Cross v. Cross

• Decision Date: 21 December 1988
• Docket Number: 88-1611,Nos. 88-1225,s. 88-1225
• Citation: 177 Ill.App.3d 588,532 N.E.2d 486
• Parties: , 126 Ill.Dec. 801 John CROSS and Mark Cross, Plaintiffs-Appellees, v. Gilbert L. Perry CROSS, Defendant-Appellant (The Northern Trust Company, an Illinois corporation as Trustee under the Trust of Mary M. Cross, and as Trustee under the Will of David M. Cross, Defendant-Appellee; Delta Upsilon Fraternity, an unincorporated association, Defendant).
• Court: United States Appellate Court of Illinois

Page 486

532 N.E.2d 486

177 Ill.App.3d 588, 126 Ill.Dec. 801

John CROSS and Mark Cross, Plaintiffs-Appellees, v. Gilbert L. Perry CROSS, Defendant-Appellant (The Northern Trust Company, an Illinois corporation as Trustee under the Trust of Mary M. Cross, and as Trustee under the Will of David M. Cross, Defendant-Appellee; Delta Upsilon Fraternity, an unincorporated association, Defendant).

Nos. 88-1225, 88-1611.

Appellate Court of Illinois First District, Third Division.

Dec. 21, 1988.

Richard J. Prendergast, Ltd., Michael C. Strening, Ltd., Chicago (Richard J. Prendergast, James Prendergast and Michael J. Strening, of counsel), for defendant-appellant.

Robert K. Blain Altheimer & Gray, Chicago, for plaintiffs-appellees.

Schuyler, Roche & Zwirner, Chicago, for Northern Trust Co.

Justice McNAMARA delivered the opinion of the court:

In April 1984, decedent Mary M. Cross died, leaving her estate in trust and granting her son David Cross a testamentary power of appointment to distribute the estate under his will to a "descendant" of Mary. In May 1984, David adopted an adult, defendant Gilbert L. Perry Cross as his son, and executed a will exercising his power of appointment in favor of defendant as the grandson and "descendant" of Mary. In March 1985, David died. Plaintiffs John and Mark Cross, Mary's nephews by marriage, filed this action seeking a declaration that they, and not defendant, are the current beneficiaries of Mary's trust. The trial court entered summary judgment in favor of plaintiffs, finding that defendant could not take as a descendant of Mary. Defendant appeals.

Counterplaintiff Northern Trust Company as trustee under Mary's trust, also sought a declaratory judgment regarding Gilbert's request that the trust pay David's medical and funeral expenses. The trial court ordered the trust not pay those expenses. On appeal, Northern Trust seeks direction regarding this issue.

On August 1, 1978, decedent executed a trust naming her son David as the principal beneficiary, and amendments were made on January 23, 1979 and July 1, 1982. David was to receive income from the trust during his lifetime. On the tenth anniversary of decedent's death, David could "withdraw any part or all of the principal in his share at any time or times." The trust granted a special and exclusive power of appointment in favor of David to distribute the trust estate through his will. Any portion not effectively appointed by David would be divided equally between plaintiffs as takers in default. The trust provided:

"Upon the death of my son if he survives me, the Trust Estate as then constituted shall be held in trust hereunder or distributed to or in Trust for such one or more of my descendants and their respective spouses and charitable, scientific or educational purposes, with such powers and in such manner and proportions as my son may appoint by his will making specific reference to this power of appointment.

Upon the death of my son any part of the Trust Estate not effectively appointed (or upon my death if my son does not survive me), the Trust Estate shall be divided into equal shares to create one share for each of my late husband's nephews, JOHN CROSS of Bonita, California, and MARK CROSS, currently residing in Indonesia, as are then living and one share for the then living descendants, collectively, of each aforementioned nephew who may then be deceased."

On April 10, 1984, decedent died. On May 9, 1984, 49 year old David legally adopted the 36 year old defendant as his son in a Texas proceeding. On May 18, 1984, David exercised the testamentary power of appointment in favor of defendant. On March 15, 1985, David died leaving defendant as his sole heir.

On September 26, 1985, plaintiffs filed this declaratory judgment action challenging the exercise of David's power of appointment in favor of defendant, and seeking a declaration that plaintiffs were the present beneficiaries of the trust.

In October 1985, Northern Trust received a letter from defendant requesting payment from the trust of David's medical and funeral expenses. The trust provides that the trustee "may also pay to [David] such sums from the principal as the trustee deems necessary or advisable from time to time for his health and maintenance in reasonable comfort * * *."

All parties moved for summary judgment. The trial court held that defendant was not a "descendant" of decedent and thus was not within the class of persons in whose favor David could exercise the power of appointment. The trial court entered summary judgment in favor of plaintiffs and against defendant. The court entered summary judgment in favor of Northern Trust providing that as trustee it had no obligation and should not pay David's medical or funeral expenses.

In construing Mary's testamentary instrument, this court must try to effectuate the intent of the settlor or trustee. (Daly v. Daly (1921), 299 Ill. 268, 132 N.E. 495; Ludwig v. Sommer (1964), 53 Ill.App.2d 72, 202 N.E.2d 337.) Mary limits any effective appointment to her descendants. If she had intended that David could appoint anyone he chose, the words "my descendants" would be mere surplusage. The trust instrument demonstrates that Mary intended her estate to remain in her family unless her family chose to give it to charity. Mary was aware of defendant's 17-year residence with her son and could have made him a permitted appointee, or provided for him separately in the trust. She chose not to do so, even though she twice amended the trust.

To permit David to select by "adoption" the one to take his mother's estate under the trust, when his mother clearly never contemplated such a result, would require us to completely disregard the intent of the trust language. (See, e.g., Woods v. Crump (1940), 283 Ky. 675, 142 S.W.2d 680.) While no Illinois decision has addressed the use of an adult adoption to defeat a settlor's intentions, we agree with the courts of other jurisdictions which have prohibited such a practice. The adoption of an adult solely for the purpose of making him an heir of an ancestor under the terms of a testamentary instrument known and in existence at the time of the adoption is an act of subterfuge. (See Minary v. Citizens Fidelity Bank & Trust Co. (Ky.1967), 419 S.W.2d 340.) This practice does great violence to the intent and purpose of our adoption laws, and should not be permitted. (Minary v. Citizens Fidelity Bank & Trust Co.) If there had been no trust, there would undoubtedly have been no adoption. Matter of Estate of Griswold (1976), 140...