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04/29/88 Kenneth C. Button, v. Elmhurst National Bank

April 29, 1988





Bernhardt, Defendant-Appellant and

Cross-Appellee; The Department of Mental

Health and Developmental

Disabilities, Defendant-Appellee and


No. 2-86-0304

522 N.E.2d 1368, 169 Ill. App. 3d 28, 119 Ill. Dec. 509 1988.IL.641

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.


PRESIDING JUSTICE LINDBERG delivered the opinion of the court. WOODWARD and NASH, JJ., concur.


We filed an opinion in this case on December 10, 1987. Defendant, Beverly Button Bernhardt, filed a petition for rehearing on December 30, 1987. We granted rehearing and ordered answers and a reply pursuant to Supreme Court Rule 367 (107 Ill. 2d R. 367(d)). After consideration of the petition for rehearing, answers and reply, we withdraw our original opinion and file this new opinion in its stead.

This is an appeal from a declaratory judgment entered by the circuit court of Du Page County ordering that defendant Illinois Department of Mental Health and Developmental Disabilities be reimbursed from the trust funds of beneficiary plaintiff, Kenneth Charles Button (Kenneth), incompetent. The trial court's grant of a monthly disbursement to defendant Beverly Button Bernhardt (Beverly), Kenneth's sister, and the award of fees to her attorney are also subjects of this appeal. The issues presented on appeal are: (1) whether an individual who has been indicted for murder and has been adJudged incompetent to stand trial and, thus, never tried, may inherit from the people he allegedly murdered, prior to trial; (2) whether the circuit court erred in ordering the trustee to reimburse the DMHDD for the care and treatment of the incompetent given that the trustee had complete discretion in the administration of the trust; and (3) whether the circuit court abused its discretion in awarding monthly distributions and attorney fees to Beverly. We affirm.

Kenneth and Beverly Button were the children of Charles Leonard Button (Charles) and his wife Vienna Roberts Button (Vienna). On February 19, 1963, Charles and Vienna each duly executed a last will and testament. Vienna's will provided that her estate go to Charles, if he survived her, otherwise to Elmhurst National Bank as trustee of a testamentary trust (the trustee) contained in Charles's will "to be held, administered and disposed of in accordance with the provisions of said trust." If Vienna survived Charles, his will provided that she would get all of his "tangible personal property" and one-half of the value of his "adjusted gross estate." If Vienna did not survive Charles, her share would go with the rest of Charles's estate to the trustee. The language of the will establishing the pertinent provisions of the trust stated:


SECTION 3 : My son, KENNETH CHARLES BUTTON, has from time to time been mentally ill, and it is my primary concern that his maintenance and support be adequately provided for. I have one other child, my daughter, BEVERLY BUTTON BERNHARDT. Upon the death of my wife, or upon my death if she predeceases me, the Trustee shall hold all the Residuary Trust, as then constituted, as a single trust so long as my said son, KENNETH CHARLES BUTTON, shall be living. In the meantime, the Trustee shall use or expend and apply so much or all of the income or principal from the Trust as the Trustee deems necessary, in such a manner as it deems best, for the medical care, support, education and welfare of either child of mine. The Trustee may use the same entirely for the benefit of one of my children to the exclusion of the other and may completely exhaust the principal of the Residuary Trust for the maintenance and support of either child of mine, rather than preserve the principal for distribution upon the termination of the trust.

Upon the death of my said son, KENNETH CHARLES BUTTON, the Trustee shall pay and distribute the Residuary Trust in equal shares to my children then living, and the living lawful issue of any deceased child of mine . . ..

FIFTH : The following provisions shall apply to the Trust created under this Will:

SECTION 1 : In case the income or any discretionary payments of principal become payable to a minor or to a person under legal disability or to a person not adjudicated incompetent, but who, by reason of illness or mental or physical disability, is in the opinion of the Trustee unable properly to administer such amounts, then such amounts shall be paid out by the Trustee in such of the following ways as it deems best: (a) directly to such beneficiary; (b) to the legally appointed guardian or conservator of such beneficiary; (c) to some relative or friend for the care, support and education of such beneficiary; (d) by the Trustee, using such amounts directly for such beneficiary's care, support and education.

SECTION 2 : The interests of beneficiaries of principal or income shall not in any way during their respective lifetimes be subject to the claims of their creditors or others nor to legal process, and may not be voluntarily or involuntarily alienated or encumbered."

On July 15, 1969, Kenneth shot and killed his parents. The State's Attorney obtained grand jury indictments charging Kenneth with the murder of both of his parents. At the request of the Du Page County public defender, the circuit court ordered a psychiatric examination of Kenneth to determine his competency to stand trial. Kenneth was diagnosed as schizophrenic, paranoid type. An examining psychiatrist found that Kenneth was "totally unfit" to appreciate the charges against him.

On September 23, 1969, Anthony Curio (Curio) petitioned the circuit court to adJudge Kenneth incompetent and to appoint Curio as conservator of Kenneth's estate. The estate consisted of stock and personal property in the form of guns, pistols, sabers, swords and other arms and ammunition. The stock and personal property were sold to pay for Kenneth's expenses, such as fees for attorneys defending him as to the criminal charges, attorneys acting on behalf of Curio and Kenneth's maintenance, medical and personal expenses.

On October 1, 1969, a jury found that Kenneth was incompetent to stand trial. The trial court entered judgment on the jury's verdict and ordered that he be committed to DMHDD until he was declared competent. Since then, Kenneth's condition is unchanged and the circuit court in successive hearings regarding Kenneth's fitness to stand trial found him incompetent. Presently, Kenneth is still in the custody of DMHDD and also suffers from leukemia.

The latest hearing was on November 7, 1985, after which an order was entered finding "that the defendant, Kenneth Button, is mentally ill and because of his mental illness he is reasonably expected to inflict serious physical harm upon himself or another in the near future, and, therefore, a person subject to involuntary admission under the Illinois Mental Health Code."

In 1979 the General Assembly amended the Code of Criminal Procedure of 1963 to revise the provisions concerning persons found unfit to stand trial. The amendment required the DMHDD to prepare a report on each patient in the custody of the DMHDD who had been found incompetent prior to the effective date of the amendment. (Ill. Rev. Stat. 1981, ch. 38, pars. 104-27, 104-28.) The DMHDD diagnosed Kenneth as schizophrenic paranoid chronic and stated:

"This patient is charged with the death of his parents. Both were killed in June, 1969. He states he actually killed these two people but they were not his parents but were stepparents. He states these two people were going to send him to California to have a lobotomy. He states his own parents are alive and in Russia.

Mental Status

This patient is well developed, well nourished white male who is grandiose, delusional, and paranoid . . .. He has delusions of persecution and also grandiosity. His judgment is poor. He lacks insight into his problem. He is insistent that the facts to support his delusions have not been brought out or discovered . . .."

The report concluded that Kenneth was still unfit to stand trial and that it was highly unlikely he would ever be fit "due to the chronicity of his condition and his grandiosity."

An order was entered February 17, 1981, pursuant to section 104-23(b)(3) of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104-23(b)(3)) dismissing the murder indictment against Kenneth "with leave granted to the People to reinstate the charges in the event that the defendant is discharged from his commitment to the Department of Mental Health and Developmental Disabilities." J. Michael Fitzsimmons, the then State's Attorney for Du Page County, filed on January 6, 1984, an affidavit which stated that:

"5. [There] remains the theoretical possibility that the charges previously pending against Kenneth Button might be reinstated should KENNETH BUTTON become competent.

6. I have decided, and so state for the record, that should Mr. KENNETH BUTTON ever recover his mental faculties so as to become competent to stand trial, the decision to so prosecute and the prosecution shall be referred to the Illinois Attorney General or a Court-appointed Special Assistant State's Attorney."

On August 27, 1974, Kenneth, through Curio, filed a complaint for declaratory judgment seeking a declaration of his rights under the testamentary trust. The complaint, amended several times, requested that the trustee reimburse the DMHDD for Kenneth's maintenance, support and medical expenses and pay the fees of attorneys hired to represent Kenneth's interests. Beverly and the trustee opposed the granting of the relief requested by Kenneth on the ground that he killed his parents and, therefore, should not be allowed to inherit from the people he had killed.

On December 12, 1985, the court ordered payment to DMHDD pursuant to the Attorney General's petition for a citation against the estates of Charles and Vienna Button alleging that Kenneth was entitled to inherit from these estates, and that the DMHDD was, therefore, entitled to reimbursement. On December 23, 1985, the trustee moved to vacate the order and asked the trial court to determine the rights of Charles's and Vienna's other descendants under the trust, to set a limit on payments to the DMHDD and to define which future transactions would be subject to the court's jurisdiction.

On February 13, 1986, the circuit court held that plaintiff's estate owed the DMHDD $156,872.76 and that the trust was obligated to pay the amount. Accordingly, the court ordered the trustee to pay the DMHDD. The court also held that the trustee in its discretion could pay all usual trust expenses and charges, including attorney fees, taxes, accounting fees and other administration expenses.

On February 21, 1986, the DMHDD filed a petition for an additional award, stating that on January 1, 1986, the cost of caring for plaintiff rose from $67 per day to $86 per day. The DMHDD therefore asked the court to increase the award to the DMHDD to include the period from September 30, 1985, through February 28, 1986, and to hold that $86 is a reasonable amount for plaintiff's care and maintenance.

On March 5, 1986, Beverly filed a notice of appeal from the circuit court's order. This appeal was withdrawn on March 6, 1986, when a hearing was held to consider her petition for fees and costs. Beverly requested payment of attorney fees, costs and support from the trust of $2,500 per month. A hearing was held concerning this petition as well as the petitions for fees submitted by attorneys acting on behalf of plaintiff.

Beverly testified that she was 46 years old, divorced and the mother of three teenage children, one of whom was a freshman in college. Her former husband provides $775 per month in child support and alimony as well as the children's ...

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