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In Re Estate of Gerbing





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Alvin Kvistad, Judge, presiding.


Rehearing denied November 21, 1975.

The will of Hattie Gerbing was admitted to probate in the probate division of the circuit court of Cook County, and her son, Frank Gerbing, Jr., was appointed executor. He later filed a petition with the court praying for instructions and directions concerning a trust provision in the will. The petitioner alleged that he believed that the trust created by the will may be contrary to public policy and void as an inducement to obtain a divorce. The contingent beneficiaries of the trust were served with summons. They filed a reply to the petition for instructions denying the invalidity of the trust and prayed that a trustee be appointed and the assets of the trust distributed to the trustee according to the will. The court declared the trust to be valid and directed the executor to make distribution. Thereafter, Frank Gerbing, Jr., individually, and as executor, filed motions to vacate the order. The motions were denied. Frank Gerbing, Jr., individually appealed. The appellate court held the trust partially invalid, reversed the trial court and remanded the cause for further proceedings. (22 Ill. App.3d 454.) We granted the petition for leave to appeal filed by Frank Gerbing, Jr., individually.

The questioned provision of the will is found in article 4.4 and reads as follows:

"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."

The appellate court held that the provision of the trust providing for its termination upon divorce is void as against public policy. However, it held this invalid provision separable from the remainder and held the condition for the trust's termination upon the death of Frank's wife valid. The appellate court resolved the issue by deleting from the will the provisions terminating the trust on the condition of divorce and declaring the remainder of article 4.4 of the will enforceable.

Before considering the appellant's contention we must dispose of issues raised by the appellees. They contend here, as they argued in the appellate court, that by virtue of the fact that Frank is executor of the estate, he should be estopped from prosecuting this appeal as an individual. In the trial court the appellees had filed a motion to remove the executor, but the court, after finding "as a matter of law" that the trust was valid, declared the issue of the removal of the executor moot.

In a suit contesting a will it is the statutory duty of an executor to defend the will. (Ill. Rev. Stat. 1973, ch. 3, par. 93.) In a suit to construe a will the executor is not in the position of defending the will. He is maintaining an action to construe a will and have the duties that are imposed by the will defined by the court. The fact that he is personally interested as a devisee or legatee or otherwise does not preclude an executor from suing for a construction of the will although the final construction may adjudicate his rights as a beneficiary under the will. (96 C.J.S. Wills sec. 1083 (1957).) In fact, in this case, Frank Gerbing, Jr., is a proper party to the construction suit both as the executor of the estate and individually. (96 C.J.S. Wills sec. 1088(a) (1957).) As a party to the proceeding in his individual capacity he had the right to perfect an appeal from the order of the circuit court. (Ill. Rev. Stat. 1973, ch. 110, par. 81.) Also, as an executor, he was interested in having a correct decision in the case and had a right to appeal for the purpose of securing a proper construction of the will. (Bennett v. Bennett, 282 Ill. 266, 277.) In this case he appealed in his individual capacity.

When it became apparent that one result in the litigation would prove to be more beneficial to Frank personally than another he should have temporarily been replaced as executor until the conflicting issues were finally determined. The position contrary to that for which he contends has been thoroughly briefed by the appellees. This case was decided in the trial court solely on the pleadings and by construction of the instrument itself. The case has been presented to the appellate court and to this court on the same basis. Under these circumstances we see no reason to deny Frank Gerbing, Jr., individually, the right to have the decision of the trial court passed upon by a court of review.

The appellees also argue that the testator's intent was not to induce her son to procure a divorce but that she was attempting to provide for his well-being. They contend that the condition is therefore valid. With this we do not agree. We have only the will from which to ascertain the testator's intent. The will does not establish such an innocent motive.

In Illinois public policy as revealed by the decisions of this court holds that a condition annexed to a devise or bequest, the tendency of which is to encourage divorce or bring about a separation of husband and wife is against public policy, and the condition is void. (Winterland v. Winterland, 389 Ill. 384, 386; Tripp v. Payne 339 Ill. 178, 183; Ransdell v. Boston, 172 Ill. 439, 445; see also Restatement of Property sec. 427 (1944); Annot., 14 A.L.R.3d 1219 (1967).) Of course, if the dominant motive of the testator is to provide support in the event of such separation or divorce the condition is valid (Restatement of Property sec. 427 (1944).) Although, as indicated later in this opinion, the will reveals the testator's intent to provide for her son, it does not show that the purpose of article 4.4 of the will is to provide for his support in case of divorce. In Ransdell v. Boston this court held in a case where both the separation of the husband and wife and the action for divorce took place prior to the execution of the will that the condition in the will did not tend to encourage either the separation or the bringing of the divorce suit and therefore was not void. No one has urged that the facts were such in this case as to make the exception to the general rule announced in Ransdell applicable.

It has been said that the vice of such a condition as that contained in this will is not so much that it will encourage a wronged husband or wife to seek the remedy of divorce provided by law "as that it tends to aggravate normal differences until they assume serious proportions and supply the grounds for divorce." (6 American Law of Property sec. 27.18, at 669 (1952).) Plainly the condition in article 4.4 is capable of exerting such a disruptive influence upon an otherwise normally harmonious marriage. We therefore hold, as did the appellate court, that the condition is void as against public policy.

The appellate court, after finding the divorce condition of article 4.4 void, found the conditions separable, excised the void condition from the will and held the provision creating a trust, the duration of which is measured by the life of Frank's wife, valid and enforceable. In arriving at this conclusion the court relied upon the decision of this court in Winterland. It acknowledged that this court in Tripp declared a similar provision void in its entirety.

The appellant contends that the entire trust must be construed as one scheme and that its provisions are inseparable. Since the provision terminating the trust on the condition of divorce is void, the appellant insists that the entire scheme is void. The appellant argues that the trust provision, with its two conditions, had for its sole object the furtherance of a ...

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