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10/29/87 Thomas v. Jones

October 29, 1987

THOMAS

v.

JONES, JR., ET AL., PLAINTIFFS-APPELLANTS,

v.

HERITAGE PULLMAN BANK AND TRUST COMPANY, F/K/A PULLMAN BANK AND TRUST COMPANY, EX'R OF THE WILL OF MARGARET



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Daniel, Deceased, et al, Defendants-Appellees

518 N.E.2d 178, 164 Ill. App. 3d 596, 115 Ill. Dec. 653 1987.IL.1602

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. LINN and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This appeal involves the construction of a testamentary trust created by the will of the decedent, Margaret Daniel. The will directed the trustee, Heritage Pullman Bank and Trust Company (Heritage), to sell the decedent's nine-unit apartment building, invest the proceeds from the sale and pay annuities to certain of the plaintiffs, who are beneficiaries of the trust. Instead of selling the apartment building, Heritage retained and operated it for 19 years, reinvesting the income from the property into the trust. The plaintiffs brought this action against Heritage alleging that the failure to sell the building constituted a breach of Heritage's duty to administer the trust according to its terms. The plaintiffs also asked the trial court to construe the trust in a manner which would permit one of the beneficiaries, Thomas V. Jones, Jr., to receive income from the trust in addition to his stated annuity. The trial court found that there was no breach of fiduciary duty, refused the request by Thomas V. Jones, Jr., to receive additional income from the trust and awarded Heritage costs and attorney fees to be charged against the trust. The plaintiffs have appealed, contending that the judgment was against the manifest weight of the evidence. On its own motion, this court appointed Patrick Murphy, the Cook County public guardian, to represent the minor and unborn children of Thomas V. Jones, Jr., in this appeal.

The specific issues raised in this appeal are: (1) whether the trial court erred in finding that the decedent's direction to Heritage to sell the building "as soon as conveniently may be" gave Heritage discretion to retain the building for 19 years; (2) whether Heritage properly accumulated and reinvested the income from the trust property rather than paying the income to Thomas V. Jones, Jr.; (3) whether the trial court erred in finding that Heritage's failure to sell the building sooner and invest the proceeds resulted in damage to the value of the trust; (4) whether the plaintiffs are entitled to have Heritage removed as trustee and surcharged for all compensation it received for administering the trust; and (5) whether the trial court erred in awarding Heritage attorney fees from the trust estate and in awarding the plaintiffs an inadequate amount for attorney fees and litigation expenses.

For several years prior to her death, Margaret Daniel owned and lived in an apartment building located at 436-440 East 72nd Street in Chicago. When her health began to fail, her niece, Betty Jean Jones, moved into Daniel's apartment to care for her. Margaret Daniel died testate on October 26, 1967. Heritage received title to the apartment building as executor of her estate and was named trustee of a testamentary trust created by the will. The provisions of the will which are pertinent to this appeal are as follows:

"I direct my Trustee to convert all of the assets of my estate into cash as soon after my death as conveniently may be, by selling all of my assets at public or private sale; said cash is to be deposited in savings or investment accounts in banks or savings and loan associations located in the City of Chicago.

Beginning one month from the date of my death, I direct my Trustee to pay over from the principal to the following persons, during their lifetime or until the Trust Res is depleted, the sums set forth:

TO -- my niece, BETTY JEAN JONES, of Chicago, Illinois, $200.00 per month.

TO -- my nephew, JOHN A. BARNES, JR., of Chicago, Illinois, $100.00 per month.

TO -- my grand-nephew, THOMAS V. JONES , of Chicago, Illinois, ...


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