{ "id": 2427103, "name": "Arthur F. Albert, Sr., Appellant, v. Rosella H. Albert and Arthur F. Albert, Jr., Appellees", "name_abbreviation": "Albert v. Albert", "decision_date": "1948-05-04", "docket_number": "Gen. No. 44,046", "first_page": "440", "last_page": "461", "citations": [ { "type": "official", "cite": "334 Ill. App. 440" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "67 N. E. 2d 748", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 F. 2d 43", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 64699 ], "opinion_index": 0, "case_paths": [ "/f2d/143/0043-01" ] }, { "cite": "368 Ill. 638", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2571291 ], "opinion_index": 0, "case_paths": [ "/ill/368/0638-01" ] }, { "cite": "83 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2662410 ], "opinion_index": 0, "case_paths": [ "/ill/83/0072-01" ] }, { "cite": "58 Ill. 310", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235144 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/58/0310-01" ] }, { "cite": "209 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3300536 ], "opinion_index": 0, "case_paths": [ "/ill/209/0222-01" ] }, { "cite": "160 Ill. 56", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3129930 ], "opinion_index": 0, "case_paths": [ "/ill/160/0056-01" ] }, { "cite": "224 Ill. 461", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3334562 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/224/0461-01" ] }, { "cite": "250 Ill. 384", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3431786 ], "opinion_index": 0, "case_paths": [ "/ill/250/0384-01" ] } ], "analysis": { "cardinality": 1211, "char_count": 38580, "ocr_confidence": 0.497, "pagerank": { "raw": 1.3267446591027736e-07, "percentile": 0.6280835291941731 }, "sha256": "d2ff1fbcbf9e246c4f5b8ec19de6862272cba1611be6483ef128134e9626335d", "simhash": "1:9e02e022a0653c57", "word_count": 6806 }, "last_updated": "2023-07-14T18:27:22.052024+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Arthur F. Albert, Sr., Appellant, v. Rosella H. Albert and Arthur F. Albert, Jr., Appellees." ], "opinions": [ { "text": "Mr. Justice Scanlan\ndelivered the opinion of the court.\nPlaintiff appeals from a decree dismissing his' complaint for want of equity.\nThe complaint alleges that plaintiff is the husband of Resella H. Albert, defendant, and the father of Arthur F. Albert, Jr., defendant, a minor; that on June 3, 1944, he, as donor, gave and conveyed to himself and his wife, as trustees, in trust for defendant Arthur F. Albert, Jr., the sum of $30,000 in cash and that said transfer in trust was evidenced by a written declaration of trust, a copy of which is made a part of the complaint (Plaintiff\u2019s Exhibit 1); that under the terms of the trust plaintiff and his wife were given the right to hold and manage said property and to invest in securities of any nature or kind deemed advisable by said trustees, and that under the power granted in the declaration of trust the sum of $30,000 had been invested by the trustees in United States Government bonds, the possession of which had been taken by his wife, who now holds the same in her possession; that under the terms of said declaration of trust plaintiff reserved the right to revoke, alter or amend said trust in whole or in part at any time and from time to time by a memorandum in writing delivered to the trustees, and to authorize and direct the trustees to assign, transfer, pay over and deliver to plaintiff\u2019s order all or any part of the trust estate in such form as it may exist, and that such direction to the trustees upon the making of such assignment, transfer, payment or delivery should operate as a revocation of the trust created by said declaration of trust; that on December 6, 1945, plaintiff executed a written revocation of the trust and by said writing authorized and directed plaintiff and his wife, as trustees under said declaration of trust, to assign, transfer, pay over and deliver to plaintiff all of the trust estate in such form as it then existed, and that a .copy of said revocation was served upon plaintiff as trustee and upon his wife as truste\u00e9 on December 6, 1945, and that therefore plaintiff became entitled to all of the trust estate in such form as it then existed; that all of said trust estate is now held by his wife, who refuses to turn over and deliver to him said assets of said trust estate. The complaint prays that the court declare said trust dated June 3, 1944 (Plaintiff\u2019s Exhibit 1) terminated and ended; that an accounting be had as to what assets were then held in said trust and that his wife be directed and ordered to turn over and deliver to him all of said trust property in such form as it then existed. The amended answer of defendant Mrs. Albert averred that she is living separate and apart from plaintiff and that there is pending in the Circuit court of Cook county a divorce proceeding in which she is plaintiff and the plaintiff in the instant cause is defendant. She admits that on June 3, 1944, plaintiff, as donor, gave and conveyed to himself and her, as trustees, in trust for their son, the sum of $30,000 in cash, but denies that such transfer in trust was evidenced by the written declaration of trust a copy of which was attached to the complaint. She avers that the alleged written trust dated June 3, 1944, a copy of which was attached to the complaint, was not executed on June 3, 1944, and was not executed at or before the time of the creation of the trust, but was made and signed by plaintiff at some time unknown to defendant more than one year after the trust was created; that the genuine written declaration of trust evidencing said trust was executed on or about June 3, 1944, a copy of which is attached to the amended answer (Plaintiff\u2019s Exhibit 13); that she was a co-donor of the sum of $457.85 and that said sum became and constituted a part of the trust; that the genuine written declaration of trust did not reserve the right to plaintiff to revoke, alter or amend the trust; that she admits that she, as trustee, has in her possession the United States Government bonds which she holds for herself and plaintiff,- as trustees, for the use and benefit of the minor, Arthur F. Albert, Jr., and she admits that she refuses, as trustee, to turn over and deliver to plaintiff the assets of the trust estate.\nAt the time of the hearing of this cause plaintiff and his wife had been married for eighteen years and as far as this record shows their marital relationship at the time of and prior to the creation of the trust was congenial. They had one child, Arthur F. Albert, Jr., who, at the time of the hearing, was seventeen years of age. Plaintiff is a lawyer and is also president of the Standard X-Ray Company, a manufacturing concern. Prior to June 3,1944, he had talked with his wife about creating a trust \u2014 about doing something for the boy. \u201cQ. [to plaintiff] You created this trust in accordance with your conversations with Mrs. Albert to make a gift to your boy; isn\u2019t that true? Mr. Biossat [attorney for plaintiff]: I object to that, if the Master please. That is a conclusion. The Master: I will let him answer. Mr. McNally [attorney for Mrs. Albert]: Q. Isn\u2019t that true, Mr. Albert? A. I stated that I said you could make a gift free of gift tax. Mrs. Albert said that she thought it was not the thing to do because sometimes you could not control children, so I then said I would arrange the creation of this trust so that I could have some semblance of control over him. Q. Tour original intention, Mr. Albert, was to make a gift to your boy; isn\u2019t that true? A. My only intention was to create a trust for my boy, a trust which would please Mrs. Albert, too, whereby we retained control over what she termed might be his future acr tions, and in accordance with that plan I prepared the trust. Q. And for that reason you deposited this $30,000 in the Aetna State Bank, making yourself and Mrs. Albert as trustees of the trust; is that correct? A. That is correct.\u201d On June 3, 1944, plaintiff caused to be issued, by Standard X-Ray Company, a check for $30,000, payable to himself. He then indorsed upon its back the following: \u201cA. F. Albert Trustees of Arthur F. Albert, Jr.\u201d Plaintiff testified: \u201cAfter that check was issued I took the check over to the Aetna State Bank and deposited it into the account of trustees of Arthur F. Albert, Jr.\u201d An officer of the bank testified that when this large check was deposited there was no letter or written instructions received regarding the deposit and that he then telephoned Mr. Albert as to just exactly what was intended, and, acting upon information he received over the telephone from plaintiff, he drafted the instrument (sometimes referred to in the record as Plaintiff\u2019s Exhibit 13) which reads as follows:\n\"Trustees of Arthur F. Albert, Jr. Trustee\nAccount\nNo. Checking\n\"2 signatures necessary\n\"AETNA STATE BANK DECLARATION OP TRUST\n\u2018 \u2018 Dated Jun \u2014 3 1944\n\"a. p. albert\n\"Arthur F. Albert, Sr. and Rosella H. Albert, herein called the \u2018Trustee\u2019 hereby makes known and declares that -he holds all moneys now and hereafter deposited in -Account-Nov checking account in aetna state bank, in trust for Arthur F. Albert, Jr. herein called the \u2018beneficiary,\u2019 whose address is 727 Hutchinson St.; is -; Birth date is -; Father\u2019s name is Arthur F.; Mother\u2019s name is Rosella H,; and is a Son of Trustee.\n(Relationship to beneficiary)\n\u201c(Over)\n\u201cDuring the lifetime of the Trustee all moneys now and hereafter deposited in said account shall be paid to or upon the order of the Trustee and, upon the death of the Trustee, all moneys deposited in said account shall be payable to or upon the order of the beneficiary, or to his legal representative. The said Bank shall not be responsible for, or required to see to the proper application of funds withdrawn from said account. The Trustee represents that there is existing no agreement in respect to the said account, except as herein set forth. [Italics ours.]\n\u201cBoth Trustees to sign.\n\u201cThe signature of the undersigned hereto shall be the authorized signature which the said bank shall recognize in connection with the payment of funds or the transaction of other business on this account. The undersigned agrees to the Rules and Regulations of the -Savings -Department checking dept, of this Bank.\n[signed] \u201cA. F. Albert [signed] Rosella H. Albert\nTRUSTEE\ntrustee\n\u201cTrustee\u2019s\nTrustee\u2019s\nFather\u2019s\nName-\n\u201cMailing Address\n1932 Burling St.\n\u201cDate Account Amount of New Business Accepted , Opened First Deposit Credit to By\n\u201c6/3/44\n\u201cRef. \u2014 Standard XRay Co.\u201d\nUpon the same day the bank sent the aforesaid instrument to plaintiff for plaintiff and his wife to sign the same. Plaintiff testified that he signed this instrument in his office on June 3, 1944, and then put it in his pocket and took it home to Mrs.- Albert for her signature; that she signed it-the same day in the evening; that it was three or four days later before he returned it to the bank. Mrs. Albert testified that it was not until June 14, 1944, that her husband told her that he had made the deposit in the bank and that he then gave her the trust account bank book and talked with her about tbn purchase of Government bonds with the trust fund; that she thinks that she signed Plaintiff\u2019s Exhibit 13 on June 14,1944. Sometime between June 3 and June 14, 1944, plaintiff and Mrs. Albert had a conversation concerning the purchase of $30,000 in Government bonds, and on June 14 plaintiff and his wife, as trustees, drew a check on the trust account for $30,000 to pay for Government bonds in that amount. Mrs. Albert took the check and purchased Government bonds in\" the said amount. The receipt issued by the Federal Reserve Bank of Chicago shows that the bonds were issued \u201cTo Trustees of Arthur F. Albert, Jr. Rosella H. Albert % Arthur E. Albert 1932 Burling Street Chicago, Illinois.\u201d The bonds were delivered to plaintiff and he turned them over to Mrs. Albert, who placed them in a safety deposit\" box. Some days after June 3 the boy returned from military school and plaintiff, Mrs. Albert and the boy .discussed a policy of insurance for the boy, and on June 14, 1944, plaintiff and. Mrs. Albert executed an Application for an insurance policy which provides that the premiums on the policy \u201care to be paid by the parents trustees.\u201d As the purchase of the bonds exhausted the $30,000 deposit in the trust account, Mrs. Albert, on June 16, 1944, with the knowledge and approval of plaintiff, deposited in the trust account $457.85 of her own money, and she and plaintiff then executed a check, as trustees, drawn on the trust account, to pay the first premium on the policy of insurance, amounting to $257.85. After the issuance of the insurance policy all premiums were paid from the trust fund account and all coupons of the Government bonds were deposited in that account. Mrs. Albert testified that plaintiff brought the Government bonds home on June 14 and handed them to the boy, at the same time saying to him, \u201cHere are the bonds you bought. These are your bonds. You better put them in a safe place\u201d, and the boy said, \u201cMother, can we keep them in your vault?\u201d and plaintiff said he thought that would be a good place to keep them; that the next day she and the boy took the bonds and the insurance policy and placed them in the vault.\nUnfortunately for the boy, marital troubles then arose between his parents, and plaintiff commenced to entertain bitter feelings toward his wife. The exact nature of the troubles is not shown by the record. Mrs. Albert testified that \u201cMr. Albert wanted me to discuss our marital difficulties with Mr. LoSasso [an attorney at law and an intimate friend of plaintiff], and I didn\u2019t want to; but, anyway, Mr. LoSasso called Mr. Albert one day and Mr. Albert asked Mr. LoSasso if. he would come out to the house; that I wanted to see him, and he made an appointment for me to see Mr. LoSasso. He came out that afternoon. Mr. Albert and I met him, passed the time of day, and Mr. Albert finally said, \u2018Will you tell John what you want to tell him?\u2019 . . . I said,\u2018I really don\u2019t want to tell you anything, John, but Mr. Albert wants me to tell you that we are going to get a divorce. \u2019 With that, Mr. Albert went into a tirade, and told Mr. LoSasso that he would take everything away from me that he could get his hands on, and that he would also take Jo-Jo\u2019s bonds away from him. I said, \u2018Arthur, you can\u2019t do that\u2019 \u2014 . . . I said, \u2018Arthur, you can\u2019t take anything away from him; you have already given it to him and it is his.\u2019 And he said, \u2018Oh, yes, but we can fix all those things tip.\u2019 He said to Mr. LoSasso, \u2018She is so dumb, anyway, she wouldn\u2019t know the difference.\u2019 He says, \u2018I knbw the only way that I can hurt Dolly is by hurting her child. \u2019 And Mr. LoSasso said, \u2018Arthur, you have just gone off on a tangent; you are excited and you don\u2019t know what you are saying.\u2019 And Arthur says Yes, he supposed he was excited, and that he better leave, which he did.\u201d Plaintiff and LoSasso admit the meeting but deny defendant\u2019s statement as to what was said there. On December 6,1945, plaintiff caused to be served upon Mrs. Albert a \u201cRevocation of Trust\u201d \u201cof a certain trust deed dated June 3, 1944.\u201d The \u201cRevocation\u201d, signed by plaintiff and acknowledged by him before \u201cJohn LoSasso Notary Public\u201d, reads as follows:\n\u201crevocation oe trust\n\u201cKnow all men by these presents, that I, Arthur F. Albert, Sr., of the City of Chicago, County of Cook and State of Illinois, do hereby allege and state as follows :\n\u201c1. I am the donor of a certain trust dated June 3, 1944, under the terms of which trust I, as such donor, sold, gave, granted and conveyed0 to Arthur F. Albert, Sr. and Resella H. Albert, as trustees in trust for my son, Arthur F. Albert, Jr.-, the sum of Thirty Thous\u00e1nd Dollars ($30,000.00) in cash.\n\u201c2. Under the terms of said trust I, as the donor of said trust, reserved the right to revoke, alter or amend said trust in whole \u2022 or in part, at any time and from time to time, by a memorandum in writing delivered to the trustees and to authorize and direct the trustees to assign, transfer, pay over and deliver to my order all or any part of the trust estate in such .form as it may then exist; and that upon such direction to the trustees upon the making of such assignment, transfer, payment or delivery, same shall operate as a revocation of the trust so created.\n\u201cnow, therefore, in consideration of the premises and pursuant to the power granted to me under said Declaration of Trust, be it known that I have this day revoked said trust in whole, and by this memorandum in writing I do hereby authorize and direct said Arthur F. Albert, Sr. and Ros ella H. Albert, as trustees under said Declaration of Trust, to assign, transfer, pay over and deliver to my personal order all of the trust estate in such form as it now exists.\n\u201cin witness whereof, I have hereunto set my hand and affixed my seal this 6th day of December, A. D. 1945.\n\u201cArthur F. Albert (seal) \u201d\nPlaintiff testified that on June 3, 1944, he went to the home of John LoSasso about 5:30 P. M. and there executed the following instrument (Plaintiff\u2019s Exhibit 1):\n\u201cdeclaration of trust\n\u201cKnow all men by these presents, that I, Arthur F. Albert, Sr., of the City of Chicago, County of Cook, State of Illinois, for good and valuable considerations heretofore received by me, the receipt of which is hereby acknowledged, do hereby sell, give, grant and convey to Arthur F. Albert, Sr. and Eosella H. Albert, as trustees, in trust for my son Arthur F. Albert, Jr. the, following described property, viz: the sum of Thirty Thousand Dollars ($30,000.00) in cash.\n\u201cTo have and to hold all of said Thirty Thousand Dollars ($30,000.00) unto them as trustees for the following uses and purposes, to wit:\n\u201c1. To hold and manage said property, to invest in securities of any nature or kind deemed advisable by the trustees.\n\u201c2. I direct the trustees to pay to my son Arthur F. Albert, Jr., upon his reaching the age of 22 years the sum of $5,000.00 out of the principal of the trust estate in the hands of the trustees and to pay over to my said son a like amount each year thereafter until he shall attain the age of 30 years at which time the trustees shall pay over to him the entire balance remaining in said trust fund.\n\u201c3. I direct that the trustees shall apply so much of the income from said trust fund as the trustees may deem proper to the liberal maintenance and education of my said son.\n\u201c4.' I, the donor of this trust, reserve the right to revoke, alter or amend this trust in whole or in part, at any time and from time to time, by a memorandum in writing delivered to the trustees and to authorize and direct the trustees to assign, transfer, pay over and deliver to-his order all or any part of the trust estate in such form as it may then exist. Such direction to the trustees upon the making of such assignment, transfer, payment or delivery, shall operate as a revocation of the trust hereby created.\n\u201cIn Witness Whereof, I have hereunto set my hand and seal this 3rd day of June, 1944.\n\u201cArthur F. Albert (Seal)\n\u201cI, John LoSasso, a Notary Public, in and for said County, do hel-eby certify, that this instrument was duly acknowledged before me by the above named Arthur p. albert, sr. this 3rd day of June, 1944. .\n\u201cJohn LoSasso\n\u201cNotary Public\n\u2018 \u2018 (notarial seal) \u2019 \u2019\nThe testimony of John LoSasso corroborates the testimony of plaintiff as to the execution of the foregoing instrument. Plaintiff testified that after he executed that instrument he put it in his pocket and took it away with him. Defendants strenuously contend that the foregoing instrument was not executed on June 3, 1944, and was not executed until sometime after the marital troubles developed between plaintiff and his wife. Plaintiff testified that he retained Plaintiff\u2019s Exhibit 13 for at least three or four days before he returned it to the bank; that he signed it as trustee; that on the night, of June 3, 1944, after he had executed the declaration of trust (Plaintiff\u2019s Exhibit 1) at the home of LoSasso he went to his home and there had Mrs. Albert sign Plaintiff\u2019s Exhibit 13 as trustee and that at that time he had in his pocket the declaration of trust he signed at the home of LoSasso. A pertinent question at once presents itself: If plaintiff executed the declaration of trust (Plaintiff\u2019s Exhibit 1) at the home of LoSasso on the evening of June 3, why did he later sign the irrevocable declaration of trust sent him by the bank, cause his wife to sign it, and thereafter return it to the bank instead of turning over to the bank the declaration of trjist that lie claims he executed at the home of LoSasso? Plaintiff makes the following preposterous answer to this question: That he considered Plaintiff\u2019s Exhibit 13 as a mere signature card. Plaintiff is a lawyer, a business executive, a man of affairs, and, as the chancellor stated in his opinion, one would have to be very simple, indeed, to believe that plaintiff thought Plaintiff\u2019s Exhibit 13 was merely a signature card. Plaintiff was not hurried in signing that instrument (Plaintiff\u2019s Exhibit 13), as he had it in his possession for a number of days before he returned it to the bank. When he deposited the $30,000 in the bank he deposited it into the account of Trustees of Arthur F. Albert, Jr. For some time he had-been thinking about creating a trust for his boy and had often discussed that subject with his wife. At the commencement of Plaintiff\u2019s Exhibit 13, in boldfaced type, appears the legend, \u201cDeclaration of Trust\u201d, and the instrument provides, in substance, that plaintiff and Mrs. Albert are the trustees of such account; that the signatures of both of them are necessary to make withdrawals therefrom; that they hold all moneys deposited and thereafter deposited in the account in trust for Arthur F. Albert, Jr.; that during the lifetime of the trustees all moneys deposited and thereafter deposited in said account shall be paid to or upon the order of the trustees, and upon their deaths, to the beneficiary or his legal representative. There is no provision in Plaintiff \u2019s Exhibit 13 that even suggests a reservation of the right to revoke, alter or amend the trust. A fortiori, the declaration of trust (Plaintiff\u2019s Exhibit 13) contains the following: \u201cThe Trustee represents that there is existing no agreement in respect to the said account, except as herein set forth.\u201d Nevertheless, plaintiff testified that when he signed Plaintiff\u2019s Exhibit 13, had his wife sign it, and when he returned it to the bank, he had in his pocket the declaration of trust (Plaintiff\u2019s Exhibit 1). Furthermore, he testified that at the time he had his wife sign Plaintiff\u2019s Exhibit 13 he did not tell her anything about Plaintiff\u2019s Exhibit 1; that he did not show it to her, nor discuss it with her, because he did not think that 'Mrs. Albert would understand it, and, secondly, that she was not sufficiently interested in the matter. Both plaintiff and his wife testified that they discussed this matter of the trust many times and that plaintiff deferred to his wife\u2019s judgment in said matter; that he gave Mrs. Albert the custody of the trust account bank book and the $30,000 bonds that were purchased for the trust account. Plaintiff testified: \u201cMy only intention was to create a trust for my boy, a trust which would please Mrs. Albert, too..\u201d Mrs. Albert testified: \u201cI am secretary-treasurer of the Standard X-Ray Company. ... I hav.e held that position since my father\u2019s death, over fifteen years ago. I am a director and a stockholder. I attend the directors\u2019 meetings. I usually take notes and Mr. Albert in the past has always had the'stenographer type them.\u201d Her father, during his lifetime, seems to have had some position with the Company. We are satisfied that if plaintiff executed Plaintiff\u2019s Exhibit 1 on June 3 and had it on his person when he talked with his wife that evening he would have mentioned that important fact to her. Plaintiff did not turn over Plaintiff\u2019s Exhibit 1 to the bank, nor does it appear that he made any mention of that instrument to the bank. Plaintiff admitted that if the trust was revocable that he, as the donor, would have to pay the income tax rather than the trust fund. In March, 1945, nine months after the trust was established, plaintiff directed the auditor of his business to prepare a trustees \u2019 income tax return on the income of the trust for the year 1944. He did not tell the auditor that the trust was a revocable trust nor did he show him Plaintiff\u2019s Exhibit 1, and plaintiff and Mrs. Albert, as trustees, paid the income tax on the trust fund for the year 1944 from the trust fund. But in 1946, after the marital troubles between the Alberts had developed? \u2014 they separated in June, 1945 \u2014 plaintiff gave his auditor Plaintiff\u2019s Exhibit 1, and plaintiff, individually, paid the income tax on the trust fund for the year 1945.\nPlaintiff contends that his testimony and the testimony of LoSasso as to the execution of Plaintiff\u2019s Exhibit 1 has not been denied by any witness, and that there are not any facts or circumstances that tend to destroy the weight of their testimony. \u2022 Defendants had the right to rebut this testimony by direct or circumstantial evidence, and after a careful study of the record we are satisfied that the testimony of plaintiff and LoSasso that Plaintiff\u2019s Exhibit 1 was drafted and executed by plaintiff on the evening of .June 3, 1944, in the home of LoSasso was a bold attempt of plaintiff to get back through perjury the $30,000 that he had given to the irrevocable trust fund created for the benefit of his son. Since LoSasso was twelve years of age he has been ano intimate friend of plaintiff. The testimony shows that at the time of the trial he was employed in the office of the State Auditor and that he obtained that position through the political influence of plaintiff. As an indication of this lawyer\u2019s willingness to aid plaintiff, it appears that at the instance of the latter LoSasso advised Mrs. Albert concerning her domestic troubles \u2014 whether she had grounds for divorce against plaintiff, etc. While he knew that plaintiff entertained bitter feelings toward Mrs. Albert, still, the ethical impropriety of advising Mrs. Albert in the matter of her proposed divorce proceedings against his friend' and benefactor does not seem to have concerned LoSasso. Sometime later he acknowledged the signature of plaintiff to the revocation notice.\nThe astute attorney for Albert realizes, apparently, the inequitable position of plaintiff in seeking to take back from the boy the $30,000 that he gave him, and he states in his brief that the purpose of plaintiff in the present proceeding is not to obtain the $30,000 for himself, individually; that his real purpose is to have Mrs. Albert removed as a trustee, and that \u201cplaintiff feels that he is best serving the interests of his son by his action in this case\u201d; that \u201cMrs. Albert has voluntarily left her husband and her son.\u201d Counsel for Mrs. Albert state that \u201cthe final decree in her divorce action belies the charge\u201d that she voluntarily left her husband and son. During the trial Mrs. Albert made a formal offer to relinquish her trusteeship, provided that plaintiff would consent to have a corporation appointed as trustee in her place. The following facts throw light upon the claim of plaintiff that he is best serving the interests of his son by bringing this action. In the original report of the master in chancery appears the following: \u201cPlaintiff realizing that he must offer to do equity in the premises, in one of his reply bri'\u00e9fs, under Section V thereof, \u2018hereby offers and agrees that in the even! of a finding in his favor in this cause that he will consent to the Court providing in any decree that may be entered herein that an irrevocable trust may be established in favor of Ms son for the $30,000 involved herein, under the same terms as is set forth in the Declaration of Trust executed and acknowledged by him on June 3,1944 except that plaintiff alone shall be the trustee named in said trust. The sole purpose of this suit is to dispense with Mrs. Albert as co-trustee in the declaration of trust and this action ivill effectually accomplish the intent and desire of the plaintiff herein.\u2019 Although this offer was not covered by the evidence in the transcript, the Master is of the opinion that the above quotation be considered as an offer binding upon the plaintiff, and the Master recommends that such offer be contained in and carried out by a decree of Court entered herein.\u201d Later, however, plaintiff changed his mind as to the offer that he had made and filed objections to the part of the master\u2019s report that we have quoted, and in the master\u2019s supplemental report he states that \u201cin a subsequent brief, the plaintiff withdrew said offer, and for that reason the Master sustains plaintiff\u2019s objection to the original Master\u2019s Report . . .\u201d The following testimony of Mrs. Albert also serves to throw light upon the claim of plaintiff \u201cthat he is best serving the interests of his son\u201d by bringing this action. In December, 1945, the boy was in St. Luke\u2019s hospital, suffering with pneumonia. Mrs. Albert testified that she and her husband were both in the boy\u2019s bedroom and that \u201cMr. Albert brought up the subject with the boy and myself, saying that I would not relinquish his bonds, and I said, \u2018Well, Jo-Jo, I will relinquish your bonds. I have no interest in them other than that I want you to have them. You asked me to keep them in my box for you, and that is where they are, and if you want your father to have them, that is something else, but they are yours and I think that you should have them\u2019 that \u201cMr. Albert went on at great length, and said that he had this trust\u2022 agreement. He said, \u2018Your mother is just too dumb; she would not understand these things; but you remember that I explained all these things to you, and now I want to have these bonds back\u2019 that the boy was so sick that he just simply said, \u00a3 \u2018 \u00a3'Oh, mother and dad, please don\u2019t act like a couple of children; just stop arguing. \u2019 He said if he had to have a lot of argument over his money and have that hang over his head like \u2014 just to beat him into doing things \u2014 that he didn\u2019t want them at all; that he felt he would be able to take care of himself sometime and'would not need them.\u201d It clearly appears, therefore, that the sole purpose of plaintiff in this suit is to obtain possession of the $30,000 for his individual purposes. We are impressed with the following argument made by the able and conscientious guardian ad litem, Charles P. Megan: \u201c. . . the only parties personally concerned in the determination of this suit are the father and son. If the father is successful in this appeal he will get back the fund ($30,000) for his own personal use, and the son will lose it. The mother\u2019s interest is not for herself, but; first, as a co-trustee, who is bound to defend the trust from attack, and second, for the protection of her son. She herself will receive no profit from defeating this appeal. . . We hold that Plaintiff\u2019s Exhibit 1 is a fraudulent and dishonest instrument, and that equity will not enforce it. Defendants raise a number of other grounds why that instrument should not be enforced, but it would unduly lengthen this opinion to refer specifically to them.\nPlaintiff contends that in any event Plaintiff\u2019s Exhibit 13 is void as a declaration of trust because it does not contain all necessary elements of a voluntary trust, and that therefore he is entitled to the return of the United States Government bonds. Counsel for plaintiff argues this contention as though a complicated trust was here present and cites many cases, none of which applies to the instant case upon the facts. The general law as to what constitutes a valid trust is settled in Illinois. In Fox v. Fox, 250 Ill. 384, the court states (pp. 388, 389):\n\u201cIt is further argued by appellants that an express trust cannot be sustained except by writing, and there is no writing by which Mary A. Fox can be bound as trustee, except her answer in this proceeding. It is not necessary that the trust should be declared by the trustee in any particular form or that a writing should have been framed for the purpose of declaring the trust, but such declaration may be found in letters, memoranda or writings of the most informal nature. (Whetsler v. Sprague, 224 Ill. 461, and cases cited.) It is well settled that an express trust may be declared by an answer in chancery signed by the party who in law is entitled to declare it. (White v. Ross, 160 Ill. 56; Myers v. Myers, 167 id. 52.) The terms of the trust must be gathered from the whole answer as it stands. (1 Perry on Trusts, \u2014 6th ed. \u2014 sec. 85; Lewin on Trusts, \u2014 9th ed. \u2014 55.) Ho particular form of words is necessary to create a trust when the writing makes clear the existence of a trust. (Orr v. Yates, 209 Ill. 222.) If it states a definite subject and object, it is not necessary that every element required to constitute it must be so clearly expressed in detail that nothing can be left to inference or implication. Parol evidence is admitted to make clear such details. \u2018If the writing makes clear the existence of a trust the terms may be supplied aliunde.' Kingsbury v. Burnside, 58 Ill. 310; 1 Perry on Trusts, (6th ed.) sec. 82; Cagney v. O\u2019Brien, 83 Ill. 72; 28 Am. & Eng. Ency. of Law, (2d ed.) 879, and cases cited.\u201d\nIn a late case, McDiarmid v. McDiarmid, 368 Ill. 638, it is stated (pp. 642, 643):\n\u201cIn support of their contention that they have proved an express trust appellees rely dn our holdings in Kingsbury v. Burnside, 58 Ill. 310, and many other decisions, including Whetsler v. Sprague, supra [224 Ill. 461]. These decisions hold that the Statute of Frauds has been complied with if the trustee makes a memorandum or writing showing that the property is held in trust. The details and terms of the trust may be established \u2022 aliunde and, even by parol evidence. Thus, it is held, after an exhaustive review of the authorities in the Kingsbury case, that in order to establish an express trust and to meet the requirements of the Statute of Frauds it is not necessary that it be established by a formal declaration of the trust but it is sufficient if it be proved by letters or other memoranda. The writing need not be an instrument expressly framed for the purpose of- acknowledging the trust. It is sufficient if the recognition or admission of the trust be incidentally made in the course of correspondence,-and almost any memorandum will, suffice. The letter or memorandum need not be addressed to the cestui qtte trust and may be written after title has been acquired by the trustee. \u2019 \u2019\nIn our judgment, Plaintiff\u2019s Exhibit 13 presents a simple trust. Plaintiff admits that for some time he was considering the question of establishing a trust fund for his son; that he.went to the bank and made the trust deposit of $30,000 to the credit of the account of Trustees of Arthur F. Albert, Jr. In his complaint he alleges he created a trust for the son, but claims that it is evidenced by Plaintiff\u2019s Exhibit 1. We have heretofore disposed of the claim that the trust was evidenced by that exhibit. The testimony of plaintiff and Mrs. Albert shows conclusively that the trust was administered by them as trustees for a year and a half before plaintiff attempted to revoke it. It is conceded that the trust fund was to be invested in Government bonds and that this was done by the two trustees. It is further conceded that from income \u00f3n the bonds the premiums on the policy of insurance were to be paid, which was done. Until the marital troubles developed between the parents the trustees had not the slightest difficulty in performing their duties as trustees. In Helfrich\u2019s Estate v. Commissioner of Int. Rev., 143 F. 2d 43, \u201cthe court had before it a \u201c'Special Trust Agreement\u201d, which reads as follows (pp. 44, 45):\n\u201cSpecial Trust Agreement\n\u201cDated November 26,1934.\n\u201cJ. BE. Helfrich. and Mrs. Elsa F. Helfrich herein called the \u2018trustees\u2019 hereby make known and declare that they hold all moneys now and hereafter deposited in account number .......... in Harris Trust and Savings Bank in trust for.................., herein called the \u2018beneficiary\u2019, whose address is 707 University Place, Wheaton, Ill.\n\u201cDuring the lifetime of the trustees and the survivor of them all moneys now and hereafter deposited in said account may be paid to or upon the order of the trustees, or either of them, and upon the death of the survivor of the trustees all moneys deposited in said account shall be payable to or upon the ord\u00e9r of the beneficiary. If either trustee shall be under legal disability which shall have been declared by a court of competent jurisdiction, he/she shall be deemed deceased for the purposes of this agreement. The said bank shall not be responsible for or required to see to the proper application of funds withdrawn from said account. The trustees represent that there is existing no agreement in respect of the said account' except as herein set forth.\n\u201cElsa F. Helfrich,\n\u201cJ. H. Helfrich,\n\u2018 \u2018 Trustees' for ..........\u201d\n(There were a number of these agreements before the court.) To quote from the opinion of the Federal court (p. 45): \u201cThe first question is whether valid trusts were created under Illinois law.\u201d The federal court then cites the law of Illinois as to the requisites of a valid trust and held (p. 46) that in view of the Illinois cases cited: \u201c. . . it is clear that valid Illinois trusts were created in the instant case.\u201d The \u201cSpecial Trust Agreement\u201d in the Helfrich\u2019s Estate case is in form practically the same as Plaintiff\u2019s Exhibit 13, and arguments that are made by the plaintiff in the instant case in support of his claim that Plaintiff\u2019s Exhibit 13 does not create a valid trust were made in that case. We cannot agree with the contention of plaintiff that the language in question in the Helf rich\u2019s Estate case is obiter. See, also, Cohen v. Newton Sav. Bank, 67 N. E. 2d 748, where the court held a deposit card stating that the depositor held the savings account in trust, to control and dispose of as he saw fit during his lifetime, and on his death to pay to named beneficiary the full amount then standing to credit of account, was sufficient to establish a valid trust for the benefit of the named beneficiary, who was entitled on depositor\u2019s death to possession of the deposit book and to the deposit represented thereby. Plaintiff argues that the fact that Plaintiff\u2019s Exhibit 13 fails to provide for the contingency if the beneficiary\u2019s death occurs prior to the death of the trustees, is a fatal defect; but he asks us to hold that Plaintiff\u2019s Exhibit 1 is a valid declaration of trust, and it contains the same alleged fatal defect. In any event, the beneficiary\u2019s interest in the trust was vested when it was created. Plaintiff testified that he deposited the check for $30,000 in the bank \u201cinto the account of Trustees of Arthur F. Albert, Jr.\u201d, and he declares in Plaintiff\u2019s Exhibit 13 \u201cthat he holds all moneys now and hereafter deposited\u2019\u2019 in that account\u2019 \u201cin trust for Arthur F. Albert, Jr. herein called the \u2018beneficiary.\u2019 \u2019\u2019 Plaintiff comes into court with unclean hands, and before equity will grant his prayer that the $30,000 be returned to him upon the grounds that the trust created, Plaintiff\u2019s Exhibit 13, is an invalid trust, it must clearly appear that the trust, under the laws of this State, is invalid. We believe that it would be a perversion of equity to take the bonds from the irrevocable trust estate created for the boy and turn them over to plaintiff. In our judgment the trust in question, Plaintiff\u2019s Exhibit 13, can be readily performed under the laws of this State. After a consideration of the various points urged by plaintiff in support of his contention that Plaintiff\u2019s Exhibit 13 is an invalid trust, we are satisfied that this contention cannot be sustained.\nThe judgment of the Superior court of Cook county dismissing plaintiff\u2019s complaint for want of equity should be and it is affirmed.\nJudgment affirmed.\nFriend, P. J., and Sullivan, J., concur.", "type": "majority", "author": "Mr. Justice Scanlan" } ], "attorneys": [ "Harry A. Biossat, of Chicago, for appellant.", "Nash, Ahern & McNally, of Chicago, for certain appellee; Martin J. McNally, of counsel;", "Charles P. Megan, guardian ad litem, for certain appellee." ], "corrections": "", "head_matter": "Arthur F. Albert, Sr., Appellant, v. Rosella H. Albert and Arthur F. Albert, Jr., Appellees.\nGen. No. 44,046.\nOpinion filed May 4, 1948.\nReleased for publication June 8, 1948.\nHarry A. Biossat, of Chicago, for appellant.\nNash, Ahern & McNally, of Chicago, for certain appellee; Martin J. McNally, of counsel;\nCharles P. Megan, guardian ad litem, for certain appellee." }, "file_name": "0440-01", "first_page_order": 494, "last_page_order": 515 }