* dissenting:
I respectfully dissent from the majority holding that plaintiff is eligible to have the benefit of income and thus entitled to an accounting. I would affirm the trial court’s dismissal of plaintiff’s bill of discovery on the basis that plaintiff does not fall within the classes of beneficiaries who may demand an accounting, either under the statute or common law.
The trust at issue includes a direction that the trustees pay the income and principal as is necessary for the support of the beneficiaries. This is known as a support trust. The trust also directs that the trustees distribute funds only as they shall determine in their sole discretion. This is known as a discretionary trust. Plaintiff incorrectly argues that he has a vested interest in the trust fund. On the contrary, in such a discretionary trust, the beneficiary holds no vested interest until the trustees decide to make a payment to the beneficiary. The trustees have complete discretion to distribute the trust funds or to totally exclude the beneficiaries. See generally G. Bogert, The Law of Trusts & Trustees §§ 228, 229 (2d ed. 1979).
Until the trustees exercise their discretion to make a payment to plaintiff, he has no interest in the trust, its administration or its assets. Plaintiff has nothing more than a mere expectancy. (See G. Bogert, The Law of Trusts & Trustees § 228, at 512-13 (2d ed. 1979).) Plaintiff’s rights are conditioned upon both his inability to pay his living expenses through his own efforts, and upon the exercise of the trustees’ discretion. Plaintiff, therefore, is not presently “eligible” to receive the trust income because he has not alleged that he is unable to pay his living expenses. Because distribution of the funds depends on the trustees’ discretion and plaintiff’s need for living expenses, he may never become eligible to receive the funds. I would conclude that plaintiff does not fall within either of the statutory classes of beneficiaries who may demand an accounting. (See Ill. Rev. Stat. 1985, ch. 17, par. 1681.) The majority’s reliance on Webster’s definitions of “eligible” does not convince me otherwise.
The majority stumbles over the distinction between “eligible” and “entitled.” Quite simply, plaintiff is eligible to receive benefits when he is unable to meet his living expenses. Plaintiff is entitled to receive benefits when the trustees exercise their discretion and determine plaintiff should receive the benefits. Payment, if any, shall be “on such terms as the Trustees, in their sole discretion, shall decide, for the purpose of assisting the above individuals in meeting their living expenses which they may be unable to pay for through their own efforts.”
Significantly, the amount of payment needed to achieve the purpose, time of payment, type of “assisting” required, determination regarding any inability to pay for living expenses, determination regarding necessity of claimed expenses, and determination of “their own efforts” required of beneficiaries are all factors which help comprise the “sole discretion” to be exercised by the trustees before determining whether a beneficiary who is “eligible” (i.e., alleging inability to pay for living expenses) is “entitled” to any benefits. See generally G. Bogert, The Law of Trusts & Trustees §§228, 229 (2d ed. 1979).
Nor does the common law provide plaintiff with any right to an accounting. Under the common law, a contingent remainderman has the right to bring an action against trustees, but the scope of that right is limited to what is necessary to protect his possible eventual interests. The accounting should be afforded only where waste, mismanagement or dissipation of assets can be shown. (Barnhart v. Barnhart (1953), 415 Ill. 303, 114 N.E.2d 378; see also Baum v. Continental Illinois National Bank & Trust Co. (7th Cir. 1956), 230 F.2d 377, 384, citing 90 C.J.S. Trusts §379, at 686 (1955).) Thus, even if plaintiff possesses the interest of a contingent remainderman, and not just a mere expectancy, the cause was properly dismissed because it contained no allegations of waste, mismanagement or dissipation of assets. I would find that the trial court properly dismissed the action.
Justice McNamara participated in this opinion prior to his assignment to the sixth division.