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03/09/89 Katie B. Deiss, v. Merle L. Deiss

March 9, 1989

KATIE B. DEISS, PLAINTIFF-APPELLANT

v.

MERLE L. DEISS, SR., INDIV. AND AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES

RUDOLPH

v.

DEISS, JR. FARMLAND IN LOGAN COUNTY MERLE DEISS FARMLAND IN MCLEAN COUNTY



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

536 N.E.2d 120, 180 Ill. App. 3d 600, 129 Ill. Dec. 436 1989.IL.296

Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff Katie B. Deiss appeals the circuit court's order denying her petition for declaratory judgment. Plaintiff contends the inter vivos trust of which she is a codonor is void because it violates the rule against perpetuities and the circuit court's finding to the contrary is erroneous. We affirm.

Plaintiff Katie B. Deiss and her husband, Rudolph V. Deiss, established an irrevocable trust on January 29, 1969, with their son, Orville Deiss, as trustee. The corpus of this trust consists of a house in Mason City and farmland located in McLean, Logan, and Mason Counties in Illinois and farmland in Jewel County in Kansas. The trust provides that the trustee shall manage the real estate and pay the mortgages and other encumbrances on the property out of the income received from farming the property. Any net income is paid to Rudolph and Katie. The trustee is given the power to "lease and release" the real estate, including leasing the tract which the trustee then occupied to himself as well as leasing the remaining tracts to the other sons of the donors, Rudolph V. Deiss, Jr., Merle Deiss, and LeRoy Deiss. The trustee is also given the power to mortgage and remortgage the trust property.

At the first death of Rudolph and Katie, all of the income of the trust is paid to the survivor of them. Rudolph Deiss died on November 15, 1973. The trust continues until Katie's death and all of the mortgages on the trust property are paid in full. After both conditions are met, the corpus and accumulated income of the trust is divided as follows:

Orville Deiss farmland in Mason County

LeRoy Deiss house in Mason City,

Illinois, and farmland in

Kansas.

Each child of the donor receives a life estate in the property and the remainder passes to the children of each named child (grandchildren of the donors), or to his children (great-grandchildren of the donors), should a grandchild predecease his parent.

On July 1, 1987, the plaintiff filed a complaint for declaratory judgment, praying that the trust be declared void because it violates the rule against perpetuities and that the court declare that the defendants, the sons of the plaintiff as well as the present living grandchildren and great-grandchildren of the plaintiff, have no interest in ...


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