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04/26/89 Ralph H. Goodpasteur, v. Bernard Allen Fried Et Al.

April 26, 1989

RALPH H. GOODPASTEUR, PETITIONER-APPELLANT

v.

BERNARD ALLEN FRIED ET AL., CO-TRUSTEES OF THE REVEREND CLARENCE H. COBBS TESTAMENTARY TRUST FUND, RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

539 N.E.2d 207, 183 Ill. App. 3d 491, 131 Ill. Dec. 854 1989.IL.603

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

Rehearing Denied June 21, 1989.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. RIZZI, J., concurs. JUSTICE McNAMARA,* Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

On May 9, 1986, plaintiff, Ralph H. Goodpasteur, filed an equitable bill of discovery and other relief seeking an order requiring defendants, Bernard Allen Fried, Gladys Holcomb, and Willa Thornton Cornelius Walker, trustees under the last will and testament of the Reverend Clarence H. Cobbs (hereinafter the Will), to provide him with an inventory of the trust fund created under the Will; an accounting showing the receipts and disbursements of the trust fund from 1981 to 1986; and an annual accounting of the trust fund. Subsequently, plaintiff filed a first amended equitable bill of discovery and other relief (hereinafter the Bill of Discovery). Although certain allegations changed in the amended pleading, the prayer for relief remained the same. On November 24, 1986, the circuit court of Cook County granted defendants' motion to dismiss the action. The court found that plaintiff is a contingent beneficiary of the trust fund and is not "entitled to an accounting unless he alleges that the trustees committed mismanagement, waste, or dissipation of the trust assets." The court ruled that the Bill of Discovery is insufficient in law because plaintiff failed to allege that the trustees dissipated or mismanaged the assets of the trust or committed waste.

On appeal, plaintiff maintains that he is not a contingent but a vested beneficiary of the trust fund *fn1 and that he is entitled to an inventory of the assets of the trust fund and a formal accounting showing the receipts and disbursements of the trust fund as a matter of law. Alternatively, plaintiff contends that a contingent beneficiary is entitled to an accounting both under the common law and pursuant to section 11 of the Trusts and Trustees Act (Ill. Rev. Stat. 1979, ch. 148, par. 111) (hereinafter the Act). Since we agree with plaintiff that he is entitled to an accounting under the Act, we must reverse the order of the circuit court.

Initially, we address defendants' contention that the circuit court was "without jurisdiction to entertain the Bill" of Discovery. Defendants acknowledge that a bill for discovery is a recognized proceeding. Defendants maintain, however, that a bill of discovery must request some relief in addition to discovery. Defendants then assert that the Bill of Discovery filed by plaintiff seeks "discovery and discovery only." We note that defendants' argument is not a true attack upon the subject matter jurisdiction of the circuit court. Rather, defendants' argument is that the Bill of Discovery filed by plaintiff is defective in that it does not contain a prayer for relief in addition to discovery. We disagree. Plaintiff is seeking an inventory of the assets of the trust and "an annual accounting of the Trust Fund as required by Section 11 of the Trust and Trustees Act," in addition to discovery.

We turn now to the merits of the case. Section 11 of the Act provides:

"Accounts. Every trustee at least annually shall furnish to the beneficiaries then entitled to receive or eligible to have the benefit of the income from the trust estate an account showing the receipts, disbursement and inventory of the trust estate." (Ill. Rev. Stat. 1979, ch. 148, par. 111.)

Plaintiff concedes that he is not entitled to receive monies from the trust fund. He argues, however, that he is eligible to have the benefit of the income from the trust and that defendants are required to give him an account of the trust. Black's defines "eligible" as "[fit] and proper to be chosen; qualified to be elected. Capable of serving, legally qualified to serve. Capable of being chosen, as a candidate for office." (Black's Law Dictionary 467 (5th ed. 1979).) Webster's definitions of "eligible" include: "fitted or qualified to be chosen or used: entitled to something; *fn2 . . . worthy to be chosen or selected." (Webster's Third New International Dictionary 736 (1981).) "'Eligible' thus expresses the idea of potentiality rather than of realization." Hughes v. Kerfoot (1953), 175 Kan. 181, 185, 263 P.2d 226, 229; see also Monroe v. Foreman (D.C. App. 1988), 540 A.2d 736.

In the present case, the testator named plaintiff as one of four beneficiaries of the trust. The Will provides that the income and principal of the trust are to be held for the benefit of the beneficiaries during their lives. The purpose of the testator was to assist these beneficiaries "in meeting their living expenses which they may be unable to pay for through their own efforts." Thus, it is clear that plaintiff is eligible to have the benefit of income from the trust. Plaintiff is one of the beneficiaries with the potential to receive income from the trust. He may be selected by defendants as a recipient of trust funds.

Defendants assert that plaintiff will not be eligible to have the benefit of income from the trust until such time as plaintiff is unable to pay his living expenses through his own efforts. Defendants thus maintain that the Will contains a condition precedent to eligibility as a member of the class of beneficiaries with the potential to receive income from the trust. We disagree. The Will may contain such a condition precedent ...


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