{ "id": 3196290, "name": "In re ESTATE OF VLADIMIR NEMECEK, Deceased. - (WAYNE CHERTOW, Adm'r of the Estate of Vladimir Nemecek, et al., Petitioners-Appellants, v. FIRST NATIONAL BANK OF CICERO, Trustee, ef al., Respondents-Appellees.)", "name_abbreviation": "Chertow v. First National Bank of Cicero", "decision_date": "1980-06-12", "docket_number": "No. 79-2009", "first_page": "881", "last_page": "885", "citations": [ { "type": "official", "cite": "85 Ill. App. 3d 881" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "394 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "445-46" }, { "page": "446" }, { "page": "447" } ], "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 979", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267941 ], "weight": 3, "pin_cites": [ { "page": "981" }, { "page": "982" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0979-01" ] }, { "cite": "71 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "383 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "189" }, { "page": "195" }, { "page": "195" } ], "opinion_index": 0 }, { "cite": "73 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440660 ], "weight": 3, "pin_cites": [ { "page": "364" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0342-01" ] } ], "analysis": { "cardinality": 492, "char_count": 10924, "ocr_confidence": 0.861, "pagerank": { "raw": 8.228529920583513e-08, "percentile": 0.4771216391380347 }, "sha256": "0b87d9fe64d9704d0ec5437a578e41b2eb56f64ae1659c101e9b833bdf6ee284", "simhash": "1:a88d67d102738d07", "word_count": 1801 }, "last_updated": "2023-07-14T18:26:52.691366+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF VLADIMIR NEMECEK, Deceased. \u2014 (WAYNE CHERTOW, Adm\u2019r of the Estate of Vladimir Nemecek, et al., Petitioners-Appellants, v. FIRST NATIONAL BANK OF CICERO, Trustee, ef al., Respondents-Appellees.)" ], "opinions": [ { "text": "Mr. JUSTICE JIGANTI\ndelivered the opinion of the court:\nThe petitioners, Wayne Chertow, administrator of the estate of the decedent, Vladimir Nemecek, and Florence Nemecek, the decedent\u2019s widow, filed a citation to recover assets seeking the recovery of certain real property which had been conveyed by the decedent to a land trust. The respondents are the First National Bank of Cicero (the Bank), as trustee of the trust, and Jarmila Nemecek and Jiri Nemecek, who, under the terms of the trust, were to receive the proceeds from the sale of the trust res upon the death of Vladimir Nemecek. The petition alleged that the conveyance constituted an invalid testamentary disposition and a fraud on the marital rights of Florence Nemecek. The respondents filed a motion to dismiss for failure to state a cause of action. The trial court granted the motion. On appeal, the petitioners argue the petition alleged sufficient facts to warrant the issuance of a citation to recover the property held in trust.\nThe allegations of the petition establish that Vladimir Nemecek died intestate on January 23,1978. At the time of his death he had been married to Florence Nemecek for 12 years. On September 7, 1972, the decedent conveyed to the Bank, as trustee of a land trust, legal title to the couple\u2019s marital home. The decedent had provided all of the funds for the purchase of the property. The decedent was the sole beneficiary of the trust during his lifetime. He retained the right to amend the trust and to dispose of the property as he saw fit and \u201cretained all other rights and incidents of ownership of the property, except the bare legal title thereto.\u201d Most significantly for purposes of this appeal, the trust agreement provides that upon the decedent\u2019s death the Bank shall sell the property and distribute one-third of the proceeds to Florence Nemecek, one-third to Jiri Nemecek, the decedent\u2019s nephew, and one-third to Jarmila Nemecek, the decedent\u2019s sister-in-law.\nThe petition further alleges that the trust is illusory and invalid and a fraud on the statutory rights of Florence Nemecek because the decedent \u201cactually had full and complete control over the property\u201d, that the decedent was actually fully possessed of all of the attributes of outright individual ownership of the property, and that during his lifetime the decedent had the power to amend the trust or dispose of the property as he saw fit. Finally, the petition alleges that the property represents a \u201csubstantial portion\u201d of the decedent\u2019s estate. The petition contains no allegation that the decedent exercised any of his retained powers to amend the trust or dispose of the property.\nUnder Illinois law, a property owner has an absolute right to dispose of his property during his lifetime in any manner he sees fit. He may convey his property to another even though the transfer may be for the sole purpose of minimizing or defeating the statutory marital interest of his spouse. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185.) This type of conveyance is not subject to defeasance by the surviving spouse unless it is a sham and is colorable or illusory and tantamount to a fraud. Johnson.\nThe supreme court in Johnson explained that intent to defraud the surviving spouse of his marital rights does not involve the traditional meaning of fraud. Rather, the meaning of the phrase is to be construed in connection with the words \u201cillusory\u201d and \u201ccolorable.\u201d Where the transferor in reality had no intent to convey any present interest in the property but, in fact, intended to retain complete ownership it is a fraud on the surviving spouse\u2019s marital rights. (Johnson.) Therefore, the relevant \u201cintent\u201d in the context of an intent to defraud the surviving spouse of his marital rights refers to the absence of a present donative intent to transfer an interest in property. Because a surviving spouse only has an interest in property which becomes a part of the decedent\u2019s estate, a valid inter vivos conveyance of a property interest would not become a part of the decedent\u2019s estate.\nThe petitioners argue that Johnson mandates the conveyance of a present interest if the conveyance is to survive a suit alleging fraud on the surviving spouse\u2019s marital rights. Because the decedent directed the trustee to sell the real estate and distribute the proceeds, as opposed to designating the remainder beneficiaries to receive the beneficial interest upon his death, the petitioners contend there was no conveyance of a present interest. The petitioners acknowledge that if the decedent had designated the intended beneficiaries to receive his beneficial interest the transfer would have been valid.\nIn Johnson, the decedent placed substantially all of her assets in trust. She declared herself trustee and named a bank successor trustee. All of the trust income was to be paid to her during her lifetime, and she retained the power to invade the principal of the trust, and to alter, amend or modify the trust provisions in any manner. Although the language of the trust agreement was not quoted in the Johnson opinion, the court explained that the successor trustee \u201cwas to distribute assets of the trust\u201d to the settlor\u2019s mother, sister, niece, and certain named charities upon the settlor\u2019s death. (Johnson, 71 Ill. 2d 342, 351, 383 N.E.2d 185, 189.) The surviving spouse brought an action to set aside the trust, alleging that it deprived him of his marital rights in the property held in trust.\nThe Illinois Supreme Court found the trust valid. It noted that \u201cretention by the settlor of the power to revoke, even when coupled with the reservation of a life interest in the trust property, does not render the trust inoperative.\u201d (73 Ill. 2d 342, 364, 383 N.E.2d 185, 195.) The court noted the surviving spouse\u2019s substantial net worth and the decedent\u2019s concern for the welfare of certain of her relatives and determined that the trust was not a sham. Finally, the court pointed out that \u201c[t]he declaration of trust immediately created an equitable interest in the beneficiaries, although the enjoyment of the interest was postponed until [the decedent\u2019s] death and subject to her power of revocation.\u201d 73 Ill. 2d 342, 364, 383 N.E.2d 185, 195.\nThe facts before us are substantially similar to those in Johnson. There, the successor trustee was apparently directed to distribute the trust assets, upon the settlor\u2019s death, to certain relatives. Here, the trustee was directed to sell the trust asset, that being the marital home, upon the settlor\u2019s death, and to distribute the proceeds of the sale to certain persons. We see no legal significance in the fact that the trustee in the case before us was directed to sell the home and then distribute the proceeds as opposed to distributing the existing trust assets as in Johnson. No facts are alleged which would indicate that the conveyance was in fact a \u201csham.\u201d We conclude the intended beneficiaries were given a present interest in the proceeds of the sale of the trust res, although the interest was subject to possible defeasance and enjoyment of it was postponed until the settlor\u2019s death.\nThe petitioners also argue this cause is indistinguishable from Favata v. Favata (1979), 74 Ill. App. 3d 979, 394 N.E.2d 443, where a trust amendment was found invalid. In Favata the decedent conveyed land and buildings on Halsted Street and a condominium on Delaware Place to a land trust. He was the \u201cprime\u201d beneficiary. On later dates, he twice amended the trust agreement. The first amendment provided that on the date of his demise, his \u201centire remaining interest\u201d under the trust would vest in his daughter. The second amendment, \u00e9xecuted a year later, provided that in the event of his death, \u201cI leave my real estate located at 999 Halsted Street ' * * to my son \u201d \u00b0 *,\u201d and \u201cI leave my condominium located at * \u201d * Delaware Place * * * to the Executor * * * to be held in trust for my daughter \u00b0 * (Emphasis added.) (74 Ill. App. 3d 979, 981, 394 N.E.2d 443, 445-46.) On appeal, this court found the first amendment was valid because \u201c[u]nder its terms plaintiff received a substantial present interest at the moment the trust was created. She received a remainder interest in the entire beneficial interest of the land trust \u00b0 \u00b0 *\u2019 (Favata, 74 Ill. App. 3d 979, 982, 394 N.E.2d 443, 446.) The second amendment was found insufficient. The court interpreted it as\n* * attempting to transfer remainder interests in the real estate res of the land trust. In other words, settlor apparently attempted to transfer legal and equitable title to his son and daughter. All parties concede that this is not possible because in a land trust legal and equitable title is vested solely in the trustee. Settlor could only convey his beneficial interest in the trust.\u201d Favata, 74 111. App. 3d 979, 982, 394 N.E.2d 443, 447.\nThe petitioners contend that Vladimir Nemecek, like the settlor in Favata, attempted to deal directly with the trust res and that he was without power to do so since he possessed only a beneficial interest in the res. We believe Favata is distinguishable. There, the settlor attempted to convey legal and equitable title to the real estate directly to his children. Vladimir Nemecek, by contrast, did not attempt to convey either the marital home or the proceeds from the sale thereof directly to the intended beneficiaries. Rather, he properly exercised his power of direction by instructing the trustee, upon the settlor\u2019s death, to sell the real estate and distribute the proceeds to the intended beneficiaries. We believe it irrelevant that the decedent did not expressly designate the intended beneficiaries as \u201cremaindermen of the beneficial interest.\u201d The trust agreement provides that \u201cthe interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said property * It also provides that the Bank, as trustee, \u201cwill \u00b0 \u00b0 \u00b0 on the written direction of [the settlor] * * * deal with the title to said real estate \u201d * The decedent acted in accordance with the terms of the trust by providing a written direction to the trustee to sell the trust res upon his death and to distribute the proceeds of the sale to the three intended beneficiaries.\nFor the foregoing reasons the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nJOHNSON and ROMITI, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE JIGANTI" } ], "attorneys": [ "Donald E. Egan, Bernard M. Lubelchek, and Steven M. Rasher, all of Katten, Muchin, Gitles, Zavis, Pearl & Galler, of Chicago, for appellants.", "Peter I. Mason and Mark W. Weisbard, both of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellees." ], "corrections": "", "head_matter": "In re ESTATE OF VLADIMIR NEMECEK, Deceased. \u2014 (WAYNE CHERTOW, Adm\u2019r of the Estate of Vladimir Nemecek, et al., Petitioners-Appellants, v. FIRST NATIONAL BANK OF CICERO, Trustee, ef al., Respondents-Appellees.)\nFirst District (4th Division)\nNo. 79-2009\nOpinion filed June 12, 1980.\nDonald E. Egan, Bernard M. Lubelchek, and Steven M. Rasher, all of Katten, Muchin, Gitles, Zavis, Pearl & Galler, of Chicago, for appellants.\nPeter I. Mason and Mark W. Weisbard, both of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellees." }, "file_name": "0881-01", "first_page_order": 903, "last_page_order": 907 }