                                                                         Digitally signed by
                        Illinois Official Reports                        Reporter of Decisions
                                                                         Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                               Appellate Court                           Date: 2016.02.19
                                                                         09:42:58 -06'00'




                  In re Estate of Zivin, 2015 IL App (1st) 150606



Appellate Court   In re ESTATE OF ALMA M. ZIVIN, Deceased (Hebrew University
Caption           of Jerusalem, Claimant-Appellant, v. Norman Zivin and Sander Allen,
                  Coexecutors of the Estate of Alma M. Zivin, Deceased, and Cotrustees
                  of the Alma M. Zivin Trust dated May 20, 2004, Respondents-
                  Appellees).



District & No.    First District, Fourth Division
                  Docket No. 1-15-0606


Filed             December 17, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-P-06979; the
Review            Hon. Susan Coleman, Judge, presiding.



Judgment          Vacated and remanded.



Counsel on        A. Charles Kogut and Daniel W. Kaminski, both of Kogut &
Appeal            Associates, of Oak Brook, for appellant.

                  Susan H. Booker, of Levun, Goodman & Cohen, Ltd., of Northbrook,
                  for appellees.



Panel             PRESIDING JUSTICE McBRIDE delivered the judgment of the
                  court, with opinion.
                  Justices Howse and Cobbs concurred in the judgment and opinion.
                                             OPINION

¶1        Hebrew University of Jerusalem appeals from an order dismissing its claim against a
     decedent’s estate for lack of standing. The school sued in its capacity as a “beneficial
     legatee” of a trust created by a will which the decedent, Alma M. Zivin, executed with her
     husband, Israel Zivin, just prior to his death. To avoid confusion, we will refer to the Zivins,
     respectfully, by their first names. The coexecutors of Alma’s estate persuasively argued in
     the trial court that the school’s claim about a trust created by the couple’s bequest should be
     dismissed pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Code) (735
     ILCS 5/2-619(a)(9) (West 2012)), because only the testamentary trustee, not the trust’s
     beneficiary, has authority to bring a claim. The school argues on appeal that it does have
     standing, or alternatively that the judge should have appointed a trustee ad litem to continue
     the proceeding on the school’s behalf. The coexecutors respond the school failed to refute the
     motion to dismiss with any factual, admissible evidence of standing.
¶2        In 1983, the Zivins executed a document entitled “Mutual Last Will and Testament.” The
     premise of Hebrew University’s claim is that the 1983 will is both a joint will and a mutual
     will that benefits the school. The coexecutors vigorously dispute this premise. We have no
     opinion about the merits of the school’s claim and confine our analysis to the preliminary
     issue of its standing to sue.
¶3        The terms “joint will” and “mutual will” are sometimes used incorrectly. Curry v. Cotton,
     356 Ill. 538, 543, 191 N.E. 307, 309 (1934). Mutual wills are separate instruments of two or
     more persons which include reciprocal terms by which each testator makes a testamentary
     disposition in favor of the other. Curry, 356 Ill. at 543, 191 N.E. at 309. A joint will is a
     single testamentary instrument that has been jointly executed by two or more persons to
     dispose of property that they own in severalty, in common, or jointly. Rauch v. Rauch, 112
     Ill. App. 3d 198, 200, 445 N.E.2d 77, 79 (1983). A will that is both joint and mutual is a
     single instrument executed jointly by two or more persons with a mutual or reciprocal
     provision and which shows on its face that the bequests were made in consideration of each
     other. Platz v. Walk, 3 Ill. 2d 313, 316, 121 N.E.2d 483, 485 (1954).
¶4        A joint and mutual will between spouses is a contract that requires the survivor to dispose
     of the property as the will instructs (Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79), and
     generally a joint will cannot be revoked unless there is joint action of both testators or, in
     some instances, by either party acting separately but giving notice to the other of the
     revocation. Curry, 356 Ill. at 544, 191 N.E. at 309. Thus, after the death of one of the parties
     to a joint will, when joint action or notice to the other party is no longer possible, a survivor
     who benefits from the parties’ agreement “is estopped from disposing of the property other
     than as contemplated in the will.” Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79-80.
     Therefore, one court commented that the consequences of a contract not to revoke a will are
     “serious and far-reaching” because a valid contract prevents the survivor from changing the
     estate plan even where intervening circumstances have rendered provisions of the joint will
     “so inappropriate or unfair that the deceased spouse, had he or she lived, would have desired
     or sanctioned the changes in the testamentary provisions.” Wisler v. McCormack, 406 N.E.2d
     361, 363 (Ind. Ct. App. 1980).
¶5        Although not entitled to possession until after the death of the surviving spouse, the
     third-party beneficiaries of a joint and mutual will are entitled to enforcement of the couple’s

                                                 -2-
     contract. Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 80 (where couple executed joint and
     mutual will, upon the husband’s death, the inheritance rights of the couple’s four children
     vested, and even though one of those children later died, that child’s share had vested and
     had to pass to his widow instead of increasing the inheritance of the three other children);
     Ernest v. Chumley, 403 Ill. App. 3d 710, 936 N.E.2d 602 (2010) (where couple executed
     separate but mutual wills, the husband’s death rendered the couple’s contract irrevocable and
     prevented the wife from disinheriting his children who were entitled to one-quarter of her
     remaining estate).
¶6       There are five hallmarks of a joint and mutual will: generally the testators of a mutual
     will label their will as such, include reciprocal provisions which dispose of the entire estate in
     favor of the other testator; pool their interests or merge their estates into a common corpus;
     have a common dispositive scheme of the joint property; and use plural pronouns and terms
     such as “we give” and “our estate.” Rauch, 112 Ill. App. 3d at 200-01, 445 N.E.2d at 79-80
     (presence of all five characteristics clearly indicated that a husband and wife intended for
     their jointly-executed will to be a joint and mutual will); In re Estate of Signore, 149 Ill. App.
     3d 904, 906, 501 N.E.2d 282, 283 (1986) (setting out eight factors instead of five and
     concluding that a joint will which had many characteristics of a mutual will rendered
     irrevocable by the death of the first spouse, was not a mutual will due to a clause stating a
     document was the couple’s “ ‘Last Will and Testament, with full reservation by both or either
     of us to change the terms hereof at any time’ ”).
¶7       In the “FIRST” paragraph of the Zivins’ “Mutual Last Will and Testament,” they directed
     the payment of all just debts, funeral expenses and administration costs. In the “SECOND”
     paragraph, Israel stated:
              “That I, DR. ISRAEL ZIVIN, hereby give, devise and bequeath all of my property
              whether same may be real, personal or mixed, and wheresoever situated or which I
              may own or have any interest in at the time of my death, including any lapsed
              legacies, to my beloved wife, ALMA M. ZIVIN, for her sole and exclusive use and
              benefits forever, in the event that I may predecease her.”
     The “THIRD” paragraph was identical to the “SECOND” paragraph, other than switching
     the names and corresponding pronouns. The “FOURTH” paragraph empowered and directed
     the executors to liquidate “all of our property, regardless whether real, personal or mixed, as
     soon after the death of the survivor of us, as they may deem practicable.” This was followed
     by:
                   “FIFTH: That in the event that we shall both perish in a common disaster, or
              following the death of the survivor of us, we give, devise and bequeath the rest,
              residue and remainder of our estate after payments directed under the above
              provisions, excluding any property over which we have power of appointment, which
              power we decline to exercise, shall be distributed as follows:
                   A. 20% thereof to NEAL JAY YANOFSKY of Chestnut Hill, Massachusetts;
                   B. 10% thereof to DR. SIMON ZIVIN of Lincolnwood, Illinois;
                   C. 10% thereof to SANDER ALLEN of 990 Lake Shore Drive, Chicago, Illinois;
                   D. 10% thereof to THE ARK located at 2341 West Devon Avenue, Chicago,
              Illinois;



                                                 -3-
                   E. All of our furniture, furnishings and household effects to SANDER ALLEN
               and MARTHA YANOFSKY in such shares as they may mutually determine between
               them;
                   F. Any remaining property not otherwise effectively disposed of shall be
               distributed to THE FIRST NATIONAL BANK, as Trustee (hereinafter called
               ‘Trustee’), to be held as a charitable trust for and on behalf of THE HEBREW
               UNIVERSITY OF JERUSALEM, New York, New York, only upon the terms and
               conditions as hereinafter provided.
                       1. The Trustee shall hold said Trust Estate as a charitable trust in perpetuity.
                   The Trustee shall pay the entire net income only, and no part of the principal, of
                   the Trust Estate at least annually to said charitable organization, and that the
                   primary purpose of the said trust is for the higher education of students living in
                   Israel.”
¶8         Israel died in 1984 and later that same year the Zivins’ will was filed in the probate
       division of the circuit court of Cook County. Alma executed her own will in 2004 in which
       she expressly revoked any and all prior wills and codicils, made specific bequests of her
       personal effects and gave the rest, residue, and remainder of her estate to a “pour over trust”
       bearing her name. Alma’s will made no provision for Hebrew University of Jerusalem.
       Thirty years after Israel’s death, Alma died in Chicago on August 23, 2013, at the age of 95
       years. The Zivins never had children and when Alma passed away, she was survived by a
       brother in Chicago and adult nieces and nephews in other parts of the United States.
¶9         Alma’s 2004 will was admitted to probate on January 23, 2014, and by order of the court,
       her brother, Sander Allen, and her nephew, Norman Zivin, were appointed independent
       coexecutors of her estate. On March 3, 10, and 17, 2014, the coexecutors published notice of
       Alma’s death. In the notice they stated there is a six month limitation period for contesting
       the validity of a will that has been admitted to probate and also that any claims against
       Alma’s estate (such as creditor claims) that were not filed by September 4, 2014, were
       barred. See 755 ILCS 5/8-1, 18-3, 18-12 (West 2010).
¶ 10       The Probate Act of 1975 (Act) requires an estate’s representative to publish and mail
       notice of the opening to the estate to all known creditors. 755 ILCS 5/18-3 (West 2010);
       Polly v. Estate of Polly, 385 Ill. App. 3d 300, 304, 896 N.E.2d 350, 354 (2008). If published
       and mailed notice is effectively given, any claims after the stated deadline (other than claims
       for administration expenses, surviving spouse awards, and surviving child’s awards) are
       barred. 755 ILCS 5/18-12 (West 2010). If notice is not effectively given, the Act nonetheless
       sets an outer limit for bringing claims as two years after the decedent’s death. 755 ILCS
       5/18-12 (West 2012). The Act broadly defines a “claim” to include “any cause of action”
       (755 ILCS 5/1-2.05 (West 2010)), thus, the statutory limitations period applies to any claim
       regardless of its legal basis (Rozycki v. Gitchoff, 180 Ill. App. 3d 523, 536 N.E.2d 130 (1989)
       (any claim, whether based on contract, tort, or other theory, must be filed within the statutory
       time period and cannot be initiated in a separate proceeding after the estate is closed)). This
       inflexible time frame was enacted to facilitate the early settlement of estates. In re Estate of
       Parker, 2011 IL App (1st) 102871, ¶¶ 57-58, 957 N.E.2d 454. The time frame cannot be
       extended even for equitable reasons and, once it has expired, courts have no jurisdiction to
       adjudicate any claim against an estate. Parker, 2011 IL App (1st) 102871, ¶¶ 57-58, 957
       N.E.2d 454; In re Estate of Hoheiser, 97 Ill. App. 3d 1077, 1081, 24 N.E.2d 25, 28 (1981)

                                                  -4-
       (no exception may be made to the filing period); In re Marriage of Epsteen, 339 Ill. App. 3d
       586, 596, 791 N.E.2d 175, 185 (2003); Polly, 385 Ill. App. 3d at 301, 896 N.E.2d at 352
       (widow’s claim for breach of prenuptial agreement entitling her to all of husband’s earnings
       during their 21-year marriage was subject to the two-year limitations period and was
       time-barred when filed 29 months after husband’s death).
¶ 11        On September 4, 2014, Hebrew University filed its claim, naming as respondents both
       Alma’s estate and the pour over trust bearing her name (the main beneficiary of her
       individual will) and seeking 60% of the estate’s value. The primary asset of Alma’s estate
       was her former residence, 1212 N. Lake Shore Drive, Unit 9CS, Chicago, Illinois, 60610,
       which the court had approved selling for $662,000 in August 2014. The estate also included
       Alma’s personal effects, such as automobiles, furnishings, art work, and jewelry. The record
       does not specify how Alma’s trust was to treat those assets. (The trust bearing Alma’s name
       that benefitted from Alma’s 2004 will should not be confused with the trust put at issue by
       Hebrew University of Jerusalem which benefitted from the Zivins’ 1983 will.)
¶ 12        As we indicated above, the school alleged it was a “beneficial legatee” of the Zivins’
       1983 “joint and mutual will” and that a “legatee of a Joint and Mutual Will has a claim
       against the estate of the second spouse to die, when the surviving spouse executes a
       subsequent will that does not benefit the legatee in the same manner.” The school calculated
       that it was entitled to 60% of the estate, based on the specific percentages stated in the will’s
       fifth paragraph and the fact that the death of a specific legatee, Dr. Simon Zivin, entitled the
       school to his 10% share.
¶ 13        The coexecutors filed a motion for dismissal on the ground that because the school was
       not a trustee under the 1983 will, the school lacked standing to bring its own claim regarding
       the supposed trust. A section 2-619 motion to dismiss admits the legal sufficiency of the
       plaintiff’s claim but asserts affirmative defenses or other matters that avoid or defeat the
       claim. Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 344, 938
       N.E.2d 640, 646 (2010); 735 ILCS 5/2-619 (West 2012). Lack of standing is considered an
       affirmative defense within the meaning of section 2-619(a)(9). In re Estate of Schlenker, 209
       Ill. 2d 456, 461, 808 N.E.2d 995, 998 (2004); 735 ILCS 5/2-619(a)(9) (West 2012).
¶ 14        Standing is a doctrine that requires a plaintiff to have some real interest in his or her
       cause of action, or a legal or equitable right, title or interest in the subject matter of the
       controversy. 59 Am. Jur. 2d Parties §§ 26-29 (2015). The doctrine precludes persons who
       have no common law or statutory right or interest in a controversy from bringing a claim.
       Potter v. Ables, 242 Ill. App. 3d 157, 158, 610 N.E.2d 159, 160 (1993); Schlenker, 209 Ill. 2d
       at 464-65, 808 N.E.2d at 1000. A standing challenge focuses on the party seeking relief–not
       on the merits of the controversy–and asks whether that party is entitled to pursue the legal
       challenge, either in their personal or representative capacity. 59 Am. Jur. 2d Parties § 28
       (2015); Powell v. Dean Foods Co., 2012 IL 111714, ¶ 36, 965 N.E.2d 404. The doctrine is
       applied to ensure that the courts are available to decide actual, specific controversies between
       parties and are not mired in abstract questions, moot issues, or cases brought on behalf of
       parties who do not desire judicial aid. Flast v. Cohen, 392 U.S. 83, 99-100 (1968); Powell,
       2012 IL 111714, ¶ 36, 965 N.E.2d 404. “To have standing, a [claimant] must present an
       actual controversy between adverse parties and, as to the controversy, the [claimant] must not
       be merely curious or concerned but must possess some personal claim, status, or right, a
       distinct and palpable injury which is fairly traceable to the [respondent’s] conduct and

                                                   -5-
       substantially likely to be redressed by the grant of such relief.” Potter, 242 Ill. App. 3d at
       158, 610 N.E.2d at 160.
¶ 15       By seeking dismissal pursuant to section 2-619, the coexecutors asked the judge to
       assume only for the purposes of argument that the school’s claim stated a cause of action,
       including (1) that the 1983 will was a joint and mutual will and (2) that Alma’s adoption of
       the 2004 will was in breach of her contractual obligation to Israel to maintain the Zivins’
       disposition to Hebrew University. The coexecutors argued that regardless of the school’s
       allegation that it was a “beneficial legatee,” the actual legatee according to the fifth article of
       the 1983 will was First National Bank, as trustee, or, according to the sixth article “any
       successor to the trust business.” The coexectors further argued that section 107 of the
       Restatement (Third) of Trusts indicates that generally a trustee is the party with standing to
       sue third parties on behalf of a trust. Restatement (Third) of Trusts § 107 (2012).1 Also,
       while there are exceptions to this rule, the school had not alleged any facts which entitled it
       to bypass the trustee and bring suit on its own. Restatement (Third) of Trusts § 107 (2012).
¶ 16       Section 107 of the Restatement (Third) of Trusts provides:
                   “(1) A trustee may maintain a proceeding against a third party on behalf of the
               trust and its beneficiaries.
                   (2) A beneficiary may maintain a proceeding related to the trust or its property
               against a third party only if:
                       (a) the beneficiary is in possession, or entitled to immediate distribution, of
                   the trust property involved; or
                       (b) the trustee is unable, unavailable, unsuitable, or improperly failing to
                   protect the beneficiary’s interest.
                   (3) In appropriate circumstances, a trustee ad litem may be appointed to consider
               and, if appropriate, to maintain a proceeding against a third party on behalf of the
               trust and its beneficiaries.” Restatement (Third) of Trusts § 107 (2012).
       The official comments to the text provide further explanation. The comment on subsection
       (1) indicates:
                   “b. General rule. As holder of the title to trust property (including choses in
               action), and as the representative of the trust and its beneficiaries, the trustee is
               normally the appropriate person to bring (and to decide whether to bring) an action
               against a third party on behalf of the trust. Except as provided in Subsection (2), a
               beneficiary has no standing to sue a third party on behalf of the trust.” (Emphasis in
               original.) Restatement (Third) of Trusts § 107 cmt. b (2012).
       The comment on subsection (2) states:


           1
             Treatises and restatements of the law are only persuasive authority and not controlling in these
       proceedings, but it is a common and sound practice to consult these sources, particularly in cases such
       as this in which there is no Illinois authority directly on point. See, e.g., Bagent v. Blessing Care Corp.,
       224 Ill. 2d 154, 164, 862 N.E.2d 985, 992 (2007) (relying on Restatement (Second) of Agency § 228
       (1958) to define a key statutory term); In re Estate of Lieberman, 391 Ill. App. 3d 882, 890, 909 N.E.2d
       915, 922 (2009) (analyzing the facts under both the Restatement (Second) of Trusts § 174 (1959) and
       Illinois law, and stating unless a Restatement section has been adopted by the Illinois Supreme Court, it
       is not the law, and merely provides guidance).

                                                        -6-
                   “c. Beneficiary standing. Because the trustee is ordinarily the appropriate person
               to bring (and to decide whether to bring) an action against a third party on behalf of
               the trust, a beneficiary may maintain a proceeding relating to the trust or its property
               against a third party only in the following limited circumstances: (1) the beneficiary is
               in possession, or entitled to immediate distribution, of the trust property involved
               (Comment c(1)); or (2) the trustee is unable or unavailable, or improperly refuses or
               fails, or is not well suited to protect the beneficiaries’ interests (Comment c(2)).
                   ***
                   c(2). Derivative action: trustee unavailable, etc. It bears repeating that the trustee,
               and not a beneficiary, is ordinarily the only proper person to bring (and to decide
               whether to bring) an action on behalf of the trust against a third party. The trustee
               may well decide, and rightly, not (or not yet) to bring an action. There are
               circumstances, however, when it is necessary for a beneficiary to act. If, for example,
               the beneficiary can show that the trustee is improperly refusing or neglecting to bring
               an action, or if the trustee is unavailable or unable to act, the protection of the trust
               estate may depend on the initiative of a beneficiary (including by seeking
               appointment of a trustee ad litem, see Comment d). ***
                                                     ***
                   The appointment of a trustee ad litem is particularly useful in circumstances in
               which it may be unnecessary or premature, or the need for action too urgent, to
               remove and replace the trustee, even temporarily with respect to other aspects of
               administration, and in which the court finds it to be in the best interests of the
               beneficiaries and appropriate to the trust purposes to assure independent and
               disinterested decisions regarding the prosecution of the proceeding in question.”
               (Emphases in original.) Restatement (Third) of Trusts § 107 cmt. c (2012).
¶ 17       An Illinois plaintiff need not allege specific facts establishing standing, rather it is the
       defendant’s burden to plead and prove a lack of standing. Schlenker, 209 Ill. 2d at 461, 808
       N.E.2d at 998. Once a defendant has met its burden on a section 2-619 motion to dismiss of
       showing that an affirmative matter defeats the claim, the burden shifts to the plaintiff to show
       that the affirmative defense was unfounded or that a fact dispute precludes the dismissal.
       Pruitt v. Pruitt, 2013 IL App (1st) 130032, ¶ 14, 995 N.E.2d 313. The plaintiff may use
       affidavits or other proof to overcome the affirmative defense or to show that at least a fact
       dispute precludes the dismissal. Pruitt, 2013 IL App (1st) 130032, ¶ 14, 995 N.E.2d 313.
¶ 18       In response to the motion to dismiss, the school contended that it did have standing to sue
       in its own name “due to the trustee’s failure to take any action on its behalf” to protect its
       beneficial interest. It supported this argument with the sworn affidavit of attorney David
       Stringer who stated that he contacted the successor trustee, Chase Bank, regarding the
       school’s potential claim and the impending deadline, and was verbally advised that the bank
       would not be pursuing a claim. The school also argued that if the court determined the school
       lacked standing, then the affidavit was grounds for the court to appoint a trustee ad litem.
¶ 19       The coexecutors replied that Stringer’s affidavit included hearsay statements that could
       not be taken into consideration and that even if the statements were admissible, the
       indications that Chase Bank had “failed,” “refused” or “declined” to act did not meet the
       standard of section 107(2)(b) of the Restatement (Third) of Trusts. Restatement (Third) of
       Trusts § 107(2)(b) (2012).

                                                    -7-
¶ 20       After considering the parties’ briefs and oral arguments, the trial court granted the
       dismissal with prejudice due to lack of standing and denied the school’s oral motion for leave
       to amend. This appeal followed.
¶ 21       We consider de novo whether the section 2-619 dismissal of the school’s claim against
       the coexecutors for lack of standing was proper as a matter of law. Schlenker, 209 Ill. 2d at
       461, 808 N.E.2d at 998. Like the trial judge, we construe the section 2-619 motion and
       supporting documents in the light most favorable to the nonmoving party. Piser, 405 Ill. App.
       3d at 345, 938 N.E.2d at 647.
¶ 22       For the purposes of section 2-619, we must take as true the school’s allegations which
       indicate the Zivins’ 1983 will was a joint and mutual will, the Zivins’ bequest to Hebrew
       University became essentially irrevocable when Israel died and the will was filed in Cook
       County circuit court in 1984, Alma breached her contract with Israel by executing a will in
       2004 that did not benefit Hebrew University, and the school’s breach of contract claim
       against Alma’s estate ripened upon her death and the admission of her 2004 will to probate.
       Stated another way, we assume for the purposes of argument that the disposition of Alma’s
       estate as provided for in her individual will improperly deprives the school of the bequest it is
       entitled to from the Zivins’ joint and mutual will.
¶ 23       Because the wording of a will communicates the intention of the testator or testators, we
       start our standing analysis with the express terms of the Zivins’ 1983 will. Signore, 149 Ill.
       App. 3d at 907, 501 N.E.2d at 283 (courts review the language of a will to determine what
       was intended by the testator or testators). The 1983 will states that “FIRST NATIONAL
       BANK” or its successor, which is Chase Bank, is to receive and manage the Zivins’ bequest
       of assets “for and on behalf of” Hebrew University of Jerusalem. Thus, according to the 1983
       will, the trustee, not the beneficiary, would have the right to bring an action regarding the
       Zivins’ bequest, and the trustee, not the beneficiary, would have standing. This reading of the
       will is consistent with Illinois statute, which provides that a trustee has the power to
       “compromise, contest, prosecute or abandon claims or other charges in favor of or against the
       trust estate.” 760 ILCS 5/4.11 (West 2012); Pierce v. Chester Johnson Electric Co., 117 Ill.
       App. 3d 867, 868, 454 N.E.2d 55, 56 (1983) (interpreting Illinois law and stating that trustees
       possess a specific statutory power to sue on behalf of a trust). This reading of the will’s trust
       language is also consistent with the language of the Restatement (Third) of Trusts
       (Restatement (Third) of Trusts § 107 (2012)), as quoted above, and also Bogert’s legal
       treatise about trusts, which states:
                    “Normally Trustee Sues
                        The trustee has a title (generally legal title) to the trust property, usually has
                    its possession and a right to continue in possession, and almost always has the
                    powers of management and control which are necessary to make the trust property
                    productive and safe. Any wrongful interference with these interests of the normal
                    trustee is therefore a wrong to the trustee and gives him a cause of action for
                    redress or to prevent a continuance of the improper conduct. Although the
                    beneficiary is adversely affected by such acts of a third person, no cause of action
                    inures to him on that account. The right to sue in the ordinary case vests in the
                    trustee as a representative.



                                                    -8-
                       Thus if a third person wrongfully withholds possession of the trust property
                   from the trustee, the trustee is usually the only proper party plaintiff to sue ***.
                   ***
                       In the absence of special circumstances, the beneficiary is not eligible to bring
                   or enforce these causes of action which run to his trustee. Thus in the usual case
                   he cannot sue a third person to recover possession of the trust property for himself
                   or the trustee, or for damages ***.” George Gleason Bogert, The Law of Trusts
                   and Trustees § 869, at 112-16 (rev. 2d ed. 1995).
¶ 24       However, the school’s pleading, affidavit, and arguments indicated this proceeding might
       be the exception to the general rule that the trustee is the appropriate party to pursue the
       interests of a trust. The record leaves open material questions as to whether this is an
       exceptional case in which Chase Bank’s inability or refusal to pursue a claim, despite an
       inflexible deadline2 to file one against Alma’s estate, justifies allowing the trust beneficiary
       to proceed in this action without a trustee or warrant the appointment of a trustee or trustee
       ad litem to maintain this proceeding.
¶ 25       With the Restatement (Third) and Bogert’s treatise in mind, the school contends attorney
       Stringer’s affidavit clearly showed that Chase Bank was refusing to act or neglecting to file
       before the claims period expired, thus, indicated that the school had standing to proceed with
       a claim in its own name. The coexecutors respond that refusal or negligence are new
       arguments on appeal and that in the trial court the school argued only that Chase Bank
       “failed” to take action. The coexecutors give this response because it is well settled that
       issues, questions, points or contentions not presented in the trial court and properly preserved
       for review should not be considered on appeal. In re Estate of Chaney, 2013 IL App (3d)
       120565, ¶ 8, 1 N.E.3d 1231. We find, however, that the school’s argument is essentially what
       it argued in the trial court, albeit with slightly different wording and reliance on different
       authority.
¶ 26       In our opinion, Stringer’s affidavit competently conveys that he contacted Chase Bank
       about the school’s potential claim as well as the six month filing deadline. We find that to the
       extent Stringer’s affidavit includes hearsay (he relates Chase Bank’s response), that statement
       is not important here. Hearsay is generally inadmissible and consists of either written
       evidence or testimony, of a statement made out of court, offered to show the truth of matters
       asserted therein, and thus rests for its value upon the credibility of the out-of-court asserter.
       Mashni Corp. v. Laski, 351 Ill. App. 3d 727, 735, 814 N.E.2d 879, 886 (2004); Smith v.
       United Farm Mutual Reinsurance, 249 Ill. App. 3d 686, 689, 619 N.E.2d 263, 265 (1993)
       (rejecting affiant’s statement of hearsay which began with, “ ‘Ron Clark and the other
       insurance people told me that right after the fire’ ”). Even if we disregard what Chase Bank
       purportedly said to Stringer, the affidavit competently shows that Stringer informed Chase
       Bank of the school’s potential claim against Alma’s estate and that the claim could be
       time-barred, and we can deduce from (1) Chase Bank’s failure to file within the claims
       period and (2) its absence in these proceedings, that despite Stringer’s urging to intercede,
       Chase Bank was either incapable or unwilling to pursue an action on the school’s behalf

           2
            We express no opinion as to whether the claim was governed by the six month deadline or the two
       year deadline. The school filed on the six month date and the two year date lapsed while this appeal was
       pending.

                                                      -9-
       against Alma’s estate. However, none of the parties’ submissions resolve why Chase Bank
       did not file the action. The existing record does not resolve the material question of whether
       Chase Bank is “unable, unavailable, unsuitable, or improperly failing to protect the
       beneficiary’s interest [in the Zivins’ 1983 bequest],” which is the standard set out in section
       107(2)(b) of the Restatement (Third) of Trusts for allowing a beneficiary to proceed on its
       own. Restatement (Third) of Trusts § 107(2)(b) (2012). Moreover, this case may present
       “appropriate circumstances” within the meaning of section 107(3) of the Restatement (Third)
       of Trusts for appointing a trustee ad litem “to consider and, if appropriate, to maintain a
       proceeding against [Alma’s estate] on behalf of the [1983] trust and its beneficiar[y].”
       Restatement (Third) of Trusts § 107(3) (2012). Or, these may be “special circumstances,” as
       described in Bogert’s treatise in which “the beneficiary is *** eligible to bring or enforce ***
       causes of action which [ordinarily] run to his trustee.” Bogert, supra § 869, at 112-16. We
       find that these are material issues regarding standing that are not resolved by the current
       record and which preclude dismissal. In deciding the merits of a section 2-619 motion, a trial
       court cannot determine disputed factual issues solely upon affidavits and counter-affidavits.
       If affidavits present disputed facts, the parties must be afforded the opportunity to have an
       evidentiary hearing. Premier Electrical Construction Co. v. La Salle National Bank, 132 Ill.
       App. 3d 485, 477 N.E.2d 1249 (1984); Dickman v. Country Mutual Insurance Co., 120 Ill.
       App. 3d 470, 458 N.E.2d 199 (1983). We find that an evidentiary hearing on the section
       2-619 motion is warranted. Accordingly, we vacate the dismissal order and remand for
       proceedings on the coexecutors’ section 2-619 motion, in order to determine whether Chase
       Bank or a trustee ad litem should be appointed to maintain Hebrew University’s claim
       against Alma’s estate, whether the school may continue to represent itself, or whether, in
       fact, the section 2-619 motion should be granted. We reiterate that we have no opinion as to
       whether the 1983 will is in fact both a joint will and a mutual will and we emphasize that if,
       on remand, the trial court determines that the 1983 will does not meet this standard, then the
       court should grant the dismissal for lack of standing.
¶ 27        We need not reach the school’s additional arguments, which are that it had standing (1) as
       the true party in interest, (2) due to the “exigent circumstances” of the impending lapse of the
       filing deadline for bringing a claim against the estate, and (3) because there was actually no
       trust, trustee, or beneficiary because Alma revoked the will which created them.

¶ 28      Vacated and remanded.




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