First Nat. Bank of Chicago v. Canton Council of Campfire Girls, Inc.

• Decision Date: 22 May 1981
• Docket Number: No. 53339,53339
• Citation: 55 Ill.Dec. 824,426 N.E.2d 1198,85 Ill.2d 507
• Parties: , 55 Ill.Dec. 824 The FIRST NATIONAL BANK OF CHICAGO, Trustee, v. CANTON COUNCIL OF CAMPFIRE GIRLS, INC., et al., Appellees (Board of Trustees of the Canton Park District, Appellant).
• Court: Illinois Supreme Court

Page 1198

426 N.E.2d 1198

85 Ill.2d 507, 55 Ill.Dec. 824

The FIRST NATIONAL BANK OF CHICAGO, Trustee, v. CANTON COUNCIL OF CAMPFIRE GIRLS, INC., et al., Appellees (Board of Trustees of the Canton Park District, Appellant).

No. 53339.

Supreme Court of Illinois.

May 22, 1981.

Rehearing Denied Oct. 19, 1981.

Biggam, Cowan & Lunding, Chicago (Edward V. Scoby, Chicago, of counsel), for appellant.

Defrees & Fiske, Chicago, and Baymiller & Christison, Peoria (Richard E. Voland, Edward J. Griffin, Marvin S. Helfand, John K. Silk, and John M. Cregor, Jr., Chicago, of counsel), for appellee Kickapoo Council of Girl Scouts.

RYAN, Justice:

In an inter vivos trust, William Ingersoll provided that at his death certain income be paid to the Girl Scouts of Canton, Illinois. The trust also provided that the portion of the income of the trust payable to any organization that ceased to exist was to be paid to the Canton Park District. Since no Girl Scout troops met regularly in Canton at the time of Ingersoll's death, the trustee filed suit in the circuit court of Cook County, seeking instructions as to how to dispose of that share of the income. The court directed the income be paid to the Canton Council of Campfire Girls. The appellate court, with one justice dissenting, reversed and directed the income be paid to the Kickapoo Council of Girl Scouts. (81 Ill.App.3d 932, 37 Ill.Dec. 200, 401 N.E.2d 1293.) We granted the Canton Park District leave to appeal under our Rule 315 (73 Ill.2d R. 315).

The share of the income in question under the trust was to be paid to the "Girl Scouts of Canton, Illinois." As above indicated, if the organization ceased to exist, the income was payable to the Canton Park District. The trustee in its suit suggested three possible recipients as defendants: the Kickapoo Council of Girl Scouts, the Canton Council of Campfire Girls, Inc., and the board of trustees of the Canton Park District.

On May 23, 1949, Ingersoll executed his original trust agreement. Under the agreement, the settlor reserved for himself both the income from the trust during his life, as well as the power to amend the trust. Upon his death much of the income of the trust was to be divided among various charitable beneficiaries. Aware that the name ascribed to a certain charity may be a misnomer, the settlor inserted the following into the agreement:

"The Donor does not have available the correct corporate name of the organizations referred to above and has used the name by which they are commonly known in the locality which they serve. It is the Donor's intention that payments be made to the legal corporation regardless of what its name may be which is in the judgment of the trustee, commonly known by the name used herein."

On December 14, 1956, Ingersoll amended the trust. Among other changes, he added the Girl Scouts of Canton, Illinois, to the list of charitable beneficiaries. It was to receive $5,000 per year. On September 28, 1959, Ingersoll again amended the trust. He increased the amount of the gift to the Girl Scouts of Canton, Illinois, to $10,000 per year.

Between 1959 and 1967 Ingersoll amended the trust several more times. As a result, on May 31, 1967, the settlor again changed the trust and on this occasion executed a totally new trust instrument. He also changed the benefit each charity would receive from a dollar amount to a percentage of the net income of the trust. Under this instrument, the Girl Scouts of Canton, Illinois, was to receive 5% of the income. Ingersoll died in 1973.

Girl Scouting began in Canton in 1947. Until 1951 it functioned as a "lone troop," associated only with the national office of the Girl Scouts of America. In 1951, however, Girl Scouting in Canton came under the authority of a regional council. This council, the Kickapoo Council of Girl Scouts, was headquartered in Peoria. It eventually became responsible for Girl Scouting activities in a 10-county area. Girl Scouting flourished in Canton during most of the 1950's. By 1959, there were several troops in Canton, comprised of girls from Canton and surrounding areas.

In 1959, following a disagreement between Canton troop leaders and representatives of the Kickapoo Council, the Canton troop leaders, as well as the girls belonging to those troops, resigned. They then joined the Campfire Girls, establishing their own council in Canton. The Campfire Girls provides services similar to those rendered by the Girl Scouts. After this rift, Girl Scouting ceased to exist in Canton, except for one senior troop which briefly continued in a nearby town. This, too, ceased by the middle 1960's.

Since that time, Canton girls wishing to join the Girl Scouts have joined troops which met in other towns. Attempts to recruit leaders and members from Canton have been unsuccessful. The Kickapoo Council continues to have jurisdiction over Canton for any Girl Scout activities that may be instituted. There has never been an association whose legal name was the Girl Scouts of Canton, Illinois.

After a trial without a jury, the court found that through this gift Ingersoll intended to benefit the young ladies of Canton and that the jurisdiction and background of the Campfire Girls make it the only group which could achieve the settlor's intent. As a result, the trial court directed that the Campfire Girls receive the trust income.

On appeal, the appellate court reversed the circuit court, finding that the Kickapoo Council, although inactive in Canton, continued to exist as the sole legal authority for the Girl Scouts in that area. As a result, the court held it to be the sole organization entitled to the income from the trust.

The Campfire Girls has abandoned any claim to the gift and by a motion filed in this court has adopted the brief of the Canton Park District, and opposes the payment of the money to the Kickapoo Council of the Girl Scouts.

The Canton Park District contends that the organization known as the Girl Scouts of Canton, Illinois, no longer exists. It contends that Ingersoll had always had a great affinity for the people of Canton, and all but a very few of the charities to which he donated were located in Canton. The park district argues that the same intent was true regarding the Girl Scouts. He wanted the gift to go to the scouting organization in Canton, not one covering central Illinois. Since the early 1960's there has been no Girl Scout troop in Canton. As a result, the donor's intent to benefit Girl Scouts in Canton cannot be achieved. The gift over in favor of the Canton Park District, it is argued, must take effect.

The Kickapoo Council, on the other hand, argues that the appellate court was correct in awarding the share in question to it. It argues that Ingersoll made it clear in the trust that he wanted the money to go to the group commonly known as the Girl Scouts of Canton, Illinois. He did not want the fact that he was unaware of the legal name to defeat his intent. In 1956, when the Girl Scouts was first mentioned in the trust, the Canton group was already part of the Kickapoo Council. The Kickapoo Council contends that it remains the only legal entity which can satisfy the intention expressed by Ingersoll. Since it continues to exist, it is argued that the Kickapoo Council is entitled to the income.

The trial court, applying cy pres, awarded the proceeds in question to the Canton Council of Campfire Girls. Cy pres may be applied in cases involving a charitable beneficiary where the charity intended to receive a gift no longer exists, and where the settlor evidenced a general charitable intent. In such a case the court will award the gift to the charity which would most closely achieve the settlor's intent. (In re Estate of Tomlinson (1976), 65 Ill.2d 382, 389, 359 N.E.2d 109, 3 Ill.Dec. 699; Village of Hinsdale v. Chicago City Missionary Society (1940), 375 Ill. 220, 233, 30 N.E.2d 657.) This assumes, of course, that the settlor did not provide for an alternative disposal of the gift upon a failure of beneficiary. (Village of Hinsdale v. Chicago City Missionary Society (1940), 375 Ill. 220, 30 N.E.2d 657; see generally Restatement (Second) of Trusts sec. 413, at 348 (1959).) The trust provides:

"To the CANTON PARK DISTRICT, Canton, Illinois, for the general use of the Park District, Fifteen percent (15%), and the portion of the income payable to any of the above organizations which shall cease to be in existence at any time."

Thus the provisions in the trust for payment to the Canton Park District in the event an organization ceases to exist precludes the application of cy pres and the awarding of the disputed gift to the Canton Council of Campfire Girls.

The court's primary concern in construing a trust is to discover the settlor's intent, which the court will effectuate if it is not contrary to law or public policy. (2416 Corporation v. First National Bank (1976), 64 Ill.2d 364, 371, 1 Ill.Dec. 20, 356 N.E.2d 20; United States Trust Co. v. Jones (1953), 414 Ill. 265, 270, 111 N.E.2d 144.) The settlor's intent is determined as of the time the instrument is executed. See Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill.2d 124, 163 N.E.2d 523; Weir v. Leafgreen (1962), 26 Ill.2d 406, 186 N.E.2d 293; see generally 76 Am.Jur.2d Trusts sec. 17, at 266 (1975).

In construing trusts in this regard the court will apply the same rules of construction that are applicable in construing wills. (Storkan v. Ziska (1950), 406 Ill. 259, 263, 94 N.E.2d 185; see generally 76 Am.Jur.2d Trusts sec. 17, at 264 (1975); 35 Ill.L. & Prac. Trusts sec. 81, at 268 (1958).) Where an instrument has been reexecuted, the intent is determined in light of circumstances existing as of the date of the reexecution. (See generally 79 Am.Jur.2d Wills sec. 696, at 776 (1975).) In determining that intent the court must consider the plain and ordinary meaning of the words used (Bergendahl v. Stiers (1956), 8 Ill.2d 257, ...