GARY HOUGHTAYLEN, KEVIN HOUGHTAYLEN, and DAVID HOUGHTAYLEN, Plaintiffs and Counterdefendants-Appellees,
THE RUSSELL D. HOUGHTAYLEN BY-PASS TRUST; KEVIN C. McGIRR, Individually and as First Successor Trustee of the Russell D. Houghtaylen By-Pass Trust; CHICAGO LAND TRUST TITLE CO., as Trustee of Trust #1340586, successor to DeKalb Trust and Savings Bank; ST. JUDE'S CHILDREN'S HOSPITAL; ST. JOHN THE BAPTIST CATHOLIC CHURCH; ST. JOHN THE BAPTIST CEMETERY; VINCENT K. McGIRR; CONSTANCE M. BOWMAN, Individually and as Executor of the Estate of Shirley J. Houghtaylen; JEROME F. LaBOLLE; CRAIG L. McGIRR; and THE ESTATE OF SHIRLEY J. HOUGHTAYLEN, Defendants (The Russell D. Houghtaylen By-Pass Trust; Kevin C. McGirr, Individually and as First Successor Trustee of the Russell D. Houghtaylen By-Pass Trust; Vincent K. McGirr; Constance M. Bowman, Individually and as Executor of the Estate of Shirley J. Houghtaylen; Jerome F. LaBolle; and Craig L. McGirr, Defendants and Counter plaintiffs-Appellants; Chicago Land Trust Title Co., as Trustee of Trust #1340586, successor to DeKalb Trust and Savings Bank; St. Jude's Children's Hospital; St. John The Baptist Catholic Church; and St. John The Baptist Cemetery, Defendants and Counterdefendants).
from the Circuit Court of De Kalb County. No. 16-MR-90
Honorable Bradley J. Waller, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion. Presiding Justice Hudson and Justice Spence
concurred in the judgment and opinion.
1 This case presents an issue concerning appellate
jurisdiction. Plaintiffs-Gary, Kevin, and David
Houghtaylen-are brothers. Together, they own a one-half
interest in the Houghtaylen Farm, a roughly 150-acre working
farm in the city of Sandwich. Plaintiffs sued defendants-
Kevin C. McGirr, as trustee of The Russell D. Houghtaylen
By-Pass Trust; Constance M. Bowman, as executor of the Estate
of Shirley J. Houghtaylen; Chicago Land Trust Title Co.; and
additional defendants, which we need not discuss
individually-seeking the other one-half interest in the farm
after the death of Shirley Houghtaylen.
2 The relevant facts are not in dispute. The farm was deeded
into a land trust in 1970 by brothers Dean and Russell
Houghtaylen (and their respective wives). Dean was
plaintiffs' father, and Russell (also known as
"Dwight") was plaintiffs' uncle by blood.
Ultimately, plaintiffs came to inherit Dean's one-half
interest in the farm.
3 In 2003, Russell executed a revocable living (or
"bypass") trust, which provided that Russell's
interest in the land trust would be used for the benefit of
his wife, Shirley. Upon Shirley's death, the principal of
the land trust would pass to Russell's "then living
nieces and nephews" as appointed by Shirley in her will,
with specific reference to "this Power of
Appointment." Russell died in 2006, and McGirr became
the bypass-trust trustee.
4 Meanwhile, Shirley executed her will in 2003 and executed a
first codicil in 2009. At some point, when she was in her
late eighties, Shirley's copy of Russell's bypass
trust was stolen from a safe in her home, along with other
valuables. Also around this time, due to "bad blood,
" Shirley stated that she wanted to change her will.
Specifically, Shirley wanted to disinherit McGirr and most of
her remaining relatives, except for plaintiffs, because as
Shirley put it, "they never visited [her]" and
"were just after her money." Accordingly, in 2012,
Shirley executed a second codicil in which she described the
property in detail and stated her intent to give "all of
[her] interest to the Houghtaylen Farm" to plaintiffs in
equal shares upon her death. In the second section of the
codicil, Shirley stated, "I give all the residue of my
estate, but excluding all property under which I have a power
of appointment to the Trustee [of the bypass trust]."
5 Shirley died on April 21, 2015, and the executor of
Shirley's estate filed her will with the clerk of the
circuit court; however, the executor never sought to commence
probate proceedings. Subsequently, when plaintiffs sought to
take the interest to the remaining half of the farm pursuant
to Shirley's second codicil, McGirr rejected their claim
and asserted that Shirley's second codicil was
ineffective because it did not specifically refer to her
power of appointment.
6 In March 2016, plaintiffs filed a two-count complaint
against defendants. Count I of the complaint sought a
declaratory judgment that Shirley's second codicil
effectively executed her power of appointment in favor of
plaintiffs. Although labeled as a request for declaratory
relief, count I further sought an order requiring the trustee
of the land trust-Chicago Land Trust Title Co.-to transfer
Shirley's beneficial interest in the trust to plaintiffs.
Separately, count II of the complaint asked the court to
admit Shirley's will-and specifically, her second
7 The trial court held a bench trial on count I only. At that
trial, the court heard from Shirley's attorney, Kenneth
Poris, regarding the circumstances surrounding the drafting
of Shirley's second codicil and her relationship with
plaintiffs and her relatives, including McGirr. The court
also received in evidence two recordings of Shirley and Poris
discussing her intent in drafting the second codicil. In the
recording, Shirley was adamant that she wanted "the
farm, " whatever her interest in it, to go to
plaintiffs, and not to her other relatives or to
McGirr. Defendants presented no evidence.
8 In argument before the trial court, defendants primarily
relied on Yardley v. Yardley, 137 Ill.App.3d 747,
759 (1985), in which this court stated that "the failure
to mention any power where the instrument creating
the power requires 'specific reference' " is a
defect so significant that it cannot be remedied by a court.
(Emphasis added.) But, as plaintiffs pointed out in the trial
court, Yardley was distinguishable because the
residual clause in Shirley's second codicil did
mention the power of appointment. In addition, numerous cases
explain that reference to the power itself is " 'not
essential' " if there is evidence of an intent to
exercise it. Hopkins v. Fauble, 47 Ill.App.2d 263,
265 (1964); see also Funk v. Eggleston, 92 Ill. 515,
536 (1879); In re Estate of MacLeish, 35 Ill.App.3d
835, 838 (1976); Roberts v. Northern Trust Co., 550
F.Supp. 729, 735 (N.D. Ill. 1982).
9 On December 1, 2016, the trial court issued a three-page,
single-spaced memorandum opinion, in which the court
determined that the evidence of Shirley's intent was
"unequivocal" in demonstrating her desire to
transfer her interest in the farm to plaintiffs. Accordingly,
the court granted plaintiffs complete relief under count I of
their complaint. (Defendants had previously filed a counter
complaint for an accounting and partition of the farm;
however, due to the court's judgment on count I, the
counter complaint was deemed moot.)
10 This brings us to the jurisdictional issue in this case.
Under Illinois Supreme Court Rule 304(b)(1) (eff. Mar. 8,
2016), "[a] judgment or order entered in the
administration of an estate, guardianship, or similar
proceeding which finally determines a right or status of a
party" is immediately appealable. Such a judgment
must be appealed within 30 days, or within 30 days
after the entry of the order disposing of the last pending
motion directed against that judgment (Ill. S.Ct. R.
303(a)(1) (eff. Jan. 1, 2015)). See In re Estate of
Kime, 95 Ill.App.3d 262, 268 (1981) ("the time for
appeal of such orders [is] mandatory, and not
optional"). The purpose of Rule 304(b)(1) is to provide
for the prompt and efficient resolution of specific issues
during the often lengthy process of estate administration.
See In re Estate of Thorp, 282 Ill.App.3d 612, 616
(1996) (explaining that order construing will and approving
sale of farm was final and had to be appealed within 30 days
under Rule 304(b)(1)).
11 Instead of immediately appealing the trial court's
December 1, 2016, judgment under Rule 304(b)(1), defendants
filed a motion requesting an immediate-appeal ability finding
under Illinois Supreme Court Rule 304(a) (eff. Feb. 26,
2010). At no time did defendants file a motion directed
against the December 1, 2016, judgment. Ultimately,
defendants' Rule 304(a) motion was not heard until
February 10, 2017. At that hearing, the trial court explained
that it had not "willy-nilly" omitted a Rule 304(a)
finding from its December 1, 2016, judgment. Rather, the
court explained, it had believed that the judgment was
immediately appealable under Rule 304(b)(1). Without directly
responding to the court's statement, defendants asserted