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12/17/87 Merchants National Bank of v. the Old Second National

December 17, 1987

ESTATE OF JEAN MARIE DUNHAM, DECEASED, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

THE OLD SECOND NATIONAL BANK OF AURORA ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

MERCHANTS NATIONAL BANK OF AURORA, as Successor Ex'r of the

517 N.E.2d 652, 164 Ill. App. 3d 11, 115 Ill. Dec. 241 1987.IL.1863

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Merchants National Bank of Aurora (Merchants), as executor of the estate of Jean Marie Dunham, appeals from an order of the circuit court of Kane County construing the will of John Stewart Dunham. John S. Dunham's will and a codicil to the will were probated after his death on August 27, 1979. The documents provided that most of his property was to be placed in separate trusts for the benefit of each of his children. Only one trust was created, however, because he was survived by only one child, Jean Marie Dunham. Jean Marie died on April 19, 1986, at the age of 18. After Jean Marie's death, Sharon E. Dunham, who was Jean Marie's mother and the original executrix of her estate, filed suit to obtain a declaratory judgment as to the Disposition of the trust property. Merchants subsequently became the executor of Jean Marie's estate. Old Second National Bank of Aurora and Martha Schingoethe, co-trustees of the trust (Trustees), filed a separate action. The two cases were consolidated below. Other parties named in the suits were: the Aurora Foundation, a not-for-profit corporation named in John Dunham's will; John C. Dunham, the testator's father; and Wendy Ferm Gibson, the testator's half-sister.

Merchants contended that John Dunham's will did not effectively provide for the contingency that his only child would die without issue. It argued that the remaining trust assets therefore must pass as intestate property to Jean Marie's estate. Trustees and all other named parties contended that the will unequivocally directs that the remaining trust assets be distributed to the Aurora Foundation (Foundation). The trial court granted Trustees' motion for summary judgment and directed distribution of the property to the Foundation. It also awarded attorney fees to all of the parties, to be paid from trust funds. Merchants appeals, contending that the court's construction of the will is erroneous; the Trustees cross-appeal, contending that the court erred in awarding fees to Merchants.

While a court of review ordinarily will not reverse a trial court's judgment unless it finds that its decision was against the manifest weight of the evidence (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110), where the material facts are not in dispute, that standard has no application. (In re Estate of Offerman (1987), 153 Ill. App. 3d 299, 302.) And "where the evidence before the trial court is entirely documentary in nature, the appellate court is not bound by the trial court's findings and may make an independent decision on the facts." (Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129, 142.) In this case, all of the evidence presented to the trial court was documentary, and the relevant facts are undisputed. We will therefore independently analyze John Dunham's will.

Article I of the will directs the payment of debts, funeral expenses and taxes.

Article II (as amended by the codicil) bequeaths the testator's personal property to his children.

Articles III, IV and V of the will were deleted by the codicil.

Article VI (as amended by the codicil) directs payment of the residue of the estate to the Trustees with instructions that they set aside funds sufficient to satisfy the testator's financial obligations to Sharon E. Dunham, his former wife. It then contains lengthy provisions directing the creation of separate trusts for each of the testator's children into which the residue of the testator's estate should be paid. The Trustees were to make discretionary payments to each child from trust income until the child reached 25 years of age. Each child was to be permitted to withdraw up to one-third of the principal from his or her trust at the age of 25, the second one-third at the age of 30, and the final one-third at the age of 35. Upon the death of any child, the Trustees were to distribute the remaining assets of that child's trust to the testator's surviving descendants. As stated above, only one such trust was created -- for the benefit of Jean Marie Dunham. Jean Marie was the testator's sole descendant, leaving no surviving issue at her death. Article VI(6) provides:

"If any part of the gift under this Article should lapse, fail or abate at any time after my death, because neither my children nor any descendants are alive, then I give, devise and bequeath ...


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