Favata v. Favata

Mr. JUSTICE McGLOON,

concurring in part and dissenting in part:

I concur with the majority’s finding that the July 18, 1975, amendment to the land trust agreement was valid. Under its terms, plaintiff Theresa Marie Favata received a remainder interest in the beneficial interest of the land trust. Remainder interests are present interests and do not violate the statute of wills. (Conley v. Petersen (1962), 25 Ill. 2d 271, 184 N.E.2d 888; Kenoe, Land Trusts §§3.8, 4.6, 4.7 (Ill. Inst. Cont. Leg. Ed. 1978).) Thus, the amendment was not a testamentary disposition. However, I respectfully dissent from the majority’s finding that the August 10, 1976, amendment was void merely because it failed to use customary language. By giving effect to the July 18,1975, amendment, the majority is ignoring the clear intentions of the settlor and enforcing a document believed by the settlor to have been revoked by the August 10, 1976, amendment. The law in Illinois is clear that the primary object in the judicial construction of a trust is to ascertain the true intentions of the settlor and carry them out, so long as they do not conflict with any rule of law, good morals or public policy. (United States Trust Co. v. Jones (1953), 414 Ill. 265, 111 N.E.2d 144; First National Bank v. Baker (1976), 35 Ill. App. 3d 676, 342 N.E.2d 337.) I believe that after carefully examining all of the facts surrounding this case the settlor’s intentions were clear and should have been carried out, as this court was required to do.

On December 14, 1964, Joseph Favata, Sr., entered into a land trust agreement with Exchange National Bank of Chicago involving a condominium located at 200 East Delaware Place, Chicago, and real estate located at 1910-20 South Halsted Street, Chicago. On July 18,1975, he amended the land trust agreement so that upon his death, his interests not having been sold, assigned, transferred or otherwise disposed of, should vest in his daughter, plaintiff Theresa Marie Favata.

Approximately one month before his death, the settlor apparently decided that he did not want the entire beneficial interest in the land trust to go to his daughter. On August 3,1976, he executed a codicil to his will, which has been incorporated into the pleadings o.n appeal and which stated as follows:

“Any interest I have in the property located at 1910-20 South Halsted Street, Chicago, Illinois, by reason of any trust I have executed during my lifetime, is to go to my son, Joseph Favata, Jr.
Any interest I have in the property located at 200 East Delaware Place, Chicago, Illinois, by reason of any trust I have executed during my lifetime, is to go to my daughter, Theresa Marie Favata # # # ”

Consideration of the codicil is important since where there are two or more instruments creating, defining, or relating to the trust, they should be read apd construed together. (Wynekoop v. Wynekoop (1950), 407 Ill. 219, 95 N.E.2d 457.) The majority summarily rejects any consideration of the codicil as having “no bearing upon the sufficiency of the 1976 amendment.” The majority also contends that consideration of the codicil is unwarranted because “the language chosen by the settlor is clear” and “the plain intention prevails over any presumed intentions.” While the language may be clear, I submit that the settlor’s intentions, as reflected on the face of the 1976 amendment, are not. Because traditional language was not utilized, there is a serious question as to what the settlor was attempting to do. Only when one considers the codicil and the 1976 amendment together do the settlor’s intentions become clear, especially when one considers that the documents were drafted only one week apart.

On August 10, 1976, one week after the execution of the codicil, the settlor amended the land trust agreement, believing he was reflecting the intentions expressed in the August 3 codicil:

“a. In the event of my death, I leave my real estate located at 1910-20 South Halsted Street, Chicago, Illinois to my son, Joseph Favata, Jr. * * *
b. In the event of my death, I leave my condominium located at 200 East Delaware Place, Chicago, Illinois, to the executor under my Last Will and Testament, and also in accordance with the Joseph Favata Child’s Trust, dated July 18,1975, to be held in trust for my daughter, Theresa Marie Favata 600
c. The power of direction shall be vested in Joseph Favata, Jr.”

Reading the codicil and the amendment together, it is clear that the settlor believed he was vesting a remainder interest in the beneficial interest in the Halsted Street property to his son. The majority rejects this interpretation without discussion, yet fails to explain what the settlor was attempting to do when he drafted paragraph a of the amendment.

From a reading of the codicil, it is clear that the settlor wanted his son to have whatever interest he had in the Halsted Street property. I agree that the 1976 amendment could have been better drafted. It would have been preferable for the settlor to have used customary language and spoken in terms of his beneficial interest rather than using overbroad language and saying “* ° 0 I leave my real estate ° ° ° to my son * ” and “* * * I leave my condominium * * * to my daughter ° # However, the failure to mention the beneficial interest is not fatal, especially where the settlor’s intent is clear. The law is clear that where the settlor’s intentions can be fairly collected from the language of the instrument, no particular form or words need be used. (LaThrop v. Bell Federal Savings & Loan Ass’n (1976), 42 Ill. App. 3d 183, 355 N.E.2d 667, cert. denied (1978), 436 U.S. 925, 56 L. Ed. 2d 768, 98 S. Ct. 2818.) From the language of the August 10 amendment, it is clear that the settlor intended to vest in his son and executor remainder interests in whatever interest he had in the Halsted Street property and the condominium, respectively. That interest was the beneficial interest, which is a substantial interest. In the recent case of People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540, our supreme court noted that there is not a single attribute of ownership, except title, which does not rest with the settlor, including the rights of creation, modification, management, income and termination. At worst, the reference by the settlor to “my real estate” in paragraph a was a recognition on his part of the substantial interest being given to his son.

The majority recognizes that, except for the unfortunate failure to refer to the settlor’s beneficial interest, the 1976 amendment is otherwise without objection. Clearly, it was not a testamentary disposition since remainder interests do not violate the Statute of Wills. If anything, the amendment could only fail for vagueness, by referring to “real estate.” However, by striking the amendment on a technicality, where the settlor’s intent is clear, I respectfully submit that the majority is putting form over substance. The construction given the letter of the written instrument is controlled by its spirit and purpose and the terms are to be interpreted so as to subserve and not subvert such intent. Hoyt v. Continental Casualty Co. (1974), 18 Ill. App. 3d 599, 310 N.E.2d 189; Board of Regents v. Wilson (1975), 27 Ill. App. 3d 26, 326 N.E.2d 216.

Keeping these principles in mind and reading the codicil and amendment together, it is clear that the settlor was attempting to vest his son with a remainder interest in the beneficial interest to the Halsted Street property. This was the only interest possessed by the settlor, legal and equitable title being vested in the trustee. I respectfully submit that this interpretation is most logical and is the only one which will carry out the settlor’s intentions. To enforce the 1975 amendment is to totally ignore the settlor’s intentions and enforce a document he clearly revoked.

For the foregoing reasons, I respectfully dissent in part from the majority’s opinion. I submit that this court should reverse that portion of the order of the circuit court of Cook County that found the July 18,1975, amendment and the August 10, 1976, amendment violative of the statute of wills and enter a judgment in favor of defendant Joseph Favata, Jr., upholding the August 10, 1976, amendment.