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HAMILTON v. NIELSEN

April 13, 1981

SUSAN KEMPER HAMILTON, PLAINTIFF,
v.
ARTHUR C. NIELSEN, JR., AND AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause coming on for trial without a jury and the Court having considered the sworn testimony of the witnesses, the exhibits received in evidence, argument of counsel, the relevant authorities, and being fully advised in the premises makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52:

FINDINGS OF FACT:

1. Plaintiff, Susan Kemper Hamilton ("Plaintiff"), is a citizen of California currently residing in Switzerland.

2. Defendant, Arthur C. Nielsen, Jr. ("Nielsen"), is a resident of Illinois.

3. Defendant, American National Bank and Trust Company ("the Bank"), is a national banking association with its principal place of business in Chicago, Illinois.

4. The matter in controversy, exclusive of interest and costs, exceeds the sum of $10,000.

5. Plaintiff is one of several surviving children of Milton J. Hamilton who died on October 16, 1972, a resident of Lake County, Illinois.

6. On March 9, 1961, prior to his death, Milton J. Hamilton created an insurance trust ("the Trust") naming the Bank as trustee. By a subsequent amendment, Nielsen was named advisor to the trustee. The Trust provided that after the death of Mr. Hamilton and his mother, now both deceased, the Trust would be divided equally among five beneficiaries, one of whom is the plaintiff. The Trust authorized the trustee, subject to the authority of the advisor, to retain any property it received and to sell such property at private sale.

7. Mr. Hamilton's will was executed on September 20, 1972, and it was admitted to probate in Lake County, Illinois, on November 9, 1972. The will contained a "pour over" provision whereby the residue remaining after the payment of taxes, costs, claims, and specific legacies (hereinafter referred to as the "cash requirements") was to go to the Bank as trustee of the Trust. The will also authorized the executors to sell, retain, or invest property, or continue present investments upon such terms and in such manner as they deemed best, free from any limitations imposed by law and without order of any court. The will named the Bank and Nielsen as co-executors.

8. As co-executors, the Bank and Nielsen were responsible for meeting the estate's cash requirements out of the assets of the estate and funneling any residual assets to the Trust for the benefit of the five beneficiaries.

9. Among the assets of the Milton J. Hamilton estate were 58,718 shares of stock in Frank B. Hall and Company ("Hall"), 31,680 shares of Zenith United Corporation ("Zenith"), and a nontransferable option to acquire an additional 9,375 shares of Zenith at $2.72 per share on or before December 27, 1972. The executors exercised the option before it expired in December, 1972, when Zenith was trading at between $4 5/8 and $5.00 per share.

10. At the date of Mr. Hamilton's death, the 58,718 shares of Hall stock had a trading value of $1,548,687.25 at $26 3/8 per share.

11. During the administration of the estate, the executors made the following sales of Hall stock:

NO. OF         PRICE                             NET
DATE     SHARES         PER SHARE   COMMISSIONS      PROCEEDS
1/29/73  11,000         19 1/8        $2,750.00   $207,625.00
6/13/73   5,000         12                          60,000.00
7/17/73   5,000         13 1/4                      66,250.00
9/04/73   5,000         15                          75,000.00
2/18/75   4,700         14 5/8           775.50     67,962.00
2/18/75     300         14 7/8            49.50   ...

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