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11/04/94 FRANCES M. DAUER v. STEVE BUTERA

November 4, 1994

FRANCES M. DAUER, AND RICHARD ADELIZZI, PLAINTIFFS-APPELLANTS,
v.
STEVE BUTERA, LINDSAY ADELIZZI, JOY ADELIZZI, KIMBERLY FEENEY, LEROY BUTERA, JOSEPH BUTERA AND PAUL ADELIZZI, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD L. CURRY, JUDGE PRESIDING.

Released for Publication December 16, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Cousins, Jr., Gordon, Murray

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

This appeal arises from an action brought by Frances M. Dauer and Richard Adelizzi (plaintiffs), grandchildren of Frances Butera (decedent). Decedent left a will creating a testamentary trust for the life of her son Thomas Butera, with the remainder going to decedent's other children upon Thomas Butera's death. Steven Butera (defendant) is the trustee. Plaintiffs, heirs to deceased children of decedent, commenced an action against defendant for an accounting, removal of the trustee, appointment of a receiver, and damages. Defendant moved to dismiss, arguing that plaintiffs had no rights under the will and thus lacked standing to bring their action. The trial court granted defendant's motion and entered an order dismissing the complaint. The issue presented for review is whether the plaintiffs have standing to sue as heirs to vested remaindermen.

We reverse and remand. BACKGROUND

Testator Frances Butera died on June 17, 1966. Her testamentary trust provided, in pertinent part:

"All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever nature, character or description, the same may be, I give, devise and bequeath in trust to my daughter CORA ADELIZZI and to my sons CARL BUTERA, and STEVE BUTERA, or the survivor of them, as Trustees, to have and to hold the same subject to the following provisions, purposes, uses and conditions:

a. To collect the rents, issues and profits thereof and after deducting proper expenses, to pay over the net income therefrom to my son THOMAS BUTERA, in quarter-annual installments during the course of his natural life.

b. Upon the death of my said son Thomas Butera, or in the event that my son Thomas Butera shall fail to survive me, then, at my death, I give, devise and bequeath the residue of my estate to my daughters and sons, namely: CORA ADELIZZI, CARL BUTERA, KATHERINE MILIANTI, STEVE BUTERA, LE ROY BUTERA and JOSEPH BUTERA, to be divided equally between them, share and share alike. In the event that any of my sons or daughters shall pre-decease me, leaving lawful issue him or her surviving, then, and in that event, I give, devise and bequeath to such lawful issue, share and share alike, per stirpes and not per capita, that share of my residuary estate that such daughter or son of mine so dying would have taken if she or he had been living at the time of my death. Should any of my sons or daughters die, no child or children him or her surviving, then, in that event, his or her share of my residuary estate to which such daughter and son would otherwise have been entitled to hereunder, I give, devise and bequeath to my surviving daughters and sons, share and share alike." (Emphasis added.)

All of decedent's children survived her, and thus the underlined portion was the only part of Section (b) to be given effect. Thomas Butera (life tenant) died on December 18, 1991. Plaintiff's mother, Katherine Milianti; co-plaintiff's mother, Cora Adelizzi; and Carl Butera all predeceased the life tenant.

Defendant, decedent's son, is the trustee of decedent's testamentary trust as the sole surviving trustee named in decedent's will. On August 17, 1992, plaintiffs Dauer and Adelizzi filed a complaint primarily directed against defendant, alleging, inter alia, mismanagement and waste of trust assets and self-dealing. On August 18, 1992, plaintiffs filed a Petition for a temporary restraining order in an attempt to prohibit defendant from dealing with trust funds or assets in any manner.

Defendant moved to dismiss the petition, arguing that plaintiffs had no interest in the trust estate and, therefore, lacked standing to maintain their action. Defendant claimed the terms of the will required children of decedent to survive the life tenant to be eligible to benefit from the trust.

The trial court agreed with defendant and upon defendant's oral motion ordered the complaint to be dismissed in ...


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