Stoxen v. Stoxen

• Citation: 6 Ill.App.3d 445,285 N.E.2d 198
• Decision Date: 11 July 1972
• Docket Number: No. 71--199,71--199
• Parties: Genevieve STOXEN, Plaintiff-Appellant, v. Paul STOXEN, Executor of the Estate of Roy C. Stoxen, Deceased, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 198

285 N.E.2d 198

6 Ill.App.3d 445

Genevieve STOXEN, Plaintiff-Appellant, v. Paul STOXEN, Executor of the Estate of Roy C. Stoxen Deceased, et al., Defendants-Appellees.

No. 71--199.

Appellate Court of Illinois, Second District.

July 11, 1972.

George D. Carbary, Carbary, Carbary & Chapski, Gene L. Nottolini, Elgin, for plaintiff-appellant.

Geister, Schnell, Richards & Brown, Elgin, for defendants-appellees.

THOMAS J. MORAN, Justice.

This appeal arises from an order striking the plaintiff's amended complaint for failure to state a cause of action.

Plaintiff and deceased, Roy C. Stoxen, were married in August, 1924. In November, 1949 they separated but were never divorced. On January 13, 1970 Stoxen expired leaving a will which was admitted to probate. The will, except for a small charitable gift, named two defendants as the only legatees: Ida Basile, his housekeeper, and Charles Basile, her son, 'who has resided in my (Stoxen) household for more than twenty (20) years and who I have considered and treated as a son.'

While separated from his wife, Stoxen, on October 2, 1953 purchased certain real estate and had title conveyed to the Chicago Title & Trust Co., as trustee, under a land trust naming himself as sole beneficiary. On June 6, 1962 the trust was amended to provide that upon his death, the beneficial interest was to vest equally in his brother and three sisters. The trust was again amended on January 6, 1970 by deleting the names of his brother and sisters and substituting the named defendants with the proviso that they were to take the beneficial interest as joint-tenants. It was not until after the death of Stoxen that plaintiff became aware of the land trust and filed her complaint.

The amended complaint, in addition to a portion of the facts related, alleged 'that the decedent intentionally placed the title to said real estate in a land trust in order to defraud his wife . . . of any marital interest she would acquire by reason of her dower interest or any statutory interest relating to a surviving spouse . . .'. It then prayed that the executor be ordered to include the value of the property held in trust in the inventory; that the conveyance to the trustee be declared null and void; that the named defendants be divested of any equitable benefits; and, that the original interest of the deceased in the property be granted to the plaintiff just as if there had never been a conveyance to the trustee.

Defendants moved to strike the amended complaint as being insufficient to state a cause of action. The motion related that the conduct of the decedent in establishing the land trust during coverture was neither a fraud on the marital rights of the plaintiff nor fraudulent Per se and, therefore, it was necessary that the amended complaint allege the necessary elements of fraud which it failed to do. The motion was allowed and this appeal followed.

Land trusts seem to have their origin in Illinois ¹ and only recently has their use extended to other states. ² In Illinois, the beneficial interest under a land trust is not real property but personal property, In re Estate of Peters, 34 Ill.2d 536, 539, 217 N.E.2d 3 (1966), and dower does not apply to personal property, Clark v. Hanson, 320 Ill. 480, 151 N.E. 369 ...