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McCarther v. Northwestern University

July 13, 2000

IN RE ESTATE OF ELIZABETH B. LIND, DECEASED (JAMES B. ) MCCARTER, PETITIONER-APPELLANT,
v.
NORTHWESTERN UNIVERSITY, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, No. 98--P--403

The opinion of the court was delivered by: Presiding Justice Slater

Honorable Sheldon Reagan, Judge, Presiding.

James McCarter, the residuary legatee under the will of Elizabeth Lind, petitioned the trial court to declare that Lind's bequest to "Northwestern University Dental School of Chicago, Illinois" had lapsed. On the motion of Northwestern University (the University) for summary judgment, the trial court denied McCarter's petition. On appeal, McCarter contends that the bequest lapsed because the University's Board of Trustees (the Board of Trustees) had resolved to close its dental school prior to Lind's death. For the reasons that follow, we affirm.

In 1990, Elizabeth Lind executed her will. In article II of the will, Lind bequeaths certain stocks, bonds, and other investments to "Northwestern University Dental School of Chicago, Illinois." In article V, Lind names her cousin, James McCarter, to take the residue of her estate.

On March 2, 1998, the Board of Trustees passed a resolution which provides, in pertinent part, as follows:

"RESOLVED, that the School of Dentistry be closed effective December 31, 2001;

FURTHER RESOLVED, that the Officers of Administration be, and they are hereby, authorized and directed to take all steps necessary or reasonably required to accomplish the closure of the School of Dentistry, including transfer of such research programs as may be effectively continued in other colleges and schools of the University;

FURTHER RESOLVED, that, effective January 1, 2002, Article IV, section 1[,] of the University Statutes be amended to delete the School of Dentistry from the list of the Colleges and Schools of the University."

Lind died on November 12, 1998. Her will was admitted to probate. Subsequently, McCarter filed a petition seeking a declaration that the bequest to the dental school had lapsed. In particular, McCarter supported this conclusion by alleging that the Board of Trustees had voted to "shut down" the dental school and that the dental school was either unable or unwilling to accept the bequest.

The University filed a motion for summary judgment contending the following:

(1) that its dental school existed on the date of Lind's death; (2) that the University was able to receive gifts on behalf of its dental school on that date; and (3) that Lind's gift vested at the time of her death. Attached to the motion is an affidavit of John Margolis, the University's then acting provost.

In his affidavit, Margolis avers:

(1) that the University created the dental school; (2) that, although the dental school is no longer admitting new students, the school will remain operational until December 31, 2001; and (3) that the University is able and willing to accept Lind's bequest on behalf of the dental school.

Also attached to the University's motion is a copy of its 1851 charter, an act of the General Assembly incorporating the University. The charter confers upon the University the power "to acquire, hold and convey property, real, personal, or mixed, in all lawful ways ***." In addition, the charter creates the Board of Trustees and empowers it to enact by-laws for the University. A copy of the by-laws enacted by the Board ...


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