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Sorensen v. First Nat'l Bk. of Chicago

OPINION FILED APRIL 6, 1978.

ROBERT B. SORENSEN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE FIRST NATIONAL BANK OF CHICAGO, EX'R OF THE LAST WILL OF GENE COOK, DECEASED, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND J. TRAFELET, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County sustaining a motion by The First National Bank of Chicago (hereinafter called "First National") for an involuntary dismissal under the Illinois Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 48(1)(i)). The consolidated complaints were filed in the circuit court by Robert B. Sorensen, Willie Gibbs, H.W. Morrow, David Paton, George Rohner, Harold Rosenwinkel, Doris A. Schulze, Lillian Sorensen, and Carl Winnebald, Jr. (hereinafter called "plaintiffs") seeking a declaratory judgment that a bequest of stock under a will was not adeemed.

The issues presented for review are (1) whether the testator was coerced into selling the stock in question, (2) whether the sale of said stock operates as a partial ademption, and (3) whether the plaintiffs allege adequate consideration in order to support a contract claim.

The plaintiffs in this case are present or former employees of Kloster Steel Corporation (hereinafter called "Kloster"), a closely held corporation solely owned by Mrs. Gene Cook (hereinafter called "testator"). On November 22, 1972, the testator executed an inter vivos trust into which she placed certain land and the Kloster stock. The trustee of this trust was First National. The trustee was to manage the assets of the trust and pay income and principal to the testator as she directed. First National was authorized to sell the Kloster stock by the trust as follows:

"F-1. * * * [T]he Trustee shall have full power to invest and reinvest the Trust Estate in such stocks, bonds or other income-producing securities or property, real or personal, as it deems advisable; to sell, exchange or pledge any or all of the trust property as the Trustee deems proper * * *."

The testator reserved the right to modify, alter or revoke the trust by written instrument. At the testator's death, the trust was to be turned over to her estate and pass according to the terms of her will.

On June 1, 1973, the testator executed her last will bequeathing the Kloster stock to the plaintiffs. The pertinent language of her will is as follows:

"ELEVENTH: I give and bequeath all of the shares of KLOSTER STEEL CORPORATION common stock which shall be in my estate, in appreciation of their loyal efforts to this corporation, to the following persons who shall survive me, in the amounts or proportions determined as provided below.

(a) WILLIE GIBBS; (g) HAROLD ROSENWINKEL; (b) H.W. MORROW; (h) DORIS A. SCHULZE; (c) ALICE PAINE; (i) LILLIAN SORENSEN; (d) F.W. PAINE; (j) ROBERT B. SORENSEN; (e) DAVID PATON; and (f) GEORGE ROHNER; (k) CARL WINNEBALD, JR.

Whether or not the foregoing persons may still be working for KLOSTER STEEL CORPORATION at my death, the amount or proportion of said stock to be distributed to each of said persons shall be determined first by totaling all of the full months of service each has been employed by KLOSTER STEEL CORPORATION up to the time of my death and attributing to each of said persons his or her proportionate percentage of such total; secondly, by totaling all of the annual salaries paid to each of said persons for the year ending December 31, 1972, and attributing to each of said persons his or her proportionate percentage of such total annual salaries; and thirdly, by adding both of the percentages by two (2), in order to give equal weight to the salary and length of employment."

On November 9, 1973, the testator executed a written amendment to her inter vivos trust, in the nature of a pledge agreement, which was intended to secure a loan from First National. This amendment required the approval of First National, acting in its individual capacity, prior to the payment of income or principal of the trust during any period when the testator was indebted to First National. The amendment also provided, absent approval of First National, none of the principal or income of the trust could be distributed unless all indebtedness of the testator to the bank were discharged in full. First National was given the power to sell any of the trust assets upon the demand of itself acting in its individual capacity in the event the trust income and principal cash were insufficient to pay the indebtedness to the bank. Lastly, the amendment prohibited the testator from amending, altering or revoking the trust without obtaining the written approval of First National.

First National, acting in its individual capacity, advanced sums of money totaling $175,000 to the testator during the period from November 22, 1972, through November 9, 1973. First National then offered the Kloster stock for sale. Although already authorized by the inter vivos trust of November 22, 1972, and the amendment to the trust of November 9, 1973, First National, as trustee, obtained prior written approval of the sale of the stock on May 29, 1975, as follows:

"To The First National Bank of Chicago, as Trustee of the Gene Cook Trust:

The undersigned hereby approves and consents to the sale of 84 shares of the common stock of Kloster Steel Corporation held by you as Trustee of the Gene Cook Trust, to a group of employees of said Corporation and the redemption by said ...


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