{ "id": 3575454, "name": "In re ESTATE OF FRANK H. MASTERS, JR., Deceased (Albert G. D'Ottavio et al., Petitioners-Appellants and Cross-Appellees, v. Union National Bank and Trust Company of Joliet, n/k/a First Midwest Bank of Joliet, Ex'r of the Estate of Frank H. Masters, Deceased, Respondent-Appellees; Michael Gallagher, Petitioner-Appellee and Cross-Appellant)", "name_abbreviation": "In re Estate of Masters", "decision_date": "1987-02-25", "docket_number": "No. 3\u201486\u20140361", "first_page": "907", "last_page": "912", "citations": [ { "type": "official", "cite": "152 Ill. App. 3d 907" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "295 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5392315 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0882-01" ] } ], "analysis": { "cardinality": 555, "char_count": 11476, "ocr_confidence": 0.755, "pagerank": { "raw": 4.565170110192638e-08, "percentile": 0.2860749796609764 }, "sha256": "ccb6bb05090df2f9ff2ee772c2213e920b7a688b91cf15ac294dfcf9c7ef885b", "simhash": "1:e9ee1765fe6fb78c", "word_count": 1872 }, "last_updated": "2023-07-14T16:53:41.650258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF FRANK H. MASTERS, JR., Deceased (Albert G. D\u2019Ottavio et al., Petitioners-Appellants and Cross-Appellees, v. Union National Bank and Trust Company of Joliet, n/k/a First Midwest Bank of Joliet, Ex\u2019r of the Estate of Frank H. Masters, Deceased, Respondent-Appellees; Michael Gallagher, Petitioner-Appellee and Cross-Appellant)." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nThis is an appeal and cross-appeal from a judgment entered in the circuit court of Will County denying certain petitions filed by Albert and Carol Ann D\u2019Ottavio and Michael Gallagher.\nFrank H. Masters, Jr., died leaving a will which was admitted in pending probate proceedings. First Midwest Bank/Joliet was named executor of the will and is also the trustee of the land trust which holds title to the decedent\u2019s residence. The bank\u2019s officer\u2019s trust committee met September 26, 1985, and approved a listing agreement for the sale of the residence at an asking price of $267,500, with a minimum of $257,500. The asking price was determined by a real estate market analysis and taking the average of several appraisals. Subsequently, the bank listed the property for a price of $267,500 with Spring Realty. No provision was made in the listing agreement for court approval.\nOn October 7, 1985, at 8:30 a.m., Gallagher signed a written offer to purchase the property, through Spring Realty, for $257,500. At 9:45 a.m. the D\u2019Ottavios signed a written offer to purchase the property, through Bell Realty (a member of the multiple listing agreement with Spring Realty), for $250,000. Both offers were presented to a bank trust officer at 11:30 a.m. by a representative of Spring Realty. Neither offer was accepted by the bank, nor did the bank make a counteroffer to either prospective purchaser. The same day, Mr. D\u2019Ottavio talked with the president and chief executive officer of the bank, who told him that if he offered the full asking price the committee could act promptly on the offer. Thereafter, the D\u2019Ottavios amended their \"written offer by increasing the price offered to the listing price of $267,500. During the afternoon of October 7, 1985, the trust officer called the attorney for the estate, who advised the trust officer to include the phrase \u201csubject to court approval\u201d into the offer. That same afternoon the D\u2019Ottavio contract was approved by the committee and was signed by the trust officer on behalf of the trust. The trust officer then notified representatives of both Spring Realty and Bell Realty that the property was sold.\nThe next day, October 8, 1985, at 8:30 a.m., representatives of Spring Realty presented Gallagher\u2019s written offer to purchase the property with the price increased from $257,000 to $272,500. The amendments on the Gallagher offer were initialled at the bank by one of the Spring Realty representatives in the presence of the trust officer; Gallagher was not present at this meeting nor does it appear he ever personally initialled the change. The trust officer at first refused to sign the Gallagher amended offer, as he had signed the D\u2019Ottavio contract the night before. He finally did so and again inserted the phrase \u201csubject to court approval.\u201d It does not appear the trust officer obtained approval of the committee prior to signing the Gallagher contract.\nThereafter, the D\u2019Ottavios petitioned and were allowed to intervene in the pending decedent\u2019s estate and filed a petition for declaratory judgment and specific performance. Gallagher also petitioned and was allowed to intervene and filed a petition for approval of his real estate sale contract. The bank, as executor of the estate and as trustee, filed a petition seeking court approval of the Gallagher contract \u201cor for such other and further instructions as the Court may issue with respect to the sale of said property.\u201d On April 17, 1986, the court entered a judgment, in writing, finding jurisdiction of the subject matter and the parties, that both the D\u2019Ottavio and Gallagher contracts were invalid, and denying approval of each contract and petition. The court then ordered the bank, as trustee, to \u201cexercise its discretion to conduct a public sale of the property to the highest and best bidder for cash or such terms as it shall deem appropriate after publication of notice of the time, date and place of such sale for a price not less than the maximum offer it has heretofore received at private sale and to thereafter file a report of such sale.\u201d From this judgment, the D\u2019Ottavios filed their appeal and Gallagher has cross-appealed.\nThe D\u2019Ottavios contend on appeal (a) the contract provision \u201csubject to court approval\u201d is a nullity as no court approval is required by the trust agreement, the decedent\u2019s will, or any statutory provision and the seller-trustee has sole discretion as to price and terms; (b) if court approval is a condition precedent to the seller's liability on the D\u2019Ottavio contract, the seller has waived the condition by its conduct and cannot claim advantage of the condition to escape its contract with the D\u2019Ottavios; (c) if court approval is a condition precedent to seller\u2019s liability on the D\u2019Ottavio contract, the court should have approved the contract fulfilling the condition; (d) the trial court erred in finding and holding the D\u2019Ottavio real estate sale agreement was a mere offer and not a contract; and (e) the trial court had no authority to direct the trustee-seller to exercise its discretion to sell the property at advertised public sale to the highest and best bidder.\nGallagher contends (a) the term in the agreement providing \u201csubject to court approval\u201d created a condition precedent which had to be met before a contract came into existence; (b) the trustee bank did not waive the condition precedent; (c) the trial court had jurisdiction over the agreements and the authority to order a public sale; and (d) the trial court should have approved the Gallagher offer.\nThe decedent\u2019s will provides in pertinent part the following provisions:\n\u201cPursuant to the provisions of that certain trust agreement dated the 12th day of September, 1984 between me and UNION NATIONAL BANK AND TRUST COMPANY OF JOLIET, CREATING A TRUST KNOWN AS THE FRANK H. MASTERS, JR. TRUST dated September 12, 1984, my residential property at Timberline Drive, Joliet, Illinois, is to be sold by the Trustee as soon after my death as shall be practicable. ***\n*** The foregoing powers shall be exercised by my executor without authorization by any court ***.\u201d\nThe trust dated September 12, 1984, provides in pertinent part the following provisions:\n\u201c[t]he trustee under this agreement will be named as successor-beneficiary of the beneficial interest presently owned by the insured under that trust agreement dated the fourth day of June A.D., 1982 and known as UNION NATIONAL BANK AND TRUST COMPANY OF JOLIET, trust number 4107, the property of which trust is titled to the insured\u2019s residence, located at Timberline Drive, Joliet, Illinois. If the aforesaid beneficial interest or the aforesaid real estate shall become an asset of this Trust upon the death of the insured then, notwithstanding anything in this agreement to the contrary, the trustee is directed to sell such property as soon after the death of the insured as shall be practicable. The trustee shall have the power to sell such property at public or private sale, for cash or partly cash and partly credit and upon such terms as it may deem advisable ***.\u201d\nWe note that the decedent\u2019s trust gave the trustee the power to sell the decedent\u2019s residence and, in fact, directed the trustee to do so as soon as practicable after decedent\u2019s death. The will restates this direction and further provides that the executor, which is also the trustee, may do so without court approval. Therefore, the trustee\u2019s act of inserting in each contract the provision requiring court approval was done so even though it was not required either by the trust, the will, or any statute.\nWe believe the insertion of the provision \u201cSubject to Court Approval\u201d in the D\u2019Ottavio contract amounted to conditional acceptance of the offer to purchase rather than merely making the contract a conditional offer. The trustee-bank then owed D\u2019Ottavio the duty to use reasonable efforts to obtain court approval of the contract. Having entered into a binding contract with D\u2019Ottavio subject only to court approval, the trustee should not have entered into a subsequent contract to sell the property to another party. The equitable interest Gallagher acquired under his contract with the trustee was subject to the D\u2019Ottavios\u2019 interests under the prior transaction. This follows the general rule that where equities are otherwise equal, the older in point of time prevails. (See generally, 7 Ill. L. & Prac. Chancery sec. 86 (1954).) It is conceded that the trustee, Spring Realty, Bell Realty, and Gallagher all had knowledge of the execution of the D\u2019Ottavio contract on the day prior to when the agreement embodying the higher offer was amended and executed. We also question whether the Gallagher contract was otherwise a valid and enforceable contract, since the record indicates he never personally initialled the amendment to his original contract. He merely had a person from Spring Realty insert his initials for him. Without unduly lengthening this opinion by discussing the laws of agency, we believe Spring Realty was the seller\u2019s agent and question the Spring Realty salesperson\u2019s authority to act as an agent for Gallagher without running afoul of a conflict of interest.\nGallagher has relied principally on our decision in In re Estate of Harmston (1973), 10 Ill. App. 3d 882, 295 N.E.2d 66, for the proposition that the parties are merely unaccepted bidders and that it stands for the proposition that court approval was required to satisfy the conditional agreements. If we were to follow Harmston, we would more properly dismiss both the appeal and cross-appeal in this case, since neither party would have standing to appeal the trial court\u2019s decision. We find, however, that Harmston is distinguishable from the present case. An administrator\u2019s sale such as was the subject of Harmston is subject to court approval as provided for by statute. The outcome of Harmston would have been the same whether or not the \u201csubject to court approval\u201d language was present. The Harmston administrator could not have accepted the contract period.\nWe also have not been given, nor have we found, any authority for the action taken by the trial court in ordering a public auction for the property. There is no support in the trial court\u2019s order nor in the trust or otherwise. Therefore, we hold the trial court erred in declaring neither offer to be valid and binding and in ordering the trustee to conduct a public auction of the property. We remand this matter for the entry of an order by the trial court approving acceptance by the trustee of the D\u2019Ottavio contract.\nReversed and remanded.\nWOMBACHER and HEIPLE, JJ., concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R. Wilson, of counsel), for appellants.", "Winston & Strawn, of Chicago (Steven F. Molo and Robert Bodach, of counsel), for appellee Union National Bank and Trust Company of Joliet.", "Robert J. Baron and Robert C. Bodach, both of Thomas, Wallace, Feehan, Baron & Kaplan, Ltd., of Joliet, for appellee Michael Gallagher." ], "corrections": "", "head_matter": "In re ESTATE OF FRANK H. MASTERS, JR., Deceased (Albert G. D\u2019Ottavio et al., Petitioners-Appellants and Cross-Appellees, v. Union National Bank and Trust Company of Joliet, n/k/a First Midwest Bank of Joliet, Ex\u2019r of the Estate of Frank H. Masters, Deceased, Respondent-Appellees; Michael Gallagher, Petitioner-Appellee and Cross-Appellant).\nThird District\nNo. 3\u201486\u20140361\nOpinion filed February 25, 1987.\nRehearing denied April 6, 1987.\nHerschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R. Wilson, of counsel), for appellants.\nWinston & Strawn, of Chicago (Steven F. Molo and Robert Bodach, of counsel), for appellee Union National Bank and Trust Company of Joliet.\nRobert J. Baron and Robert C. Bodach, both of Thomas, Wallace, Feehan, Baron & Kaplan, Ltd., of Joliet, for appellee Michael Gallagher." }, "file_name": "0907-01", "first_page_order": 929, "last_page_order": 934 }