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Sennot v. Collet-oser





APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding.

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT: Defendants, Edith McCormick Hardin and Charles McCormick Hardin (Hardins) and Harold Fowler McCormick Hubbard, John Rockefeller McCormick Hubbard, Elisha Dyer Hubbard, Jr., and Anna Jones Dyer Hubbard (Hubbards) appeal from a summary judgment which dismissed their claims as adopted nieces and nephews to the trust estate of Fowler McCormick. On appeal, they contend that: (1) the settlor's intent to include them as his surviving issue in the distribution cannot be resolved by summary judgment, and (2) they are not barred from asserting their claims by releases executed in a related trust construction suit. The Hardins additionally contend that they are not barred from asserting their claims by their subsequent readoption by another family.

Plaintiffs are the current trustees of the Fowler McCormick trust. Their complaint for trust construction sought to have the trial court determine who among the "surviving issue" of Harold F. McCormick are entitled to the Fowler trust estate.

The pleadings and the record on appeal indicate that on December 16, 1927, Harold F. McCormick, the settlor, created separate trusts for the benefit of his son, Fowler McCormick (the Fowler trust), and his daughter, Muriel McCormick (the Muriel trust). On October 19, 1928, the settlor also created a third trust for his remaining daughter, Mathilde McCormick Oser, which is not in issue in these proceedings.

Fowler McCormick died on January 6, 1973, leaving neither a wife nor any lawful issue surviving him. Accordingly, under the terms of the Fowler trust, the estate would be distribtued "to the then surviving issue of said Harold F. McCormick, the party of the first part herein, per stirpes."

Muriel McCormick married Major Elisha Dyer Hubbard in 1931. No children were born of this marriage. However, after her husband's death in 1936, Muriel adopted six children; Edith McCormick Hubbard in 1939; Elisha Dyer Hubbard II in 1939; Harold Fowler McCormick Hubbard in 1954; John Rockefeller McCormick Hubbard in 1954; Elisha Dyer Hubbard, Jr., in 1957; and Anna Jones Dyer Hubbard in 1958. Edith and Elisha Dyer II were subsequently readopted by Mr. and Mrs. Charles Hardin on March 18, 1948, and were renamed Edith McCormick Hardin and Charles McCormick Hardin. However, in their answer in this proceeding the Hardins allege that the subsequent readoption was void and against public policy because they were denied due process. They further allege that the purpose of the readoption was to eliminate them as presumptive heirs to the Rockefeller and McCormick family fortunes.

Mathilde McCormick married Max Oser on April 12, 1923. Two children were born of this marriage — defendant Anita Collet-Oser and Peter Oser. Peter Oser died in 1970 and was survived by his grandson, defendant Renaud Poulet, the child of Peter's legitimized daughter of his third marriage. Mathilde died on May 18, 1947, leaving no other children either natural or adopted.

Muriel McCormick Hubbard died on March 18, 1959. The Muriel trust was the subject of a similar trust construction suit in the then Superior Court of Cook County. (Roberts v. Dwyer, No. 60 S 545.) Both the Hardins and the Hubbards were parties to that suit. A settlement was reached among the parties and a decree was entered on December 3, 1962. Pursuant to that decree, the Muriel trust estate was divided as follows: The Hardins each received 1%; the Hubbards each received 7 1/2%; Anita and Peter Oser each received 17%; and Fowler McCormick received 34%. The decree specifically provided that it would

"constitute a bar against all litigation, demands, disputes and claims, whether known or unknown and whether or not heretofore asserted, in any way related to the 1927 Trust, its administration or distribution and the construction of the indenture creating said Trust, and a bar against any claim which any party to this proceeding may have against any other party in any way connected with that Trust, or in any way involved in or disposed of by this proceeding."

Pursuant to that decree, the Hubbards, Edith McCormick Hardin and Charles McCormick Hardin by Paul M. Wade, his attorney, executed a release of any claim

"which they or any of them might have under a second Trust Agreement also executed December 16, 1927 by Harold F. McCormick, of which Fowler McCormick is the present and only surviving income beneficiary; and * * * agree that they will not make any claim at any time whatsoever as issue, descendant, child or otherwise or for or on behalf of anyone claiming to be issue, child or descendant of Muriel McCormick Hubbard against either (a) the assets of said last mentioned Trust for the present benefit of Fowler McCormick * * *."

Although the Hardins admitted the existence of the signed release in their answer, Charles alleged that the release was of no effect as to him since Paul Wade was recommended to him by the attorney of Fowler McCormick and at no time during the Muriel trust proceedings had a release of his claims against the Fowler trust been discussed. Similarly, Edith alleged that she was under a severe emotional strain when the Muriel trust was settled and that she was "unaware" of the existence of a Fowler trust at that time.

The Hardins further answered that Harold F. McCormick's will, dated March 19, 1941, evidenced his intention that they should be considered his surviving issue in a dispositive provision which stated that:

"Each and every child or person legally adopted by any of my said children shall, for all purposes under this Will, be considered and treated as the lawful issue of the child making such adoption and as my lawful issue in all respects and for all purposes and shall participate in the benefits of my Will, both as to income and principal, in the same manner and to the same extent as if they were in fact the lawful issue of the person making such adoption and my lawful issue."

On June 7, 1974, defendant Anita Collet-Oser moved for a judgment on the pleadings or, alternatively, for a summary judgment declaring that the Hubbards and the Hardins had no interest in the Fowler trust. The Hardins filed exhibits in opposition to the motion for summary judgment which included, inter alia, various letters, greeting cards and gift memoranda, all ...

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