        REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


  BMO HARRIS BANK N.A., as Trustee of the Mary A. Cornelius Trust Dated
    November 18, 1972, f/b/o Martin P. Cornelius, Jr., and as Trustee of the
        Martin P. Cornelius, Sr. Trust, f/b/o Martin P. Cornelius, Jr.,

                    Plaintiff and Counterdefendant-Appellee,

                                        v.

   RICHARD S. TOWERS, as Successor Trustee of the Martin P. Cornelius, Jr.
     Revocable Living Trust, HARRY H. CORNELIUS, CAMILLA ANNE
              CORNELIUS, and MARTIN P. CORNELIUS III,

                  Defendants and Counterplaintiffs-Appellants

                           (DAGMAR CORNELIUS,

                              Defendant-Appellee).


                   Nos. 1-13-3351 & 1-13-3635 (Consolidated)

                            Appellate Court of Illinois
                         First District, FIFTH DIVISION

                                October 23, 2015



     JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.


                 Appeal from the Circuit Court of Cook County.
                  The Hon. Thomas R. Allen, Judge Presiding.



              COUNSEL FOR DEFENDANTS-APPELLANTS
                 Norman J. Lerum, P.C., Chicago, IL 60603
            OF COUNSEL: Norman J. Lerum and Catherine E. Lerum


   COUNSEL FOR PLAINTIFF-APPELLEE BMO HARRIS BANK N.A.
             Chapman and Cutler LLP, Chicago, IL 60603
       OF COUNSEL: Rebecca Wallenfelsz and Bryan E. Jacobson


   COUNSEL FOR DEFENDANT-APPELLEE DAGMAR CORNELIUS
             Harrison & Held, LLP, Chicago, IL 60606
       OF COUNSEL: Robert S. Held and George N. Vurdelja, Jr.
                                     2015 IL App (1st) 133351

                           Nos. 1-13-3351 & 1-13-3635 (Consolidated)


                                                                              FIFTH DIVISION
                                                                              October 23, 2015


                    IN THE APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
______________________________________________________________________________

BMO HARRIS BANK N.A., as Trustee of the               ) Appeal from the
Mary A. Cornelius Trust Dated November 18, 1972,)       Circuit Court of
f/b/o Martin P. Cornelius, Jr., and as Trustee of the ) Cook County.
Martin P. Cornelius, Sr. Trust, f/b/o Martin P.       )
Cornelius, Jr.,                                       )
                                                      )
    Plaintiff and Counterdefendant-Appellee,          )
                                                      )
    v.                                                ) No. 12 CH 38519
                                                      )
RICHARD S. TOWERS, as Successor Trustee of )
the Martin P. Cornelius, Jr. Revocable Living Trust, )
HARRY H. CORNELIUS, CAMILLA ANNE                      )
CORNELIUS, and MARTIN P. CORNELIUS III, )
                                                      )
    Defendants and Counterplaintiffs-Appellants       )
                                                      )
(DAGMAR CORNELIUS,                                    ) Honorable
                                                      ) Thomas R. Allen,
    Defendant-Appellee).                              ) Judge Presiding.
______________________________________________________________________________

       JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
       Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.

                                             OPINION

¶1     This cause arose when plaintiff BMO Harris Bank N.A. (Bank), as trustee of two trusts,

filed a petition seeking instructions from the court regarding the validity of the exercise of the

testamentary powers of appointment by Martin Cornelius, Jr., (Martin Jr.) over the two trusts,
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


which were created by his parents. Thereafter, the trustee of Martin Jr.’s revocable living trust

and three of Martin Jr.’s four living children (collectively, the Towers defendants) filed a

counterpetition against the Bank, alleging that Martin Jr.’s exercise of his powers of appointment

was valid and the Bank violated its fiduciary duties by filing its petition. Another defendant,

Martin Jr.’s daughter Dagmar Cornelius, moved for partial summary judgment in her favor on

certain counts of the Bank’s petition.

¶2      The trial court granted Dagmar Cornelius’s partial motion for summary judgment, held

that Martin Jr. improperly exercised the powers of appointment granted to him by his parents,

and instructed the Bank to distribute the trust funds held in the parents’ two trusts per stirpes to

Martin Jr.’s four living children. The trial court also granted the Bank’s motion for judgment on

the pleadings and dismissed the Towers defendants’ counterpetition, and granted Dagmar’s

petition for attorney fees.

¶3      On appeal, the Towers defendants contend Martin Jr. properly exercised his powers of

appointment over his parents’ two trusts using his revocable living trust as a conduit; the trial

court erred in granting the Bank’s motion to dismiss the Towers defendants’ counterpetition; and

the trial court erred by summarily granting Dagmar’s petition for attorney fees.

¶4      For the reasons that follow, we affirm the judgment of the circuit court. We hold that:

(1) As the trust donee, Marin Jr.’s exercise of his limited testamentary powers of appointment in

favor of himself was ineffective and therefore void because he was not a permissible appointee;

(2) as the trustee, the Bank acted within its fiduciary duties by filing a petition seeking

instruction from the court regarding the proper distribution of the trusts; and (3) the trial court

did not err in awarding Dagmar attorney fees without conducting an evidentiary hearing.




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Nos. 1-13-3351 & 1-13-3635 (Consolidated)


&5                                      I. BACKGROUND

&6      Mary and Martin Cornelius, Sr., created two trusts with the Bank as trustee that were to

be administered for the benefit of their son, Martin Jr., during his lifetime. Each trust granted

Martin Jr. a limited testamentary power of appointment. Under the terms of the Mary trust,

Martin Jr. could appoint assets to or in further trust for his spouse, Mary’s descendants other than

Martin Jr., or the spouses of such descendants. Under the terms of the Martin Sr. trust, Martin Jr.

could appoint assets to or in further trust for his spouse, his lineal descendants and their spouses,

Martin Sr.’s other lineal descendants and their spouses, or any charitable organization. Under the

terms of the Mary trust and Martin Sr.’s will, if the powers of appointment were not effectively

exercised, then distributions would be made to the descendants of Martin Jr. living at the time of

his death.

&7      During his lifetime, Martin Jr. created a revocable living trust (the Martin Jr. trust).

Martin Jr. died a resident of North Carolina in 2006 and was survived by his spouse and four

children, Harry, Martin III, Camilla, and Dagmar. Martin Jr.’s last will and testament, dated

1991, was admitted to probate in North Carolina. Section 1.1 of Martin Jr.’s will directed: “that

all of my legal debts, the expenses of the administration of my estate and the expenses of my last

illness, funeral and interment be paid out of my estate, but not from any marital assets which are

exempt from federal estate tax unless there are no other assets available.” In sections 2.2 and 2.3

of his will, Martin Jr. exercised his limited powers of appointment under the Mary and Martin Sr.

trusts by appointing all the property to the trustee of the Martin Jr. trust. Section 3.1 of the will

provided that Martin Jr. devised “the residue of [his] estate, including [his] property over which

[he] may have any general power of appointment at the time of [his] death” to the trustee of the

Martin Jr. trust “to be administered as part of the principal of the Trust.”



                                                   3
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


&8     Section 1.1 of the Martin Jr. trust agreement stated that the “Trust assets shall consist of

assets previously transferred by [Martin Jr.] to the trustee, and such other assets as [Martin Jr.]

may transfer to the trustee, or which the trustee shall receive and accept from other sources,

including [Martin Jr.’s] estate, and any other assets substituted therefor or added thereto.”

Section 4.1 of the trust agreement addressed the trustee’s administration of the trust during

Martin Jr.’s lifetime and provided that all income not distributed during Martin Jr.’s lifetime

would be added to the principal.

&9     Section 5.1 of the trust agreement instructed the trustee that, if Martin Jr.’s spouse

survived him, then the trustee would divide the trust estate, “both income and principal, which

shall include any additions made to the Trust by reason of [Martin Jr.’s] death (such as transfers

under [Martin Jr.’s] Will, or life insurance policies on [Martin Jr.’s] life),” into a marital share

and a credit shelter share. If Martin Jr.’s spouse did not survive him, then the credit shelter would

consist of the entire estate. The marital share would be designated the Marital Deduction Share

and the credit shelter share would be designated the Martin Phelps Cornelius, Jr. Family Trust.

&10    Section 5.3 of the trust agreement directed the trustee, upon Martin Jr.’s death, to pay

from the “original trust *** all debts, expenses of administration, and death taxes (estate,

inheritance, and like taxes, including interest and penalties but not including any generation-

skipping transfer taxes) that are payable as a result of [Martin Jr.’s] death.” According to section

8.1 of the trust agreement, the “original Trust” created by the trust agreement may be referred to

as the Martin Phelps Cornelius, Jr. Revocable Living Trust dated July 29, 1987, whereas the

family trust may be referred to as the Cornelius Family Trust, followed by the date of the trust’s

initial funding. Section 5.5 of the trust agreement provided that “[a]t any time during the

continuance of the original Trust after [Martin Jr.’s] death, the trustee may distribute to [Martin



                                                   4
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


Jr.’s] probate estate, as a beneficiary of the Trust, cash or other property out of any assets then

held by the Trust.” Section 5.7 of the trust agreement stated that “[w]hen all of the properties of

the original Trust have been so divided and distributed, the original Trust shall be deemed

terminated.” After the death of Martin Jr.’s spouse, the remaining assets of the trust would be

paid in equal shares to Martin Jr.’s son Harry and three of Martin Jr.’s grandchildren. Martin Jr.

explicitly stated that his children Dagmar and Martin III were omitted as residuary beneficiaries.

&11     The estate of Martin Jr. was closed in December 2007, and his trustee contacted the Bank

in 2009 and transmitted information relating to the administration of the Martin Jr. estate for the

purpose of transferring the assets held by the Bank in the Mary and Martin Sr. trusts to the

Martin Jr. trust. However, the assets of the Mary and Martin Sr. trusts were never transferred to

the Martin Jr. trust.

&12     In October 2012, the Bank filed with the trial court a petition for instructions and

approval of accounts and other relief. The Bank stated that, under the terms of the Mary and

Martin Sr. trusts, the Bank was unsure whether or to what extent Martin Jr.’s exercise of the

powers of appointment over his parents’ two trusts was valid due to the possibility of

impermissible appointees receiving property from the parents’ two trusts.

&13     In February 2013, the Towers defendants, i.e., Harry Cornelius, Martin Cornelius III,

Camilla Cornelius, and the trustee of the Martin Jr. trust, filed a counterpetition for instructions,

declaratory relief and money damages. The Towers defendants argued that the Bank should

have transferred the funds in the Mary and Martin Sr. trusts to the Martin Jr. trust, the exercise of

the powers of appointment in the Martin Jr. trust was valid and consistent with the provisions of

the Mary and Martin Sr. trusts, and the Bank breached its fiduciary duties to the beneficiaries of




                                                  5
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


the Martin Jr. trust by filing a petition for instructions and unnecessarily generating legal

expenses.

&14     Thereafter, defendant Dagmar Cornelius moved the court for partial summary judgment

under section 2-1005(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(d) (West

2012)), arguing there was no genuine issue of material fact to be resolved concerning the counts

of the Bank’s petition requesting instructions on the validity of Martin Jr.’s exercise of the

powers of appointment. Dagmar contended that the clear and unambiguous language of the

Mary, Martin Sr., and Martin Jr. trusts and Martin Jr.’s will established that Martin Jr.’s

appointment of the Mary and Martin Sr. trusts’ property to Martin Jr.’s own trust exceeded the

permissible class of appointees because neither power of appointment was exercisable in favor of

Martin Jr., his creditors, his estate, or the creditors of his estate.

&15     Thereafter, the Bank moved the court for judgment on the pleadings pursuant to section

2-615(e) of the Code (735 ILCS 5/2-615(e) (West 2012)). The Bank asserted there was a genuine

question of law regarding Martin Jr.’s exercise of the powers of appointment, denied that it

breached its fiduciary duty by instituting these proceedings, and asserted that it had a right to the

determination of the propriety of its accounts before making a final distribution.

&16     On September 4, 2013, the court granted Dagmar’s motion for partial summary judgment

and instructed the Bank to distribute the Mary and Martin Sr. trusts to Martin Jr.’s four living

children, per stirpes. However, the court ruled that the Bank should not distribute the funds until

the court approved the Bank’s final accounting. The court also granted the Bank’s motion for

judgment on the pleadings and dismissed with prejudice the Towers defendants’ counterpetition

against the Bank. The court found that this order was final and appealable pursuant to Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010).



                                                     6
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


&17     Thereafter, the Towers defendants moved the court to stay enforcement of the September

2013 order pending appeal without bond. The Towers defendants argued that the order was

contrary to the intent of Martin Jr. as expressed in his trust and deprived certain designated

beneficiaries of their distributions. The Towers defendants also argued that an appeal bond was

unnecessary to protect Dagmar’s interests because the Bank, as trustee, held the trust funds and

the court should not approve the Bank’s final accounting until completion of the appeal upon

remand. This motion, however, was subsequently withdrawn.

&18     Dagmar filed a petition for $49,780.43 in attorney fees, arguing the fees were payable out

of the trusts because there was an honest difference of opinion as to the language of the trust

agreements and her attorneys’ work was in the interest of and benefitted the trusts. Invoices

detailing the dates, billable hours and professional services provided were attached to the

petition.

&19     On October 2, 2013, the Towers defendants appealed the trial court’s September 4, 2013

order, and the case was assigned No. 1-13-3351.

&20     On November 12, 2013, the trial court granted Dagmar’s attorney fee petition for

$49,780.43. The court instructed the Bank to pay the total fee equally from the Mary and Martin

Sr. trusts on or before November 26, 2013.

&21     On November 14, 2013, the Towers defendants appealed the trial court’s November 12,

2013 order, and the case was assigned No. 1-13-3635. On January 29, 2014, this court granted

the Towers defendants’ motion to consolidate the appeals in case Nos. 1-13-3351 and 1-13-3635.




                                                 7
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


&22                                         II. ANALYSIS

&23                     A. Improper Exercise of the Powers of Appointment

&24     The Towers defendants challenge the trial court’s ruling that granted Dagmar’s motion

for partial summary judgment and held that Martin Jr. violated the powers of appointment

granted to him by his parents in the Mary and Martin Sr. trusts. The Towers defendants assert

that Martin Jr. properly segregated the assets from his parents’ trusts because after Martin Jr.’s

death no assets were ever withdrawn from the Mary and Martin Sr. trusts, used for any improper

purpose, or distributed to any improper beneficiary. The Towers defendants acknowledge that

Martin Jr., as the donee of his parents’ powers appointment, could not make the property subject

to that power part of his estate for all purposes, and argue that the terms of Martin Jr.’s will and

trust and extrinsic evidence establish that he intended to fulfill his parents’ wishes without

making the assets of their trusts part of his estate for all purposes.

&25     According to the Towers defendants, the clear terms of the Mary trust agreement and

Martin Sr.’s will allowed Martin Jr. to exercise the powers of appointment through the residuary

clause of his trust and Martin Jr. simply exercised the powers in favor of a trustee with the

intention of distributing the property subject to the powers of appointment to the permitted

beneficiaries in accordance with the Mary and Martin Sr. trusts. Moreover, the Towers

defendants assert that Martin Jr.’s designations to his spouse, his son Harry, and three of Martin

Jr.’s grandchildren were proper because all the designated individuals were qualified

beneficiaries under the terms of the powers of appointment. Although Martin Jr.’s designation to

charitable organizations may not have been proper under the terms of the Mary trust, the Towers

defendants contend this issue is moot because the facts demonstrate that the assets from the Mary




                                                   8
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


trust would never have been utilized to satisfy the specific charity distributions designated by

Martin Jr.

&26    “Summary judgment is appropriate only when the pleadings, depositions, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” (Internal quotation

marks omitted.) JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 460-61

(2010). We review a grant or denial of a summary judgment de novo. Id. at 461. A reviewing

court’s function in reviewing a trial court’s entry of summary judgment is to ensure that no

genuine issue of material fact was raised and to determine whether the judgment was correctly

entered as a matter of law. Comtrade, Inc. v. First National Bank of Highland Park, 146 Ill.

App. 3d 1069, 1072-73 (1986). A nonmoving party need not prove its case, but must present

some factual basis entitling it to judgment. Parker v. House O’Lite Corp., 324 Ill. App. 3d 1014,

1019 (2001).

&27    Summary judgment is appropriate in a case involving the construction of a trust because

the ascertainment of the trust’s meaning or intent is strictly a matter of law. First National Bank

of Chicago v. Edgeworth, 94 Ill. App. 3d 873, 880 (1981); see Jones v. Heritage Pullman Bank

& Trust Co., 164 Ill. App. 3d 596, 602 (1987) (“The meaning to be given the plain words of a

written instrument is a question of law to be determined by the trial court.”). A trial court’s

construction of a trust instrument is reviewed under a de novo standard. Herlehy v. Marie V.

Bistersky Trust, 407 Ill. App. 3d 878, 889 (2010). “The purpose of a court in construing the

provisions of a will is to give effect to the intention of the testator. [Citation.] [W]hen the words

used in their ordinary sense are plain and their meaning clear, construction demands the use of

the plain intention.” (Internal quotation marks omitted.) Jones, 164 Ill. App. 3d at 601-02. The



                                                  9
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


same rules that pertain to the construction of a will also pertain to the construction of a trust, with

the intention of the testator being of supreme importance. Federick v. Lewis, 164 Ill. App. 3d

240, 243 (1987).

&28    “A power of appointment is not an absolute right of property, nor is it an estate, for it has

none of the elements of an estate.” People v. Kaiser, 306 Ill. 313, 316-17 (1922). The individual

appointed the power takes title from the donor, not the donee. Id. at 317 “[A] power is said to

be general when it is exercisable in favor of any person whom the donee may select, and special,

limited, or particular when it is exercisable only in favor of persons or a class of persons

designated or described in the instrument creating the power.” (Internal quotation marks

omitted.) Pinzino v. Vogel, 98 Ill. App. 3d 330, 332 (1981). A special power of appointment is

only valid if it was exercised in compliance with any conditions established by the donor. In re

Estate of MacLeish, 35 Ill. App. 3d 835, 838 (1976). “If the donee of a special power appoints a

beneficial interest to a non-object of the power, the appointment is ineffective.” In re Buck

Trust, 301 A.2d 328, 330 (Del. Ch. 1973) (citing Restatement (First) of Property § 351 (1940)).

&29    Both the agreement establishing the Mary trust and the will of Martin Sr. provide that

Illinois law governs the interpretation and enforcement of those documents. Moreover, the plain

language controlling the powers of appointment for both the Mary and Martin Sr. trusts

establishes that Martin Jr. could not exercise the powers of appointment in favor of himself

because he was not within the class of permissible beneficiaries designated by his parents. After

reviewing the record, we conclude that the trial court properly granted partial summary judgment

in favor of Dagmar because Martin Jr. improperly exercised his powers of appointment over the

assets of the Mary and Martin Sr. trusts. Although Martin Jr.’s initial conveyance to the Martin

Jr. trust could have been permissible pursuant to the terms controlling the Mary and Martin Sr.



                                                  10
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


trusts, the plain terms of Martin Jr.’s will and trust agreement provided that the assets from his

parents’ trusts would be commingled with the assets of his original trust and then his trustee

would pay “all debts” that were payable as a result of Martin Jr.’s death from the original trust.

No language in the Martin Jr. trust agreement segregated the assets from his parents’ trusts from

the assets of Martin Jr.’s original trust, and Martin Jr.’s creditors could have used the

commingled assets to satisfy Martin Jr.’s debts.

&30    A test to determine whether there has been a blending of the donee’s own property with

the appointed property provides: “ ‘The mere fact that the appointed estate is given to the same

persons who take the residue of a testator’s individual estate is not the test to be applied in

determining whether there has been a blending of the two estates, but the real test under our line

of decision is whether the testator has treated the two estates as one for all purposes, and

manifested an intent to commingle them generally.’ ” (Emphasis in original.) In re Estate of

Breault, 29 Ill. 2d 165, 176 (1963) (quoting In re Hagen’s Estate, 132 A. 175, 176 (Pa. 1926)).

We conclude that Martin Jr. blended his own property with the appointed property for all

purposes. Contrary to the Towers defendants’ argument on appeal, the plain language of section

5.3 of Martin Jr.’s trust agreement establishes that it was Martin Jr.’s intent to pay all his debts

from his original trust, which included the assets appointed from the Mary and Martin Sr. trusts.

Because Martin Jr. exercised his powers of appointment in favor of himself and he was not

within the class of permissible beneficiaries under the limited powers of appointment designated

by his parents, his impermissible exercise of his powers of appointment rendered the act of

conveyance void. Accordingly, the trial court correctly instructed the Bank to distribute the

appointed property per stirpes to Martin Jr.’s four children who were living at the time of his




                                                  11
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


death, in compliance with the terms of the Mary and Martin Sr. trusts in the event the powers of

appointment were not effectively exercised.

&31       The Towers Defendants’ reliance on In re Breault’s Estate, (id. at 177-78), where the

court held that the donee did not commingle his own property with the appointed property for all

purposes, is misplaced. In that case, the court noted that the donee, in the first two paragraphs of

his will, specifically directed the payment of his debts and taxes before any attempt at blending

or commingling occurred. Id. at 177. Here, in contrast, Martin Jr. directed the trustee of his trust

to pay all his debts from the original trust, which included the appointed assets from his parents’

trusts.

&32       The Towers defendants claim that section 8.1 of the trust agreement manifests Martin

Jr.’s intent that the trustee create two separate trusts to segregate, hold, administer and distribute

the trust property. The Towers defendants also cite section 3.11 of the trust agreement, which

states that a person serving “as trustee of any Trust created by this document” shall not be

precluded from serving as trustee by reason of having a beneficial interest in the trust. We

conclude, however, that these references to additional created trusts are not dispositive of the

issue of the commingling of Martin’s property with the appointed property. While Martin Jr. did

direct his trustee, upon Martin Jr.’s death, to divide his original trust assets into a marital share

and a credit shelter share, this was to be done after the appointed property was commingled with

Martin Jr.’s estate property in the original trust. Moreover, the trustee was directed to pay, inter

alia, all of Martin Jr.’s debts from the original trust.

&33       The Towers defendants also argue extrinsic evidence establishes that no debts of Martin

Jr.’s estate were ever paid from the assets of his parents’ two trusts, and Martin Jr.’s spouse paid

all the debts, expenses and taxes directly from Martin Jr.’s estate without taking any money from



                                                   12
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


the parents’ two trusts held by the Bank. This happenstance, however, is not controlling in the

determination of whether Martin Jr. improperly exercised the powers of appointment. “[A]

statutorily valid will takes effect at the death of the testator.” In re Estate of Hostetter, 75 Ill.

App. 3d 1020, 1022 (1979); see also In re Estate of Durham, 62 Ill. App. 2d 111, 115 (1965)

(“the operation and effect of the will on the testator’s property is determined as of the date of his

death”). Regardless of how the trustee actually performed his duties, the intent and validity of a

will is determined at the time of death, and the will and trust agreement here dictated that Martin

Jr.’s debts would be paid from the original trust, which contained the commingled assets of both

Martin Jr.’s estate property and the assets from his parents’ trusts. This was the intent of Martin

Jr., and the fact that Martin Jr.’s creditors never actually accessed the assets of his parents’ trusts

does not remedy the invalid conveyance.

&34                                  B. Judgment on the Pleadings

&35     The Towers defendants next contend the trial court erred in granting the Bank’s motion

for judgment on the pleadings because there are genuine issues of material fact that remain to be

determined by the trial court. The Towers defendants allege the Bank waived the right to

challenge the sufficiency of the Towers defendants’ counterpetition under section 2-615 of the

Code after the Bank had filed an answer and affirmative defenses to the counterpetition, and

contend the Bank’s failure to file a proper motion for summary judgment deprived the Towers

defendants of the opportunity to file a counteraffidavit or take discovery on issues of fact

concerning the Bank’s answer and affirmative defenses. We disagree because after the trial court

properly granted summary judgment in favor of Dagmar and held that Martin Jr. improperly

exercised the powers of appointment, there were no genuine issues of material fact pending and

the Bank was entitled to judgment on the pleadings as a matter of law against the Towers



                                                   13
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


defendants on their counterpetition alleging the Bank had breached its fiduciary duty by seeking

court instructions concerning the validity of the exercise of the powers of appointment.

&36    In a section 2-615 motion with respect to pleadings, a party denies the legal sufficiency of

the complaint, essentially saying, “So what? The facts the [complainant] has pleaded do not

state a cause of action against me.” (Internal quotation marks omitted.) Howle v. Aqua Illinois,

Inc., 2012 IL App (4th) 120207, ¶ 35. If a pleading is objected to by a motion to dismiss or for

judgment because the pleading is substantially insufficient in law, the motion must specify

wherein the pleading is insufficient. 735 ILCS 5/2-615(b) (West 2012). “Any party may

seasonably move for judgment on the pleadings.” 735 ILCS 5/2-615(e) (West 2012).

&37    “Judgment on the pleadings is proper where the pleadings disclose no genuine issue of

material fact and that the movant is entitled to judgment as a matter of law.” Gillen v. State

Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005). A reviewing court must

determine whether any issues of material fact exist and, if not, whether the movant was entitled

to judgment as a matter of law. Id. A reviewing court will review the trial court’s decision de

novo. Id. The trial court may only consider “facts apparent from the face of the pleadings,

matters subject to judicial notice, and judicial admissions in the record.” Id. A trial court must

take all well-pleaded facts as true except for conclusions of law that are unsupported by specific

factual allegations. Horwath v. Parker, 72 Ill. App. 3d 128, 134 (1979). All reasonable

inferences must be drawn in favor of the nonmoving party. Herlehy, 407 Ill. App. 3d at 895.

&38    “Unless the terms of the trust document provide otherwise, a trustee’s fiduciary duty to

each beneficiary precludes it from favoring one party over another.” Northern Trust Co. v.

Heuer, 202 Ill. App. 3d 1066, 1070 (1990). A trustee may not argue that a trust should be

interpreted in a manner beneficial to one beneficiary and detrimental to another; doing so



                                                14
Nos. 1-13-3351 & 1-13-3635 (Consolidated)


breaches the trustee’s fiduciary duty of impartiality. Id. at 1072. However, a trustee must also

carry out the trust according to its terms. Herlehy, 407 Ill. App. 3d at 896. A trustee may,

whenever a situation arises that justifies proceedings, “ask the court for instructions as to their

duties under the circumstances under which they or the trust funds are placed.” (Internal

quotation marks omitted.) Warner v. Mettler, 260 Ill. 416, 421-22 (1913); see Northern Trust

Co., 202 Ill. App. 3d at 1070-71 (“When there are conflicting claims to trust funds, a trustee is

not required to make a determination as to the rights of the prospective claimants but should file

an interpleader action to avoid acting at its own peril.”).

&39    As discussed above, the construction of a trust is a matter of law, and we have concluded,

after de novo review, that Martin Jr. improperly exercised the powers of appointment in favor of

himself. Therefore, the Bank’s motion for judgment on the pleadings was correctly granted.

There were no material facts in dispute and the Bank was entitled to judgment as a matter of law.

The Bank did not breach its fiduciary duty to any beneficiary when it filed, per its duty, a petition

for instructions from the court. The Bank, as trustee of the Mary and Martin Sr. trusts, had a duty

to ensure that it administered the trusts as prescribed by the trust agreements. In seeking a

determination on whether Martin Jr.’s appointment was valid, the Bank acted precisely as a

trustee is tasked to act; it brought the action to be settled by the court and did not advocate for

one interpretation over the other.

&40    Accordingly, we affirm the trial court’s order that granted the Bank’s motion for

judgment on the pleadings and dismissed the Towers defendants’ counterpetition.

&41                                    C. Attorney Fees

&42    The Towers defendants argue the trial court improperly awarded Dagmar $49,780.43 in

attorney fees because the court did not hold a hearing on either “what services specifically were



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Nos. 1-13-3351 & 1-13-3635 (Consolidated)


devoted to unraveling any alleged ambiguity in the documents” or the reasonableness of the fees

claimed.

&43     “In will construction cases the costs of litigation are borne by the estate on the theory that

the testator expressed his intention so ambiguously as to necessitate construction of the

instrument in order to resolve adverse claims to the property.” Orme v. Northern Trust Co., 25

Ill. 2d 151, 165 (1962). An ambiguity exists where there is an honest difference of opinion

regarding the proper construction of the trust. Id. If the trust is unambiguous and construction is

unnecessary, no fees should be authorized. Id. Determining whether a trust provision is

ambiguous is a question of law where “ambiguity can be found only if the language is reasonably

or fairly susceptible to more than one interpretation.” Espevik v. Kaye, 277 Ill. App. 3d 689, 694

(1996). Fees should only be awarded for services rendered in furtherance of solving the

ambiguity issue and not authorized for any service dealing with other issues. First National

Bank, 94 Ill. App. 3d at 887-88. Furthermore, there should be a reasonable nexus between the

total amount in controversy and the amount of fees authorized. Id. at 885. Ideally, the fee

petitioners will present contemporaneously made, detailed time records as evidence of the

services performed, by whom the services were performed, the time expended thereon, and the

hourly rate charged therefore. In re Estate of Bitoy, 395 Ill. App. 3d 262, 273 (2009). “The

matter of fixing attorneys’ fees is one of the few areas in which a judge may rely upon the record

before him and also upon his knowledge and experience.” First National Bank, 94 Ill. App. 3d

at 885. The need and amount of attorney fees awarded is at the discretion of the trial court and

will not be reversed unless it abused that discretion. Northern Trust Co., 202 Ill. App. 3d at

1071.




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Nos. 1-13-3351 & 1-13-3635 (Consolidated)


&44    In the present case, the term “original trust” in the Martin Jr. trust agreement was

ambiguous and susceptible to multiple meanings. There was an honest difference of opinion

between whether the term could mean Martin Jr.’s estate before the blend of the appointed

property or after. Consequently, there was ambiguity present in the instrument Martin Jr. used to

appoint the powers granted to him by his parents. Furthermore, the trial court did not abuse its

discretion in awarding Dagmar attorney fees. Dagmar presented the trial court with records that

provided details and explanations about the purpose of the services her lawyers performed. After

reviewing the record, we conclude that the services rendered were either beneficial in helping the

trial court resolve the ambiguity present in Martin Jr.’s trust agreement and determine its effect

on his exercise of his powers of appointment, or the services were so closely interrelated to defy

separation in computing fees. See Orme, 25 Ill. 2d at 167. Moreover, the fees charged, which

were less than 10% of the approximately $600,000 value of the parents’ trusts, are reasonable in

light of the amount of work performed and the value of the trusts.

&45    The Towers defendants argue the trial court also erred by failing “to follow the standard

established by Orme[, id. at 151,] by requiring Dagmar’s counsel to prove at a hearing which

services were devoted specifically to clarifying the ambiguities caused by inept legal

draftsmanship and whether the fees for those services were reasonable.” We disagree. Although

a hearing on the issue of attorney fees was held in Orme under the circumstances of that case,

Orme does not stand for the proposition that a trial court must conduct an evidentiary hearing

before it may award attorney fees. Moreover, the Towers defendants have forfeited review of this

issue by failing to specify, both before the trial court and on appeal, which fees presented in

Dagmar’s attorney fee petition were excessive or not related to the ambiguity resolved by the

trial court in this matter. “ ‘A reviewing court is entitled to have issues clearly defined with



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Nos. 1-13-3351 & 1-13-3635 (Consolidated)


pertinent authority cited and coherent arguments presented; arguments inadequately presented on

appeal are waived.’ ” McCarthy v. Denkovski, 301 Ill. App. 3d 69, 74 (1998) (quoting

Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991)).

&46                                 III. CONCLUSION

&47    We affirm the judgment of the circuit court granting Dagmar’s motion for summary

judgment, granting the Bank’s motion for judgment on the pleadings and dismissing the Towers

defendants’ counterpetition against the Bank, and awarding Dagmar attorney fees.

&48    Affirmed.




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