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06/05/96 MICHELE NICHOLAS MUCCI v. JOHN DALE STOBBS

June 5, 1996

MICHELE NICHOLAS MUCCI, CURRENT INCOME BENEFICIARY OF THE MICHELE MUCCI AND BERNICE MUCCI, DECEASED, INTER VIVOS TRUSTS AND ESTATES, PETITIONER-APPELLEE,
v.
JOHN DALE STOBBS, TRUSTEE OF THE INTER VIVOS TRUSTS OF MICHELE MUCCI AND BERNICE MUCCI, DECEASED, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Madison County. Nos. 95-CH-318 & 95-CH-319. Honorable David Herndon, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court: Goldenhersh and Kuehn, JJ., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

John Dale Stobbs, as trustee of the inter vivos trusts of Dr. Michele Mucci and Mrs. Bernice Mucci, who are now deceased, appeals from the trial court's order removing him as trustee. On appeal, Stobbs argues that the trial court abused its discretion in ordering his removal as trustee. We affirm.

I. FACTS

The appellant, John Dale Stobbs, is a licensed attorney and a partner in the law firm of Stobbs and Sinclair. In 1989, Stobbs drafted virtually identical wills and revocable inter vivos trusts for his long-time friends, Michele and Bernice Mucci. In February 1990, Stobbs prepared a first amendment to each of the trusts. Under both the original trust and the amendment, Stobbs was appointed as the successor trustee at the deaths of both Dr. and Mrs. Mucci. Dr. Mucci died on September 7, 1990, and Mrs. Mucci died five days later. Their son, the petitioner herein, Michele Nicholas Mucci (Mucci), is currently the only beneficiary of the income and principal of the trusts.

On October 11, 1994, Mucci filed a petition to remove Stobbs as the trustee. In that petition, Mucci alleged that he had attempted to remove' Stobbs as the trustee, pursuant to section Six(A) of the trust, which provides:

"At any time or times the persons described in paragraph E may

remove any acting Trustee by written notice to such Trustee." The persons described in paragraph E are Mucci, as the current income beneficiary, and "JOHN DALE STOBBS, or the senior partner in point of service with Stobbs and Sinclair Law Firm, Alton, Illinois, or its successors in interest." Mucci alleged that he served a written "Notice to Remove Trustee" on Stobbs and his law firm on May 31, 1994, and that Stobbs refused to comply with the removal. Mucci sought to replace Stobbs with the Mark Twain Illinois Bank (the Bank) of Belleville, Illinois.

Mucci further alleged that Stobbs refused to step down as trustee, and that Stobbs based his authority to remain as trustee indefinitely upon paragraphs Six(B)and (D) of the trust, which provide:

"B. If the Trustee resigns or ceases to act, the persons described in Paragraph E shall appoint as Trustee any person, bank or trust company, wherever situated. I expressly give to my attorney, John Dale Stobbs, the power to remove any Trustee or Successor Trustee by the notice provided in Sub-section A above. Each Successor Trustee shall have the powers and discretions herein granted to its predecessor.

***

D. As often as the Trustee deems such action to be advantageous to any trust or any beneficiary it may, by written instrument, resign. The Substitute Trustee shall have all the powers and discretions of the Trustee. The Trustee may remove the Substitute Trustee at any time and reappoint itself as Trustee." (Emphasis added.)

Mucci requested the court to remove Stobbs as the trustee immediately, to order Stobbs to file an accounting with the court, to order Stobbs to turn over all assets of the trust to the Bank as successor trustee, and to construe the pertinent provisions of the trust so as not to restrict Mucci's right to appoint a successor trustee.

On November 16, 1994, Stobbs filed an answer, a motion to dismiss, and a counterclaim, which named Stobbs, "not individually, but as Trustee," as the counterpetitioner and Mucci as the counterrespondent. Count III of the counterclaim is the only count with any direct bearing on this appeal. In count III, Stobbs alleged that Mucci's attempt to remove him as trustee "was a nullity." The pertinent provisions of Stobbs's counterclaim are as follows:

"10. On or about June 1, 1994, Counter-Defendant was notified that his attempt [to remove Stobbs as the trustee] was a nullity, since the Counter-Plaintiff was the named Successor Trustee, who had exercised the power granted to remove any Successor Trustee. Pursuant to the plain and express language of the instruments creating the subject Trusts, the grantors clearly empowered Counter-Plaintiff with the unrestricted authority to remove any Successor Trustee.

***

11. Any attempt by the current income beneficiary, Nick Mucci, to remove Counter-Plaintiff, and, thereafter, name a Successor Trustee is subject and inferior to the power of the Counter-Plaintiff, to remove same."

To his counterclaim, Stobbs attached a June 1, 1994, letter from Stobbs to Mucci. The letter related Stobbs's position regarding Mucci's attempted removal, ...


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