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02/04/94 BERNARD BARASCH v. ALVIN BARASCH AND ALVIN

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION


February 4, 1994

BERNARD BARASCH, PLAINTIFF-APPELLANT
v.
ALVIN BARASCH AND ALVIN BARASCH, ADMINISTRATOR OF THE ESTATE OF PHILLIP J. BARASCH, DECEASED, AND COSMOPOLITAN BANK AND TRUST, AS TRUSTEE UNDER TRUST NOS. 4942, 6639, AND 21891, DEFENDANTS-APPELLEES

Appeal from the Circuit Court of Cook County. The Honorable Arthur L. Dunne, Judge Presiding. Original Opinion of December 23, 1993, Reported at:628 N.E.2d 833, Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE EGAN delivered the opinion of the court:

In his petition for rehearing, Bernard maintains that the trial Judge found that the trust agreement as a whole was not ambiguous. He also maintains that we found the trust agreement ambiguous and that, therefore, the case should be remanded for a hearing to determine the intent of Philip. That hearing would include the introduction of parol evidence. We conclude that Bernard has misread our opinion.

First, we repeat that Bernard never argued in the trial court that the agreement was ambiguous and that he should be permitted to introduce parol evidence. He himself filed a motion for summary judgment contending that there were no questions of fact. Second, we did not decide the case on an interpretation of the trust agreement. We said that we would "address only the language of the trust agreement itself and the law of gifts." (Emphasis added.) We addressed the issue of ambiguity because both parties had devoted so much of their argument to the issue. But we pointed out that "whether the trust agreement itself is ambiguous is not controlling." We decided the case on the law of gifts. The law of gifts was one of the grounds upon which the trial Judge based his decision. We discussed the case cited by Bernard, Hall v. Country Casualty Insurance Co. (1990), 204 Ill. App. 3d 765, 562 N.E.2d 640, and emphasized that donative intent is intention on the part of the donor that there be a present and irrevocable transfer of title to the subject matter of the gift and that delivery of the subject matter of the gift is the means whereby the donative intent of the donor is given effect. We relied on Hugh v. Amalgamated Trust & Savings Bank (1992), 235 Ill. App. 3d 268, 602 N.E.2d 33, 176 Ill. Dec. 726, which, in turn, relied on Pocius v. Fleck (1958), 13 Ill. 2d 420, 150 N.E.2d 106, both of which were based on an interpretation of the law of gifts. We held, as did the courts in Hugh and Pocius, as a matter of law, that donative intent had not been established because the donor still retained the power to revoke the gift. We adhere to the views we expressed in the opinion.

McNAMARA, J., and RAKOWSKI, J., concur.

19940204

© 1998 VersusLaw Inc.



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