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Webbe v. First Nat'l Bank & Trust Co.

OPINION FILED DECEMBER 30, 1985.

WILLIAM E. WEBBE IV, PLAINTIFF-APPELLANT,

v.

FIRST NATIONAL BANK AND TRUST COMPANY OF BARRINGTON ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, William E. Webbe IV, appeals from an order of the circuit court which assessed against plaintiff and his share of the subject trust the attorney fees and costs incurred by defendants in defending this action. Plaintiff contends (1) the trial court improperly charged defendants' attorney fees and costs against plaintiff's share of the trust; (2) the finding of the court that plaintiff's amended complaint was untrue and his suit groundless was against the manifest weight of the evidence; and (3) the court erroneously assessed certain of defendant's fees and costs against plaintiff personally pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611).

Plaintiff is one of three grandsons of Blanche L. Webbe, who is now deceased. In 1979, when she was 90 years old, plaintiff assisted in her move from Minnesota to reside in an Illinois nursing home. She then had approximately $275,000 in assets which were transferred to defendant, First National Bank and Trust Company of Barrington, which was chosen by plaintiff to act as Mrs. Webbe's trustee. An inter vivos trust agreement was executed by Mrs. Webbe in which she was designated life beneficiary and her three adult grandsons, plaintiff and defendants, Robert and Alexander Webbe, as contingent beneficiaries. The trust was to provide income to maintain Mrs. Webbe in the nursing home and provide for her other needs.

In July 1980, and May 1981, the bank was contacted by attorney Thomas Hayward, who had been retained by plaintiff to advise as to trust matters, who stated Mrs. Webbe wished to amend the provisions of her trust to give plaintiff a larger share of the remainder. A trust officer of the bank met with Mrs. Webbe and attorney Hayward to discuss the matter; however, as she wished to avoid a family dispute, she decided not to change the terms of the trust. In September 1981, Mrs. Webbe, accompanied by plaintiff, again met with an officer of the bank and presented a handwritten document she had made and signed which stated she wished to make a gift of 588 shares of Getty Oil stock and 816 shares of Phillips Petroleum stock to plaintiff. The note was very poorly executed in uncertain handwriting which was difficult to read, and Mrs. Webbe was able to read aloud only one sentence without assistance from plaintiff. The matter was postponed that day and subsequently a bank officer discussed it with attorney Hayward, advising him the proposed gift would comprise 30% of the trust corpus which would then be insufficient for Mrs. Webbe's needs. Attorney Hayward refused to authorize the gift, and the bank declined to honor the request stated in Mrs. Webbe's note.

In 1982, plaintiff dispensed with attorney Hayward's services and retained attorney Jay Miller, who advised the bank's officers he now represented Mrs. Webbe and plaintiff. He presented documents purporting to be signed by Mrs. Webbe which would remove the bank as trustee and appoint plaintiff as successor trustee. Bank officers visited Mrs. Webbe in the nursing home to determine her wishes. She was not aware of the nature of her property or that the bank was trustee. Mrs. Webbe also did not recall she had previously lived in Minnesota or the names of her attorney or her physician. Hospital staff advised the bank officers Mrs. Webbe was out of touch with reality. As a result, the bank refused to remove itself as trustee or to tender the trust res to plaintiff.

Plaintiff commenced this action in 1982 charging the bank with breach of its fiduciary duty as trustee for failure to transfer the trust to plaintiff and with mismanagement of the trust fund. The bank answered, raising as an affirmative defense that Mrs. Webbe was not legally capable to act with regard to the trust and counterclaimed that plaintiff exercised undue influence over her. Mrs. Webbe and other grandchildren and great-grandchildren were also joined as defendants, and a guardian ad litem appointed to represent Mrs. Webbe's interests.

At the close of plaintiff's case in a bench trial, the court made a directed finding in favor of defendants. Plaintiff has not appealed from that judgment, and we consider only the orders which allowed defendants' attorney fees and costs in this litigation. That order provided, as relevant,

"3. The costs expended as shown in the several petitions are reasonable.

4. The complaint and amended complaint herein were untrue and the plaintiff knew or should have known that his suit was groundless and was brought without reasonable cause.

(5) The status of the estate is such that allowance of counsel fees and costs therefrom is appropriate.

IT IS HEREBY ORDERED that counsel fees and costs are allowed to be paid by the Bank from the corpus of the estate and shall be charged to the distributive share of the plaintiff therein, as follows:

1. To First National Bank of Barrington $34,901.39 2. To Donald T. Morrison & Associates, P.C. 5,295.65 3. To Dennis Daly 2,211.05 4. To Ned Fisher 2,063.50 5. To Vincent Lombardi 1,660.10

The fees of Dennis P. Daly, Ned L. Fisher and Vincent J. Lombardi are to be charged to trust generally.

The fees of the First National Bank of Barrington are to be charged to share of William E. ...


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