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ROBERTS v. NORTHERN TRUST CO.

March 1, 1982

ALISON LEILANI ROBERTS, PLAINTIFF,
v.
THE NORTHERN TRUST COMPANY, AS TRUSTEE OF THE MARJORIE LEWIS GRIFFING TRUST, DATED APRIL 3, 1963, HONOLULU ACADEMY OF ARTS, QUEEN'S MEDICAL CENTER, BISHOP TRUST COMPANY, LTD., AS EXECUTOR OF LAST WILL & TESTAMENT OF ROBERT P. GRIFFING, JR., AND UNBORN DESCENDANTS OF ALISON LEILANI ROBERTS, DEFENDANTS.



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

MEMORANDUM AND ORDER

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 pleadings.

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 Center.

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 as follows:

    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
  survive me.

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 ...


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