy and was therefore void. He joined as respondents Katherine Siebold Grigg (a half sister of decedent), Robert Grigg (son of Katherine Siebold Grigg), and Robert Grigg's children, Scott, William, Daniel, Nancy, and Linda, all the respondents (hereinafter respondents) being apparent alternative contingent beneficiaries of the trust corpus whose interest would be affected by the allegedly void provision of the will. The probate court entered an order declaring that the trust created under the will was valid. Petitioner then filed motions to vacate that order both in his individual capacity as primary beneficiary of the trust and in his capacity as executor, both of which were denied by the probate court. Petitioner, in his individual capacity as a respondent, now prosecutes this appeal from those orders.

This appeal presents the following issues for review: (1) whether petitioner is estopped from asserting the invalidity of the trust; (2) whether the conditions pertaining to the termination of the petitioner's and his wife's marriage are contrary to public policy and void; and (3) should the conditions be found void, what effect will such determination have upon the trust created under the will.

Article IV of decedent's will provides, in part, as follows:

"I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever character and wheresoever situate (referred to below as the "trust property") of which I may be seized or possessed and to which I may be entitled at the time of my decease, but expressly excluding any property over which I now or hereafter may have power of appointment, to THE NORTHERN TRUST COMPANY, of Chicago, Illinois, as trustee, subject to the following terms and conditions:

4.1 Commencing at my death and during the life of my son, FRANK GERBING, JR., the trustee shall pay to him the entire net income from the trust property.

4.2 In addition to income, the trustee also shall pay to my son, FRANK GERBING, JR., such amounts from the principal of the trust property as he from time to time may direct by writing filed with the trustee, except that (a) the aggregate payments to him pursuant to this paragraph in the calendar year in which my death occurs or in either of the next two succeeding calendar years shall not exceed the sum of Ten Thousand Dollars ($10,000.00) and (b) the aggregate payments to him pursuant to this paragraph in any calendar year subsequent to the calendar years mentioned above shall not exceed the sum of Ten Thousand Dollars ($10,000) or an amount equal to five (5) percent of the value of the principal of the trust property determined as of the time such a written direction for a given payment is filed with the trustee, whichever is larger. I am aware of the fact that the aggregate amount which my said son may be entitled to withdraw pursuant to this paragraph in a given calendar year may vary as distributions of principal of the trust property to him take place pursuant to this paragraph or the following paragraph and as the assets included in the principal of the trust property changed in value. The rights to withdraw principal of the trust property during any given calendar year bestowed upon my said son by this paragraph shall lapse at the end of such year.

4.3 In addition to the payments mentioned above, the trustee from time to time may pay to my son, FRANK GERBING, JR., such amounts from the principal of the trust property as the trustee considers necessary or desirable for his comfortable maintenance, medical care, best interests and welfare, including reasonable luxuries, taking into consideration the income and cash resources known to the trustee to be available to him for such purposes from other sources.

4.4 In the event my said son's wife, ARLIE GERBING predeceases my son, FRANK GERBING, JR., or in the event ARLIE GERBING and FRANK GERBING, JR. are divorced and remain divorced for a period of two (2) years, then in either event this trust shall terminate and my trustee is directed to pay, turn over and deliver the remaining principal of the trust property and all accrued dividends or interest accumulated thereon to my said son. In the event my son, FRANK GERBING, JR., predeceases his wife, ARLIE GERBING, then I direct my trustee to deliver the remaining principal of the trust property together with all accrued or undistributed net income therefrom to my sister, KATHERINE SIEBOLD GRIGG, if she survives my said son. If my said sister predeceases my son, FRANK GERBING, JR., then upon the death of my said son, I direct my trustee to deliver the remaining principal of the trust property and all accrued or undistributed net income therefrom to ROBERT GRIGG, if living, or if ROBERT GRIGG is not living at that time, to his children living at the date of the death of FRANK GERBING, JR., share and share alike." (Emphasis supplied.)

Petitioner is the only child of Hattie Gerbing and her sole heir at law. He has been married to Arlie Gerbing for 34 years and was married to her both at the time decedent executed her will and at the time of decedent's death.

I.

Pursuant to a provision in the challenged article of the will, the probate court ordered the trustee to distribute the sum of $10,000 to petitioner. Respondents now maintain that, since petitioner has accepted benefits under the will, he has confirmed and ratified every other part of the will and cannot now assert an invalidity of the trust and will of the decedent.

• 1 While it is true that one's voluntary acceptance of a benefit conferred by a will precludes an attack by him upon other lawful provisions of the will, this general rule is qualified to the extent that, even though one accepts a benefit under the will, he is not precluded from questioning the validity of any provisions that are contrary to the law or public policy (Chaney v. Baker (1922), 302 Ill. 481, 484, 135 N.E. 14). Thus, in Schuknecht v. Schultz (1904), 212 Ill. 43, 72 N.E. 37, appellant, who had taken a beneficial interest under the will, was permitted to attack certain clauses of the will as violative of the rule against perpetuities. The cases cited by respondents in support of their position do not involve any claim that a provision in the will being attacked was illegal or against public policy and are, for this reason, inapposite.

• 2 In the case at bar petitioner's theory of the case — that the provisions of the trust represent a scheme to induce him to divorce his wife and therefore violate public policy permits him to attack those provisions of the will. It is also significant to note that the probate court's order which directed the funding of the trust and permitted $10,000 distribution, also specifically provided "* * * that the distribution is made without prejudice to the right of Frank Gerbing, Jr., to seek a ruling from the court concerning the validity of the trust."

Respondents contend that, by filing in his individual capacity a motion to vacate the court's order declaring the trust valid, petitioner has abandoned his position as executor and violated the obligations imposed on him by that office since, as executor, he was bound to follow the dictates of the court's order; and that he has further violated his executor's duties by prosecuting this appeal without having first removed himself as executor. Respondents have cited no authority to support their position. *fn1 The record does not indicate any petition filed in the court below by the respondent to remove the petitioner as executor. Likewise there is nothing in the record to indicate that the court below ever ruled on this specific point.

Section 276 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 276) sets forth the statutory basis for the removal of an executor. In 1965 the legislature added the following subsections:

"(9) becomes incapable of or unsuitable for the discharge ...


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