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12/28/88 Evelyn Mcdonnell Korten Et v. Chicago City Bank and

December 28, 1988

EVELYN MCDONNELL KORTEN ET AL., PLAINTIFFS-APPELLANTS

v.

CHICAGO CITY BANK AND TRUST COMPANY, AS TRUSTEE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

533 N.E.2d 102, 178 Ill. App. 3d 397, 127 Ill. Dec. 484 1988.IL.1887

Appeal from the Circuit Court of Cook County; the Hon. Sophia H. Hall, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiffs, Evelyn McDonnell Korten, Elaine McDonnell Solari and other beneficiaries of a trust, filed a complaint to terminate the trust by the consent of the beneficiaries. Defendant, Chicago City Bank and Trust Company, filed a motion to strike the complaint on the basis that the facts alleged in the complaint are not sufficient to allow a voluntary termination of the trust. The trial court granted defendant's motion to strike and dismissed the case. Plaintiffs appeal. We reverse and remand for further proceedings.

On a motion to strike a complaint, the well-pleaded facts are taken as true for the purpose of the motion. According to the complaint in this case, defendant is the trustee of a trust in which decedent William H. McDonnell was the settlor. The trust was created in June 1941. Article II of the trust provides:

"The purpose of this trust is to create and maintain an educational fund for the use and benefit of all of the children of my children, to-wit: EVELYN M. KORTEN, ROGER McDONNELL and ELAINE McDONNELL, that is to say, an educational fund out of which may be paid certain expenses of educating my grandchildren now living or hereafter born."

Article III of the trust provides:

"The Trust hereby created shall terminate, cease and determine twenty-one (21) years after the death of the one last surviving of the Settlor . . . and the Settlor's grandchildren now living, to-wit:

CAROL KORTEN

KATHLEEN KORTEN

MIRIAM KORTEN and

WILLIAM ...


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