author: MR. JUSTICE DRUCKER McCORMICK, J.,

text:
    Marie-Louise Rosenthal, Plaintiff-Appellee, v. The First National Bank of Chicago, as Trustee of the Philip Trust, Created Under the Will of Moise Dreyfus, Deceased, and Known as Trust No. 33705; Michael Reese Hospital and Medical Center; The First National Bank of Chicago, as Executor of the Will of Philip S. Dreyfus, Deceased; The First National Bank of Chicago, as Executor of the Will of Carolyn S. Dreyfus, Deceased; Phyllis S. Dreyfus, a Minor Under California Law, and Diane E. Dreyfus, a Minor, Defendants; Phyllis S. Dreyfus and Diane E. Dreyfus, a Minor, Under the Laws of the State of California, Defendants-Appellants.
    Gen. No. 51,049.
    First District, Fourth Division.
    June 9, 1967.
    Petition of guardian ad litem denied July 10, 1967.
    Petition of appellant denied July 10,1967.

      Morgan, Halligan, Lanoff & Cook, of Chicago (Samuel M. Lanoff and John A. Cook, of counsel), for Phyllis S. Dreyfus and Diane E. Dreyfus, appellants.
    Hoffman & Davis, of Chicago (David I. Hoffman, of counsel), for The First National Bank of Chicago, as Trustee, defendant.

      Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Frank D. Mayer, George V. Bobrinskoy, Jr., and Burton E. Glazov, of counsel), for Michael Reese Hospital and Medical Center, defendant.
    Spray, Price, Hough & Cushman, of Chicago (Robert S. Cushman and Benno P. Ludwig, of counsel), for The First National Bank of Chicago, as Executor, defendant.
    Emanuel Morris, guardian ad litem for Diane E. Dreyfus, a minor, appellant.
    Sonnenschein Levinson Carlin Nath & Rosenthal, of Chicago (David Levinson, Edwin A. Rothschild and Joel F. Henning, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Five separate appeals are taken from a summary judgment construing the will of Moise Dreyfus (hereinafter referred to as “testator”).

Testator was survived by his widow (Carolyn) and two children (Philip S. Dreyfus and Marie-Louise Rosenthal). In his will testator bequeathed specific sums to various beneficiaries (including $2,500 to each of his grandchildren living at the date of his death) and in addition placed the residue of his estate into two trusts, designated as the “Marie-Louise Trust” and the “Philip Trust.” Under the terms of testator’s will, his widow was to receive an annual income of $2,500 from each trust during her lifetime and was also entitled to additional amounts of income in the discretion of the trustees. The balance of the income was to be paid over and delivered to Marie-Louise and Philip during their respective lives. The will further provides (paragraph 7) that:

[I]f my said son Philip S. Dreyfus and my said daughter Marie-Louise Rosenthal, or either of them, shall die prior to the date of the death of my wife, then such balance, if any, shall, until the date of the death of my said wife, be paid over and delivered to such persons and in such proportions as said Philip . . . and said Marie-Louise . . . may by their respective last wills and testaments validly appoint

Paragraph 7 also provides that upon agreement of a majority of the trustees they could “pay over to said Philip S. Dreyfus and/or said Marie-Louise Rosenthal, respectively, part or all of the principal of their respective trusts.” In accordance with this power, Marie-Louise received that principal attributable to the “Marie-Louise Trust” on June 1,1938.

Paragraph 8 of the testator’s will grants to Carolyn a testamentary power to order distribution of the corpus and accumulated income of the trust by specifically providing that:

I hereby give to my said wife Carolyn S. Dreyfus the right to direct in and by her Last Will and Testament that the principal and accumulated income of said Philip Trust and of said Marie-Louise Trust, or either of them, shall forthwith, upon the death of said Carolyn S. Dreyfus, be distributed to said Philip S. Dreyfus and said Marie-Louise Rosen-thal, respectively, or either of them.

Another paragraph of testator’s will, paragraph 9, provides in relevant part:

In the event that my said wife shall predecease me or in the event that my said wife shall survive me and shall fail to direct the distribution upon her death of said trusts, or either of them, then my said Trustees shall thereafter hold and dispose of the trust or trusts not so directed to be distributed, in the following manner, to-wit:
(a) During each and every year ensuing subsequent thereto and prior to the death of said Philip S. Dreyfus, the income of the Philip Trust shall be distributed quarterly or oftener in the discretion of said Trustees to said Philip S. Dreyfus, together with so much of the principal thereof as in the sole discretion of said Trustees they may deem it advisable or expedient so to distribute. Upon the death of said Philip S. Dreyfus, the principal, or so much thereof as may at such time remain in the hands, custody and control of said Trustees, together with any accumulated income, shall be divided and distributed as said Philip S. Dreyfus may by his Last Will and Testament validly appoint, and in default of appointment, to the lawful issue of said Philip S. Dreyfus surviving at the date of his death, share and share alike, per stirpes and not per capita.

Testator died on March 6, 1987. His son, Philip, married on June 1, 1942, and was divorced on October 25, 1955. Two children were born of that marriage: Phyllis, born August 8, 1943, and Diane, born July 23, 1946. Philip died on January 19, 1961, as the result of an automobile accident. Among the various bequests in his will, Philip gave $1,000 to each of his children if they survived him and also exercised his alleged power of appointment over the Philip Trust in favor of Michael Reese Hospital. Carolyn Dreyfus, testator’s widow, died testate on May 26, 1963. In her will was a provision that it was her desire, in accordance with the wishes of Philip Dreyfus, that the Philip Trust be distributed to Michael Reese Hospital; that a question “has been raised whether Philip’s will has achieved this purpose”; and that, therefore, if she had a valid power of appointment over the trust she exercised it in favor of Marie-Louise Rosenthal with the desire that the latter donate it to Michael Reese Hospital. Carolyn also stated in her will that she has made no provision in her will for Phyllis and Diane Dreyfus because she had made gifts to them during her lifetime.

On October 25, 1963, Marie-Louise Rosenthal filed a complaint in which she requested the court to determine that Carolyn Dreyfus possessed and validly exercised the power of appointment, as aforesaid. The First National Bank of Chicago, as executor under the will of Carolyn Dreyfus, filed an answer in which it was stated that the court should determine Philip’s power to have been validly exercised. In the alternative, the answer was in agreement with plaintiff’s complaint. The First National Bank of Chicago, as executor under the will of Philip Dreyfus, filed an answer to the complaint and in addition filed a counterclaim in which it requested the court to determine that Philip Dreyfus possessed a power of appointment which he validly exercised in favor of Michael Reese Hospital. The hospital, named as a defendant in plaintiff’s action, filed a counterclaim praying that it be adjudged the recipient of the funds in accordance with the provisions of Philip’s will. The First National Bank of Chicago, as trustee of the Philip Trust under the testator’s will, filed a counterclaim in which it stated that the proper recipient of the trust principal was in doubt, and requested the court to determine the proper recipient thereof. Defendants Phyllis and Diane Dreyfus filed answers to the various complaints and counterclaims and in addition filed a counterclaim in which they asserted that: Philip possessed no power of appointment because he did not survive Carolyn; Carolyn was not empowered to appoint the Philip Trust to Marie-Louise Rosenthal, and therefore her purported exercise of the power was invalid; that therefore there was a default of appointment and they are entitled to the Philip Trust in accordance with paragraph 9(a) of Moise Dreyfus’ will.

Each party (except for The First National Bank as Trustee of the Philip Trust) moved for summary judgment. Phyllis and Diane Dreyfus filed an additional affidavit in support of their motion which was properly stricken by the court. In that affidavit they asserted that Philip and Carolyn had made other gifts to Michael Reese Hospital through living trusts established in 1935 and 1937. None of the gifts referred to in the affidavit came from the testator’s estate nor are those trusts involved in this case. The issues in this case concern the interpretation of testator’s will construed in light of his intention; therefore, the acts of Carolyn and Philip subsequent to the execution of testator’s will can have no bearing on testator’s intention.

The court granted the motion of Marie-Louise and found in relevant part that Philip Dreyfus did not have a power of appointment since he predeceased Carolyn; and that Carolyn had a power of appointment which she validly exercised in favor of Marie-Louise Rosenthal. Among others, Phyllis and Diane Dreyfus, Michael Reese Hospital, and The First National Bank of Chicago as executor of the will of Philip Dreyfus, appeal from the granting of that judgment and from the denial of their respective motions.

Appellants, Phyllis and Diane Dreyfus, contend that the existence of Philip’s power of appointment was dependent upon his surviving Carolyn, and therefore his appointment to Michael Reese was invalid; that Carolyn had the testamentary power only to direct the acceleration and distribution of either or both of the trusts and did not have the power to eross-appoint the principal of the Philip Trust to Marie-Louise Rosenthal; that therefore her purported appointment was invalid; that therefore there was a default in appointment and appellants are entitled to the estate in accordance with paragraph 9 (a) of testator’s will as af orequoted.

Appellant, Michael Reese Hospital, contends that Carolyn had the primary power of appointment over the property but that she exercised it conditionally, and thus the purported exercise was of no effect; that Philip possessed a testamentary power which was not dependent upon his surviving Carolyn, but rather it was dependent upon Carolyn’s failure to exercise her power; and that upon Carolyn’s default of appointment, the disposition of the trust estate under Philip’s will became operative to effect a bequest of the property to Michael Reese Hospital.

Appellee, Marie-Louise Rosenthal, contends that under paragraph 8 of testator’s will it was testator’s intention that Carolyn possess the power to appoint to her the principal and accumulated income attributable to the Philip Trust. In support of her contention she relies primarily upon the words “or either of them” in paragraph 8 as aforequoted.

We shall first determine whether it was the intention of the testator, Moise Dreyfus, that Carolyn have the testamentary power to cross-appoint the Philip Trust to Marie-Louise Rosenthal. To determine the testator’s intention his entire will must be examined. Testator, in paragraph 6, established two entirely separate and distinct trusts; one called the “Philip Trust” and the other the “Marie-Louise Trust.” In paragraph 7 of his will testator provided that if either Philip or Marie-Louise should predecease Carolyn, the respective decedent’s share of the income during the life of Carolyn shall be paid over and delivered to his or her appointee. The will further provides, in paragraph 9(a), that upon the happening of certain conditions the principal and accumulated income of the Philip Trust would descend to the living issue of Philip Dreyfus after the latter’s death; and in a separate paragraph, 9 (b), the testator provided that the principal and accumulated income of the Marie-Louise Trust would, after the death of Marie-Louise and upon the happening of certain conditions, descend to her living issue. Thus, throughout testator’s will the two trusts remained separate and distinct. Moreover, in paragraph 8 testator granted to Carolyn the testamentary power only to “direct” that the trust “be distributed.” Nowhere did he grant to Carolyn the power to “appoint,” although he specifically used the word “appoint” when referring to powers of appointment in paragraphs 7, 9 (a) and 9 (b), respectively.

Absent evidence to the contrary, it is presumed that the testator intended to treat his children alike. In re Laughlin’s Estate, 354 Pa 43, 46 A2d 477. Under the appellee’s construction of paragraph 8, Carolyn was empowered at her death to appoint the Philip Trust to her (Marie-Louise) and thereby deprive Philip of any further interest in the trust even though Philip might survive Carolyn. (In accordance with paragraph 7 of testator’s will, in 1938 the Marie-Louise Trust had been terminated and she received the proceeds thereof.) There is no evidence in the record that Moise Dreyfus favored either of his children over the other; nor is there evidence that testator intended that one of his children should, at the whim of his wife upon her death, be deprived of his or her interest in the trust. Testator, in using the words “or either of them” in paragraph 8, intended merely to establish that upon her death Carolyn need not act with regard to both trusts, but could direct distribution of one trust and not the other. In paragraph 9 testator used the words “or either of them” clearly in anticipation that Carolyn might wish to direct distribution of one trust and not the other. These same words were used by the testator in paragraph. 7 when he referred to “Philip S. Dreyfus and my said daughter Marie-Louise Rosenthal, or either of them.” Additionally, the use of the word “respectively” in paragraph 8 adds nothing in support of appellee’s argument, and is a word used for grammatical accuracy when referring to more than one person or object.

Therefore, after a thorough examination of the will of Moise Dreyfus, we find that Carolyn Dreyfus was granted the testamentary power only to direct distribution of -the Marie-Louise Trust to Marie-Louise Rosenthal and to direct distribution of the Philip Trust to Philip Dreyfus, and not to cross-appoint the Philip Trust to Marie-Louise Rosenthal.

It having been established that Carolyn did not have the power to cross-appoint the Philip Trust to Marie-Louise Rosenthal, Phyllis and Diane Dreyfus now contend that the existence of Philip’s power of appointment was contingent upon his surviving Carolyn; that since Philip predeceased Carolyn there has been a default in appointment; and that therefore they are entitled to the-trust estate in accordance with paragraph 9(a) of the testator’s will which provides that in default of appointment by Philip, his issue (these appellants) would inherit. Paradoxically, they argue that the existence of Philip’s power, which is granted to him in paragraph 9(a), is subject to certain alleged conditions precedent as set forth in the preamble to that subsection; but that their gift in default of appointment, also set forth in 9(a) immediately subsequent to the grant of Philip’s power, is not subject to those identical alleged conditions precedent.

Paragraph 9(a) sets forth the testator’s desired disposition of the trust estate and is preceded by the following language:

In the event that my said wife shall predecease me or in the event that my said wife shall survive me and shall fail to direct the distribution upon her death of said trusts, or either of them, then my said Trustees shall thereafter hold and dispose of the trust or trusts not so directed to be distributed, in the following manner, to wit:

In that portion of paragraph 9(a) which also preceded the gift to the Dreyfus appellants, the testator provided for the continuation of the trust after Carolyn’s death if Philip was still alive:

During each and every year ensuing subsequent thereto [referring to Carolyn surviving the testator and failing to direct distribution] ■ and prior to the death of said Philip S. Dreyfus, the income of the Philip Trust shall be distributed ... to said Philip S. Dreyfus, together with so much of the principal thereof as in the sole discretion of said Trustees they may deem it advisable or expedient so to distribute.

The testator next provided for the disposition of the trust estate upon the ultimate termination of the trust at the death of the life tenants:

Upon the death of said Philip S. Dreyfus, the principal, or so much thereof as may at such time remain in the hands, custody and control of said Trustees . . . shall be divided and distributed as said Philip S. Dreyfus may by his Last Will and Testament validly appoint. . . .

After providing that Philip was to have a testamentary power of appointment over the trust estate, the testator then provided for a gift of the trust estate to the Dreyfus appellants only in default of that appointment. The specific language, immediately subsequent to the grant of Philip’s power of appointment, is as follows:

[A]nd in default of appointment, to the lawful issue of said Philip S. Dreyfus surviving at the date of his death, share and share alike, per stirpes and not per capita.

We cannot construe paragraphs 9 and 9(a) to support the position of the Dreyfus appellants. In fact, under the provisions of this will the Dreyfus appellants are not entitled to the trust estate even if, for purposes of argument, we accept their contention that Philip had no power of appointment because he predeceased Carolyn. Under the specific language of paragraph 9(a) Phyllis and Diane Dreyfus were to receive the trust estate only “in default of [Philip’s] appointment.” The term “in default of appointment” presupposes that there was a valid power of appointment which either was not exercised at all or which was exercised in a defective manner so as to render that purported exercise void. Therefore, under appellants’ own argument that Philip had no valid testamentary power of appointment because he predeceased Carolyn, there could be no default of appointment. There being no “default of appointment,” appellants’ interest only in default of appointment could never come into being.

In the interpretation of wills, the intention of the testator must control. The whole will and all its parts must be considered in order to ascertain that intention. The intent which controls is that which is manifest, either expressly or by necessary implication, from the language of the will. Martin v. Casner, 383 Ill 260, 48 NE2d 944. A thorough examination of the testator’s will reveals that it was his intention that Carolyn have a life estate in the Philip Trust if she desired; that upon the ultimate termination of the trust the remaining trust estate was to be disposed of in accordance with Philip’s desires; and that the gift to the children of Philip was to take effect only to avoid intestacy under the testator’s plan for distribution of the trust property. That the testator intended his son, Philip, to have the power to dispose of the trust estate upon the ultimate termination of the trust is supported by the express language of the testator’s will. Paragraphs 9 and 9 (a) of the will provide that if Carolyn should survive the testator but “shall fail to direct the distribution upon her death” of the Philip Trust, then that trust property remaining in the possession of the trustees shall ultimately, upon Philip’s death, “be divided and distributed as said Philip S. Dreyfus may by his Last Will and Testament validly appoint. . . . ” Carolyn failed to direct distribution of the Philip Trust upon her death to Philip Dreyfus and, in fact, could not have done so because Philip predeceased her. The will of Moise Dreyfus was intricately drawn and, if he had intended that the validity of Philip’s power be conditioned upon his surviving Carolyn, we can only assume that the condition would have been inserted into paragraph 9. Certainly the testator was aware that Philip might predecease Carolyn, having provided in paragraph 7 of his will for the disposition of Philip’s share of the trust income if that possibility — however slight— became a reality.

That the testator intended Philip to have such a power is further evidenced by various provisions of his will by which the entire trust estate could vest in Philip during his (Philip’s) lifetime, including the power to dispose of it as he chose: first, the power in the trustees in paragraph 7 to “pay over” the trust to Philip during Carolyn’s lifetime; second, if Philip survived Carolyn and the latter exercised her testamentary power to order that the Philip Trust be distributed to him; and, third, if Philip survived Carolyn and the latter did not exercise her testamentary power as aforesaid, the trust estate was distributable to Philip in the discretion of the trustees and Philip was granted the testamentary power to appoint the trust estate.

In light of those provisions of testator’s will it is a reasonable and persuasive construction of the will that if Philip predeceased Carolyn, this event — beyond anyone’s control — would not be permitted to defeat the general plan of the will, and Philip, nevertheless, would be empowered to appoint the assets of the trust. Any appointment executed by Philip would, of course, be subject to the life estate in Carolyn.

In 5 Bowe-Parker: Page on Wills, § 44.2, it is stated on pages 398-399 that:

It is sometimes said that a condition will not be implied, which means that a gift will not be held to be conditional unless such intent affirmatively appears, either from the language of the gift, or from the will as a whole, when read in the light of the surrounding circumstances.

In the instant case, not only is there absent an affirmative showing that the testator desired Philip’s power of appointment to be conditioned upon his surviving Carolyn, but a conclusion that such a showing was made would appear to be illogical under the terms of the testator’s will. It is undisputed that the testator intended Philip to have a power of appointment over the trust estate if he survived Carolyn and the latter failed to direct distribution of the trust estate to him. We find no logic, nor is any advanced in this case, why the testator did not also intend for Philip to have a power of appointment over the trust estate even if he predeceased Carolyn, but any appointment executed thereunder to be subject to Carolyn’s life estate. Nor are we apprised of any rule of law requiring that the validity of a life tenant’s power of appointment, or the validity of any appointment executed thereunder, be dependent upon the property in question having inured to his benefit at the time of the exercise of the power (where the life tenant has survived the testator). In fact, a case to the contrary is Lindsley v. First Christian Soc. in Camptown, 37 NJ Eq 277 (1883). In that case the testator bequeathed property to his wife for life, then to his daughter, Mary, for life. Mary was granted a general testamentary power of appointment over the property and, in default of appointment, the property would pass as specifically provided therefor in the testator’s will. Mary predeceased her mother and in her will exercised the power of appointment. The issue before the court was whether Mary had a valid power of appointment since she predeceased her mother. At page 281 the court stated:

There is nothing in the testator’s will to indicate an intention to engraft a limitation upon the power that it shall be contingent upon the survival of Mary. The gift over is made only in the event that she fails to exercise the power in her lifetime, and not upon the contingency that she shall survive her mother. The testator’s intention clearly was that his daughter should have the absolute power of disposition of his estate subject only to the provision for his wife; that she should at least so far enjoy it as to be permitted to make a testamentary disposition of it.

We find that it was the intention of Moise Dreyfus that Carolyn was empowered upon her death to direct distribution of the Philip Trust only to Philip, and not to cross-appoint the Philip to Marie-Louise Rosenthal; and that if Philip predeceased Carolyn he was to have a power of appointment over the trust estate with any appointment executed thereunder subject to Carolyn’s life estate. Since Philip validly exercised that power of appointment in favor of Michael Reese Hospital, upon the death of Carolyn the trust estate should have been paid over and distributed to Michael Reese Hospital in accordance with Philip’s will.

That portion of the decree denying the motions for summary judgments of Phyllis and Diane Dreyfus, and of the Guardian ad Litem, is affirmed. That portion of the decree denying the motions for summary judgment of Michael Reese Hospital, The First National Bank of Chicago, as executor of the will of Philip Dreyfus, and of The First National Bank of Chicago, as executor of the will of Carolyn Dreyfus, is reversed. That portion of the decree granting the motion for summary judgment of Marie-Louise Rosenthal is reversed. The cause is remanded with directions to: (1) deny the motion for summary judgment of Marie-Louise Rosenthal; (2) enter summary judgment in favor of Michael Reese Hospital in accordance with the prayer in its counterclaim that it be adjudged the recipient of the funds in accordance with the provisions of Philip Dreyfus’ will; (3) enter summary judgment in favor of The First National Bank of Chicago, as executor of the will of Philip Dreyfus, in accordance with the prayer in its counterclaim that the court direct distribution of the Philip Trust to Michael Reese Hospital; (4) enter summary judgment in favor of The First National Bank, as executor of the will of Carolyn Dreyfus, in accordance with the primary theory in its answer, i. e., that the trust estate should be distributed in accordance with the will of Philip Dreyfus; (5) order The First National Bank, as Trustee of the Philip Trust, to distribute the assets in the Philip Trust (known as Trust No. 33705) to Michael Reese Hospital and Medical Center; and (6) allow such additional fees as are just and reasonable.

Affirmed in part; reversed in part with directions.

ENGLISH, P. J., concurs.

McCORMICK, J.,

dissents.

I must respectfully dissent to a part of the majority opinion. We agree that the only trust involved is the Philip Trust, as the res of the Marie-Louise Trust was transferred to her prior to the death of either Carolyn or Philip, under the provisions of paragraph 7 of the will of Moise Dreyfus; consequently, in this dissent I will refer only to the Philip Trust.

In considering the dispositive scheme of the testator the entire will must be read as a whole. In Weber v. Hawkins, 30 Ill2d 278, 196 NE2d 695, the court said, at page 283:

“In construing a will the court’s primary mandate is to give effect to the testator’s intention, but, as the multitude of cases involving will construction indicate, frequently this is a difficult task. The intention of the testator is to be ascertained from the provisions of his will; the intention sought is not that which by inference may be presumed to have existed in the mind of the testator, but that which, by words used in the will, he has expressed.”

“The intention of the testator has been called the polar star in construing wills, but that intention must appear from the will itself, in connection with the testator’s property, objects of his bounty and circumstances, . . Miller v. Brinton, 294 Ill 177, 128 NE 370. It is apparent that the only issue this court must determine is whether Philip in his will could make a valid appointment of the principal of the Philip Trust if he predeceased Carolyn, and to whom the trust res should pass in case there was no such valid appointment.

I agree with the majority opinion that Carolyn Dreyfus was granted the testamentary power only to direct distribution of the Marie-Louise Trust to Marie-Louise Ros-enthal and to direct distribution of the Philip Trust to Philip Dreyfus, and not to cross-appoint the Philip Trust to Marie-Louise Rosenthal.

In the majority opinion it is stated that Phyllis and Diane Dreyfus contend that

. . the existence of Philip’s power of appointment was contingent upon his surviving Carolyn; that since Philip predeceased Carolyn there has been a default in appointment; and that therefore they are entitled to the trust estate in accordance with paragraph 9 (a) of the testator’s will which provides that in default of appointment by Philip, his issue (these appellants) would inherit. Paradoxically, they argue that the existence of Philip’s power, which is granted to him in paragraph 9(a), is subject to certain alleged conditions precedent as set forth in the preamble to that sub-section; but that their gift in default of appointment, also set forth in 9 (a) immediately subsequent to the grant of Philip’s power, is not subject to those identical alleged conditions precedent.”

It would seem to be undisputed that the trust res must necessarily be distributed to whomever is entitled to it at the time of the death of the last survivor (the last survivor could be either Carolyn or Philip). Paragraph 9 (a) provides that “In the event that my said wife shall predecease me or in the event that my said wife shall survive me and shall fail to direct the distribution upon her death of said trusts, or either of them, then my said Trustees shall thereafter hold and dispose of the trust or trusts not so directed to be distributed, in the following manner, to wit:” Under the circumstances in the case before us Carolyn, the wife of the testator, did survive him and also survived Philip.

It is true, as stated in the majority opinion, that under paragraph 9 (a) the testator provided for the continuation of the trust after Carolyn’s death if Philip was still alive. We quote from the majority opinion as follows:

“ ‘During each and every year ensuing subsequent thereto [referring to Carolyn surviving the testator and failing to direct distribution] and prior to the death of said Philip S. Dreyfus, the income of the Philip Trust shall be distributed ... to said Philip S. Dreyfus, together with so much of the principal thereof as in the sole discretion of said Trustees they may deem it advisable or expedient so to distribute.’
“The testator next provided for the disposition of the trust estate upon the ultimate termination of the trust at the death of the life tenants:
“ ‘Upon the death of said Philip S. Dreyfus, the principal, or so much thereof as may at such time remain in the hands, custody and control of said Trustees . . . shall be divided and distributed as said Philip S. Dreyfus may by his Last Will and Testament validly appoint.’
“After providing that Philip was to have a testamentary power of appointment over the trust estate, the testator then provided for a gift of the trust estate to the Dreyfus appellants only in default of that appointment. The specific language, immediately subsequent to the grant of Philip’s power of appointment, is as follows:
“ ‘ [A] nd in default of appointment, to the lawful issue of said Philip S. Dreyfus surviving at the date of his death, share and share alike, per stirpes and not per capita.’ ”

The majority opinion further says: “The term ‘in default of appointment’ presupposes that there was a valid power of appointment which either was not exercised at all or which was exercised in a defective manner so as to render that purported exercise void. Therefore, under appellants’ own argument that Philip had no valid testamentary power of appointment because he predeceased Carolyn, there could be no default of appointment.” In support of that contention of the meaning of “default” the majority opinion cites no cases. However, in In re Ball’s Trust, 43 Misc2d 84, 249 NYS2d 924, the settlor of the trust made a trust agreement providing for the payment of a net income for life to his niece, Julia, and that upon her death

“ ‘the Trustee shall distribute the principal of the said Trust, together with any accrued income thereon, to such person, persons or corporations, other than and excluding the estate of the said Julia M. Ball, her creditors and the creditors of her estate, as the said Julia M. Ball will appoint in her last Will and Testament; and in default of such appointment/ distribution was to be made to the persons who would be settlor’s distributees under the law of the state of New York had he died immediately after Julia.”

Julia, who died in 1963, declared in her will that it was her intention to exercise the power of appointment of the principal of the said inter vivos trust and of the said testamentary trust and that she was exercising the same under the provisions of the residuary clause of her will. In that paragraph she stipulated: “all the rest, residue and remainder of my estate . . . and including specifically the said trust fund[s],” over which she had power of appointment to The First Pennsylvania Banking and Trust Company [her executor] “as trustee for the following purposes: . . .” The purposes enumerated were to pay numerous general legacies to named charities and individuals, and to divide the “balance” of the residuary estate into three shares in trust for a niece and two nephews for life with power of appointment.

The court held that this attempted exercise of the power of appointment by Julia was invalid and the distribution should be made as the trust alternatively provided. The court said:

“Any appointment attempting to exercise the power beyond its express limitations and which would be violative of donor’s intent must be held to be an unauthorized and invalid appointment and, as such, would constitute in effect a ‘default of such appointment.’ Analogously, it was said in Lowe v. Bankers Trust Co., 270 NY 143, 148, 200 NE 674: ‘An illegal appointment is no appointment.’ ” [Emphasis supplied.]

Under the provisions of paragraphs 9 and 9 (a) of the Moise Dreyfus will, there was a default of appointment. Under paragraph 9, Philip’s right to appoint would come into effect only if he had survived Carolyn. The first part of paragraph 9 provides:

“. . . in the event that my said wife shall survive me and shall fail to direct the distribution upon her death of said trusts, or either of them, then my said Trustees shall thereafter hold and dispose of the trust or trusts not so directed to be distributed, in the following manner, to wit:”

It would seem that the only way paragraph 9(a) could be read is that it refers to what would occur after the death of Carolyn. The preceding clause above quoted deals with that question. Paragraph 9(a) commences: “During each and every year ensuing subsequent thereto and prior to the death of said Philip S. Dreyfus, . . .” If any meaning is to be given at all to the word “subsequent” it must mean after the death of Carolyn.

Paragraph 9 (a) further provides that upon the death of Philip the principal shall be divided and distributed as Philip may by his last will and testament validly appoint. Again, the appointment referred to is one which must occur subsequent to the death of Carolyn. It then further provides that in default of appointment the res of the trust shall descend to the lawful issue of Philip surviving at the date of his death, share and share alike per stirpes, and not per capita.

The definition of “default” as used in the majority opinion is not in accord with the holding of the court in In re Ball’s Trust, 43 Misc2d 84, 249 NYS2d 924, supra. As correctly pointed out in the majority opinion, “Carolyn failed to direct distribution of the Philip Trust upon her death to Philip Dreyfus and, in fact, could not have done so because Philip predeceased her.”

Reading the will as a whole, it is apparent that the testator did not intend to permit an appointment by Philip if he predeceased Carolyn. It is fallacious to say that Philip possessed a testamentary power which was not dependent upon his surviving Carolyn, but rather it was dependent upon Carolyn’s failure to exercise her power. Such a conclusion places a severe strain upon logical reasoning.

In the second part of paragraph 9 (a) the testator considers the final distribution of the trust res. He gives to Philip a general power to appoint, subsequent to the death of Carolyn, but then provides that upon Philip’s failure to appoint, the corpus shall go to the then living issue of Philip. In 36 ILP Wills, § 443, it is provided that a testamentary power may be exercised only by the person or persons on whom it is conferred, and must be exercised in the manner prescribed by the donor; that where a testamentary power of appointment is not exercised by the donee thereof the property subject to the power passes to such persons as are designated to take in case of default in the power.

In Stern v. Stern, 410 Ill 377, 102 NE2d 104, the court said:

“While it is the duty of courts to construe wills as they find them, and not to draft new wills (Illinois Land and Loan Co. v. Bonner, 75 Ill 315; Bond v. Moore, 236 Ill 576,) or conjecture what provisions the testator would have made had he thought of the particular contingency, (First Trust and Savings Bank v. Olson, 353 Ill 206,) courts have nevertheless evolved the doctrine of devise or gift by implication, whereby a gift will be sustained though not made by the will in formal language, when the probability of the intention of the testator to make the gift is so strong that a contrary intention cannot be supposed. Martin v. Martin, 273 Ill 595; Connor v. Gardner, 230 Ill 258; King v. King, 168 Ill 273; Bond v. Moore, 236 Ill 576; City Bank Farmers Trust Co. v. Hentz, 107 NJ Eq 283, 152 A 331; Cary & Schuyler, Future Interests 331, 57 Am Jur 739.”

Under, this rule it is improper for either the trial court or a reviewing court to draft a new will for the testator. In effect, that is exactly what the majority opinion does in this case.

The interpretation that Philip had no right to appoint the res of the trust until after the’ death of Carolyn is strengthened by paragraph 10 of the Moise Dreyfus will, which provides that the beneficiaries shall not have any vested interest in the trust estate or the income thereof until the same is actually paid over and transferred to them, “nor shall they have any power in any manner to assign, transfer, charge or anticipate the same, or any part thereof, or interest therein, until the same is actually paid over and transferred to them, . . .”

In other words, the testator intended by paragraph 9 to provide that Philip should have no power of appointment unless Carolyn had predeceased him. A power to appoint does not of itself vest the donee with any title or interest in the thing to be disposed of under the power, but merely vests in him power to appoint the one to take title. A power of appointment is neither an absolute right of property nor an estate.

1 Page on Wills, § 1.2 states:

“The essential idea underlying the concept of the will is that though it is made by a person during his lifetime it does not become binding and has no legal force or operative effect .until his death; nor does it pass any interest in property or create rights in others until the death of the maker, at which time its dispositive effect operates upon the circumstances concerning the extent and the nature of the testator’s property and the objects of his bounty existing at his death rather than at the time the will was executed. . . .’*

A will made by a testator while he lives is without force or value, but it begins to speak when he ceases to do so, and is thereafter heard in his stead. Thompson v. J. D. Thompson Carnation Co., 279 Ill 54, 61, 116 NE 648; Levings v. Wood, 339 Ill 11, 13, 170 NE 767; Allen v. National Bank of Austin, 19 Ill App2d 149, 153 NE2d 260.

Philip’s will spoke at the time of his death, and under the provisions of paragraph 9 of the Moise Dreyfus will he had no valid power to appoint, because Carolyn was living at that time. Hence, the will of Philip could vest no interest in the trust corpus in Michael Beese Hospital until the date of Philip’s death, and then only if Carolyn had predeceased him. Additionally, Carolyn, who had the power to direct the Philip Trust only to Philip, ceased to have any power over the Philip Trust upon the death of Philip. Under Moise’s will the issue of Philip living at the date of his death had a vested interest in the corpus, defeasible by the exercise of the power of- appointment either by Carolyn or by Philip. However, the exercise of the power presupposes that it be' a valid one. Since neither party did so, the remainder of the trust res vested indefeasibly in the then living Dreyfus children.

The will speaks at the time of the testator’s death. It is apparent that it was the intention of the testator that if Philip predeceased Carolyn he could not make a valid appointment, and in default of such appointment, the trust res should be taken by the lawful issue of Philip surviving at the date of his death. Philip having predeceased Carolyn, the appointment by his will of the Philip Trust estate to Michael Reese Hospital was an invalid appointment.

The decree of the Circuit Court should be reversed and the case remanded to the trial court with directions to enter a summary judgment in favor of Phyllis and Diane Dreyfus, distributing the res of the trust estate to them share and share alike per stirpes and not per capita, as was provided in the will.

       A guardian ad litem was appointed for Diane Dreyfus, who was a minor.

       Under the authority granted to him under paragraph 7 of testator’s will, Philip also appointed to Michael Reese the trust income which would have been paid to him if he was alive.

       Counsel for Marie-Louise Rosenthal stated at trial and at oral argument on appeal that she would donate the money in question to Michael Reese Hospital in accordance with her mother’s wishes.

       Paragraph 10 of the testator’s will cannot be considered as indicating an intention of the testator to place a restriction on the existence of Philip’s power. Paragraph 10, which provides that the beneficiaries shall not have any vested interest in the trust estate or the income thereof until the same is actually paid over and transferred to them, and which also provides that they shall have no “power in any manner to assign, transfer, charge or anticipate the same, or any part thereof, or interest therein, until the same is actually paid over and transferred to them,” is merely a spendthrift clause. We do not believe that this spendthrift clause evidences any intention of the testator, one way or another, as to whether Philip shall have a power to appoint the trust estate at his death and prior to the death of Carolyn. The purpose of this spendthrift clause is solely to protect a living beneficiary by preventing him from transferring his interest in property prior to the time of distribution to him. It has no independent disposi-tive effect upon the terms of the testator’s will. Northern Trust Co. v. North, 73 Ill App2d 469, 220 NE2d 28.

       The Dreyfus appellants do not contend that they would be entitled to the trust estate if it passed as intestate property. That they would have no interest whatsoever if the property passed intestate was admitted by their counsel at oral argument. Under the intestacy laws, the property would descend to the heirs at law of the testator who were alive at the testator’s death. Those heirs would include only the testator’s widow and children.

       That portion of the will provides that if Philip survives Carolyn, and Carolyn fails to direct distribution of the Philip Trust, then the trust estate shall be held by the same trustees for the benefit of Philip; and that in their discretion the trust corpus could be distributed to Philip. Since Philip predeceased Carolyn, there could be no distribution to him and therefore the next sentence of the will immediately came into effect: “Upon the death of said Philip S. Dreyfus, the principal, or so much thereof as may at such time remain in the hands, custody and control of said Trustees, together with any accumulated income, shall be divided and distributed as said Philip S. Dreyfus may by his Last Will and Testament validly appoint . . . .”

       In denying the motion for summary judgment of the executor of Carolyn’s will, the court apparently considered only that portion of the executor’s answer to the effect that Philip possessed a power which was validly exercised.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Preston, Defendant-Appellant.
    Gen. No. 50,519. (Abstract of Decision.)
    First District, Second Division.
    September 15, 1967.
    Marvin S. Grant, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver Ferguson, Assistant State’s Attorneys, of counsel), for appellees.
   Opinion by JUSTICE BURKE. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald Bratcher, Defendant-Appellant.
    Gen. No. 51,250. (Abstract of Decision.)
    First District, Second Division.
    September 15, 1967.
    Walter La Von Pride, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s' Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Clifford L. Wall and Virginia M. Wall, f/u/o Travelers Insurance Company, Plaintiffs-Appellees, v. Airport Parking Company of Chicago, Defendant-Appellant.
    Gen. Nos. M-51,603, 51,536. (Consolidated.)
    First District, Second Division.
    September 15, 1967.

      Weaver & Piety, of Chicago (Philip; A. Piety, of counsel), for appellant.
    Epton, McCarthy, Bohling & Druth, of Chicago (Bernard E. Epton, Edward A. McCarthy, and David S. Kreis-man, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Travelers Insurance Company, as subrogee, brought this action to recover in an amount paid by it to its insured for damages to an automobile stolen from a parking lot at the O’Hare Airport. Defendant’s motion for judgment on the pleadings was denied and the case proceeded to trial on an agreed statement of facts. Judgment in the amount of $1,846.55 was entered for the plaintiffs and the defendant appeals.

Defendant maintains that the record, as a matter of law, fails to establish a bailor-bailee relationship between the operator of the automobile and the defendant, and that the record is devoid of any evidence of negligence on defendant’s part.

The agreed statement of facts discloses that defendant operates a parking lot at O’Hare Airport under a contract from the City of Chicago. The lot has a capacity for approximately 2,500 automobiles and the surface, is paved and marked for parking spaces. The lot is enclosed by a fence, has designated entrances and exits, and is lighted at night. A motor vehicle operator gains admission to the lot through one of the designated entrances where" a machine dispenses a dated and time-stamped ticket to the operator. The reverse side of the ticket bears the following legend: “This is a lease of parking space only'and not a bailment.” After receiving the ticket the vehicle operator drives his automobile to a parking space of his own choosing, parks the automobile, locking it or not as he sees fit, and retains the key. Upon return to the lot to reclaim his automobile, the automobile operator goes directly to the automobile and drives it to one of the designated exits where he presents the ticket to an attendant who computes the parking charges therefrom. This is the only instance in the entire parking procedure where the automobile operator has any contact with the defendant’s agents.

On December 19, 1962, Richard Wall, plaintiffs’ agent, drove the automobile in question into defendant’s parking lot, following the procedure above described. The following day when he returned to the lot to reclaim the automobile he was unable to locate it. The record shows that at no time did defendant’s agents move the automobile; they did not have the key to the automobile nor did they know where the automobile was parked in the lot. A report was made to the police after it was concluded that the automobile had been stolen; it was subsequently located where it had been abandoned in a damaged condition by the thieves.

The question presented by the factual situation in this case, namely, whether the relationship between defendant as an operator of a commercial self-parking lot and an automobile operator who uses the lot is that of a bailor-bailee or whether it is some other relationship, is one of first impression in this jurisdiction. (In the case of Standard, Inc. v. Kirby, 319 Ill App 206, 48 NE2d 716, defendant on appeal challenged the trial court’s finding of his status as a bailee under the facts of the case, but the Appellate Court held that the defendant’s answer to the complaint admitted his status as a bailee and disposed of his contention in this manner.)

The “parking lot cases,” as they are commonly known, fall generally into three categories: (1) where an attendant simply collects a parking fee and designates a place to park, and the automobile operator retains control of the automobile, locking it or not as he wishes; (2) where an attendant collects a parking fee, assumes control of the automobile and parks it, moves it when the key is left at the request of the attendant and a ticket is issued to the automobile operator as a means of identifying the automobile upon redelivery; and (3) where the status of the parties falls in between the above two categories and is controlled by the nature of the circumstances within which the parties deal. The first class of cases generally is held to be a lease or a license, whereas the second category is generally held to be a bailment. See 131 ALR 1175, et seq.; Lewis v. Ebersole, 244 Ala 200, 12 So2d 543. Perhaps the case most extensively cited in relation to the third category is Osborn v. Cline, 263 NY 434, 189 NE 483, wherein the court stated that the circumstances of each case must be considered in arriving at the nature of the relationship between a parking lot operator and an automobile operator who uses the lot for a fee.

The most significant distinction between a bailment situation and a license or a lease situation (when the automobile is damaged or stolen while on the parking lot,) is that in the bailment situation negligence is presumed on the part of the parking lot operator where the automobile operator makes out a prima facie case that he turned the automobile over to the lot operator in good condition, but that the lot operator has either failed to return the automobile or has returned it in a damaged condition; the burden then devolves upon the parking lot operator to go forward with evidence that he was not negligent. Byalos v. Matheson, 328 Ill 269, 159 NE 242. Where, on the other hand, a lease or license relationship is established by the evidence of the automobile operator, it is incumbent upon him to prove in what specific manner the parking lot operator was negligent or that the latter had assumed the duty to safeguard the automobile. (See the extensive treatment given to the subject of liability for loss or damage to automobiles left in parking lots or garages in the recent annotation in 7 ALR3d, beginning at page 927.)

The creation of a bailment may be either by express or implied agreement; a delivery or transfer of possession of the property must be effected and there must be an acceptance of the property by the bailee. North v. City of Rockford, 237 Ill App 305, 307. While there need not be a delivery of the property in the technical sense, there must be an actual change of possession of the property from the bailor to the bailee. See 8 Am Jur2d, Bailments, § 5. From a reading of the agreed statement of facts it is evident that the status of bailor and bailee did not exist between Richard Wall and the defendant at the time the Wall automobile was stolen.

Richard Wall at no time left the Wall automobile in defendant’s possession and control. The automobile was driven into the defendant’s parking lot through one of the designated entrances and a machine dated, timestamped ticket was received upon entry. Wall drove the automobile into the lot, undirected and unsupervised by any of defendant’s agents, and chose a parking space within the lot suitable to himself. Wall then parked and locked the automobile, retaining the key. At no time did Wall come into contact with defendant’s agents and the only contact he would have had would have been when paying the parking fee at one of the designated exits after he had secured the automobile himself and drove it to the exit. While it is true, as plaintiffs maintain, defendant could have restrained Wall from exiting the lot without paying the parking charges, this in no way relates to any possession or control which defendant may have exercised over the automobile, but merely relates to the power of defendant to enforce its lien for the parking charges. See 1420 Park Road Parking, Inc. v. Consolidated Mut. Ins. Co. (DC Mun App), 168 A2d 900.

The dated and time-stamped machine dispensed ticket which must be presented upon leaving the parking lot was neither a means of identifying the vehicle nor was it an exercise of control over the vehicle by the defendant. It appears that every ticket dispensed from the entrance machines is identical except for the date and time markings thereon. The sole function of the ticket is for the computation of parking charges. In Greene Steel & Wire Co. v. Meyers Bros. Operations, Inc., 44 Misc2d 646, 254 NYS2d 299, the undisputed facts that the parking lot operator’s method of operation of the lot, the signs posted around the lot, the ticket obtained by the automobile operator defining the service sold by defendant, and the automobile owner never having given possession or control to the defendant, led the court to conclude that defendant assumed no duty to safeguard plaintiff’s automobile and to further conclude that the relationship between the plaintiff and the defendant was that of licensor and licensee. See also 1420 Park Road Parking, Inc. v. Consolidated Mut. Ins. Co. (DC Mun App), 168 A2d 900. Similarly in the case at bar, the agreed statement of facts involves no circumstances from which it may be inferred that Richard Wall intended to give possession and control of his automobile to the defendant after he had parked and locked the automobile, retaining the key, nor that defendant assumed any responsibility to safeguard the automobile.

Plaintiffs cite several cases in support of the position that the operator of a parking lot enters an agreement to safeguard the automobiles parked on his lot for a fee, none of which has any bearing on the question presented in the case at bar. In Nargi v. Parking Associates Corp., 36 Misc 836, 234 NYS2d 42, a reported trial court case, local fencing ordinances were involved requiring certain parking lots to be fenced, which requirement was extended by the court to apply to the defendant. The court proceeded on an assumption in that case that defendant had the duty to safeguard all automobiles which had been parked in the lot. The Nargi case consequently assumes the answer to the very question which is presented here. In the case of Galowitz v. Magner, 208 App Div 6, 203 NYS 421, the evidence was undisputed that defendant had attendants in the lot “looking after, taking care of the cars as they came in and went out” and the court found from the facts a bailment situation between the parking lot owner and the automobile driver. As was stated in Osborn v. Cline, 263 NY 434, 189 NE 483, the circumstances of each individual case must govern a determination of the relationship between the parties, from which flows the relative rights and obligations of the parties. In the case at bar, the undisputed facts show no obligation on the part of defendant to safeguard the Wall automobile and further show no bailor-bailee relationship between the parties.

Finally, plaintiffs’ complaint does not charge defendant with negligence other than the negligent failure to uphold its contract to safeguard the Wall vehicle. As has been stated above, defendant assumed no burden to safeguard plaintiffs’ vehicle and consequently could not have violated any duty in that regard. Furthermore, the complaint contains no specific charge of tor-tious or negligent conduct on the part of defendant, nor does the agreed statement of facts reveal any such conduct, which allegation and proof are necessary where a bailment situation has not been established.

The judgment is reversed and judgment is entered for defendant and against plaintiff for use of Travelers Insurance Company.

Judgment reversed and judgment entered against plaintiff.

LYONS, P. J., concurs.

BRYANT, J., dissents.


author: MR. JUSTICE DRUCKER

text:
    Sylvia Noumoff, Plaintiff-Appellant, v. Dorothy Rotkvich, Defendant-Appellee.
    Gen. No. 51,416.
    First District, Fourth Division.
    September 20, 1967.
    Rehearing denied October 23,1967.

      Albert B. Fritzshall, of Chicago, for appellant.
    Heineke, Conklin & Schrader, of Chicago (Andrew H. Marsch and Randall T. Clair, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff, Sylvia Noumoff, appeals from the judgment entered for the defendant and from the denial of her motion for a new trial after a jury verdict in favor of the defendant, Dorothy Rotkvich. This was an action brought by the plaintiff to recover damages under the Dram Shop Act (Ill Rev Stats 1957, c 43, § 135) against Nicholas Rotkvich, Dorothy Rotkvich, Michael D. McFarland and Loretta McFarland as defendants. The latter two defendants were covenanted out and are not now parties to this action. Nicholas Rotkvich died during the pendency of this action and the cause proceeded to trial against Dorothy Rotkvich alone. In this appeal plaintiff requests that the judgment be reversed and a new trial granted, alleging various improprieties in the proceeding below which deprived her of a fair trial. In the alternative plaintiff requests this court to enter a judgment notwithstanding the verdict.

At the trial plaintiff testified that on the evening of November 14, 1958, she was driven to Nick & Dorothy’s tavern (owned by Nicholas and Dorothy Rotkvich) by Michael McFarland where they spent several hours, but not in the company of each other. She further testified of the circumstances when they left the tavern:

“Mr. McFarland was walking behind me. I got in on the passenger side of the car. Mr. McFarland got in on the driver side. The car was unlocked. He started to drive, stopped at the corner and turned south on Commercial Ave. Commercial Ave. runs north and south. After we got on Commercial Ave. he was driving very fast. I told him to slow down that he was speeding. I then smelled a heavy odor of liquor. He looked dopey like and I told him I wanted to get out and take a cab. I have ridden in automobiles before. It is my opinion he was going about 45 or 50 miles per hour.
“. . . It was at 104th Street when I told him to slow down and be careful because he was driving so fast. It was just a matter of seconds after I told him to slow down and be careful that we crashed. The car veered off and crashed into a utility post.”

Michael McFarland testified and admitted that he had been at the tavern with plaintiff and that he drank “three or four beers.” He further stated:

“When I left the tavern I was with Miss Noumoff. The weather was raining at the time. When I left the tavern my opinion was that I was sober. . . .
“I can’t recall who got in [the car] first. . . . [A]s we turned the bend, right around 104th and Torrence, ... a car was coming at me . . . , so I hit the wheel, and I must have hit it too hard. . . . I turned the wheel, and I turned it too quick, and the wheels skidded on the wet pavement, and that is when we collided with the lamp post.”

Francis Gaffney, a police officer who investigated the accident in which plaintiff and McFarland were involved, also testified at the trial. He identified his signature on a police report of the accident (marked as Defendant’s Exhibit Number 1 for identification) and stated that the report was accurate when made. While Officer Gaffney then testified as to McFarland’s sobriety and physical condition at the time of the accident, it is unclear from the record whether the witness was testifying from his own recollection, from recollection refreshed by the police report or by reading from the police report itself. Subsequent to the testimony of Officer Gaffney defendant requested that the police report be admitted into evidence, but the request was denied. Defendant later adduced a copy of the report with a blocked-out portion which, over the strenuous objection of plaintiff, was admitted into evidence (Defendant’s Exhibit Number 2). This exhibit contained two boxes. The first was entitled “sobriety condition” in which was checked “ability not impaired.” The second box was entitled “physical condition only” in which was checked “apparently normal.”

In contending that she did not receive a fair trial plaintiff contends, inter alia, that the introduction into evidence of Defendant’s Exhibit Number 2 (the blocked-out portion of the police report) was prejudicial error.

In admitting the report as blocked out by defense counsel into evidence, the trial judge relied upon the doctrine of past recollection recorded. The basis for admitting a document into evidence under that doctrine was set forth by the Supreme Court of Iowa in State v. Easter, 185 Iowa 476, 170 NW 748, 749:

“Before a memorandum of this kind is admissible to prove the existence of a fact therein, recorded, it must be made to appear that the fact therein recorded was correctly entered, and that the memorandum speaks the truth touching the disputed matter. It does not, of itself, prove the truth of the matters therein stated. The truth must be found in the testimony of some living witness who knows and can say that at the time the record was made he had personal knowledge of the matters therein recorded, and that he made, or caused it to be made, as a record of facts at the time within his knowledge. He may not be able to recall the transaction, by effort or memory; yet if he knows that the matters therein recorded were, at one time, within his knowledge, and that while so within his knowledge he made this record, that it was then his purpose or duty to truthfully record the facts therein stated, then the memorandum becomes evidence of the fact, not by reason of its recitals, but because by the testimony of the living witness, it is made reasonably certain that it speaks the truth.”

The limited circumstances under which the document is admissible are set forth in Stanton v. Pennsylvania R. Co., 82 Ill App2d 406, 409, 178 NE2d 121, where the court quoted with approval from Diamond Glue Co. v. Wietzychowski, 227 Ill 388, 81 NE 392:

“Another condition under which a writing may be used is where the witness, after inspecting a writing, still has no independent recollection of the facts stated therein, but is able to state that he correctly reduced them to writing at the time of the occurrence or within such a time afterward that he had a perfect recollection of them.”

In Stanton, supra, the document itself was introduced into evidence but was not given to the jury because portions thereof were inadmissible even under the doctrine of past recollection recorded. However, rather than giving to the jury a blocked-out copy of the document revealing only the admissible portions, the witness was allowed to read the admissible portions during the course of her testimony.

Thus, the primary requisites to the admission of a document into evidence under the doctrine of past recollection recorded are: (1) the witness has no independent recollection of the facts and (2) after reviewing the document the witness has been unable to refresh his recollection. These requisites must be established by the proponent of the application of that doctrine before the aforesaid document or testimony therefrom is admissible into evidence. In the instant case, according to the report of proceedings, it is unclear whether Officer Gaffney was testifying from his own recollection, recollection refreshed after reviewing the police report, or from the report itself. This confused state of the record is demonstrated by the following excerpts therefrom during direct examination by the defense attorney (Marsch):

“Q. Do you recall, or from the police report can you refresh your recollection as to whether you saw Michael McFarland at the scene? A. I can’t recall. Q. Do you recall seeing him at all that evening, or that early morning? A. I saw him.”
“Did you have an opportunity to observe him while you were there? . . . Mr. Marsch: Q. While you were taking the statement? Court: You may answer. Witness: How long? Mr. Marsch: Approximately, your best estimate. A. I couldn’t say how long it would actually take. Q. Well, your best estimate how long? Five minutes? Ten minutes? Fifteen minutes? A. I’d say — Well, let’s see. Say fifteen. Q. All right sir. And during this time you were speaking with him, isn’t that correct? A. Yes, sir. Q. And were obtaining information concerning this report, isn’t that correct, sir? A. Yes, sir. Q. Based upon that observation and that conversation do you have an opinion as to his condition of sobriety at that time ? Mr. Fritzshall [plaintiff’s attorney] : Object, he didn’t — Court: Overruled. Mr. Fritzshall: He didn’t state whether he remembered. He says he doesn’t even remember — Court: Objection overruled. He may answer if he knows.
“Mr. Marsch: Q. Do you recall the question, sir? A. He had — I will have to — Q. Just do you have an opinion as to his condition of sobriety at that time? A. He had been drinking. Q. Do you have an opinion as to his condition of sobriety? Mr. Fritzshall: He answered he had been drinking. Witness: Ability not impaired. Court: Now wait. What is your objection? . . . Court: Objection overruled. You may answer his question. Mr. Marsch: Q. Do you have an opinion as to his condition of sobriety? A. Ability not impaired. Mr. Fritzshall: Object and move that be stricken. Mr. Marsch: Q. By that you mean that he was sober, is that correct, sir ? Court: The answer may be stricken. Answer the question that Counsel propounds. Mr. Marsch: Q. Do you have an opinion as to his condition of sobriety ? A. Yes, sir. Q. And what is that opinion? A. He’s sober, according to this (referring to police report in his hand). Q. All right. Mr. Fritzshall: I will move to strike it. He says, ‘He’s sober, according to this,’ and not as to his own recollection. Court: Objection be overruled. Mr. Fritzshall: Well, if your Honor — Court: The answer will stand. Mr. Marsch: Q. Now, Officer, have you been able to refresh your recollection from that document or from your personal memory as to the type of evening it was, as to dry, wet, raining, the weather conditions? A. The weather was rainy. The road condition was wet. Q. Can you refresh your recollection now, either from that report or from your individual recollection, as to whether or not you gave Mr. McFarland any type of alcohol test?”

Although on cross-examination Officer Gaffney stated that he had no “independent recollection” of “anything about the accident itself,” it is unclear whether the witness meant that even after reviewing the police report he had no recollection of the accident. We conclude that defendant did not establish: (1) that Officer Gaffney did not have an independent recollection of the facts relating to the sobriety and physical condition of Michael McFarland; and (2) that after reviewing the police report Gaffney was unable to refresh his recollection. Therefore, Defendant’s Exhibit 2 (the blocked-out portion of the police report) was erroneously introduced into evidence under the doctrine of past recollection recorded.

Since Exhibit 2 further impressed upon the minds of the jurors, in addition to the testimony of Officer Gaffney, that McFarland was sober at the time of the accident (the sobriety of McFarland being an important issue in the case) the aforesaid error was prejudicial and deprived the plaintiff of a fair trial.

Plaintiff also requests for the first time on appeal that a judgment notwithstanding the verdict be entered in her favor. Since this relief was not requested in the post-trial motion, the issue cannot be considered on appeal.

Since we have found that plaintiff did not receive a fair trial, we need not consider the other alleged improprieties which plaintiff claims deprived her of a fair trial. The judgment is reversed and the cause remanded for a new trial in accordance with this opinion.

Reversed and remanded.

ENGLISH, P. J. and MCCORMICK, J., concur.

       This section provides in relevant part that:
      Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving liquors aforesaid, ....


text:
    Wendy Katherine Johnson, a Minor, by Katherine Healy Adamson, Also Known as Mary Katherine Adamson, Her Mother and Next Friend, Katherine Healy Adamson, Individually and as Guardian of the Estate of Wendy Katherine Johnson, a Minor, and as Trustee for All Persons Not in Being, Who Upon Coming into Being, May Be Entitled to or May Claim To Be Entitled to, Some Interest in Property Involved in This Suit as the Descendants of Ray Prescott Johnson, III, and of Wendy Katherine Johnson, Ray Prescott Johnson, III, Also Known as Prescott Johnson, Charles Alexander Patrick Johnson, a Minor, by Ray Prescott Johnson, III, His Father and Next Friend, and Patrick Adamson, Plaintiffs-Appellants, v. Continental Illinois National Bank and Trust Company of Chicago, a National Banking Association, as Executor of the Last Will and Testament of Ray Prescott Johnson, Deceased; Continental Illinois National Bank and Trust Company of Chicago, a National Banking Association, and Charles Strout Davis, Jr., as Trustees of the Trusts Created by the Last Will and Testament of Ray Prescott Johnson, Deceased; Alice Boyd Johnson, Individually and as Trustee for All Persons Not in Being, Who Upon Coming into Being, May Be Entitled To or May Claim To Be Entitled to, Some Interest in Property Involved in This Suit as the Descendants or Heirs at Law of Boyd Davis Johnson, Boyd Davis Johnson, a Minor, and the Northern Trust Company and Alice Boyd Johnson, as Guardians of the Estate of Boyd Davis Johnson, a Minor, Defendants-Appellees.
    Gen. No. 51,872.
    First District, Second Division.
    September 22, 1967.

      Edward Atlas and William B. Crawford, of Chicago, for appellants.
    Samuel A. Rinella, J. Laurence Barasa, Addis E. Hull, Spencer H. Raymond, and Hugh M. King, of Chicago, for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

The complaint as amended sought construction of certain provisions of a property settlement agreement entered into on June 29, 1953, between decedent and his then wife, Katherine Healy Johnson, presently Katherine Healy Adamson. No testimony was heard, the relevant facts being presented by a stipulation between the parties.

Decedent and Mrs. Adamson were married on April 1, 1935. Two children were born of the marriage, Ray Prescott Johnson III, in November of 1937 (hereinafter referred to as Prescott) and Wendy Katherine Johnson in June of 1949 (hereinafter referred to as Wendy). In June of 1953 the property settlement agreement was executed and a short while thereafter Mrs. Adamson filed her complaint for divorce. The following August a decree of divorce was entered and the property settlement agreement was incorporated as part of the decree. The agreement provided, inter alia, that Mrs. Adamson should have custody of Prescott and Wendy, aged 15 and 4, respectively, at the time of the agreement; that the decedent purchase a home in Michigan for use as the residence of Prescott and Wendy; that decedent contribute $600 monthly toward the maintenance of the home; that decedent provide by will that no less than 50% of his net estate should be placed in trust for the benefit of Prescott and Wendy, subject to certain express conditions ; and that any inter vivos gifts made by decedent to Prescott and Wendy after the date of the agreement could be deducted from the 50% share referred to above.

In April of 1956 decedent was married to Alice Boyd Johnson and a son, Boyd, was born of that marriage in 1957. Mrs. Adamson was married to Patrick Adamson in June of 1956. Since the divorce decree in 1958, Wendy has resided with Mrs. Adamson in the Michigan home, but Prescott has married and no longer resides there.

Decedent died in March of 1964 leaving a will dated July 8, 1958, and a codicil dated February 21, 1968, both of which were admitted to probate by the Circuit Court of Cook County, Probate Division, and letters testamentary were issued in May of 1964.

In November of 1964, plaintiffs filed the complaint herein to construe several provisions of the property settlement agreement, namely, whether Paragraph V of the agreement which provided for the creation of the trust for Prescott and Wendy by decedent’s will requires the 50% share of the estate to be determined after claims, expenses of probate, attorneys’ and executors’ fees, and the like; whether the agreement permits decedent to provide by will that certain inter vivos gifts made by him to Prescott and Wendy after execution of the agreement to be deducted from the 50% share; and whether decedent’s estate is obligated to continue to pay the monthly home maintenance which decedent was obligated to pay under the agreement. The chancellor found, and the decree recited, that Prescott and Wendy’s share should be calculated after deduction of claims, expenses of probate, attorneys’ and executors’ fees, etc.; that the inter vivos gifts made by decedent to Prescott and Wendy after the execution of the agreement were to be deducted from their 50% share of the estate; and that decedent’s estate was not obligated to continue the $600 home maintenance contributions, from which determinations plaintiffs appeal.

The first argument raised by plaintiffs is that the chancellor erred in determining that Prescott and Wendy’s share of decedent’s estate should be calculated after deduction of claims, expenses of probate, fees, and the like. Plaintiffs maintain that the wording of the settlement agreement requires that the 50% share should be determined only after decedent’s debts alone are deducted from the gross estate.

That part of Paragraph V of the property settlement agreement which provides for the creation of the trust for the benefit of Prescott and Wendy sets out:

“Ray Johnson agrees that he will provide by his will that no less than 50% in actual value of his net extate (sic) as composed at the time of his death shall be placed in trust for the benefit of his children, Prescott Johnson and Wendy Johnson . . . ; that in the event that only one of said children shall survive [him], that no less than 25% of his net estate as composed at the time of his death will be placed in trust for the benefit of such child, provided he or she survives him.”

Plaintiffs contend the words “50% in actual value of his net extate (sic) as composed at the time of his death” and the similar wording near the end of the above quotation, clearly indicate decedent’s intention to benefit his two children by providing that the 50% share be calculated after debts alone are deducted from decedent’s gross estate. Plaintiffs attempt to buttress their position in this regard by comparing the above quoted wording in Paragraph Y of the agreement to that employed in Paragraph IV, which paragraph relates to the alimony payments to be made to Mrs. Adamson. Paragraph IV provides in part:

“. . . or if said sum of Two Hundred Forth (sic) Thousand Dollars ($240,000.00) exceeds one-third of the value of Ray Johnson’s net estate after payment of all claims, expenses of probate and all estate or inheritance taxes, state and federal. . . .
“. . . provided, however, that in no event shall more than one-third of the net estate of Ray Johnson after payment of all claims, expenses of probate and inheritance and estate taxes, state and federal, be used for payments to Katherine Johnson [Mrs. Adamson] hereunder.”

Plaintiffs state that the words “actual value of his net extate (sic) as composed at the time of his death” are not synonymous with the words “net estate after payment of all claims, expenses of probate and all estate or inheritance taxes, state and federal,” and argue that the absence from Paragraph V of the wording used in Paragraph IV relative to the definition of “net estate” is evidence of an intention of the parties to the settlement agreement that the 50 % share be calculated as of the time of decedent’s death after debts alone are deducted from the gross estate. We agree with plaintiffs’ position that a court, in construing a document, will not add thereto matters about which the document is silent, nor will it reject matters contained therein as mere surplusage, (DeTienne v. S. N. Nielsen Co., 45 Ill App2d 231, 234, 195 NE2d 240; Weger v. Robinson Nash Motor Co., 340 Ill 81, 92, 172 NE 7). The primary object of judicial construction is to establish the intention of the parties at the time the document was executed from a consideration of the entire document. Gay v. S. N. Nielsen Co., 18 Ill App2d 368, 374, 152 NE2d 468.

A consideration of the entire property settlement agreement reveals that the parties contemplated remarriage and the possibility of a second family on decedent’s part. Paragraph IV specifically limits the alimony to be received by Mrs. Adamson to no more than one-third of decedent’s estate after all claims, expenses of probate, taxes, etc., were deducted therefrom, no more than she would have been entitled under the statutes of descent and distribution. In Paragraph Y, Prescott and Wendy were given the benefit of 50% of decedent’s estate, with the possibility of their receiving less than 50% at the option of decedent. The agreement permits decedent to provide by will that the alimony payments due Mrs. Adamson could be paid one-half out of the Prescott share and the other half out of the Wendy share of the 50% trust. Thus, decedent had the power to provide less than 50% of his net estate to Prescott and Wendy and to limit the portion of his net estate which his first family, Mrs. Adamson, Prescott and Wendy, would receive to 50%. Furthermore, Paragraph V permits decedent to provide that certain inter vivos gifts made by him to Prescott and Wendy after the date of the agreement be deducted from the share to be held in trust for them, indicating that decedent could, by his own choosing, limit the amount to be received by his first family after the divorce to a maximum of 50% of his net estate. It should also be noted that the deduction of gifts relates only to those gifts given after the agreement was executed, again indicating decedent desired equal treatment be given to his two families should he desire to remarry.

It is clear that a second marriage and the possibility of a second family on decedent’s part was contemplated by the parties to the agreement. Plaintiffs’ construction of the wording in Paragraph V, that the 50% share to be held in trust for Prescott and Wendy must be determined after debts alone are deducted from decedent’s gross estate, cannot be sustained for the reason that decedent’s first family would receive a far greater share of the estate than would his second family, an effect plainly not contemplated by the agreement.

Plaintiffs also maintain that it is only natural that decedent and Mrs. Adamson should desire the greatest benefit to be extended to Prescott and Wendy by providing that their share be determined after debts alone are deducted from the gross estate and that the law favors a disposition by a parent in favor of his children. While it is true that this statement of law is well settled, (see In re Clarke’s Estate, 158 Misc 830, 286 NYS 968, 971,) the argument overlooks the clear intention in the agreement to allow decedent, if he remarried, to provide 50% of his estate for his second family. Furthermore, plaintiffs throughout their brief treat the 50% share agreed upon to be held in trust for Wendy and Prescott as the creation of an incontestable right on their part to receive 50% of decedent’s net estate. This is not true in the light of the fact that the agreement provides that decedent had the power to require Mrs. Adamson’s alimony payments to be made from the 50% share and also that the inter vivos gifts to Prescott and Wendy could be deducted from the share.

The second contention raised by plaintiffs is that the chancellor erred in decreeing that the inter vivos gifts made by decedent to Prescott and Wendy after the date of the agreement must be deducted from the value of the share held in trust for them. Plaintiffs maintain first that because the agreement does not employ the words “by his will” when stating the gifts could be deducted, decedent had no power to provide by will that the gifts be deducted; they claim decedent was required to declare his intention that the gifts be deducted at the time they were made, which he failed to do.

The pertinent portions of Paragraph V of the agreement in this regard read as follows:

“Ray Johnson agrees that he will provide by his will that no less than 50% in actual value of his net extate (sic) as composed at the time of his death shall be placed in trust for the benefit of his children. . . .
“In computing the percentage of the net estate of Ray Johnson which shall be left in trust for the benefit of said child or children, there may be deducted any gifts which Ray Johnson shall hereafter give during his lifetime to his said children.”

It is clear from these provisions that the language concerning the deduction of the gifts relates back to the creation of the trust and the method of determination of its value. Since the trust was to be created by decedent’s will, so also was decedent to provide by his will that the gifts were to be deducted from the share. As was stated above, this provision was another method at decedent’s disposal to treat his first and second families equally, should he have a second family; it is therefore unlikely that, as plaintiffs maintain, the agreement required decedent to declare his intention that the gifts be deducted at the time they were made for the reason that some of the gifts may have been made before decedent had remarried or had contemplated remarriage.

Plaintiffs maintain in the alternative that, even if the chancellor correctly decreed that the gifts be deducted from the Prescott and Wendy trust share, he employed an improper method of computing the deductions. Plaintiffs state the proper method of computing the deductions is by adding the value of the gifts to the value of the probate estate, taking the 50% share therefrom and finally deducting the value of the gifts. There is nothing in the agreement or the will which would indicate that the above method was intended or that anything other than a straightforward method of computing the deductions was intended, namely, that of simply computing 50% of the probate estate and then deducting the value of the gifts as the chancellor did.

Plaintiffs’ final contention is that the chancellor erred in decreeing that decedent’s estate was not obligated to continue to make the $600 home maintenance contributions which the agreement required decedent to make during his lifetime. They maintain that since Wendy still resides in the Michigan home the estate must continue to contribute to its maintenance. However, the conditions under which decedent was to contribute to the home maintenance were (1) one or both children were still residing in the home and (2) decedent would still be supporting such child or children. The obligation of decedent to support the children terminated with his death, Cooper v. Estate of Cooper, 350 Ill App 37, 42, 111 NE2d 564, and the obligations of support passed to the trust. The settlement agreement nowhere provides that decedent’s estate should continue to contribute to the maintenance of the home.

For these reasons the decree is affirmed.

Affirmed.

LYONS, P. J. and BRYANT, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Somerville, Defendant-Appellant.
    Gen. No. 51,356. (Abstract of Decision.)
    First District, Second Division.
    September 22, 1967.
    Rehearing denied and opinion modified October 20, 1967.
    Julius Lucius Echeles, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James A. Stamos, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.