                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           Johnessee v. Schnepf, 2012 IL App (4th) 110767




Appellate Court              CONNIE JOHNESSEE, DOROTHY SMITH, BRENDA JOHNSON, and
Caption                      JOE SCHNEPF, Plaintiffs-Appellants, v. LYNDLE SCHNEPF; JOHN
                             SCHNEPF; CAROLYN SCHAFFER; and RAYMOND SCHNEPF,
                             Individually and as Successor Trustee of the MALETA MAXINE
                             SCHNEPF FEBRUARY 2001 TRUST, Defendants-Appellees.



District & No.               Fourth District
                             Docket No. 4-11-0767


Argued                       March 28, 2012
Filed                        April 6, 2012
Rehearing denied             May 8, 2012


Held                         In an action arising from a dispute over the purported modification of a
(Note: This syllabus         land trust by the settlor’s removal of plaintiffs as beneficiaries, the trial
constitutes no part of       court’s orders granting defendant’s motions to dismiss and for summary
the opinion of the court     judgment were reversed and the cause was remanded with directions to
but has been prepared        reconsider plaintiffs’ motions for judgment on the pleadings and
by the Reporter of           summary judgment based on the appellate court’s finding that the trust
Decisions for the            was not an amendable land trust, since the language of the trust reflected
convenience of the           the settlor’s intention that all of the property placed in the trust would
reader.)
                             remain in the trust until it was distributed to the beneficiaries according
                             to the terms of the trust.


Decision Under               Appeal from the Circuit Court of Pike County, No. 09-MR-47; the Hon.
Review                       Thomas J. Brannan, Judge, presiding.
Judgment                    Reversed and remanded.


Counsel on                  John B. Leonard (argued), of Mt. Sterling, for appellants.
Appeal
                            Mark S. Cochran and Michael G. Barton, both of Bellatti, Barton &
                            Cochran, LLC, of Springfield, and William H. Strang (argued), of Strang
                            & Parish, Ltd., of Jerseyville, for appellees.


Panel                       JUSTICE POPE delivered the judgment of the court, with opinion.
                            Presiding Justice Turner and Justice Steigmann concurred in the
                            judgment and opinion.



                                              OPINION

¶1          Plaintiffs appeal, arguing (1) the trial court’s determination the Maleta Maxine Schnepf
        February 2001 Trust (Trust) is an amendable Illinois land trust was erroneous as a matter of
        law based upon the pleadings in this case; (2) the court erred in denying plaintiffs’ motion
        for judgment on the pleadings and motion for summary judgment; and (3) the court erred in
        ruling on the competing motions for summary judgment because plaintiffs were denied an
        opportunity to be heard on either of the competing motions. We reverse the court’s orders
        granting defendant Raymond Schnepf’s motions to dismiss and motions for summary
        judgment and remand this case for further proceedings with directions to reconsider
        plaintiffs’ motions for judgment on the pleadings and summary judgment based on our
        finding the Trust was not an amendable land trust.

¶2                                        I. BACKGROUND
¶3          As this appeal does not involve counts II through V of plaintiffs’ complaint, we will not
        discuss those portions of plaintiffs’ complaint. In December 2009, plaintiffs filed a complaint
        for declaratory judgment against defendants. In count I, plaintiffs alleged Maleta created the
        Trust on February 1, 2001. Maleta transferred certain property into the Trust by a deed in
        trust. Plaintiffs and defendants are all of Maleta’s living children. Plaintiffs allege they were
        beneficiaries of the Trust.
¶4          On May 12, 2005, Maleta purportedly executed a modification to the Trust, which
        modified the beneficiaries of the Trust. This modification removed plaintiffs as beneficiaries
        of the Trust. The Trust did not contain an express provision granting any person the power
        to alter, amend, or modify the trust. As a result, plaintiffs argued the modification should be
        ignored and the Trust read as it was originally drafted, with the plaintiffs as beneficiaries of
        the trust.

                                                  -2-
¶5         Plaintiffs’ complaint also contained alternate counts. In plaintiffs’ alternate count I,
       plaintiffs alleged the act of crossing out the names of the plaintiffs and defendant Carolyn
       Schaffer was not a valid method of removing plaintiffs and Carolyn Schaffer as beneficiaries
       of the Trust, assuming Maleta had the legal authority to execute the modification. In
       plaintiffs’ second alternate count I, plaintiffs alleged:
           “even if Maleta *** had the legal authority to execute the Modification to Trust
           Agreement and Declaration of Trust, said Modification, on the information and belief of
           Plaintiffs, was not the free and voluntary act of Maleta *** in that Defendants John
           Schnepf or Raymond Schnepf pressured and forced her into executing the said
           Modification.”
       In plaintiffs’ third alternate count I, plaintiffs alleged Maleta was either pressured to execute
       the modification or she neither personally crossed out plaintiffs’ names nor initialed the
       same. On information and belief, plaintiffs alleged the initials were forgeries done by an
       unknown third party.
¶6         In April 2010, plaintiffs filed a motion for judgment on the pleadings with regard to
       count I. According to the motion, the allegations denied by defendants were matters that
       could be determined by the trial court after the court reviewed the relevant trust documents.
       Plaintiffs argued the trust could not be modified because the trust did not reserve the right
       to modify.
¶7         On May 17, 2010, Raymond filed a motion for summary judgment as to count I.
       Raymond agreed with plaintiffs’ motion for judgment on the pleadings no genuine issues of
       fact existed. The court only needed to decide “the narrow legal issue of whether the
       Modification to Trust Agreement and Declaration of Trust dated May 12, 2005[,] *** was
       a valid amendment” to the Trust. According to Raymond’s motion, the Trust was a
       specialized “ ‘Illinois land trust’ ” in which the trustee held both legal and equitable title to
       the farmland with the interest of the beneficiary being personal property. Raymond argued
       the Trust was readily amendable during Maleta’s lifetime despite the lack of a reservation
       of the right to modify because it was an Illinois land trust.
¶8         Raymond also filed a motion for summary judgment on plaintiffs’ alternate count I,
       stating the only issue in dispute was a legal question, i.e., whether the act of crossing out the
       names of plaintiffs and defendant Carolyn Schaffer was a valid method of removing the same
       individuals as beneficiaries. According to defendant’s motion:
           “It is the sworn testimony of Attorney John Coonrod that when he met with Maleta
           Maxine Schnepf to sign the Modification to Trust Agreement and Declaration of Trust,
           she understood that her actions in crossing out the names of Plaintiffs and Defendant
           Carolyn Shaffer [sic] and initialing those changes immediately prior to signing the
           modification was an effective way to amend the document and that she intended for the
           deletions to be recognized as controlling.”
¶9         Raymond also filed a motion to dismiss plaintiffs’ second alternate count I, alleging an
       absence of well-pleaded facts.
¶ 10       In addition, Raymond filed a motion for summary judgment on plaintiffs’ third alternate
       count I, arguing “the cause of action asserted in Paragraph 16A of Plaintiffs’ Third Alternate

                                                 -3-
       Count I is the same cause of action asserted in Plaintiffs’ Second Alternate Count I and
       should be stricken from Plaintiffs’ Third Alternate Count I.” Raymond again cited to the
       sworn testimony of attorney John Coonrod quoted above.
¶ 11        On May 18, 2010, plaintiffs filed a motion for summary judgment as to count I. Plaintiffs
       restated and incorporated the statements and arguments contained in their motion for
       judgment on the pleadings.
¶ 12        In August 2010, the trial court found the Trust was an amendable land trust. The court
       stated the term “land trust” is given the same definition by the Land Trust Beneficial Interest
       Disclosure Act (765 ILCS 405/1 to 3 (West 2008)), the Land Trustee as Creditor Act (765
       ILCS 415/0.01 to 4 (West 2008)), the Land Trust Recordation and Transfer Tax Act (765
       ILCS 420/1 to 4 (West 2008)), and the Sale of Residential Property Subject to Land Trust
       Act (765 ILCS 430/0.01 to 2 (West 2008)). The trial court stated in its order all four of these
       Acts define the term “land trust” as follows:
                “ ‘Land Trust’ means an arrangement under which the title, both legal and
            [equitable], to real property, is held by a trustee and the interest of the beneficiary is
            personal property and under which the beneficiary or any person designated in writing
            by the beneficiary, has the exclusive power to direct or control the trustee in dealing with
            the title and the exclusive control of the management, operation, renting, and selling of
            the trust property together with the exclusive right to earnings, avails and proceeds of
            said property is in the beneficiary of the trust.”
       (We note this is the definition of the term “Land Trust” for purposes of the Sale of
       Residential Property Subject to Land Trust Act (765 ILCS 430/0.01 to 2 (West 2008)), but
       it is not the definition provided for the term “Land Trust” by the other three Acts. See 765
       ILCS 405/1 (West 2008); 765 ILCS 415/2(a) (West 2008); 765 ILCS 420/2 (West 2008).)
       While the court mistakenly found the four acts all provide the same definition for the term
       “land trust,” the court appears to have ruled based on the following elements it found
       constitutes a land trust.
¶ 13        The trial court stated the four common elements of a land trust are:
                “1. The legal and equitable title to the real estate is held by a trustee;
                2. The trustee has no duties or powers other than to follow the directions of the
            beneficiaries with respect to the title of the real estate[;]
                3. The beneficiaries are entitled to sole possession, control and management of the
            real estate and to all of the income and avails arising therefrom[;] and
                4. The beneficiary’s interest is deemed to be personal property.”
       The court found:
            “Each of the forgoing elements is present in the [February 2001 Trust]. Though the term
            ‘Land Trust’ is nowhere within the trust agreement before the Court, or the [d]eeds of
            conveyance, the Court finds that the trust is, in fact and as a matter of law, an Illinois
            Land Trust. The trust before this Court clearly contains the indicia of an Illinois Land
            Trust.”
¶ 14        The trial court recognized the Trust contained (1) articles that appear contradictory (III,

                                                 -4-
       IV, IX, and X) and (2) no explicit authority for any particular person to direct the trustee.
       However, the court interpreted the trust to implicitly give “ ‘the Grantors and/or beneficiaries
       [of the Trust]’ ” or some other party empowered by the grantors and/or beneficiaries the
       power to direct the trustee. According to the court:
                “In the Court’s reading of the Trust Agreement, nowhere is there direct authority
           given or reserved to direct the trustee. Paragraph III(a) clearly gives to Maleta Maxine
           Schnepf the power to assign or deal with all of the rights and interests of the beneficial
           interest, but Paragraph IV limits the interest of a beneficiary ‘to manage and control said
           property’ *** and ‘the right to receive the proceeds from rentals therefrom’. However,
           it is apparent to the Court some authority must have been envisioned, or the language
           would not have been included. Paragraph IX of the trust agreement speaks of ‘person
           then entitled to direct the trustee’ and Paragraph X states that ‘the trustee will deal with
           said property only when authorized by the Grantors and/or beneficiaries hereunder ***.’
                Significantly, the Deeds in Trust executed on the 1st day of February 2001 and the
           12th day of May[ ] 2005 include language which obviously envision that the trustee may
           be authorized to perform certain acts. See pages 2-4 of the Deed in Trust.
                Combining the language of the Trust Agreement together with the language of the
           Deeds in Trust, and the inherent or implicit authority as evidenced by Paragraph IX and
           X aforesaid, it is the finding of the Court, the owners of the beneficial interest possessed
           the authority and power to direct the trustee and the power to terminate the trust and take
           a conveyance, and create a new land trust with the changes desired.
                In response to Plaintiffs’ argument that the Trust Agreement and Declaration of Trust
           does not specify who is to have the power of direction, it is the finding of the Court that
           Paragraph X specifies who has such power or authority, ‘the Grantors and/or
           beneficiaries hereunder, or such other party as the Grantors or beneficiaries shall
           empower to so direct ***.’ ”
¶ 15       On August 30, 2010, the trial court denied plaintiffs’ motion for judgment on the
       pleadings and their motion for summary judgment and allowed Raymond’s motion for
       summary judgment on count I to the extent the Trust is an Illinois land trust and was fully
       amendable during Maleta’s lifetime. The court made no finding whether the modification
       made to the February 2001 Trust on May 12, 2005, was a valid amendment. The court denied
       Raymond’s motion to dismiss plaintiffs’ second alternate count I and motion for summary
       judgment on plaintiffs’ third alternate count I because questions of fact remained.
¶ 16       On April 13, 2011, the trial court granted Raymond’s motion to dismiss plaintiffs’ second
       alternate count I, finding plaintiffs failed to allege sufficient facts to state a cause of action.
       The court gave the plaintiffs leave to file amended pleadings within 30 days.
¶ 17       On July 18, 2011, the trial court granted Raymond’s amended motion for summary
       judgment as to plaintiff’s third alternate count I.
¶ 18       On July 25, 2011, the trial court entered an order, finding no just reason to delay
       enforcement or appeal of its rulings in regard to count I, alternate count I, second alternate
       count I, and third alternate count I of plaintiffs’ complaint and granted plaintiffs leave to
       appeal the same. The court stayed counts II through V of plaintiffs’ complaint pending

                                                  -5-
       appeal.
¶ 19      This appeal followed.

¶ 20                                     II. ANALYSIS
¶ 21       Plaintiffs make the following arguments on appeal. First, plaintiffs argue the trial court
       erred in concluding the Trust is an Illinois land trust. Second, plaintiffs argue the court’s
       rulings on the competing motions for summary judgment were improper because plaintiffs
       were denied an opportunity to be heard on either of the competing motions.

¶ 22                                       A. Jurisdiction
¶ 23      This court has jurisdiction over the trial court’s orders with regard to count I, alternate
       count I, second alternate count I, and third alternate count I pursuant to Illinois Supreme
       Court Rule 304(a) (eff. Feb. 26, 2010). However, we make no comment on other pending
       matters not subject to the trial court’s Rule 304(a) finding.

¶ 24                                  B. February 2001 Trust
¶ 25       The primary issue before this court is whether the trial court erred in classifying the Trust
       as an amendable land trust. Whether the Trust classifies as a land trust that could be amended
       by Maleta after its creation is dependent on the language of the Trust, which is the best
       indicator of Maleta’s intent when she created the Trust. Our supreme court has given the
       following direction with regard to determining a grantor’s intent:
           “The intention of the settlor is to be ascertained by examining the entire trust and by
           giving to the words employed their plain and ordinary meaning. [Citation.] If possible,
           the court should construe the will or trust so that no language used by the testator is
           treated as surplusage or rendered void or insignificant.” Harris Trust & Savings Bank v.
           Donovan, 145 Ill. 2d 166, 172, 582 N.E.2d 120, 123 (1991).
       With these principles in mind, we look to the language of the trust itself to determine
       Maleta’s intent.
¶ 26       Based on its reading of the trust, the trial court allowed Raymond’s motion for summary
       judgment to the extent the Trust is an Illinois land trust and was fully amendable during
       Maleta’s lifetime. While it is clear the trial court gave the issues before it thoughtful
       consideration, we review rulings granting motions for summary judgment de novo. Espinoza
       v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323, 1326 (1995).
¶ 27       Plaintiffs argue the trial court erred in finding this was an amendable land trust.
       According to plaintiffs, this was not a land trust, and Maleta had no authority to modify or
       terminate the Trust because she did not reserve that authority in the trust agreement.
       Plaintiffs point out the settlor of a trust “cannot modify or revoke a trust unless he has
       reserved the power to do so in the trust agreement.” Williams v. Springfield Marine Bank,
       131 Ill. App. 3d 417, 419, 475 N.E.2d 1122, 1124 (1985).
¶ 28       The Trust did not enumerate a reserved power of modification. In addition, the term


                                                 -6-
       “land trust” is not in the Trust. Finally, the Trust contained no express language giving
       anyone the right to direct the trustee with regard to title to the property held in the Trust.
       When a trust contains express language giving someone the power to direct the trustee with
       regard to title to the property held by the trust, the individual holding that power of direction
       as to title can direct the trustee to sell all of the property held by the trust. Hoxha v. LaSalle
       National Bank, 365 Ill. App. 3d 80, 87, 847 N.E.2d 725, 730 (2006) (“A land trust
       beneficiary may contract to sell real property that is the subject of a land trust as long as the
       trust agreement vests the beneficiary with the sole right to direct the trustee to convey title.”
       (Emphasis added.)). The Trust at issue here granted no one the right to direct the trustee to
       do anything with regard to the title to the property held by the trust.
¶ 29       All of the parties in the trial court looked to the expertise of Henry W. Kenoe on the
       subject of land trusts. In Kenoe’s treatise, Kenoe on Land Trusts, which was last published
       in 1989 by the Illinois Institute for Continuing Legal Education, Kenoe stated the typical land
       trust form of trust agreement, which he included in the treatise and will be discussed later in
       this order, does the following:
           “It *** identifies the trust by the name of the trustee, the date of the instrument, and a
           trust number. It is in this instrument that the rights, powers, and authorities of the trustee
           and beneficiary are delineated and expressed.
                The trust agreement includes a legal description of the property, other details such as
           its common address, and a description of the improvements. It also names and designates
           the beneficiaries, using a variety of forms which are more extensively discussed in
           §§ 2.4-2.18. It expressly provides that the beneficiary shall have no interest whatsoever
           in either the legal or equitable title to the real estate but that this interest is to be confined
           solely to rights of management, operation and control and to the receipt of proceeds from
           rents, mortgage financing and sales. Most importantly, the trust agreement expressly
           declares the interest of the beneficiary to be personal property, and a variety of
           consequences result from this recognition.
                The power of direction, or the authority to direct the trustee to act with respect to the
           trust property, is provided for in the trust agreement, and although a variety of
           arrangements are possible *** the usual trust vests this authority in the beneficiaries.”
           (Emphasis added.) Henry W. Kenoe, Kenoe on Land Trusts § 2.3, at 2-10 to 2-11 (Ill.
           Inst. for Cont. Legal Educ. 1989).
¶ 30       Kenoe makes clear the specifically enumerated power expressed in the trust to direct the
       trustee with regard to title to the property is what allows the person holding that power to
       amend a land trust, even when the terms of the trust do not address whether the trust can be
       amended.
                “A typical land trust agreement as in § 2.3 contains neither explicit language
           authorizing amendments to the agreement nor any expressed prohibition of such action.
           As a practical matter, since nearly every land trust can be determinated by a direction
           to convey out and a new land trust created more compatible with the wishes of the
           beneficiaries, land trustees accept amendments to the trust agreement which impose no
           unacceptable burdens or obligation upon the trustee. Such an instrument, when executed


                                                    -7-
            by the appropriate beneficiaries and lodged with the trustee, will effectively modify or
            supplement the original trust agreement.” (Emphasis added.) Henry W. Kenoe, Kenoe
            on Land Trusts § 4.19, at 4-33 (Ill. Inst. for Cont. Legal Educ. 1989).
       The express language of the Trust at issue in this case did not provide the beneficiary or
       anyone else with any power to direct or control the trustee in dealing with the title to the
       property held by the trust. Without the express power to direct the trustee with regard to the
       title to the property held by the trust, the Trust in this case could not be terminated simply
       by a direction from Maleta to convey the property out of the Trust. Neither the express nor
       practical reason for allowing amendments is present in this case, i.e., the Trust contained
       neither an express provision allowing amendments nor an express provision giving any one
       other than the trustee power of direction over the title to the Trust property. As a result,
       Maleta had no power to amend this Trust.
¶ 31        The trial court focused on articles III, IV, IX, and X in finding Maleta did retain a power
       of direction. Article III of the February 2001 Trust states:
                 “III. When said trustee has taken title thereto, or to any other real estate deeded to her
            as trustee hereunder, said trustee will hold it for the uses and purposes herein set forth.
            The following named persons shall be entitled to the earnings, avails, and proceeds of
            said real estate according to the respective interests herein set forth, to wit:
                 A. To Maleta Maxine Schnepf the entire beneficial interest hereunder, during her
            lifetime, with full power to assign or deal with all of the rights and interests of the
            beneficial interest.
                 B. Thereafter, to Lyndle G. Schnepf the entire beneficial interest hereunder, during
            his lifetime, without authority to assign or deal with said rights and interests of the
            beneficial interest.”
       Article IV states:
                 “IV. It is understood and agreed between the parties hereto, and by any person or
            persons who may become entitled to any interest under this trust, that the interest of any
            beneficiary hereunder shall consist solely of a power to manage and control said property
            as hereinafter provided, and the right to receive the proceeds from the rentals therefrom,
            and that such right shall be deemed to be personal property, and may not be assigned or
            otherwise transferred.” (Emphasis added.)
       Article IX states:
                 “IX. The trustee may at any time resign herein, by sending by registered mail, a notice
            of his intention to do so to the beneficiaries. Such resignation shall become effective ten
            days after the mailing of such notice. In the event of resignation, a successor may be
            appointed by the person then entitled to direct the trustee, and the trustee shall thereupon
            convey the trust property to such successor. In the event that no successor is so named,
            within ten days after the mailing of said notice, then the trustee may convey the trust
            property to the beneficiaries in accordance with their respective interests hereunder, or
            the trustee may, at their option file a bill for appropriate relief from a court of competent
            jurisdiction. The trustee, not withstanding such resignation, shall continue to have a first
            lien upon the trust property for his costs, expenses, and attorney’s fees and for his

                                                   -8-
           reasonable compensation.”
       Article X states:
                “It is understood and agreed by the parties that the trustee will deal with said property
           only when authorized to do so in writing by the Grantors and/or beneficiaries hereunder,
           or such other party as the Grantors or beneficiaries shall empower to so direct upon due
           notice to the trustee by the Grantors or beneficiaries of said power. The trustee shall not
           be required to inquire into the propriety of any such direction.”
¶ 32       We do not read any of these articles in isolation or together to provide anyone with
       authority to direct the trustee with regard to the title to the property held in the trust. While
       we agree with the trial court’s conclusion the “Grantors and/or beneficiaries” were given
       some power to direct the trustee, this power of direction was limited and clearly did not
       extend to matters involving title to the property held by the trust.
¶ 33       Under the trial court’s interpretation of the February 2001 Trust, Lyndle G. Schnepf, who
       was to receive the entire beneficial interest of the trust while he was living after Maleta’s
       death, would have been authorized to direct the trustee with regard to title to the property
       held in the trust had Maleta not amended the trust during her lifetime. This clearly goes
       against Maleta’s intent as evidenced by the plain language of the trust, considering she
       severely limited Lyndle’s rights with regard to the beneficial interest.
¶ 34       Article III(B) of the February 2001 Trust placed even greater restrictions on Lyndle than
       did article IV as it denied Lyndle authority “to assign or deal with said rights and interests
       of the beneficial interest.” Maleta clearly did not intend for articles IX and X of the Trust to
       be read together to give Lyndle authority to direct the trustee with regard to the title to this
       property.
¶ 35       Looking at the February 2001 Trust as a whole, we find it was Maleta’s intent as the
       grantor of this trust that the title to the property be held by the trust until both she and Lyndle
       were no longer living. This is evidenced both by the fact Maleta did not reserve to herself or
       anyone else the power to deal with the title to the property held by the trust until after both
       she and Lyndle were no longer living and by the restrictions she placed on beneficiaries in
       article IV. While she may have regretted this decision later, nothing in the Trust indicates she
       wanted herself or anyone else to have authority to initiate the transfer of title to the property
       held in the Trust when the February 2001 Trust was created.
¶ 36       While some of the language found in the Trust at issue in this case is very similar to
       language found in sample forms provided in Kenoe on Land Trusts, other language found
       in Kenoe’s sample form is strikingly absent. For example, Kenoe’s form states:
                “IT IS UNDERSTOOD AND AGREED between the parties hereto, and by any
           person or persons who may become entitled to any interest under this trust, that the
           interest of any beneficiary hereunder shall consist solely of a power of direction to deal
           with the title to said property and to manage and control said property as hereinafter
           provided, and the right to receive the proceeds from rentals and from mortgages, sales,
           or other disposition of said premises, and that such right in the avails of said property
           shall be deemed to be personal property, and may be assigned and transferred as such
           ***.” (Emphasis added.) Henry W. Kenoe, Kenoe on Land Trusts § 2.3, at 2-12, Form

                                                  -9-
            2 (Ill. Inst. for Cont. Legal Educ. 1989).
       The italicized language above giving the beneficiary a power of direction to deal with title
       to the trust property is nowhere found in the February 2001 Trust. While article IV of the
       February 2001 Trust contains similar language to the paragraph above, the language “power
       of direction to deal with title to said property” is conspicuously absent.
¶ 37        Another important difference between the language suggested by Kenoe and the language
       found in article IV and article III(B) of the February 2001 Trust is how little authority Maleta
       wanted Lyndle to have with regard to the beneficial interest. This is in sharp contrast to the
       powers given to beneficiaries under Kenoe’s form language.
¶ 38        Nowhere in the Trust is anyone other than the trustee given authority to do anything with
       the title to the property itself. Article XVI of the February 2001 Trust states:
                “This trust shall terminate upon the death of the latter beneficiary as set forth in
            Article II hereof. At that time the trustee shall convert to cash that real estate relevant
            hereto and shall distribute the proceeds therefrom to my remaining children, in equal
            shares per stirpes.” (Emphasis added.)
       (It appears the reference to article II was a scrivener’s error as article II concerns the trustee
       and named successor trustee. Based on our review of the Trust, the drafter must have
       intended to reference article III because the two beneficiaries are named in that article, not
       article II.) This language is very different from the language recommended by Kenoe on Land
       Trusts.
¶ 39        The language Kenoe recommends states: “If any property remains in this trust twenty
       years from this date, it shall be sold at public sale by the trustee on reasonable notice, and the
       proceeds of the sale shall be divided among those who are entitled thereto under this trust
       agreement.” (Emphasis added.) Henry W. Kenoe, Kenoe on Land Trusts § 2.3, at 2-14 (Ill.
       Inst. for Cont. Legal Educ. 1989). Unlike the language from the trust in our case, the land
       trust language recommended by Kenoe clearly recognizes the possibility the trust might no
       longer hold certain property. The same is not true with regard to the Trust in this case. Article
       XVI of the Trust reflects Maleta’s intention all of the property placed in the trust would still
       be there after both she and Lyndle died.
¶ 40        As we have found the February 2001 Trust was not an amendable land trust, we need not
       address the trial court’s other findings as those findings were based on the trial court’s
       holding the February 2001 Trust was an amendable land trust.

¶ 41                                  III. CONCLUSION
¶ 42       We reverse the court’s orders granting Raymond’s motions to dismiss and motions for
       summary judgment and remand this case for further proceedings with directions to reconsider
       plaintiffs’ motions for judgment on the pleadings and summary judgment based on our
       finding the Trust was not an amendable land trust.

¶ 43       Reversed and remanded.


                                                 -10-
