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08/30/89 Raymond P. Fischer Et Al., v. Susan M. Lafave Et Al.

August 30, 1989

RAYMOND P. FISCHER ET AL., SUCCESSOR TRUSTEES, ET AL., PETITIONERS-APPELLEES

v.

SUSAN M. LAFAVE ET AL., RESPONDENTS-APPELLEES (SCOTT G. SCHUTTLER, RESPONDENT-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 55, 188 Ill. App. 3d 16, 135 Ill. Dec. 698 1989.IL.1341

Appeal from the Circuit Court of Du Page County; the Hon. John W. Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. REINHARD and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Petitioners are successor co-trustees of four trusts created by the late Peter Schuttler (Peter) and his wife, the late Martha Braun Schuttler (Martha), who were each the settlor of separate testamentary and inter vivos trusts. Respondents-appellees are all beneficiaries or potential beneficiaries of the trusts. Petitioners brought this action seeking instructions regarding whether respondent-appellant Scott G. Schuttler (Scott) is entitled to participate in the distribution of the income and the principal of the trusts.

The trial court entered an uncontested order that Scott is entitled to participate in the distribution of the income and the principal of Martha's testamentary trust. As of the date of the filing of the notice of appeal, it does not appear that the court had disposed of the question with regard to Martha's inter vivos trust, so that claim may still be pending in the circuit court.

The trial court entered the three-page order which is the subject of this appeal on June 20, 1988. The court ordered that Scott and anyone claiming through him "be excluded from participation in the distribution of income and the principal arising out of" Peter's testamentary and inter vivos trusts. On that date the trial court also ordered:

"(1) said three page order entered this date is a final order;

(2) there is no just reason for delaying enforcement or appeal."

The case at bar is Scott's appeal from the final judgment regarding Peter's trusts. 107 Ill. 2d R. 304(a).

Peter executed a will dated December 21, 1939, and a codicil dated January 28, 1941. The provisions of the will establishing the testamentary trust included:

"(d) Said trustees shall divide the trust estate into three equal shares or portions . . .. Said portions of the trust estate shall be dealt with and disposed of as follows:

(2) Said trustees shall expend and disburse the net income from the second portion of my trust estate . . . for the benefit of my son, Peter Schuttler, Jr., for and during the term of his natural life. . . .

From and after the death of my said son . . . the net income from the second portion of my trust estate shall be paid to my said grand-children, PETER SCHUTTLER V., JOAN SCHUTTLER, and BALLARD ...


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