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In Re Estate of Roberts

OPINION FILED AUGUST 25, 1981.

IN RE ESTATE OF BESSIE ROBERTS. — (THE FIRST NATIONAL BANK OF MURPHYSBORO, PLAINTIFF-APPELLEE,

v.

RONDELL GRAMMER, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Jackson County; the Hon. BILL F. GREEN, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

On May 3, 1977, Bessie Roberts entered into a trust agreement and named Rondell Grammer, defendant, as trustee. The agreement provided in pertinent part that:

"SECOND: During the lifetime of the Settlor, the Trustee shall pay the net income to the Settlor, or for the benefit of the Settlor, in quarterly installments, or shall deposit the net income to any account Settlor may designate. The Trustee shall pay to the Settlor such sums from the principal of the trust as the Settlor may direct in writing delivered to the trustee or as the trustee shall deem to be necessary or advisable for the support, maintenance, comfort, welfare, and medical, dental, hospital or similar care for the Settlor.

THIRD: If the Settlor becomes incapacitated or ill, or if in the opinion of the Trustee it is more convenient for the Settlor, the Trustee during any such period shall pay, use and expend the net income and so much of the principal as may be necessary, in the Trustee's discretion, to provide for the support, comfort, welfare, and medical, dental, hospital or similar care for the Settlor.

In determining whether to act or cease acting under this clause, the Trustee shall consult with DR. BORGSMILLER, of Murphysboro, Illinois, otherwise the physician then attending Settlor. The Trustee in making this determination under this clause may conclusively rely on a written medical opinion issued by a licensed medical doctor.

The Trustee is also authorized to arrange for convalescent care, extended care or nursing home care if the Trustee deems any such type of care is necessary and advisable for the support, comfort, maintenance, welfare, medical, dental, hospital or similar care for the Settlor.

In providing nusing [sic] home or permanent care, the Trustee shall require that any establishment, agency, or facility providing such care provide:

(a) Reasonable comfort and maintenance at the standard of living which the Settlor had maintained up to the time of admission for Settlor.

(b) Medical and nursing care of adequate quality, which covers all conditions of physical and mental infirmities attendant upon old age.

(c) The best care and comfort in all situations relating to health, medical, dental, hospital, nursing expenses and expenses of invalidism (except major hospitalization) as the Settlor would have provided.

Any income not paid for by the above purposes shall be added to the principal of the trust."

Bessie Roberts was declared incompetent by order of the Circuit Court of Jackson County, entered on February 22, 1978. The order appointed the First National Bank of Murphysboro (hereinafter the Bank) as conservator of the estate of Bessie Roberts and Rondell Grammer, the trustee, as conservator of her person.

On November 15, 1979, the Bank filed a complaint, requesting that Grammer be required (1) to account for all assets of the trust and for all transactions concerning the trust after February 22, 1978, and (2) to pay the Bank all income of the trust when received. It was never contended that Grammer had been derelict in his duties as trustee. Instead, the Bank alleged that it ...


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