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Chicago Title & Trust Co. v. Schwartz

OPINION FILED DECEMBER 19, 1983.

CHICAGO TITLE AND TRUST COMPANY, SUCCESSOR-TRUSTEE UNDER THE WILL OF ERNESTINE C. O'BRIEN, PLAINTIFF-APPELLEE,

v.

JEAN SCHWARTZ, DEFENDANT-APPELLANT — (WALTER SERABIAN ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. John F. Hechinger, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Plaintiff, Chicago Title and Trust Company as successor-trustee under the will of Ernestine C. O'Brien, filed an action in the circuit court of Cook County against defendants, Jean Schwartz Cochrane (formerly Jean Schwartz), Walter M. Serabian and various charities seeking construction of the testamentary trust provisions of Mrs. O'Brien's will. Cross-motions for summary judgment, seeking different constructions of the will, were filed by the various defendants.

On August 20, 1982, the court entered an order denying Jean Cochrane's motion and granted Walter Serabian's motion for summary judgment. The trial court found that there is an ambiguity in the will of Ernestine C. O'Brien and that Walter Serabian is entitled to be paid during his life the entire net income of the trust estate including income accrued since his mother's death. Upon his death, Jean Cochrane shall receive the net income of the trust. Upon her death, or Walter Serabian's death if she predeceases him, the trust shall be distributed according to its terms to three designated charities.

On appeal, Jean Schwartz Cochrane (appellant) contends that the trial court's construction of the testamentary trust provisions is erroneous in that the entire net trust income accumulated after Virginia Serabian's death should be paid to appellant during her lifetime. None of the charities appeal from the order of August 20, 1982. Chicago Title and Trust Company joins Walter Serabian (appellee) in urging this court to affirm the order.

We affirm.

Ernestine O'Brien died on January 26, 1935, survived by her two daughters, Virginia Serabian (formerly Virginia Pauline McShane) and Marjorie Ruth Lumley (formerly Marjorie Ruth Petersen). The daughters received the income from a trust established under the testator's will. In 1973, Marjorie died childless and the trustee paid the entire income to the other daughter. These payments are not disputed. Six years later, Virginia died. She was survived by her son, Walter.

Thereafter, Chicago Title and Trust Company filed an action seeking construction of the following distributive provisions of Mrs. O'Brien's will:

"SECTION 9: I give, devise and bequeath unto my friend, HARRY O'CONNELL, as Trustee, and to his successors in trust, all the remaining estate and property of all kinds, real, personal and mixed, and of every kind and nature wherever situated, belonging to me at the time of my death, or over which I may have power of disposition, in trust, for and upon the following trusts, purposes and conditions, to-wit:

(a) The entire net income from the Trust Estate commencing at the time of my death shall be paid to my daughters, VIRGINIA PAULINE McSHANE and MARJORIE RUTH PETERSEN, share and share alike in convenient installments during their life-time.

(b) Upon the death of either of my said children, the share of my estate being held under the provision aforesaid for such child so dying shall be distributed to such child's issue, if any, and if there be no issue, then the entire net income from this estate shall be paid to my surviving daughter.

(c) Upon the death of the survivor, the entire net income from this Trust Estate shall be paid to my nieces hereinabove named, MURIEL SCHWARTZ and JEAN SCHWARTZ, share and share alike.

(d) Upon the death of either of my said nieces named in the preceding paragraph, the entire income from this estate shall be paid to the survivor.

(e) Upon the death of the surviving niece, the entire principal of this trust estate shall be paid and distributed to the following named ...


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