{ "id": 2466350, "name": "CYNTHIA CRYSTAL DALLINGER, a Minor, by David Dallinger, Parent and Next of Kin, Plaintiff-Appellant, v. MARTHA C. ABEL, as Trustee, Defendant-Appellee", "name_abbreviation": "Dallinger v. Abel", "decision_date": "1990-07-06", "docket_number": "No. 3\u201489\u20140545", "first_page": "1057", "last_page": "1061", "citations": [ { "type": "official", "cite": "199 Ill. App. 3d 1057" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "398 So. 2d 932", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9583185, 9583094 ], "opinion_index": 0, "case_paths": [ "/so2d/398/0932-02", "/so2d/398/0932-01" ] }, { "cite": "438 N.E.2d 1369", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3013238 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0310-01" ] }, { "cite": "475 N.E.2d 1122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 417", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3439380 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0417-01" ] }, { "cite": "193 N.E.2d 761", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "29 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2822735 ], "year": 1985, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0141-01" ] } ], "analysis": { "cardinality": 486, "char_count": 8947, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08113503914706996 }, "sha256": "c7ef12eede05a0ed704fb2e7ea8180f79b1f948f0ebfde00faca6b13d0b0dc19", "simhash": "1:a035271c051995b7", "word_count": 1466 }, "last_updated": "2023-07-14T15:10:12.040900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CYNTHIA CRYSTAL DALLINGER, a Minor, by David Dallinger, Parent and Next of Kin, Plaintiff-Appellant, v. MARTHA C. ABEL, as Trustee, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nThe plaintiff, Cynthia Crystal Dallinger, a minor, by her parent and next of kin David E Dallinger, brought this action against the defendant, Martha C. Abel, as trustee of a certain trust established by Paul R. Dallinger. The plaintiff sought a declaratory judgment and an accounting. The circuit court denied the plaintiff\u2019s motion for summary judgment, granted the defendant\u2019s motion for summary judgment on the count of the complaint seeking a declaratory judgment, and dismissed the count of the complaint seeking an accounting. The plaintiff appeals all these rulings. We reverse and remand.\nPaul R. Dallinger (settlor) executed a declaration of trust on November 15, 1978. The eleventh and final article of that instrument stated:\n\u201cI reserve the right from time to time during my life so long as I own the entire interest in the trust to amend or revoke this agreement; but in the event a Participating Trust Certificate is held by anyone other than myself, any amendment of this agreement shall require the unanimous consent of each beneficiary.\u201d\nOn November 30, 1978, before any participating trust certificates had been issued, the settlor executed an amendment to the declaration of trust. That amendment changed only the fourth article of the declaration of trust, explicitly leaving all other provisions in full force and effect. As amended, the fourth article in relevant part stated:\n\u201cUpon my death:\nA. The trustee shall make the payments provided in subparagraph B of this paragraph and shall divide the remaining principal and any accrued or undistributed income of the trust into equal shares, one share for each grandchild of mine who survives me and one share for the descendants who survive me of each grandchild of mine who predecease [sic] me.\u201d\nFrom time to time starting in December 1978, the settlor distributed participating trust certificates to the three daughters of the settlor\u2019s daughter, Martha C. Abel. On October 9, 1981, the plaintiff was bom, the fourth grandchild of the settlor. In January 1982, the settlor distributed more participating trust certificates to his three granddaughters by his daughter (hereinafter the favored grandchildren).\nOn March 26, 1982, the settlor executed an instrument entitled \u201cSecond Amendment to Declaration of Trust,\u201d which purported to amend the settlor\u2019s declaration of trust of November 15, 1978, as amended November 30, 1978. That instrument purported to amend only the fourth article, by substituting the names of the favored grandchildren in place of the more general language, \u201ceach grandchild of mine,\u201d and making slight changes in language to accommodate the new arrangement. The settlor at no time obtained the consent of any of his grandchildren to amend the terms of the trust.\nFrom time to time from January 1983 to January 1986 the settlor continued giving participating trust certificates to the favored grandchildren, and also gave some to Martha C. Abel. At no time did the settlor give any participating trust certificates to the plaintiff. The settlor died on May 6,1986.\nThe circuit court construed the word \u201cbeneficiary\u201d in the eleventh article of the declaration of trust to mean any holder of a participating trust certificate. While the plaintiff disputed this issue in the circuit court, she has conceded the point on appeal. The issue left for us to resolve is whether the instrument executed by the settlor on March 26, 1982, validly amended the terms of the trust, despite the fact that the holders of the participating trust certificates outstanding at that time did not consent to that amendment.\nIt is elementary that if the method of exercising a power of modification is described in the trust instrument, the power can be asserted only in that manner. (Parish v. Parish (1963), 29 Ill. 2d 141, 149, 193 N.E.2d 761, 766.) In Williams v. Springfield Marine Bank (1985), 131 Ill. App. 3d 417, 475 N.E.2d 1122, this rule was applied where the trust instrument permitted amendment by the settlors, the appellate court holding that an attempted amendment by only one settlor, after the other had died, was invalid. In Northwestern University v. McLoraine (1982), 108 Ill. App. 3d 310, 438 N.E.2d 1369, this rule was applied where the settlor had neglected to follow the terms of the trust which required for an amendment only that the settlor put the amendment in writing, sign it, and deliver it to the trustees during the settlor\u2019s lifetime. The Restatement (Second) of Trusts contains the following comment that is on point:\n\u201cIf the settlor reserves a power to modify the trust only with the consent of one or more of the beneficiaries, or of the trustee, or of a third person, he cannot modify the trust without such consent.\u201d Restatement (Second) of Trusts \u00a7331, Explanatory Notes, comment e, at 144 (1959).\nThe defendant argues that this rule of law must \u201cyield to reason,\u201d and that this court ought to fashion an exception to it in this case. The defendant seeks to distinguish cases employing this rule of law as involving some measure of uncertainty as to the settlor\u2019s intent, whereas the intent of the settlor in this case was clearly to have the trust benefit only the favored grandchildren, to the exclusion of the plaintiff. The defendant argues that since the instrument of March 26, 1982, would have amended the terms of the trust in a manner clearly beneficial to the favored grandchildren, the only holders of participating trust certificates at that time, their act of consenting to the proposed amendment would have been a mere technicality and a ceremonial act, and so should not be required.\nBoth the defendant and the circuit court cited Bieley v. Bieley (Fla. Dist. Ct. App. 1981), 398 So. 2d 932, for the reasoning therein. However, that case differed from the instant case in significant respects. It involved the question of whether in a divorce proceeding a trial court could amend the terms of an irrevocable trust, the income beneficiary of which was a child of the divorcing couple, where the amendment diminished the couple\u2019s reversionary interest in the corpus of the trust in order to provide for the child\u2019s educational expenses. The district court of appeal of Florida stated in that opinion that since the child was to be benefited by the amendment ordered by the lower court, the child\u2019s consent to the amendment was not required. The instant case does not involve any court action to amend the terms of the trust. The instant case does not involve the settlor giving up privileges or rights in the trust. The instant case involves a party, other than the settlor, whose interest in the trust would be diminished by the amendment. The two cases are simply not comparable.\nThe defendant cites a number of other cases from other States to bolster her position. None of those cases is sufficiently similar to the instant case to be of help here. Almost all of those cases involve situations where the settlors of trusts sought to relinquish reversionary interests or other rights or privileges they had under the trusts. Against the charge that the settlors could not do that without the consent of the beneficiaries, the courts upheld the settlors\u2019 actions. Such cases are easily distinguishable from the instant case.\nWhere the terms of a trust require someone to consent to amendment of those terms, to excuse the lack of that consent simply on the basis that the person whose consent is required would derive benefit from the amendment would create enormous potential for abuse. We shall not inquire into a settlor\u2019s purpose in requiring someone\u2019s consent to a trust\u2019s amendment. Whatever might have been the settlor\u2019s purpose in requiring such consent is beside the point: so long as the settlor required such consent, such consent will be required by the law. Therefore, we hold that the instrument of March 26, 1982, was ineffective in amending the trust since the holders of the participating trust certificates never consented to the amendment.\nAccordingly, we reverse the summary judgment in favor of the defendant, we reverse the dismissal of the accounting count of the complaint, we reverse the denial of the plaintiff\u2019s motion for summary judgment as regards the declaratory judgment count of the complaint, we vacate the denial of the plaintiff\u2019s motion for summary judgment as regards the accounting count of the complaint, and we remand this cause for further proceedings not inconsistent with this disposition.\nReversed and remanded.\nHEIPLE, P.J., and SCOTT, J., concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Kerry R. Cordis, of Princeville, and Michael E. Brandt, of Peoria, for appellant.", "Black, Black & Brown, of Washington (Kenneth L. Black, of counsel), for appellee." ], "corrections": "", "head_matter": "CYNTHIA CRYSTAL DALLINGER, a Minor, by David Dallinger, Parent and Next of Kin, Plaintiff-Appellant, v. MARTHA C. ABEL, as Trustee, Defendant-Appellee.\nThird District\nNo. 3\u201489\u20140545\nOpinion filed July 6, 1990.\nKerry R. Cordis, of Princeville, and Michael E. Brandt, of Peoria, for appellant.\nBlack, Black & Brown, of Washington (Kenneth L. Black, of counsel), for appellee." }, "file_name": "1057-01", "first_page_order": 1085, "last_page_order": 1089 }