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First Nat'l Bk. v. Campfire Girls

OPINION FILED MARCH 5, 1980.

THE FIRST NATIONAL BANK OF CHICAGO, ILLINOIS, TRUSTEE, PLAINTIFF-APPELLEE,

v.

CANTON COUNCIL OF CAMPFIRE GIRLS, INC., ET AL., DEFENDANTS-APPELLEES. — (THE KICKAPOO COUNCIL OF GIRL SCOUTS ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, the First National Bank of Chicago, as trustee under an agreement created by the late William P. Ingersoll, brought this action for instructions as to how it should dispose of a share of trust income. Ingersoll had directed the particular share to be paid to "Girl Scouts of Canton, Illinois." There is no legal entity whose formal name meets that description. Plaintiff named three possible recipients as defendants: Canton Council of Campfire Girls, Inc., which claims the share in question as successor to the organization which functioned as the Girl Scouts of Canton; the Kickapoo Council of Girl Scouts, which claims the share as the organization formally chartered by the Girl Scouts of America to function in the county where Canton is located; and the board of trustees of the Canton Park District, which claims the share under a provision of the agreement whereby it was to receive the share of any named organization which ceases to exist. After a trial without a jury, the trial court entered judgment finding that the Canton Council of Campfire Girls was the intended recipient of the share of trust income Ingersoll had directed to be paid to the Girl Scouts of Canton. Kickapoo Council and the Canton Park District each have appealed. The Attorney General has informed this court that he does not intend to file a brief. The undisputed facts follow.

On May 23, 1949, Ingersoll as settlor executed a trust agreement which designated plaintiff as trustee. Under the trust's terms, Ingersoll reserved the income of the trust to himself for life and provided for the disposition of trust assets to various private and charitable beneficiaries after his death. Ingersoll specifically provided for a misnomer of a beneficiary and incorporated the following provisions into the trust agreement:

"The Donor does not have available the correct corporate name of the organizations referred to above and has used the name by which they are commonly known in the locality which they serve. It is the Donor's intention that payments be made to the legal corporation regardless of what its name may be which is in the judgment of the trustee, commonly known by the name used herein."

On December 14, 1956, Ingersoll amended the trust instrument and increased the number of beneficiaries. All of them were located in Canton. He included the Girl Scouts of Canton as a beneficiary of $5,000 per year. The amended agreement provided that the named organizations could use the income for such purposes, consistent with their respective charters and bylaws as their respective governing bodies determined. The trust also provided that the annuity to each beneficiary was to continue "as long as such organization shall continue in existence," and if a named beneficiary ceased to exist, the trust income would be paid to the Canton Park District.

On September 28, 1959, Ingersoll again amended the trust, increasing the amount of each annuity and adding a beneficiary. He increased the amount of the gift to the Girl Scouts of Canton to $10,000 per year. On May 31, 1967, Ingersoll restated the trust in its entirety. Instead of specific annual dollar amounts, he provided that the named charitable beneficiaries would receive specified percentages of the net income from the trust. Under the agreement as restated, the Girl Scouts of Canton were to receive 5% of the annual net income of the trust. Ingersoll again amended the trust instrument in 1972. He died in 1973.

Ingersoll, a lifelong resident of the Canton area, was a philanthropist who made annual donations and contributions to local charities, municipal projects, educational developments and religious benefits. His secretary testified that practically all of his contributions were made to local organizations.

After the Girl Scouts were granted a national charter by Congress, local councils were chartered throughout the country. The Kickapoo Council, chartered in 1951, was the locally recognized division of the national Girl Scouts organization. It was headquartered in Peoria and had regional control of a six-county geographical area, including Canton.

Up to 1959 there were several Girl Scout troops in Canton and in the surrounding areas which were collectively known as the Girl Scouts of Canton. In February 1959 the Girl Scout leaders in Canton became involved in a dispute with the Kickapoo Council. As a result they all resigned from the Girl Scouts and formed a new organization known as the Canton Council of Campfire Girls. The new group provided services and activities to the young girls in the Canton area similar to those which had been provided by the Girl Scouts. After the rift, Girl Scouts died out in Canton except for one senior troop which continued in a nearby town for a period of time. Canton girls wishing to become Girl Scouts joined troops which met in nearby towns. Between 1968 and 1973, two Girl Scouts resided in Canton and approximately 16 Girl Scouts resided in areas near Canton. After 1959, efforts to recruit Girl Scout leaders from the Canton area were unsuccessful, but the Kickapoo Council remained available to provide Girl Scout activities in Canton. No troops could operate in the area without the permission of Kickapoo Council.

During trial, the trial judge refused to admit into evidence testimony of three conversations between Girl Scout leaders and Ingersoll. Offers of proof were made as to the three conversations. At the first conversation in the early 1950's, Ingersoll stated that he would leave money to the Girl Scouts at his death and that he preferred the money to be spent in Central Illinois. Ingersoll stated at the second conversation in 1959 that he was retired and would be unable to help repair the rift between the Kickapoo Council and the local Girl Scout leaders. He was sure the rift would he healed and he still intended to leave money to the Girl Scouts. At the third conversation in 1962 Ingersoll reaffirmed his intention to benefit the Girl Scouts at his death.

At the conclusion of the trial, the trial court ruled that Ingersoll intended to benefit Canton and a local Canton organization which would provide services and benefits to the young ladies of Canton. The court found that the Campfire Girls and no other organization provided those services. Accordingly, the trial court directed the trustee to pay the share of income in question to the Canton Council of Campfire Girls.

The Kickapoo Council of Girl Scouts contends on appeal that it was the intended beneficiary of the share in question. The Canton Park District maintains that it is entitled to the share whereby under the trust it was to receive the share of any named organization which ceases to exist.

• 1 The appellee Canton Council of Campfire Girls counters by urging that we may not disturb the trial court's findings unless they are against the manifest weight of the evidence. Construction and the legal effect of an instrument, however, raise a question of law. Consequently where, as here, the material facts are not in dispute, the rule that we may set aside the findings of the trial court only when contrary to the manifest weight of the evidence has no application. (Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App.3d 317, 369 N.E.2d 525; Blackard Construction Co. v. Berry (1973), 13 Ill. App.3d 768, 300 N.E.2d 627.) Consequently, even though we disregard the excluded testimony of Ingersoll's statements of intentions to benefit the Girl Scouts, and we believe the trial court did err in excluding that testimony, we find that the instrument itself and its attendant circumstances require that the disputed share be paid to the Kickapoo Council of Girl Scouts.

• 2 The paramount concern in the construction of a trust is to ascertain the intent of the settlor and give effect to that intent insofar as it does not conflict with the law or public policy. (2416 Corp. v. First National Bank (1976), 64 Ill.2d 364, 356 N.E.2d 20; Harris Trust & Savings Bank v. Taylor (1977), 49 Ill. App.3d 349, 364 N.E.2d 349.) In ascertaining the intent of the settlor, consideration must be given to the trust instrument as a whole and the language employed therein. (American Rubber & Plastic Corp. v. First National Bank of Chicago (1971), 50 Ill.2d 172, 277 N.E.2d 840.) The words employed in the trust instrument must be given their plain and ordinary meaning. (In re Estate of Bentley (1973), 14 Ill. App.3d 630, 303 N.E.2d 166.) In determining the proper identity of a charitable beneficiary under a trust instrument, the relevant inquiry is on the ...


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