Green v. Gawne
| Decision Date | 15 March 1943 |
| Docket Number | No. 26956.,26956. |
| Citation | 47 N.E.2d 86,382 Ill. 363 |
| Parties | GREEN et al. v. GAWNE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; John C. Lewe, Judge.
Suit for partition by Laura G. Green and another against Thomas James Gawne, James D. Green, and another. Decree of dismissal, and plaintiffs appeal, and defendant last named cross-appeals.
Affirmed.
Charles J. Trainor, of Chicago, for appellants.
Brewer & Farrell, of Chicago (Walter Brewer and Edward J. Farrell, both of Chicago, and Otto W. Berg, of Freeport, of counsel), for cross-appellant.
Campbell, Clithero & Fischer, of Chicago (Delbert A. Clithero and Carlton L. Fischer, both of Chicago, of counsel), for appellees.
This was a proceeding in equity for partition and comes to this court from the superior court of Cook county on a direct appeal from a decree approving the master's report and dismissing the action at plaintiffs' cost. The subject matter of the suit is a number of parcels of real estate which the plaintiffs and their brother, Thomas J. Gawne, and his wife conveyed by deed in trust to James D. Green and Helga L. M. Gawne, as trustees, under a trust agreement dated May 3, 1933, together with other parcels subsequently added to the trust.
The complaint alleged that appellants and their brother, Thomas J. Gawne, were each the owner of an undivided one-third interest in specifically described real estate in Cook county; that for the purpose of the efficient handling and control of the property and in order to provide definitely for an equal division among them of the net profits, they entered into the trust agreement above mentioned.
Provisions were made in the trust agreement for the method and manner of handling the trust, and that the rents and profits should be distributed in equal parts to the three donors, Laura G. Green, Clara V. Gawne and Thomas J. Gawne; and it made provisions for future distribution of the income and corpus in case of death of the donors. In this respect the instrument provided as follows, being section 5-D: ‘Upon the death of the last surviving donor, this trust will automatically terminate upon the trustees making a complete and final settlement of said trust estate and distributing the same among the persons respectively entitled thereto as hereinabove designated.’ The instrument followed with the statement: ‘Upon the termination of said trust, the corpus thereof shall be divided as follows:’ and the distributive amounts were set forth, none of which is material here except as to the share of Clara V. Gawne. It was provided: ‘One-third thereof donated by Clara V. Gawne shall be distributed to the surviving children of the donors Laura G. Green and Thomas J. Gawne, share and share alike, that is to say that if the said Laura G. Green shall leave one child her surviving and the said Thomas J. Gawne shall leave four children him surviving, each of said children shall take a one-fifth part thereof; should any of the said beneficiaries in this paragraph referred to die leaving issue, the share of such deceased beneficiary or beneficiaries shall pass to such issue them surviving.’
The complaint further averred that the said trust agreement was not recorded; that the plan was to retain the properties in the heirs of Deniel Gawne, the father of the donors, and that each of the heirs would retain his or her respective interest therein; that the properties have remained in the control of the donors since May 3, 1933, who had the same control as prior thereto, and that the grantors had charge of operating and renting the properties and monthly turned over the proceeds to James D. Green, trustee; that an oral agreement between the parties for the control and management of the properties had been carried out in detail for seven years and that the cotrustee, Helga L. M. Gawne never participated in such management and control and, by reason thereof, Thomas J. Gawne was estopped from contending that the management and control of the properties should be otherwise; that she, Helga, had no experience in connection with real-estate management and control and took no active interest in such management and control from the date of the instrument to the filing of the suit; that a controversy arose and, as a result, Clara V. Gawne served a notice on the trustee that she was changing the disposition of her part at the termination of the trust and upon her death, under a provision of the instrument attached to the complaint marked exhibit ‘A,’ which modifying provision reads: ‘The donors shall have full power: (A) At any time, or from time to time, by an instrument in writing, delivered to the trustees during the lifetime of the respective donors, any donor herein may modify, alter, direct and control to whom his respective distributive share or shares hereinunder may be paid, provided, however, that in case of modification or amendment, the duties, powers and liabilities of the trustees shall not be changed without their written consent.’
It was alleged in the complaint that the donors never intended to alienate their interest in the said properties; that they each owned an undivided one-third equitable interest in the properties; that by reason of the cotrustee, Helga L. M. Gawne, insisting on the trust making certain payments for the benefit of her son, her total lack of experience and her long acquiescence in the management of the property without her participation, she is disqualified to act as cotrustee; that the agreement between the parties can no longer be carried out and that all the properties should be reconveyed by the trustee to the donors or their nominees.
It was requested in the complaint that the three donors be decreed to be equitable owners of the properties described in the trust agreement and all property added thereto, each an undivided one-third interest; that an account be taken, commissioners appointed to make division of the premises if it could be done without prejudice and, if not, then the usual partition sale be made; that the cotrustee, Helga L. M. Gawne be removed and that she and her husband be enjoined from interfering with the management of the properties. Helga L. M. Gawne and James D. Green were made defendants individually and as trustees, and Thomas J. Gawne was the other defendant.
Defendant James G. Green, individually and as trustee, filed answer admitting many of the allegations of the complaint, but denying that the agreement was that he was to serve for $300 a year and alleging that he was to receive reasonable compensation; admitted that he acted as trustee without the participation of his cotrustee; that the selection of agents to manage the properties was with his approval; that until a few months previous all parties had acquiesced in the manner in which the properties were managed, and that the trust instrument relied on by plaintiffs was the document under which he had been acting as trustee.
In his separate answer Thomas J. Gawne admitted the creation of a trust of the properties with James D. Green and Helga Gawne, as trustees, and the delegation of the keeping of the books to James D. Green; averred, in substance, that James D. Green had agreed to accept and had accepted $300 a year in full of his compensation as trustee; that Helga Gawne had participatedin the management of the trust, and that the purported trust agreement relied on by plaintiffs was not the genuine trust agreement executed by the parties but that the true agreement of May 3, 1933, which all the parties signed, was the original, of which his exhibit 2, attached to his answer, was a true copy. Defendant Helga Gawne's answer was, in effect, the same.
Plaintiffs' exhibit ‘A,’ above mentioned and defendant Gawne's exhibit 2, just referred to, bore the same date, were each signed by the same parties and each contained the same clause of acceptance signed by the trustees. All signatures were under seal. The only difference in the contents of the two instruments is that plaintiffs' exhibit ‘A’ contains the clause permitting a modification of the beneficiary clause hereinbefore referred to, whereby the donors were given full power ‘to modify, alter or control’ to whom his respective distributive share might be paid, whereas, defendants' exhibit 2 contained no such provision. All other provisions of the two instruments were identical in every respect.
The cause was referred to the master who, after several hearings, found that the genuine trust agreement was the one relied on by defendants, Thomas J. and Helga Gawne; that because the trust is active and not passive, plaintiffs had no such interest in the real estate as entitled them to partition; that the plaintiffs had failed to prove that Helga Gawne should be removed as trustee; and that James D. Green had agreed to and had accepted the sum of $300 a year for his compensation and was not entitled to any further compensation. The trial court approved the master's findings and report and entered a decree dismissing the complaint.
The testimony of the witnesses is in hopeless conflict on the question of which instrument constitutes the true trust indenture. James D. Green testified that the insrument relied on by plaintiffs is the only one that was ever given to him; that it is in the same condition as when he received it about May 3, 1933, and that it is the only agreement under which the trust had been executed for the past seven years. He testified that Clara Gawne had lodged with him an instrument in writing changing the payment of her distributive share upon her death from the four children of Thomas J. and Helga Gawne and James D. Green, each a one-fifth part, to all of it to be paid to the children of Laura Green, of which class he, the said James D. Green, was the only one. He also testified that he was in the office of the attorney, who drew the instrument on May 3,...
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