                                                                         Digitally signed by
                                                                         Reporter of Decisions
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                                                                         document
                                Appellate Court                          Date: 2018.01.18
                                                                         10:51:02 -06'00'




                   Campbell v. Campbell, 2017 IL App (3d) 160619



Appellate Court     RUSSELL B. CAMPBELL, BARBARA A. DETERMAN, and
Caption             GREG E. CAMPBELL, as Trustees of the Clyde E. Campbell
                    Declaration Trust Dated March 29, 1999, as Amended and Restated,
                    Plaintiffs, v. RUSSELL B. CAMPBELL and GREG E. CAMPBELL,
                    Defendants (Russell B. Campbell, Defendant and Cross-
                    Defendant-Appellant; Greg E. Campbell, Defendant and Cross-
                    Plaintiff-Appellee).



District & No.      Third District
                    Docket No. 3-16-0619



Filed               September 14, 2017
Rehearing denied    October 17, 2017



Decision Under      Appeal from the Circuit Court of Warren County, No. 14-MR-68; the
Review              Hon. Heidi A. Benson, Judge, presiding.



Judgment            Affirmed.


Counsel on          Richard L. Whitman, of Whitman & Baber, of Monmouth, for
Appeal              appellant.

                    Timothy D. Roberts, of Anderson, Roberts, Porth, Wallace & Stewart,
                    LLP, of Burlington, Iowa, for appellee.
     Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                                Justice Schmidt concurred in the judgment and opinion.
                                Justice O’Brien specially concurred, with opinion.


                                                   OPINION

¶1         Plaintiffs, as trustees of the Clyde E. Campbell Declaration of Trust, brought a declaratory
       judgment action against two of its beneficiaries, Russell B. Campbell and Greg E. Campbell,
       seeking to have the trial court determine which of the two beneficiaries was entitled to certain
       current or former trust property. During pretrial proceedings, the two beneficiaries filed
       cross-motions for partial summary judgment. After a hearing, the trial court granted Greg’s
       motion for partial summary judgment and denied Russell’s motion. Russell appeals. We affirm
       the trial court’s ruling.

¶2                                                 FACTS
¶3          The dispute in this case involves the estate plan of Clyde Campbell. Clyde was married to
       Helen Campbell and had three children: Barbara Determan, Greg Campbell, and Russell
       Campbell. In 1999, as part of his estate plan, Clyde executed a declaration of trust, which
       established the instant living trust (Clyde’s trust or the trust). Clyde also executed a will and
       other documents to form a land trust (farm trust) and a limited liability company (LLC).1 The
       farm trust was owned equally by Clyde’s trust, Helen’s trust (a trust that was established by
       Clyde’s wife), and Greg. Each owned a one-third interest. The LLC was owned in the same
       manner.
¶4          In February 2012, Clyde amended and restated the declaration of trust (amended
       declaration). Of relevance to this appeal, the amended declaration provided that (1) Clyde was
       the trustee of the trust; (2) as long as he was acting as the trustee, Clyde had the power to
       withdraw any part or all of the net income and principal of the trust; (3) Clyde could make gifts
       of “trust property” to such persons and entities and subject to such terms and conditions as
       Clyde deemed appropriate; and (4) upon Clyde’s death, any interest that Clyde’s trust owned in
       the farm trust and the LLC was to be distributed to Helen first (either directly or in trust) and
       then to Greg, if Helen died before Clyde or if Helen disclaimed her interest.
¶5          In April 2012, while Clyde was residing in a retirement community but still serving as the
       trustee of his own trust, Russell’s attorney drafted two assignments at Russell’s direction,
       which purported to transfer the interest of Clyde’s trust in the farm trust and the LLC to
       Russell. A secretary or assistant for Russell’s attorney took the assignments to Clyde at the
       retirement community, and Clyde signed the assignments in his own name individually. Clyde
       did not sign the assignments in his capacity as the trustee of his trust. The assignments
       specifically stated that they were to be effective upon Clyde’s death, and the secretary was the

             1
            It is impossible to tell with certainty from the record before us whether the land trust in this case
       was a common law land trust or an Illinois land trust. Therefore, to avoid confusion, we will refer to the
       land trust simply as the “farm trust.” See IMM Acceptance Corp. v. First National Bank & Trust Co. of
       Evanston, 148 Ill. App. 3d 949, 954 (1986) (explaining the difference between the two types of trusts).

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       only person who witnessed the assignments. Clyde passed away in July 2012, and his will was
       subsequently admitted to probate.
¶6         After Clyde’s death, a dispute arose as to whether Clyde’s trust or Russell owned the
       one-third interests in the farm trust and the LLC that was the subject of the assignments. If
       Clyde’s trust was the owner, pursuant to the terms of that trust, the one-third interests would
       pass to Greg upon Clyde’s death. If Clyde’s trust did not own the one-third interests, the
       interests would not pass to Greg, and Russell would remain the owner pursuant to the
       assignments.
¶7         In September 2014, plaintiffs filed the instant declaratory judgment action seeking to have
       the trial court determine whether Clyde’s trust (and, ultimately, Greg) or Russell owned the
       one-third interests in the farm trust and the LLC. The complaint was later amended, and both
       Russell and Greg were named as defendants. Russell and Greg both filed answers to the
       complaint. In his answer, Greg asserted, among other things, that Clyde lacked the mental
       capacity to make the assignments and that the assignments were the product of undue influence
       on the part of Russell. In addition to an answer, Greg also filed a cross-claim.
¶8         In November 2015, Russell and Greg both filed cross-motions for partial summary
       judgment. Russell argued in his motion that the assignments were valid and that he was the
       rightful owner of the one-third interests in the farm trust and the LLC. Greg argued that the
       assignments were void, that Clyde’s trust was the rightful owner of the one-third interests, and
       that pursuant to the terms of Clyde’s trust, those interests passed to Greg upon Clyde’s death.
¶9         In December 2015, a hearing was held on the cross-motions for partial summary judgment.
       By the time of the hearing, the matters at issue before the trial court had been fully briefed by
       the parties, and the trial court had before it as part of the pleadings or supporting documents the
       amended declaration of trust, a portion of Clyde’s will, the two assignments, two certificates
       showing the interest of Clyde’s trust in the farm trust and the LLC, a portion of the operating
       agreement for the LLC, and some deposition transcripts. Of relevance to this appeal, the
       certificates for both the farm trust and the LLC provided that a transfer of the interest in either
       of the two entities could be made on the books of that entity by surrendering the properly
       endorsed certificate for that entity. In addition, the farm trust certificate and the LLC’s
       operating agreement both provided a right of first refusal to the other beneficiaries or members
       before a transfer of an interest in that particular entity could be made. At the hearing, the trial
       court listened to the arguments of the attorneys and then took the case under advisement.
¶ 10       The trial court later issued a ruling by letter, granting Greg’s motion for partial summary
       judgment and denying Russell’s motion. In the letter ruling, the trial court found that (1) the
       assignments were invalid as inter vivos gifts because there was no present delivery or transfer
       since the assignments were not to take effect until Clyde’s death and Clyde had not issued a
       certificate for the one-third interest in the farm trust to Russell; (2) even if the assignments
       were properly delivered gifts, those gifts were void (at least as to the farm trust interest)
       because the transfer did not comply with the requirements contained in the farm trust
       certificate (the right of first refusal); (3) the assignments were also invalid as testamentary
       transfers because the assignments had not been witnessed by two witnesses as required by
       statute (see 755 ILCS 5/4-3 (West 2012)); (4) the fact that there was an amended declaration of
       trust that gave Clyde the power to make gifts did not change the outcome of this case because
       the power to make gifts of trust property was different from the power to make gifts of trust
       shares and Clyde could not make gifts of trust shares that he did not own; (5) the purported

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       assignment made no mention that Clyde was attempting to make the transfer in his capacity as
       trustee of his trust; and (6) the assignment of the LLC interest was void because the LLC never
       came into existence since the members of the LLC had never signed the operating agreement.
       In addition, in setting forth the factual history of this case, the trial court made a statement
       (statement of factual history) that Clyde had invited his children’s input into his estate plan and
       had engaged the services of a mediator to assist in working out the details of that plan in a vain
       attempt to promote family unity after his death.
¶ 11        After the trial court’s ruling, Russell promptly filed a motion to reconsider (titled as a
       motion to vacate) and challenged all or most of the findings that the trial court had made in its
       letter ruling and the statement that the trial court had made about the factual history of the case.
       Greg filed a response and opposed the motion to reconsider. Following a hearing, the trial court
       denied the motion. In so doing, the trial court stated, among other things, that (1) it was not
       changing any of its previous findings of fact but was expanding upon some of those findings
       and upon some of its prior reasoning; (2) while Clyde was a beneficiary, he was also subject to
       the restrictions in the instruments he was signing; (3) the attempted assignment was an
       ineffective attempt at an inter vivos transfer, which made the assignment a testamentary
       disposition under Illinois law; (4) although the LLC was in existence, a point upon which the
       trial court revised its previous conclusion, the court would not enforce the unsigned operating
       agreement of the LLC at the summary judgment stage; and (5) the court would not strike the
       statement that it had made about the factual history of the case, despite Russell’s complaint
       about that statement.
¶ 12        A written order was later entered documenting the trial court’s ruling on the motion to
       reconsider. In the written order, the trial court made an Illinois Supreme Court Rule 304(a)
       (eff. Mar. 8, 2016) finding that the order was final and appealable. Following the entry of the
       order, Russell appealed.

¶ 13                                            ANALYSIS
¶ 14       On appeal, Russell argues that the trial court erred in granting partial summary judgment
       for Greg on the declaratory judgment complaint and in denying Russell’s motion for the same
       relief. Russell asserts that partial summary judgment should have been granted in his favor,
       instead of Greg’s, because the assignments were valid and were sufficient for Clyde, acting in
       his capacity as a beneficiary of his own trust, to transfer the one-third interests in the farm trust
       and the LLC to Russell. In support of that assertion, Russell contends that (1) the amended
       declaration of trust gave Clyde the unfettered right to make gifts of the trust property in his
       individual capacity, a right that Clyde properly exercised when he made the gift to Russell in
       the two assignments; (2) pursuant to the terms of Clyde’s trust, Clyde had the legal authority to
       give away the one-third interests in the farm trust and the LLC, not just the authority to give
       away specific items of property, as the trial court incorrectly indicated in its order; (3) the
       assignments were proper as present gifts of future interests because physical delivery of the
       assignments had been made and were not testamentary transfers as the trial court incorrectly
       found; (4) recording the assignments on the books of the farm trust or the LLC was not
       required to complete delivery of the two assignments; (5) there was no right of first refusal as
       to the farm trust interest because that right, as contained in the farm trust document, did not
       apply to gifts, such as the current assignment; (6) the fact that the certificate for the farm trust
       was never endorsed or surrendered would also not invalidate the gift made by Clyde in the

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       assignment for the same reason—because a gift was involved and any such requirement did
       not apply to gifts; (7) the LLC was legally brought into existence by the filing of the articles of
       organization with the State, despite the members’ failure to sign the operating agreement, and
       the trial court’s conclusion to the contrary was in error; (8) although the LLC had valid legal
       existence, there was no right of first refusal as to the LLC interest because the operating
       agreement for the LLC, which would have given rise to such a right, was never signed and no
       requirement for first refusal existed under the applicable statute; and (9) the trial court’s
       statement of factual history was made in error and, if this case is reversed and remanded,
       should be stricken. For all of the reasons stated, Russell asks that we vacate the trial court’s
       ruling, enter partial summary judgment in his favor, and remand the case for further
       proceedings on Greg’s claims of lack of mental competency and undue influence with the
       disputed statement of factual history stricken.
¶ 15        Greg argues that the trial court’s ruling was proper and should be upheld. In response to
       Russell’s specific contentions, Greg maintains that (1) although Clyde had the legal authority
       to make gifts of the one-third interests in the farm trust and the LLC, for those gifts to be valid,
       he had to make the assignments in his capacity as the trustee of his own trust, not in his
       individual capacity, and he was subject to the limitations contained in the farm trust agreement
       and the LLC’s operating agreement when doing so; (2) although a present gift of a future
       interest could theoretically be made by physical delivery of a written assignment of the donor’s
       interest in the property gifted, such a gift was not accomplished here by Clyde because, as the
       trial court correctly found, the delivery of the assignments was not effective; (3) because the
       assignments were to take effect upon Clyde’s death and were not intended by Clyde to pass
       title immediately, the assignments were testamentary dispositions, as the trial court correctly
       found, and were invalid since they failed to comply with the requirements for such dispositions
       under the law (see 755 ILCS 5/4-3 (West 2012) (requiring the signatures of two witnesses for a
       valid will)); (4) the delivery of the assignments to Russell’s attorney, alone, was not legally
       sufficient to convey the one-third interests in the farm trust and the LLC from Clyde’s trust to
       Russell, but rather, the recording of the assignments on the books of the farm trust and the LLC
       was necessary to complete the delivery of the gifts; (5) the fact that the farm trust certificate
       was not endorsed or surrendered and that the assignments were not recorded on the books of
       the farm trust or the LLC was further evidence that there was no present delivery by Clyde
       (that Clyde did not intend to make a present transfer of a future interest with the two
       assignments); (6) the right of first refusal contained in the farm trust agreement referred to
       “transfers” and, thus, contrary to Russell’s contention and misreading of the trust language,
       also applied to gifts; (7) as Russell correctly states, the LLC was properly formed and had full
       legal effect; (8) the LLC’s operating agreement was also in effect because the members of the
       LLC had a meeting of the minds as to the conditions contained in the operating agreement and
       treated the operating agreement as being in effect, even though the members had failed to sign
       the operating agreement; (9) the assignment of the LLC interest was invalid because it did not
       comply with the requirements of the operating agreement (had to give notice and the right of
       first refusal to the other members of the LLC); and (10) the trial court’s statement of factual
       history was properly made and, in the event of a reversal and a remand, should not be stricken.
       For all of the reasons set forth, Greg asks that we affirm the trial court’s grant of partial
       summary judgment in his favor.



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¶ 16        The purpose of summary judgment is not to try a question of fact but to determine if one
       exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment
       should be granted only where the pleadings, depositions, admissions, and affidavits on file,
       when viewed in the light most favorable to the nonmoving party, show that there is no genuine
       issue as to any material fact and that the moving party is clearly entitled to a judgment as a
       matter of law. 735 ILCS 5/2-1005(c) (West 2014); Adams, 211 Ill. 2d at 43. Summary
       judgment should not be granted if the material facts are in dispute or if the material facts are not
       in dispute but reasonable persons might draw different inferences from the undisputed facts.
       Adams, 211 Ill. 2d at 43. Although summary judgment is to be encouraged as an expeditious
       manner of disposing of a lawsuit, it is a drastic measure and should be allowed only where the
       right of the moving party is clear and free from doubt. Id. In appeals from summary judgment
       rulings, the standard of review is de novo. Id. When de novo review applies, the appellate court
       performs the same analysis that the trial court would perform. Direct Auto Insurance Co. v.
       Beltran, 2013 IL App (1st) 121128, ¶ 43. A trial court’s grant of summary judgment may be
       affirmed on any basis supported by the record. Home Insurance Co. v. Cincinnati Insurance
       Co., 213 Ill. 2d 307, 315 (2004).
¶ 17        In a conventional trust, the trustee holds the legal title to the property and the beneficiary
       holds the equitable title. Restatement (Third) of Trusts § 2 cmt. d (2003); Espevik v. Kaye, 277
       Ill. App. 3d 689, 694 (1996). That same rule applies to a common law land trust. IMM
       Acceptance Corp., 148 Ill. App. 3d at 954. A different rule, however, applies to a special type
       of land trust known as an “Illinois land trust.” See id. Unlike a conventional trust and a
       common law land trust, in an Illinois land trust, the trustee holds both the legal and equitable
       title to the property. See id.
¶ 18        Courts will generally demand that a person dealing with trust property strictly observe the
       trust features. See Restatement (Third) of Trusts, pt. 4, ch. 11, intro. note (2003) (noting that
       the voluntary or involuntary transfer of a beneficiary’s interest in a trust does not refer to a
       transfer of the trust property itself because the beneficiary cannot assign more than the
       beneficiary has); Restatement (Third) of Trusts § 51 cmt. b (2003) (stating that a purported
       transfer of an interest that a beneficiary does not have is an ineffective transfer); Kortenhof v.
       Messick, 18 Ill. App. 3d 1, 7 (1974) (determining the validity of certain transfers in the context
       of an Illinois land trust). In other words, a trustee or beneficiary of a trust cannot make transfers
       of or relating to trust property as if the trust did not exist. See Restatement (Third) of Trusts, pt.
       4, ch. 11, intro. note (2003); Restatement (Third) of Trusts § 51 cmt. b (2003); Kortenhof, 18
       Ill. App. 3d at 8. The rationale for that rule is based upon consistency and the principle that a
       person who receives the benefits of the trust format (having property held in trust) should be
       required to observe that format in his or her dealings with the trust property. See Kortenhof, 18
       Ill. App. 3d at 7-8 (stating that rationale in the context of an Illinois land trust). Although that
       rule and rationale have generally been stated with regard to Illinois land trusts, we believe that
       they would apply equally as well to a conventional trust and to a common law land trust. See
       Restatement (Third) of Trusts, pt. 4, ch. 11, intro. note (2003); Restatement (Third) of Trusts
       § 51 cmt. b (2003); Kortenhof, 18 Ill. App. 3d at 7-8. Therefore, when the legal title to property
       is held by a person in his capacity as trustee of a trust, to transfer that legal title to another
       person or entity, the trustee must execute the transferring document in his capacity as the
       trustee of the trust and not in his individual capacity. See Restatement (Third) of Trusts, pt. 4,
       ch. 11, intro. note (2003); Restatement (Third) of Trusts § 51 cmt. b (2003); Kortenhof, 18 Ill.


                                                     -6-
       App. 3d at 7-8. The failure to do so by the trustee would make the trustee’s attempt to transfer
       legal title an invalid or ineffective transfer. See Restatement (Third) of Trusts, pt. 4, ch. 11,
       intro. note (2003); Restatement (Third) of Trusts § 51 cmt. b (2003); Kortenhof, 18 Ill. App. 3d
       at 7-8.
¶ 19       In the present case, after having considered the above legal principles and having reviewed
       the record, we find that partial summary judgment was properly granted for Greg. Although
       the parties have made numerous assertions in support of their respective positions on appeal,
       the simple fact is that at the time of the assignment, Clyde in his capacity as trustee of his
       trust—and not Clyde individually—was the holder of the legal title to the one-third interests in
       the farm trust and the LLC. Clyde, in his individual capacity, therefore, had no ability to assign
       the legal title to the farm trust and the LLC to Russell, only Clyde acting in his capacity as the
       trustee of the trust could do that. See Restatement (Third) of Trusts, pt. 4, ch. 11, intro. note
       (2003); Restatement (Third) of Trusts § 51 cmt. b (2003); Kortenhof, 18 Ill. App. 3d at 7-8.
       There was nothing before the trial court or in the record on appeal in this case to support that
       such a transfer had been made by Clyde as the trustee of his trust. The trial court, therefore,
       properly determined that the two assignments were invalid or ineffective; that Clyde’s trust
       was the owner of the one-third interests in the farm trust and the LLC; and that the interests
       were to pass to Greg, upon Clyde’s death, pursuant to the terms of Clyde’s trust.
¶ 20       Having reached that conclusion, we must take a moment to comment upon Russell’s
       contention that under Illinois law, Clyde could validly assign his beneficial interest in his trust
       to Russell. We agree that Russell’s contention in that regard is well established in the law. See
       Restatement (Third) of Trusts § 51 cmt. b (2003) (recognizing that a beneficiary of a trust can
       voluntarily transfer during his life the whole or part of his beneficial interest in the trust);
       Victor v. Hillebrecht, 405 Ill. 264, 269 (1950) (stating that there is no rule in law or equity that
       would prevent a beneficiary of a trust, who is not under any incapacity, from disposing of his
       interest in the trust estate for consideration); St. Charles Savings & Loan Ass’n v. Estate of
       Sundberg, 150 Ill. App. 3d 100, 104-05 (1986) (applying the rule that a trust beneficiary may
       assign or transfer his beneficial interest in the context of an Illinois land trust). What Russell
       fails to recognize, though, is that a beneficiary of a trust, acting in his capacity as a beneficiary,
       can only transfer the interest in the trust that he or she actually holds—the beneficial or
       equitable interest. See Restatement (Third) of Trusts § 51 cmt. b (2003) (recognizing that the
       purported transfer of an interest that the beneficiary does not have is an ineffective transfer). A
       beneficiary cannot transfer legal title to property held in trust because the beneficiary does not
       hold that interest; only the trustee holds that interest. See Restatement (Third) of Trusts, pt. 4,
       ch. 11, intro. note (2003); Restatement (Third) of Trusts § 51 cmt. b (2003); Kortenhof, 18 Ill.
       App. 3d at 7-8.
¶ 21       Having found that the two assignments were invalid because they were not executed by
       Clyde in his capacity as the trustee of his own trust, we need not determine whether the
       assignments were also invalid because they failed to comply with the right of first refusal or
       because they did not comply with the statutory requirements for testamentary dispositions.

¶ 22                                        CONCLUSION
¶ 23       For the foregoing reasons, we affirm the judgment of the circuit court of Warren County.



                                                     -7-
¶ 24      Affirmed.

¶ 25       JUSTICE O’BRIEN, specially concurring.
¶ 26       I write separately because I agree with the disposition but not the entire rationale set out in
       the majority. Unlike the majority, I believe the Campbell Farms land trust was an Illinois land
       trust, and as such, Clyde E. Campbell, in his capacity as the beneficiary of that land trust, had
       the power to dispose of the trust property. See First National Bank of Barrington v. Oldenburg,
       101 Ill. App. 3d 283, 287 (1981). However, Campbell’s power to dispose of the trust property
       in his capacity as beneficiary was limited as set forth by the majority. Since those limitations
       apply in this case regardless of whether the trust was a conventional trust or a land trust, I
       concur in the remainder of the opinion.




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