660 N.E.2d 1309 (Ill.App. 2 Dist. 1996), 2-95-0219, Espevik v. Kaye

Docket Nº:2-95-0219.
Citation:660 N.E.2d 1309, 277 Ill.App.3d 689, 214 Ill.Dec. 360
Party Name:Carol ESPEVIK, et al., Plaintiffs-Appellants and Cross-Appellees, v. Rosemary Reiner KAYE, Indiv. and as Ex'r of the Estate of Peter Paul Reiner, Deceased et al., Defendants and Counter-plaintiffs-Appellees and Cross-Appellants (Marengo State Bank, Defendant and Counterdefendant-Appellee; Dorothy Jevne, Ex'r of the Estate of Paul W. Jevne, Deceased
Case Date:January 25, 1996
Court:Court of Appeals of Illinois
 
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Page 1309

660 N.E.2d 1309 (Ill.App. 2 Dist. 1996)

277 Ill.App.3d 689, 214 Ill.Dec. 360

Carol ESPEVIK, et al., Plaintiffs-Appellants and Cross-Appellees,

v.

Rosemary Reiner KAYE, Indiv. and as Ex'r of the Estate of

Peter Paul Reiner, Deceased et al., Defendants and

Counter-plaintiffs-Appellees and Cross-Appellants (Marengo

State Bank, Defendant and Counterdefendant-Appellee;

Dorothy Jevne, Ex'r of the Estate of Paul W. Jevne,

Deceased, Counterdefendant-Cross-Appellee).

No. 2-95-0219.

Court of Appeals of Illinois, Second District.

January 25, 1996.

Rehearing Denied March 1, 1996.

Page 1310

[Copyrighted Material Omitted]

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[277 Ill.App.3d 690] [214 Ill.Dec. 362] Richard W. Eicksteadt, Pollock, Meyers, Eicksteadt & Weech, Ltd., Marengo, for Floyd Cool, John Cool, Mark Cool, Philip Cool, Richard Cool, Carol Espevik.

George Kaye, Paxton, for Gretchen Blanchette, Gloria Carr, Elizabeth Irvine, Rosemary Reiner-Kaye.

Michael E. Coppedge, Cowlin, Curran & Coppedge, Crystal Lake, for Marengo State Bank.

D. Kendall Griffith, Stephen R. Swofford, Gary W. Klages, Hinshaw & Culbertson, Chicago, for Paul W. Jevne.

James E. Berner, Caldwell, Berner & Caldwell, Woodstock, Guardian Ad Litem.

[277 Ill.App.3d 691] Justice THOMAS delivered the opinion of the court:

The plaintiffs, Carol Espevik, Floyd Cool, Mark Cool, John Cool, Philip Cool, and Richard Cool, filed a seven-count, sixth amended complaint against the defendants, Rosemary Reiner Kaye, individually and as executor of the estate of Peter Paul Reiner (Peter), Elizabeth Irvine, Gretchen Blanchette and Gloria Carr, alleging, inter alia, that the defendants wasted and mismanaged property held in a land trust by failing to pay real estate taxes on the property. The plaintiffs further sought to impose a constructive trust on the property, alleging that the defendants violated the terms of the trust by conveying trust property and refusing to hold the proceeds from the conveyance in the trust to be distributed to the plaintiffs as beneficiaries upon the death of Peter. Following cross-motions for summary judgment, the trial court granted the defendants' motion for summary judgment and dismissed the plaintiffs' complaint. The court further ordered the plaintiffs to pay the attorney fees of the guardian ad litem appointed to represent Peter in the proceedings. The plaintiffs appeal the summary judgment order and the order to pay the fees of the guardian ad litem. The defendants cross-appeal the denial of their motion for the imposition of Supreme Court Rule 137 sanctions against the plaintiffs.

On October 22, 1979, Peter and Ethel Reiner (Ethel), husband and wife, accepted the assignment of a beneficial interest in a land trust. At that time, the sole property in the trust consisted of a single parcel of land located in McHenry County, Illinois. Later,

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[214 Ill.Dec. 363] Peter and Ethel conveyed two additional parcels of land to the trust. Also on October 22, 1979, Peter and Ethel executed an amendment to the trust which provided that the "entire income, use and benefit from all of the assets" of the trust was to be held for their benefit or for the benefit of the survivor. The amendment further provided that upon their deaths the assets of the trust, if any, were to be divided in two equal parts: one-half to be divided equally between Ethel's two daughters from a former marriage, Helen Schaefer Cool and Carol Schaefer Espevik, or their heirs; the other one-half to be divided equally between Peter's four daughters from a former marriage, Elizabeth Irvine, Gretchen Blanchette, Rosemary Kaye, and Gloria Carr, or their heirs. The amendment concluded by providing that the trust could be amended while both Peter and Ethel were living, but on the death of one of them, the survivor could not alter, amend, or terminate the trust, except that the survivor had the power to direct a sale of the real estate provided "the net proceeds from the sale are held by the trustee and distributed to the provisions of this Trust."

On October 3, 1980, Ethel died. Shortly thereafter, Peter moved [277 Ill.App.3d 692] to Paxton, Illinois, to live with his daughter, Rosemary Reiner Kaye (Rosemary), and her husband, George Kaye. From that time, until his death at the age of 96, on June 18, 1990, Peter was cared for by his four daughters, the defendants in this case.

On January 6, 1982, Peter executed three warranty deeds conveying the three parcels comprising the trust to his four daughters. The deeds recited that consideration for the conveyances was the promise of lifetime care and support from his daughters. On that same day, Peter assigned his beneficial interest in the trust to his daughters. The deeds and assignment were witnessed by two neighbors, Claude Clough and Janet Clough, and then notarized. The deeds were eventually recorded on November 11, 1986. On November 27, 1987, Peter's daughters executed a document directing the trustee to execute and deliver a trustee's deed to two of the parcels.

On July 26, 1982, the circuit court of Ford County found Peter to be a disabled person and appointed Rosemary as Peter's plenary guardian of his estate and person. The plaintiffs do not claim that Peter lacked testamentary capacity at the time he...

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