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Dubin v. Wise

OPINION FILED JUNE 22, 1976.

SHIRLEY DUBIN ET AL., CO-EXECUTORS OF THE ESTATE OF ANN WISE, DECEASED, ET AL., PLAINTIFFS-APPELLEES, CROSS-APPELLANTS,

v.

HARVEY R. WISE ET AL., DEFENDANTS-APPELLANTS, CROSS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding. MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 27, 1976.

On 20 December 1935, Harry H. Wise and Anna Tuckman entered into an antenuptial agreement. Both had been married previously; and, during their respective prior marriages, both had children who were still living. The pertinent paragraph of this antenuptial agreement provided:

"IT IS AGREED that the said HARRY H. WISE will, by will or other testamentary disposition, cause to be delivered or conveyed to the said ANN TUCKMAN, upon the death of the said HARRY H. WISE, one-fourth (1/4) of all the property possessed by the said HARRY H. WISE, whether real, personal or mixed, for and in consideration of the marriage hereinafter contemplated * * *."

This quarter share was in lieu of any marital interest Anna Tuckman (who was known as Ann Wise after the marriage) might have in the estate of Harry Wise. (The precise language of this provision in the antenuptial agreement is set out later in this opinion.) Harry Wise died on 1 July 1971, predeceasing Ann Wise by about a month. He left a will which provided inter alia:

"Third: I desire that there be paid to my wife, ANN WISE, a sum equal to one-fourth of the value of my entire estate, as provided in an ante-nuptial agreement. Such payment shall be in lieu of dower, widow's award, or any other right or interest my said wife may have had at the time of my death had no ante-nuptial agreement been entered into prior to our marriage."

During his life, Harry Wise owned beneficial interests in certain Illinois land trusts, certificates of deposit, and a one-third partnership interest in Harry H. Wise & Sons, a real estate management business. The land trusts under which Harry Wise personally owned a beneficial interest provided that Ann Wise was to receive 25% of Harry Wise's beneficial interest when he died. In December of 1970, Harry Wise caused all of the above mentioned property to be transferred donatively to his sons Harvey R. Wise and Seymour Wise. As to the beneficial interests under the land trusts, Harvey Wise is then alleged to have exercised his power of direction so as to eliminate the trust provision which gave 25% of the said interest to Ann Wise on the death of Harry Wise. As a result of these donative transfers, therefore, Ann Wise's quarter interest in Harry's property at his death was substantially smaller than it would otherwise have been.

Shirley Dubin, as co-executor of the estate of Ann Wise, deceased, and as administrator with the will annexed of the estate of Harry Wise, deceased, and individually, together with Muriel Tuckman, as co-executor of the estate of Ann Wise, deceased, and individually, initiated the present litigation against Harvey R. Wise and Seymour Wise. Both Shirley Dubin and Muriel Tuckman (hereinafter plaintiffs) are daughters of Ann Wise.

In the five-count complaint in chancery, plaintiffs first alleged that defendants unduly influenced Harry Wise to transfer his property to defendants in derogation of Ann Wise's right under the antenuptial agreement and prayed that defendants be required to return to the Harry Wise Estate the assets Harry Wise transferred to defendants.

Count II alleged that Harry Wise's inter vivos donative transfers of property to his sons in December of 1970 were so unreasonable in amount as to be in fraud of his antenuptial agreement with Ann Wise; that defendants were aware of the antenuptial agreement and that they were aware that Harry Wise's transfers to them would minimize Ann Wise's right under the antenuptial agreement. Count II prayed that the assets be returned to the estate of Harry Wise.

Count III in large part repeated Count II and further alleged that Harry Wise became Ann Wise's constructive trustee as to 25% of his assets as a result of the antenuptial agreement. Plaintiffs then alleged that Harry Wise recognized his obligations by drafting his will as he did, and that defendants were aware of the constructive trust and fiduciary duties of Harry Wise. Count III prayed that the transfers be set aside or impressed with a constructive trust, and that an accounting be made to plaintiffs by defendants.

Count IV alleged that no accounting has been made as to Harry Wise's partnership interest in Harry H. Wise & Sons, and that Ann Wise, as an heir of Harry Wise, and now her estate, was entitled to an accounting. Count IV prayed for an accounting for the partnership interest from its inception.

Finally, Count V alleged that, pursuant to a power of direction granted to Harvey Wise, Ann Wise's contingent beneficial interest in a land trust was cut off in breach of Harvey R. Wise's fiduciary duty toward her. Count V prayed for the setting aside of this power of direction and for an accounting.

Defendants' answer denied all the material allegations of plaintiffs' complaint and alleged as an affirmative defense that plaintiffs had no standing to sue.

After a trial before Judge Walter Dahl, the court found that Harry Wise's transfers of property to defendants in December of 1970 were "made knowingly and deliberately" and were "contrary to the duties owed by Harry Wise to Ann Wise" under the antenuptial agreement. These transfers were found to have been unreasonable in amount relative to the total value of the estate of Harry H. Wise. Plaintiffs were held to have standing to prosecute this action. Therefore, the court ordered defendants: (1) to transfer one-fourth of the cash represented by the certificates of deposit which Harry Wise had transferred to defendants; (2) one-fourth of Harry Wise's land trust beneficial interests with an accounting therefor; and (3) one-fourth of the value of the ...


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