The opinion of the court was delivered by: Moran, District Judge.
This is a declaratory judgment action in which plaintiff,
Alison Leilani Roberts ("Roberts"), seeks a determination that
her father, Robert P. Griffing ("Mr. Griffing"), by his last
will and testament, effectively exercised his testamentary
power of appointment over a marital trust established by his
late wife and Roberts' mother, Marjorie Lewis Griffing ("Mrs.
Griffing"). Defendant, The Northern Trust Company
("Northern"), which is trustee of Mrs. Griffing's trust, has
moved for judgment on the pleadings pursuant to Fed.R.Civ.P.
12(c). Defendants, Honolulu Academy of Arts, Queen's Medical
Center, and the Unborn Descendants of Alison Leilani Roberts,
all contingent remaindermen of the trust established by Mrs.
Griffing, have joined in the motion for judgment on the
On a motion for judgment on the pleadings, all well-pleaded
factual allegations in the complaint are deemed admitted, and
the only question is whether the movant is entitled to
judgment as a matter of law. For purposes of this motion,
therefore, defendants admit the following facts set forth in
Roberts' complaint and attached exhibits.
In 1963, Mrs. Griffing executed a trust agreement,
subsequently amended in 1973, under which Mr. Griffing
received a trust ("the marital trust"). Mr. Griffing was given
a testamentary general power of appointment over the corpus of
the marital trust pursuant to § 6(c) of the trust agreement:
On the death of my husband, Robert P. Griffing,
Jr., the principal of the fund named for him and
all accrued or undistributed income thereof shall
be distributed . . . as my husband may provide
and appoint by will specifically referring to
this power to appoint.
The trust agreement further provided that, in the event of Mr.
Griffing's failure to exercise his power of appointment, the
corpus of the marital trust would remain in trust for Roberts
("the daughter's trust"). Roberts would receive the income
from the trust principal unless the trustee (Northern) deemed
it advisable to accumulate the income or invade the principal
in the interest of Roberts.
Mrs. Griffing provided that Roberts would receive a special
testamentary power of appointment over the daughter's trust.
If she failed to exercise this power of appointment, the
corpus would go to her living descendants or, if there were
none, to the Honolulu Academy of Arts and the Queen's Medical
Paragraph 25 of Mrs. Griffing's trust agreement provided
that "[t]he laws of Illinois shall govern the interpretation
and validity of the provisions of this instrument and all
questions relating to the management, administration and
investment of the trusts hereby created."
Mr. Griffing died testate on August 10, 1979. He partially
exercised his power of appointment over the marital trust by
making bequests to certain individuals pursuant to the
following language in Article VIII of his will:
I give, devise, and bequeath from . . . the
Robert P. Griffing, Jr. Trust . . . under my
power to appoint as provided for by Paragraph
6(c) of the AMENDMENT TO THE TRUST AGREEMENT OF
THE MARJORIE LEWIS GRIFFING TRUST DATED April 30,
1963, amended May 21, 1973, the following amounts
to the individuals designated
Roberts was not included among the beneficiaries specified
in Article VIII. These bequests did not, however, exhaust the
available corpus of the marital trust, and in Article X of his
will, Mr. Griffing left the remainder of his estate to Roberts
I give all the remainder of my estate, and any
property over which I may possess any power of
appointment by Will or otherwise, hereinafter
called by "residuary estate", to my daughter,
ALISON LEILANI GRIFFING, absolutely, if she shall
According to ¶ 13A of the second amended complaint,*fn1 Mr.
Griffing "intended to exercise completely the power of
appointment which he had over the marital trust and thereby
terminate the marital trust," (Roberts Comp. ¶ 13A).
Northern and the other defendants contend that they are
entitled to judgment in their favor because the pleadings
conclusively show that Mr. Griffing failed to comply with one
of two requirements under Illinois law for the effective
exercise of a testamentary general power of appointment, that
is, strict compliance by the donee (here, Mr. Griffing) with
any conditions imposed by the donor of the power of
appointment (here, Mrs. Griffing). Since Mr. Griffing did not
specifically refer in Article
X of his will to the power of appointment ...