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09/06/88 Herbert Trackman Et Al., v. Philip E. Ringer

September 6, 1988

HERBERT TRACKMAN ET AL., PLAINTIFFS-APPELLANTS

v.

PHILIP E. RINGER, AS TRUSTEE, DEFENDANT AND APPELLEE AND COUNTERDEFENDANT-APPELLEE AND COUNTERCLAIMANT-APPELLEE (HERBERT TRACKMAN ET



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

al., Counterdefendants; Lynnor E. Rubens,

as Personal Representative under

the Will of Jack N. Rubens,

Deceased, and Indiv.,

Counterclaimant-Appellee)

No. 87-2019

529 N.E.2d 647, 174 Ill. App. 3d 1093, 124 Ill. Dec. 666 1988.IL.1345

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. STAMOS* and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiffs-appellants Herbert Trackman (Herbert), Louis Trackman (Louis), Milton Gross (Milton), and Shirley Gross Berlinsky (Shirley) (collectively plaintiffs) brought this action against defendant-appellant Philip E. Ringer (Ringer) to compel Ringer, as surviving trustee of the testamentary trust created in article second of the will dated October 7, 1960, of Lillian Jean Rubens, to convey the property of that testamentary trust to plaintiffs. Lynnor Rubens, a potential competing claimant for the same property, was not named as a defendant in plaintiff's action. Therefore, Ringer filed a counterclaim against plaintiffs and against Lynnor, individually and as personal representative of her late husband, Jack N. Rubens. Ringer alleged the conflicting interests of plaintiffs and Lynnor and asked the court for direction. Lynnor filed a counterclaim against Ringer seeking a declaration that she was entitled to the trust property subject to the payment of income for life to two of the plaintiffs, Herbert and Louis, and for other relief.

The sole issue involved was whether the late Jack N. Rubens, the only child of the testator, Lillian Jean Rubens, had a vested remainder in two separate 10% portions of the trust created under his mother's will. If Jack had a vested remainder, then Lynnor, as his widow, rather than plaintiffs, would be entitled to the trust property.

The trial court found in favor of Lynnor on her motion for partial judgment on the pleadings. At the same time, the court denied plaintiffs' motion for judgment on the pleadings or for summary judgment.

Because of the limitations inherent in these motions, there is no issue of fact. (Egan v. Steel (1985), 137 Ill. App. 3d 539, 485 N.E.2d 22; Tompkins v. France (1959), 21 Ill. App. 2d 227, 157 N.E.2d 799.) Therefore, both plaintiffs and Lynnor admit the meaning of the will is clear on its face, there is no ambiguity, and the "four corners of the document" show the dispositive intent of the testator, Lillian Jean Rubens.

In her last will and testament, Lillian Jean Rubens (hereinafter Settlor) exercised a power of appointment by creating four trusts. The first three were designated Trust A, Trust B and Trust C. Each of those trusts was to contain 10% of the Settlor's trust estate. The fourth part, Trust D, was to contain 70% of her trust estate.

The will directs the trustees to dispose of Trust A by paying $5,000 to the Settlor's sister, Mae Gross, out of the principal of Trust A. The income from the balance of Trust A was to be paid to Mae Gross, in convenient installments, during her lifetime. On her death, the principal was to be paid to Mae's son, Leon. If Leon was not then alive, it was to be "added to Trust D and disposed of as if the same had been a part of Trust D from the inception."

Mae Gross died in 1983, 22 years after the Settlor's death. One of her sons, Leon, predeceased her. She was survived by two children, plaintiffs Milton Gross and Shirley Gross Berlinsky. Following Mae's death, the principal of Trust ...


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