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11/24/87 George Anderson, v. Marquette National Bank Et

November 24, 1987

GEORGE ANDERSON, PLAINTIFF-APPELLANT

v.

MARQUETTE NATIONAL BANK ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

518 N.E.2d 196, 164 Ill. App. 3d 626, 115 Ill. Dec. 671 1987.IL.1737

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, George Anderson, appeals the dismissal with prejudice of his amended complaint in which he sought to set aside an amendment to an inter vivos trust created by his now deceased uncle. The original trust left Anderson 41.5% of the assets and the amendment, executed two weeks prior to death, deleted Anderson's share and instead gave it to the uncle's accountants and lawyer. The trial court dismissed the complaint as time barred under section 13-223 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-223), pursuant to defendants' motions to dismiss under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Plaintiff filed a timely notice of appeal.

A motion to dismiss admits all facts that are well pleaded (O'Fallon Development Co. v. Ring (1967), 37 Ill. 2d 84, 88, 224 N.E.2d 782), and all reasonable inferences favorable to the pleader (Bishop v. Ellsworth (1968), 91 Ill. App. 2d 386, 391, 234 N.E.2d 49). A complaint should not be stricken unless the court concludes that there is no possible set of facts in support of the allegations that would entitle the plaintiff to relief. Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305, 312 N.E.2d 259.

Applying these well-established principles, the pertinent facts are that the plaintiff is the only nephew of Martin Wiswald. Wiswald died on August 30, 1979, while a patient at the Mayo Clinic in Rochester, Minnesota. The decedent was survived by his wife, defendant Josephine Wiswald, by his sister (plaintiff's mother), and by plaintiff. Decedent had no children and no brothers or sisters other than plaintiff's mother, Clare Anderson.

Plaintiff maintained a close family relation with the decedent at all times prior to his death. At the decedent's request, plaintiff, in 1975, gave up other employment to accept employment in decedent's business, Martin Muffler Sales, Inc., in Chicago, Illinois. Plaintiff was so employed continuously to the date of Martin Wiswald's death. The decedent reposed great confidence in plaintiff and had appointed the plaintiff as treasurer of Martin Muffler Sales, Inc., which position plaintiff occupied until after decedent's death. During his childhood, plaintiff spent much of his time with his uncle because plaintiff's father was chronically ill and was hospitalized for extended periods. The decedent looked after his only nephew as a surrogate father would, and at all times decedent was concerned for the welfare and economic security of the plaintiff.

On repeated occasions, decedent informed and assured his sister, Clare Anderson, plaintiff's mother, that he had made provisions for the plaintiff in his will and trust, specifying that plaintiff would not receive his share until age 35. Plaintiff is over 35 years of age at this time.

On January 21, 1977, Martin Wiswald and defendant Marquette National Bank executed a "Living Trust Agreement" identified as trust No. 7633. By the terms of the original trust, after a life income to his wife, defendant Josephine Wiswald, the settlor, Martin Wiswald, left 41.5% of the remainder to plaintiff, to be distributed to plaintiff after the death of Josephine Wiswald and upon plaintiff's attaining age 35.

Approximately four months later, on May 16, 1977, Wiswald executed his last will and testament in California as a resident of that State. By the terms of his will, the bulk of Wiswald's estate "poured over" into the Marquette National Bank trust No. 7633.

Two-and-a-quarter years later, on or about August 15, 1979, Wiswald was a patient at the Mayo Clinic in Minnesota. He was gravely ill, under medication, and maintained by artificial life support systems. Allegedly, while in this condition, Wiswald lacked mental capacity and was under the influence of certain defendants. Plaintiff's complaint alleges that Wiswald was wrongfully induced to execute a one-page document on accountant's columnar paper, which in hand-printed words and figures divests plaintiff of his entire beneficial interest in trust No. 7633 and divests defendant Jack Weber of his entire beneficial interest. This document, dated August 15, 1979, is incorporated into the pleadings. It redistributes Weber's and plaintiff's shares to other defendants. This purported amendment to the living trust agreement dated January 21, 1977, was prepared by either or both of Wiswald's accountants, who initiated, solicited and procured its execution. This amendment was accepted by defendant Marquette National Bank on August 20, 1979.

On January 21, 1977, when Martin Wiswald created the inter vivos trust, he designated the following beneficiaries:

Jack Weber (employee of

Wiswald's company): 10%

Bonnie Stevens (employee

of his accountants): 2%

Max Dunn, Wiswald's personal

and business attorney: 5%

Norman Diamond, ...


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