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12/21/88 John Cross Et Al., v. Gilbert L. Perry

December 21, 1988

JOHN CROSS ET AL., PLAINTIFFS-APPELLEES

v.

GILBERT L. PERRY CROSS, DEFENDANT-APPELLANT (THE NORTHERN TRUST COMPANY, DEFENDANT-APPELLEE; DELTA UPSILON



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

Fraternity, Defendant)

532 N.E.2d 486, 177 Ill. App. 3d 588, 126 Ill. Dec. 801 1988.IL.1853

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

In April 1984, decedent Mary M. Cross died, leaving her estate in trust and granting her son David Cross a testamentary power of appointment to distribute the estate under his will to a "descendant" of Mary. In May 1984, David adopted an adult, defendant Gilbert L. Perry Cross, as his son and executed a will exercising his power of appointment in favor of defendant as the grandson and "descendant" of Mary. In March 1985, David died. Plaintiffs John and Mark Cross, Mary's nephews by marriage, filed this action seeking a declaration that they, and not defendant, are the current beneficiaries of Mary's trust. The trial court entered summary judgment in favor of plaintiffs, finding that defendant could not take as a descendant of Mary. Defendant appeals.

Counterplaintiff Northern Trust Company, as trustee under May's trust, also sought a declaratory judgment regarding Gilbert's request that the trust pay David's medical and funeral expenses. The trial court ordered the trust not to pay those expenses. On appeal, Northern Trust seeks direction regarding this issue.

On August 1, 1978, decedent executed a trust naming her son David as the principal beneficiary, and amendments were made on January 23, 1979, and July 1, 1982. David was to receive income from the trust during his lifetime. On the tenth anniversary of decedent's death, David could "withdraw any part or all of the principal in his share at any time or times." The trust granted a special and exclusive power of appointment in favor of David to distribute the trust estate through his will. Any portion not effectively appointed by David would be divided equally between plaintiffs as takers in default. The trust provided:

"Upon the death of my son if he survives me, the Trust Estate as then constituted shall be held in trust hereunder or distributed to or in Trust for such one or more of my descendants and their respective spouses and charitable, scientific or educational purposes, with such powers and in such manner and proportions as my son may appoint by his will making specific reference to this power of appointment.

Upon the death of my son any part of the Trust Estate not effectively appointed (or upon my death if my son does not survive me), the Trust Estate shall be divided into equal shares to create one share for each of my late husband's nephews, JOHN CROSS of Bonita, California, and MARK CROSS, currently residing in Indonesia, as are then living and one share for the then living descendants, collectively, of each aforementioned nephew who may then be deceased."

On April 10, 1984, decedent died. On May 9, 1984, 49-year-old David legally adopted the 36-year-old defendant as his son in a Texas proceeding. On May 18, 1984, David exercised the testamentary power of appointment in favor of defendant. On March 15, 1985, David died leaving defendant as his sole heir.

On September 26, 1985, plaintiffs filed this declaratory judgment action challenging the exercise of David's power of appointment in favor of defendant and seeking a declaration that plaintiffs were the present beneficiaries of the trust.

In October 1985, Northern Trust received a letter from defendant requesting payment from the trust of David's medical and funeral expenses. The trust provides that the trustee "may also pay to [David] such sums from the principal as the trustee deems necessary or advisable ...


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