dissenting:
I disagree with the majority’s treatment of the trustee’s claim seeking $108,277.88.
Under the terms of the trust agreement, Elaine Rosier was to receive 30 days’ written notice of her former husband’s intention to exercise any powers or rights with respect to the insurance policy. The right to such notice even survived Mrs. Rosier’s death or disability and was to go to her administrator, executor or legal representative.
As the majority opinion states, it is well established that the rules of construction which apply to the interpretation of contracts apply to the construction of trust instruments. Indeed, every provision in a contract must, if possible, be given effect, because it is presumed that each was deliberately inserted. (Continental Television Corp. v. Caster (1963), 42 Ill. App. 2d 122, 191 N.E.2d 607.) Regarding the instant trust agreement, the notice clause is clear and unambiguous. Its sole purpose was to protect Dr. Ierulli and Mrs. Rosier’s four children.
When Dr. Ierulli borrowed and withdrew dividends and earnings upon the policy without notifying his former wife, he clearly violated the trust agreement.
The majority reverses the trial court and denies the trustee’s claim upon the basis that the trust agreement made no provision for damages in the event of a breach of the notice provision. However, the lack of a damage or penalty clause should not preclude the trustee’s claim to the monies advanced on the policy in violation of its explicit terms. The policy was secured pursuant to court order for the benefit of Dr. Ierulli’s children, and his estate has no right to the retention of the funds withdrawn from the policy. A party cannot have the benefits of a contract unless he has also performed the obligations. (Kobus v. Jefferson Ice Co. (1971), 2 Ill. App. 3d 458, 276 N.E.2d 725.) Where a party has breached a contract, he cannot take advantage of terms of the contract which benefit him. Robinhorne Construction Corp. v. Snyder (1969), 113 Ill. App. 2d 288, 251 N.E.2d 641, affd (1970), 47 Ill. 2d 349, 265 N.E.2d 670.
I agree with the trial court that the trustee is entitled to the asserted claim plus interest thereon. The award of $124,132.16 was not an abuse of the court’s discretion but rather represents an exercise of the court’s inherent power of equity. Courts are not required to find an exact precedent for action which equitable considerations demand. Stegeman v. Smith (1966), 67 Ill. App. 2d 451, 214 N.E.2d 597.
The terms of the trust agreement were blatantly violated. The proper administration of justice and basic notions of fairness and equity compel an affirmance of the trial court’s allowance of the instant claim. To emphasize a long-standing rule, it is unnecessary to have a precedent for equitable relief before it will be granted. (Johnson v. Johnson (1973), 11 Ill. App. 3d 681, 297 N.E.2d 285.) Accordingly, I respectfully dissent.