Reiman's Estate, Matter of

• Decision Date: 08 June 1983
• Docket Number: PALM-LEI,E,No. 4-82-0674,4-82-0674
• Citation: Reiman's Estate, Matter of, 450 N.E.2d 928, 115 Ill.App.3d 879 (Ill. App. 1983)
• Parties: , 71 Ill.Dec. 240 In the Matter of the ESTATE OF Paul REIMAN, Deceased, Ilmarxecutor of the Estate of Paul Reiman, Deceased, Petitioner- Appellant, v. Asta PILL and Anna Reiman, Respondents-Appellees.
• Court: Appellate Court of Illinois

Page 928

450 N.E.2d 928

115 Ill.App.3d 879, 71 Ill.Dec. 240

In the Matter of the ESTATE OF Paul REIMAN, Deceased Ilmar PALM-LEIS, Executor of the Estate of Paul Reiman Deceased, Petitioner- Appellant, v. Asta PILL and Anna Reiman, Respondents-Appellees.

No. 4-82-0674.

Appellate Court of Illinois Fourth District.

June 8, 1983.

Walden, Cole, Ohlsen & Coryell, Decatur, for petitioner-appellant; Robert W. Ohlsen, Decatur, of counsel.

Samuels, Miller, Schroeder, Jackson & Sly, Decatur, Spitzer, Addis, Susman & Roskin, Chicago, for respondents-appellees.

TRAPP, Justice:

Petitioner Ilmar Palm-Leis, (Executor), appeals from a judgment granting summary judgment to respondents Anna Reiman and Asta Pill on their counterpetition for the construction of the last will and testament of Paul Reiman. The effect of that judgment is that most of the estate must pass through intestate succession to decedent's heirs. We affirm.

Paul Reiman died testate on January 9, 1981, leaving as his only heirs at law his mother, Anna Reiman, and his sister, Asta Pill. Each heir resides in Estonia, U.S.S.R., and was notified that Reiman's last will and testament had been admitted to probate by written notice required by section 6-10 of the Probate Act of 1975. Ill.Rev.Stat.1979, ch. 110 1/2, par. 6-10.

After the will was duly admitted to probate, Palm-Leis was awarded letters testamentary and filed a petition for will construction in the circuit court seeking a judicial determination of the effect of paragraph 4 of the last will and testament of Reiman. The will is a one-page instrument with only five operative paragraphs. Paragraph 1 provides for payment of expenses and debts by the executor; paragraphs 2 and 3 are specific bequests of $10,000 to each respondent; and paragraph 5 nominates Ilmar Palm-Leis as executor. The disputed provision, paragraph 4, provides as follows:

"4. My executor hereinafter named, shall execute and administrate this will and shall make all distributions of all my tangible and real property in accordance with the aforegoing paragraphs and the verbal guide lines last given by me, and in accord with his best judgment."

The petition for will construction prayed that paragraph 4 be construed as a general power of appointment in favor of the executor so as to avoid a partial intestacy. The heirs filed an answer to the petition, and counterpetitioned the court to declare paragraph 4 an improper testamentary disposition in violation of the statute of wills and to strike it accordingly. They then filed a motion for summary judgment praying that an order issue rejecting the construction of the executor, that the court find the verbal guidelines provision to be void and paragraph 4 an invalid trust for failing to create enforceable rights in ascertainable beneficiaries, and prayed that the residue of the estate be distributed in accordance with the law of descent and distribution. See Ill.Rev.Stat.1981, ch. 110 1/2, par. 2-1.

Before the court ruled on the motion for summary judgment, the executor filed a motion for hearing, requesting the court to take testimony on the circumstances surrounding the will's execution, including decedent's relationship with the executor, the effect of a distribution to the heirs who live behind the Iron Curtain, and decedent's relationship with his heirs at law. The trial court entered a written order granting the heirs' motion for summary judgment and denying the executor's motion for hearing. The court found paragraph 4 to be in violation of the statutory requirements for making wills and an incomplete trust since it failed to specify enforceable rights in ascertainable beneficiaries. The court explicitly rejected the executor's argument that a general power of appointment was created, finding instead that the testator's intention was to create a trust with the executor as trustee. The court ordered that the estate, except the two specific bequests, be distributed to the testator's heirs at law in accordance with Illinois law.

On appeal, the executor's central argument is that paragraph 4 created a valid testamentary general power of appointment in his favor. The heirs advance the same arguments here as below, and raise further the issue that the petitioner has no standing to prosecute this appeal as executor when the relief requested by him would benefit him individually.

No argument has been made by the executor that the direction to him to distribute in accordance with the testator's verbal guidelines as provided in paragraph 4 is a valid testamentary disposition. No such argument could, in fact, be made since it is fundamental that any disposition by way of verbal guidelines is prohibited by section 4-3 of the Probate Act of 1975. Ill.Rev.Stat.1981, ch. 110 1/2, par. 4-3. In Wagner v. Clauson (1948), 399 Ill. 403, 78 N.E.2d 203, the testatrix provided in her will for distribution "in accordance with the memorandum of instructions prepared by me and delivered to her [trustee]." The supreme court found an improper incorporation by reference since the separate document was not in existence when the will was executed, and it was not clear that the document introduced at trial was the same one referred to in the will. The court concluded that the clause at issue attempted to create a trust which failed because it lacked specificity and ordered distribution to the heirs of the testatrix. In discussing the rules for a valid incorporation by reference, the court noted:

"The law requires a will to be in writing and attested as provided by statute. As shown above, under certain conditions a separate writing may become a part of the will, if properly identified, and this constitutes no evasion of the statute on wills, requiring an attested writing, since it is considered a part of the will, to which the attested signatures are attached.

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* * * [A] bequest or devise in trust, which is subject to the testator's future directions, or directions which may be at any time changed after the execution of the will, are void unless the directions are in writing and attested in conformity with the statute on wills." 399 Ill. 403, 411, 413, 78 N.E.2d 203, 207-08.

Decedent's attempt to create an oral plan of testamentary devise by requesting the executor to follow "verbal guidelines," must fail for these reasons. On this view of things, we entertain serious doubt that the remainder of paragraph 4, could be carried out as a result of declaring void such provision, without doing violence to the testator's intention that these guidelines be followed. (Cf. In re Estate of Gerbing (1975), 61 Ill.2d 503, 337 N.E.2d 29.) Nevertheless, we will consider the executor's related argument that it was testator's intention to create a general power of appointment.

In cases involving the construction of wills, the cardinal rule of construction, to which all others yield, is to determine and to effectuate the intent of the testator so far as such is not contrary to law or public policy. (Cickyj v. Skeltinska (1981), 93 Ill.App.3d 556, 49 Ill.Dec. 9, 417 N.E.2d 699.) We agree with the executor that a partial intestacy should be guarded against (see Wise v. First National Bank in Greenville (1957), 10 Ill.2d 623, 141 N.E.2d 1; Schuyler v. Zwiep (1976), 42 Ill.App.3d 91, 355 N.E.2d 554), but point out that such a principle is a guide in the construction of a will and not an absolute principle. A review of the decisions involving powers and trusts leads to the conclusion that this court has no choice but to declare that the testator attempted to create a trust which failed for a lack of specificity.

A power of appointment is defined as an authority (as distinguished from a duty) conferred upon another (donee) by deed or will to appoint or nominate a person or persons (appointee) to receive and enjoy an estate or an income therefrom or from a fund. (Black's Law Dictionary 1054 (5th ed. 1979); Simes & Smith, The Law of Future Interests sec. 871, at 345, (2d ed. 1956); In re Estate of Schaaf (1974), 19 Ill.App.3d 662, 312 N.E.2d 348.) When a power gives the donee the right to choose anyone to enjoy the property, including the donee, a general power of appointment is created; if the appointees are restricted in some manner, a special power is created. (Schaaf.) Contrawise, a trust involves not merely a discretionary authority, but a legal relationship whereby the trustee is under a fiduciary obligation to deal with property in accordance with the instructions of the trustor for the benefit of a third party, cestui que. This distinction between the two is important for while a power is subject to a discretionary exercise, a trust creates enforceable rights against the trustee. (Schaaf; Restatement (Second) of Trusts sec. 25 (1959).) The issue at bar can be reduced to the simple question: Did the testator intend to direct the property disposition, or did he confer upon the executor a power to appoint the property at his discretion.

The executor argues that the testator did not impose any duties on him since the language of the will was merely precatory rather than mandatory. He points to the fact that testator used the words "verbal guidelines" rather than "directions" or "instructions" in paragraph 4 of the will. He argues further that indicative of the testator's desire to vest the executor with discretion is the last phrase of paragraph 4 leaving to the executor the authority to distribute "in accordance with his best judgment." In support of the executor's contention that the words are precatory, he relies on Cickyj.

In that case, the court held that language in a will providing "it is my wish and desire that my said cousin * * * mails parcels containing food, clothing, jewelry etc. to * * * [testator's relatives] * * * " was merely precatory and did not impose a duty on the executor to mail such persons the parcels of food and clothing. Compared to paragraph 4 of Reiman's will, it is...