APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ Plaintiff Margaret Lloyd filed a suit to enforce a trust agreement executed by Edward W. Schneberger, now deceased, and defendant Sears Bank and Trust Company. Plaintiff was a named beneficiary under the trust agreement. Defendant Sears previously informed plaintiff that she was to receive 30% of the trust estate after payment of death taxes and estate charges. When plaintiff received a lesser amount, she filed a suit for enforcement.
During a bench trial, defendants moved to strike and dismiss plaintiff's complaint as being legally insufficient. Regarding the suit as essentially one for construction, the trial court granted the motions, reasoning that plaintiff failed to show any ambiguity in the trust agreement which might entitle her to a larger share of the estate. Plaintiff was granted leave to amend her complaint, but failed to do so, filing this appeal instead.
On appeal, plaintiff argues (1) that her complaint was not legally insufficient for failure to state a cause of action; (2) that defendants' motions to strike and dismiss were legally insufficient; and (3) that the trial court abused its discretion when it refused to allow plaintiff to amend her complaint so as to incorporate another theory of recovery.
Edward W. Schneberger, deceased, executed a trust agreement with defendant Sears Bank and Trust Company as trustee. Plaintiff Margaret Lloyd was Mr. Schneberger's sister-in-law and one of the beneficiaries under the trust. Following the death of the settlor, defendant Sears received advice from its attorney regarding proper distribution of the trust property to the beneficiaries. The attorney advised that plaintiff should receive 30% of the estate remaining after payment of death taxes and proper estate charges. Defendant Sears then informed plaintiff that she would receive 30% of the estate. When the distributions were finally made, however, plaintiff did not receive 30% of the estate, but rather, a substantially lesser amount.
Thereafter, plaintiff filed the instant suit to enforce construction of the trust as initially indicated by the defendant trustee. Plaintiff joined the other beneficiaries as necessary parties. In her complaint plaintiff alleged that the $37,000 distribution she received "did not conform to the provisions of said paragraph 3.1 * * * in that plaintiff received 30% of the estate remaining after deducting $2,000 to each beneficiary named in paragraph 3.1(a) and after deducting the 45% distributable share to Richard P. Zeimet in paragraph 3.1(b)." She further alleged that "based upon a correct interpretation of paragraph 3.1," plaintiff would have been entitled to $70,000 and that "to determine a correct distribution of the trust it is necessary that the trust instrument be construed and if there is an ambiguity in the instrument, that such ambiguity be resolved."
Defendants filed motions to strike and dismiss the complaint on the ground that there was no ambiguity in the trust instrument and that, as a matter of law, plaintiff was entitled to no more than she received. The trial court sustained defendants' motions and held that the trust instrument was unambiguous and that plaintiff's complaint did not state a cause of action. Plaintiff was given leave to amend her complaint so that she could challenge the correctness of the amounts and seek an accounting. Plaintiff elected, however, to stand on the original complaint and filed this appeal.
On appeal, plaintiff first argues that the trial court erroneously found her complaint legally insufficient for failure to state a cause of action. In support of her view, plaintiff cites cases where trustees were held liable for making improper distributions of the trust property. Piff v. Berresheim (1950) 405 Ill. 617, 92 N.E.2d 113; Countiss v. Whiting (1940), 306 Ill. App. 548, 29 N.E.2d 277.
1 We agree with the trial court's finding that plaintiff's complaint failed to state a cause of action and was properly dismissed. The trust instrument in question reads in relevant part:
"3.1 After making the provisions for the payments contemplated by the preceding provisions of this instrument, [death taxes and proper estate charges] the trustee shall allocate the trust estate on my death, including property added to the trust estate by my will or from any other source, as provided in this paragraph.
(a) The Trustee will distribute as soon as practicable after my death cash assets to the following persons:
(i) DR. MILES CERMAK, if living, the sum of Two Thousand Dollars ($2,000.00);
(ii) MARIE JAKUBKA, a family friend, if then living, the sum of Two Thousand ...