Continental Illinois Nat. Bank & Trust Co. of Chicago v. Llewellyn

• Decision Date: 25 January 1966
• Docket Number: Gen. No. 49761,FIDELITY-PHILADELPHIA
• Citation: 67 Ill.App.2d 171,214 N.E.2d 471
• Parties: CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee under the Will of Silas J. Llewellyn, Deceased, Plaintiff-Appellee, v. Mary Isabelle LLEWELLYN et al., Defendants-Appellees. Appeal of Elizabeth Liewellyn WARNER et al., Defendants. Appeal of CONTINENTAL ILLINOIS NATIONAL BANK OF CHICAGO and Everett Stone, as Executors under the Will of Gertrude L. Stone, Deceased, Defendants. Appeal ofTRUST COMPANY, as Trustee, etc., et al., Defendants.
• Court: United States Appellate Court of Illinois

Page 471

214 N.E.2d 471

67 Ill.App.2d 171

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee under the Will of Silas J Llewellyn, Deceased, Plaintiff-Appellee, v. Mary Isabelle LLEWELLYN et al., Defendants-Appellees Appeal of Elizabeth Liewellyn WARNER et al., Defendants Appeal of CONTINENTAL ILLINOIS NATIONAL BANK OF CHICAGO and Everett Stone, as Executors under the Will of Gertrude L. Stone, Deceased, Defendants Appeal of FIDELITY-PHILADELPHIA TRUST COMPANY, as Trustee, etc., et al., Defendants.

Gen. No. 49761.

Appellate Court of Illinois, First District, Second Division.

Jan. 25, 1966.

Rehearing Denied Feb. 15, 1966.

McDermott, Will & Emery, Chicago, for Elizabeth Llewellyn Warner, Hamilton Smith & Frank J. Uvena, Chicago, of counsel.

Wilson & McIlvaine, Chicago, for Barbara Warner Fentress and Silas Llewellyn Warner, William B. McIlvaine and Clarence E. Fox, Chicago, of counsel.

William B. McIlvaine, Chicago, guardian ad litem for James Warner Fentress, Elizabeth Lyon Fentress, Blair Parkes Warner, Carol Ridgely Warner and Nina Eliot Warner, minors.

David Armstrong, Aurora, for Continental Ill. Nat. Bank of Chicago and Everett Stone, Exrs., etc., and others.

Sidley, Austin, Burgess & Smith, Chicago, for Richard Kadish, and others.

Thomas Hart Fisher and Norman Crawford, Chicago, for Fidelity-Philadelphia Trust Co., and others, Henry A. Preston and Alice M. Bright, Chicago, of counsel.

Thomas Hart Fisher and Norman Crawford, Chicago, for Fidelity-Philadelphia

Trust Co., as trustee, etc., and Esther M. Sobel, and others.

Jerold S. Solovy, Donald R. Harris, Chicago, for plaintiff-appellee, Raymond, Mayer, Jenner & Black, Chicago, of counsel,

Eckhart, McSwain, Hassell & Husum, Chicago, for defendant-appellee, Mary Isabelle Llewellyn, William A. McSwain, M. A. Palumbo, Chicago, of counsel.

Harry J. Myerson, Chicago, for defendant-appellee, guardian ad litem for William M. Valentine, a/k/a Charles Callison, a minor.

BURKE, Justice.

This complaint was filed by the Trustee under the Last Will and Testament of Silas J. Llewellyn, for the construction of the Will and for the determination of questions stated in the Trustee's original complaint and the amended and supplemental complaint.

Silas J. Llewellyn died in 1925, in Chicago, at nearly 65 years of age. He was survived by his wife, Mary E. Llewellyn, and by his three children, Paul P. Llewellyn, born September 18, 1886, Gertrude Llewellyn Stone, born July 15, 1888, and Elizabeth Llewellyn Warner, born April 20, 1899. The widow of Silas J. Llewellyn died on March 8, 1933.

Paul P. Llewellyn died January 10, 1956, survived by his only child, Mary Isabelle Llewellyn, who was born March 6, 1917. Mary Isabelle was the offspring of Paul's first marriage, to Mary Catherine Elphicke, from whom he was divorced in 1924. Paul subsequently entered three other marriages, the first two of which ended in divorce in 1937 and 1944. No children were born to Paul of any of these three subsequent marriages.

Mary Isabelle Llewellyn was married to Emil Frank in 1936 and was divorced from Frank the following year. She married Ross H. Callison in 1937 and was divorced from Callison in 1942. A child was born to Mary Isabelle in 1951, the child being called Charles Callison. Charles Callison was placed for adoption, was legally adopted under the laws of the State of Maryland, and is now known as William M. Valentine. A guardian ad litem has been appointed to represent any interest which Charles Callison may have in the Estate of Silas J. Llewellyn.

Gertrude Llewellyn Stone died April 14, 1956, survived by her husband Howard R. Stone who has since died. No children were born to Gertrude Stone during her lifetime.

Elizabeth Llewellyn Warner is presently alive and has two children, Barbara Warner Fentress, born in 1921 and Silas Warner born in 1924. Both Barbara Fentress and Silas Warner are married and have children.

At the time Silas J. Llewellyn died in 1925, he left a substantial Estate comprised of real and personal property, which he disposed of by the Last Will and Testament here in question. The dispositive provisions of the Will, executed in 1923 and admitted to probate in the Probate Court of Cook County on September 11, 1925, are as follows:

'Second: * * *

'(b) Mr Trustees shall pay one-third of the entire net income of said Trust Estate to my wife, Mary E. Llewellyn, during her lifetime, and shall pay during said period the remaining two thirds of the net income of said Trust Estate in equal shares to my children, Paul P. Llewellyn, Elizabeth Llewellyn Warner and Gertrude Llewellyn Stone, the children of a deceased child to have the parent's share, per stirpes. Such income shall be paid to my wife and children, as above provided, in either quarter-annual or monthly installments as they shall respectively determine.

'(c) Upon the death of my wife, Mary E. Llewellyn, my Trustees shall pay the entire net income from the Trust Estate to my children, Paul P. Llewellyn, Elizabeth Llewellyn Warner and Gertrude Llewellyn Stone, in equal shares, the children of a deceased child to have the parent's share per stirpes. In the event that any of my said children shall die prior to my decease, or thereafter while a portion of the Trust Estate is held for him or her, without leaving issue surviving, then the portion of the net income from the Trust Estate to which such deceased child would be entitled, if living, shall be paid in equal shares to such of my said children as shall be living, and to the children of any deceased child leaving issue surviving, the children of a deceased child to receive the parent's share per stirpes. In the event that any of my said children shall die prior to my decease, or thereafter while a portion of the Trust Estate is held for him or her, leaving issue surviving, then the Trustees shall pay the income from my Trust Estate to which such child would be entitled if living, to his or her issue, as the case may be, per stirpes, until such time as they shall attain the age of twenty-one years in the case of a son and eighteen years in the case of a daughter. Any income from my Trust Estate payable to the issue of a deceased child, as aforesaid, while such issue are under legal age may be paid by my Trustees directly to such issue from time to time or, in the discretion of said Trustees, be applied toward their support, maintenance and education until such issue shall have respectively attained the age of twenty-one years in the case of a son and eighteen years in the case of a daughter, and all payments so made shall be without liability to account therefor, either to their legal guardian or to any court of probate or otherwise.

'(d) When and as any son of a deceased child of mine reaches the age of twenty-one years, and when and as any daughter of a deceased child of mine reaches the age of eighteen years, my Trustees shall pay or transfer and assign in kind to my said grandchildren reaching such age, the portion or portions of the Trust Estate to which they are respectively entitled, the children of a deceased child of mine to receive the parent's share per stirpes and not per capita. In the event that one or more of my said children shall have died without leaving issue surviving, or if all of the issue of a deceased child shall die while part of the Trust Estate is being held for one or more of them, then the portion of the Trust Estate which the issue of said deceased child, if any, would have received if they had survived him or her, as the case may be, and had lived to the age hereinabove set forth, shall be added to the portions of the Trust Estate to be distributed among the issue of my other children, as herein provided. In the event that a child of mine shall be living at the time that his or her son shall reach the age of twenty-one years, or his or her daughter shall reach the age of eighteen years, then at the death of my said child, my Trustees shall forthwith pay or transfer and assign in kind to such son or daughter of my said deceased child who has reached such age, the portion of the Trust Estate to which he or she is entitled hereunder.'

During the years 1941 through 1950, Mary Isabelle Llewellyn executed 14 assignments involving substantially all of her remainder interests received under the Llewellyn Will. The assignments purported to be absolute sales of fractional portions of her remainder interests in the Paul P. Llewellyn and in the Gertrude Llewellyn Stone portions of the Trust Estate, which portions shall hereinafter be referred to as the 'Paul portion' and the 'Gertrude portion' respectively.

Upon the death of Paul P. Llewellyn in 1956, this complaint was filed by the City National Bank and Trust Company of Chicago, successor Trustee under the Will of Silas J. Llewellyn. The Continental Illinois National Bank and Trust Company of Chicago subsequently succeeded the City National Bank and Trust Company as Trustee under the Will, and shall hereinafter be referred to as the 'plaintiff-Trustee.' The complaint, which was amended and supplemented upon the death of Gertrude Llewellyn Stone a short while after the death of Paul P. Llewellyn, sought the determination of the following matters:

(a) Defining the nature and extent of the interest of Mary Isabelle in the trusts created by the Will of Silas J. Llewellyn;

(b) Determining whether the interest of Mary Isabelle in the trusts created by the Will are lawfully assignable, and whether and to what extent her interests have been lawfully assigned;

(c) Determining whether or not any of the assignments executed by Mary Isabelle, if valid, have priority over other assignments executed by her;

(d) Determining whether any part of the corpus of the Trust Estate created by the Will of Silas J. Llewellyn became distributable upon the death of Paul P. Llewellyn;

(e) Determining whether any share of the corpus of said trusts now...