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Exchange National Bank v. Harris





Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.


This appeal involves the issue of whether the chancery division of the circuit court of Cook County properly denied plaintiff's request for injunctive relief. Plaintiff sought to restrain defendants from distributing any portion of decedent's trust pending resolution of plaintiff's two law division cases in which decedent was named as a party defendant.

Plaintiff Exchange National Bank of Chicago, in January 1983, filed two suits in the circuit court of Cook County, law division, one against Wilmette Partners and the second suit against Kenton Court Partnership to enforce payment on loans which plaintiff had made to two general partnerships. Decedent Maurice Harris, who died October 29, 1981, was a partner in both entities, and was alleged to be jointly and severally liable. His estate was named as one of the party defendants in the proceedings. The aggregate amount on the promissory notes owing to plaintiff was in excess of $800,000. The notes were executed by decedent and other partners in the two general partnerships.

During a deposition of Brian Harris, the executor of the estate of Maurice Harris, plaintiff discovered that decedent had executed a revocable trust agreement on April 1, 1976. In this agreement, decedent and his wife, Jeanette Harris, were named as co-trustees. Brian Harris, son of Maurice Harris, was appointed as successor trustee upon the death of Maurice. Article IV of the agreement provided, in paragraph 4.1, that:

"4.1 Debts, Taxes and Treasury Bonds. Upon the death of the Grantor, the Trustee shall, to the extent that the assets of the Grantor's estate (other than tangible personal property, property or sums specifically bequeathed or devised or property which in the sole judgment of the Trustee does not have a readily realizable market value) shall be insufficient, pay the Grantor's funeral expenses, legally enforceable claims against the Grantor or his estate, reasonable expenses of administration of his estate, * * *." (Emphasis added.)

Article III of the agreement provided for the creation of a marital trust upon the grantor's death, and paragraph 3.7 states:

"3.7 Principal. The Trustee is hereby authorized to distribute to the Grantor's wife, at any time and from time to time during her lifetime, all or as much of the principal of the Marital Trust as the Trustee deems to be in her best interests."

The amount allocated to the marital trust was to be one-half of the value of the grantor's estate as finally determined for Federal estate tax purposes, less any amount which equals the value of all property and interests in property which had passed to the grantor's wife by operation of the trust terms, the grantor's will, insurance contracts, or otherwise.

In the section dealing with the residuary trust, article IV, the following provision was included:

"4.5 Principal. The Trustee is hereby authorized to distribute to any one or more of the beneficiaries of the Residuary Trust, at any time and from time to time during their lifetimes, all or as much of the principal of such trust as the Trustee deems to be in the best interests of said beneficiaries; provided, however, that the Trustee shall make no distribution to the Grantor's wife of principal from the Residuary Trust until the trust estate of the Marital Trust shall be exhausted."

Plaintiff learned from the inventory filed by decedent's executor that the estate assets would be insufficient to pay the debts owed to plaintiff. According to the Illinois inheritance tax return, however, the trust has a corpus in excess of $1 million. In view of this knowledge, plaintiff initiated this lawsuit in the chancery division against defendants, co-trustees Jeanette Harris and Brian Harris.

Alleging that "[u]nless restrained and enjoined by this Court, pending the entry of final judgments in the Law Actions, defendant trustees, pursuant to provisions of the trust are able to jeopardize plaintiff's ability to enforce payment against the Trust of the said indebtedness owing to it, by distributing and depleting the entire corpus of the trust which would thereby undermine and destroy the value of any judgments entered in favor of plaintiff in the Law Actions," plaintiff claimed it would suffer irreparable harm unless the status quo was preserved by entry of injunctive relief. Plaintiff therefore requested that a temporary restraining order (Ill. Rev. Stat. 1979, ch. 69, par. 3-1) or a preliminary injunction (Ill. Rev. Stat. 1979, ch. 69, par. 3) be issued against defendants, prohibiting them from distributing all or any portion of the income and principal of the Maurice Harris Revocable Trust.

Defendants filed a motion to dismiss in which they claimed that plaintiff did not have a reasonable likelihood of success on the merits, since it failed to file a notice of claim against the estate within the six-month statutory period mandated in the Probate Act (Ill. Rev. State 1979, ch. 110 1/2, par. 18-12); that equity would not afford the relief being requested, since "equitable attachment" is abhorrent to the principles of equitable jurisdiction; that the trust only established, at best, a "guarantee of collection" and not a "guarantee of payment," and thus plaintiff had no current right against the trust; that because the two law division cases are against other individuals in addition to decedent, it was probable that plaintiff's claims would be satisfied without the estate's assets; and because plaintiff was not a third-party beneficiary to the trust agreement, it lacked standing to bring the action. Defendants further argued that plaintiff failed to establish the criteria needed to justify the grant of injunctive relief.

The trial court granted defendants' motion to dismiss, stating that "[t]his amounts to an equitable attachment, as far as I am concerned." It is from ...

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