Trustees of Wheaton College v. Peters ( 1997 )


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  •                              No. 2--96--0746

      

    _________________________________________________________________

      

                                     IN THE

      

                           APPELLATE COURT OF ILLINOIS

      

                                 SECOND DISTRICT

    _________________________________________________________________

      

    TRUSTEES OF WHEATON COLLEGE,   )  Appeal from the Circuit Court

    as Trustee,                    )  of Du Page County.

                                  )

      Plaintiff-Appellee,         )  No. 93--CH--0465

                                  )

    v.                             )

                                  )  

    MARY BEAUMONT PETERS, Indiv.   )  

    and by and through her         )  

    Guardian, Philip B. Peters;    )

    and PHILIP B. PETERS, as       )

    Guardian for Mary Beaumont     )

    Peters,                        )

                                  )

      Defendants and              )

      Counterplaintiffs-Appellees )

                                  )

    (Mary Beverley Peters Hunton,  )  Honorable

    Defendant and Counterdefendant-)  Bonnie M. Wheaton,

    Appellant).                    )  Judge, Presiding.

    _________________________________________________________________

                            

        JUSTICE McLAREN delivered the opinion of the court:

        On February 17, 1987, Laura Bertha Catherine Peters Warner

    executed a revocable trust.  The trust identifies five

    beneficiaries:  defendant and counterplaintiff, Philip B. Peters,

    Gayle Peters Emerson, Vincent P. Peters, Stuart Davis Peters, and

    "Mary Beverly Peters."  In particular, the trust identifies "Mary

    Beverly Peters, Rt. 4, Box 160, Spotsylvania, Va. 22553."  The

    instrument creating the trust names the plaintiff, Trustees of

    Wheaton College (trustee), as the trustee.  Ron Walton, a

    planned-giving officer of Wheaton College, assisted Warner in the

    planning of her estate.

        Of the five beneficiaries named, only the "Mary Beverly

    Peters" beneficiary designation is at dispute in this case.

    Notwithstanding "Mary Beverly Peters," every other named

    beneficiary is either Warner's niece or nephew, or a child of a

    niece or a nephew who predeceased Warner.  Defendant and

    counterplaintiff, Mary Beaumont Peters (Peters), is Warner's

    niece.  Defendant and counterdefendant, Mary Beverley Peters

    Hunton (Hunton), is the daughter of Warner's nephew, defendant

    and counterplaintiff, Philip Peters.

        Philip Peters is Mary Beaumont Peters' brother and guardian.

    Peters has been physically and mentally handicapped since

    childhood.  Peters has identified herself as Mary Beaumont Peters

    and Mary B. Peters since the date of her birth, February 19,

    1929.  Further, from 1967 until March 1988, Peters lived at Route

    4, Spotsylvania, Virginia.  Between 1967 and April 1986 her

    mailing address was Box 160; although she did not change

    residences, sometime between April 1986 and April 1987, her

    mailing address was changed to Box 1360.  

         Hunton, born March 19, 1949, is the daughter of Philip

    Peters.  At birth, Hunton was given the name Mary Beverley

    Peters.  However, she has not identified herself as such since

    1974, when she married.  Since 1974, she has used the names "Mary

    Beverley Peters Hunton," "Mary Peters Hunton," and "Mary P.

    Hunton."  Further, Hunton never lived in Spotsylvania, Virginia,

    and has never claimed Route 4, Box 160, Spotsylvania, Virginia,

    as her home or address.  In addition, Hunton had no contact with

    Warner after September 1974, the date of her marriage.

        After Warner's death, David Teune, a lawyer for the trustee,

    wrote Eppa Hunton, Hunton's husband, who was serving as counsel

    for certain beneficiaries of the trust.  Mary Hunton later

    retained new counsel.  The trustee's lawyer asked Eppa Hunton for

    the social security numbers of the named beneficiaries, including

    "Mary Beverly Peters."  Eppa Hunton responded with a letter,

    which provided in part:

             "In the trust agreement, one of the beneficiaries is

        named Mary Beverly Peters.  However, it is my belief that

        the intended beneficiary is Mary Beaumont Peters.  The

        latter is a sister of Philip[,] Gayle and Peyton Peters.

        ***  Mary Beverl[e]y Peters is the daughter of Philip

        Peters.  Incidentally, Mary Beverl[e]y Peters is my wife.

        Mary Beaumont Peters formerly lived at Rt. 4, Box 160[,]

        Spotsylvania and then moved to Richmond.  Mary Beverl[e]y

        Peters never lived in Spotsylvania.

             It would be 'normal' for [Warner] to have divided the

        trust into four shares for the four children of her brother

        who were living or left living heirs.  By leaving 1/4

        interest to Mary Beaumont Peters and not Mary Beverl[e]y

        Peters, that pattern is maintained."

        On December 8, 1992, Teune responded to Eppa Hunton's

    letter, stating that the trustee also believed the intended

    beneficiary to be Peters and not Hunton.  In the letter, Teune

    asked Eppa Hunton to obtain his wife's signature on a waiver of

    interest in the Warner trust.  

        In March 1993, Hunton, Hunton's husband, Eppa, and Hunton's

    father, Philip, met to discuss why Hunton had not signed the

    waiver of interest.  In an affidavit, Philip stated that he

    explained to Hunton why he believed that Peters was the intended

    beneficiary.  Philip stated that he told Hunton that Warner had a

    special concern for Peters.  Philip also stated that he told

    Hunton that Warner always inquired about Peters' well-being but

    never asked about Hunton.   

        Hunton refused to sign the waiver of release and took the

    position that she, rather than Peters, was the intended

    beneficiary.  On July 16, 1993, the trustee filed an amended

    interpleader complaint, which explained that both Peters and

    Hunton claimed to be the intended beneficiary of the Peters'

    portion of the trust.  The trustee asked the court to decide

    which of the defendants was the intended beneficiary.  Before the

    trial court heard the evidence in this case, Hunton filed

    numerous motions, including a motion to strike the amended

    complaint, a motion to dismiss Peters' reply brief, a motion in

    limine to bar certain evidence, a motion to dismiss Peters'

    amended counterclaim, and a motion to strike Peters' motion for

    summary judgment.  

        On October 12, 1994, the trial court determined that there

    was a latent ambiguity in the Warner trust as to the beneficiary

    identified as "Mary Beverly Peters."  On February 29, 1996, the

    trial court granted Peters' motion for summary judgment and

    denied Hunton's cross-motion for summary judgment.  Further, the

    trial court denied Hunton's petition for the payment of her

    attorney fees in the amount of $66,675.32.

        The trial judge stated as follows:

             "At the inception [of this case], I ruled that there

        was latent ambiguity, since the name on the trust documents

        could arguably apply to both Mary Beverley Peters and Mary

        Beaumont Peters because of the address that was listed.  ***

             ***

             It was only after reading all of [the] stipulations and

        the voluminous evidence that I reached the inescapable

        conclusion that Laura Warner's testamentary intent or her

        intent in formulating the trust documents was to benefit

        Mary Beaumont Peters, and I think that the evidence on that

        issue was overwhelming.  

             However, it was only after the culmination of this

        lengthy litigation that I arrived at that conclusion.

             I have reviewed that attorney's fees which are sought,

        and I believe that they are not unreasonable, given the

        ambiguity, as a matter of law and the voluminous discovery

        that was necessary to determine Laura Warner's intent.

             However, as Mr. VanHeukelem says, the reality is that

        this trust corpus was only about $250,000.

             In reviewing all of these pleadings and documents which

        were submitted, I believe that this is a matter addressed to

        the sound discretion of the court.

             But under the factual circumstances which have been

        presented and the overwhelming amount of evidence as the

        intent of Laura Warner, I will exercise my discretion to

        deny the fee petition of Mary Beverley Peters Hunton."

    Hunton appeals only the denial of attorney fees.

        Absent a contract or statute to the contrary, the parties to

    a suit bear the cost of their attorney fees.  In re Estate of

    Beck, 272 Ill. App. 3d 31, 38 (1995).  An exception exists in the

    context of a will construction where the testator's intentions

    are so ambiguous as to require judicial construction of the will.

    Beck, 272 Ill. App. 3d at 38.  In such a case, attorney fees are

    recoverable from the estate.  However, an ambiguity, alone, is

    not enough.  Rather, there must be an honest difference of

    opinion regarding the construction of the will.  Beck, 272 Ill.

    App. 3d at 38.  The decision to grant or deny attorney fees in a

    will construction case lies within the sound discretion of the

    trial court.  Beck, 272 Ill. App. 3d at 38.  Accordingly, a

    reviewing court may not disturb the decision to deny attorney

    fees absent an abuse of discretion.  Northern Trust Co. v. Heuer,

    202 Ill. App. 3d 1066, 1071 (1990).   

        In Beck, 272 Ill. App. 3d 31, the Appellate Court, Fifth

    District, held that it was not an abuse of discretion to deny

    attorney fees in a will construction case which involved a latent

    ambiguity.  The will devised a portion of the estate to the

    Lutheran Orphan Home, Paris, Missouri.  However, such an entity

    never existed.  The only Lutheran orphanage which ever existed in

    Missouri was located in the town of Des Peres.  The orphanage was

    conveyed to Lutheran Children's Services, which later closed the

    orphanage and changed its name to the Lutheran Family and

    Children's Services.  At the time of the decedent's death, the

    orphanage did not exist and no successor was named.  The trial

    court held that the there was an ambiguous misdescription

    contained in the will and that the bequest to the Lutheran Orphan

    Home had lapsed.  Beck, 272 Ill. App. 3d at 36-37.  The trial

    court also denied Lutheran Family and Children's Services'

    request for attorney fees.  Beck, 272 Ill. App. 3d at 34.

        The Appellate Court, Fifth District, affirmed the trial

    court's decision.  Regarding the denial of attorney fees, the

    court reasoned:

             "Here, the language used in article 7 of decedent's

        will was not so ambiguous as to necessitate judicial

        construction of the provision.  The testator's intentions

        were evident and readily discernable from the language used

        in the provision in question."  Beck, 272 Ill. App. 3d at

        38.

        The reasoning applied in Beck is equally applicable to the

    case at bar.  Although Warner used the name "Mary Beverly

    Peters," her intentions were "evident and readily discernable

    from the language used in the provision in question."  Beck, 272

    Ill. App. 3d at 38.  The provision identified "Mary Beverly

    Peters [at] Rt. 4, Box 160, Spotsylvania, Va. 22553."  Mary

    Hunton never lived in Spotsylvania.  Further, she had not used

    the name Mary Beverley Peters since 1974.  In addition, she had

    no contact with Warner, knew that her inclusion as a beneficiary

    would have been contrary to the trust's scheme, knew that her

    husband and the trustee did not believe she had a claim, knew of

    Warner's special concern and relationship with Peters, and failed

    to present any evidence to support her claim.  In essence, there

    is nothing in the record to support Hunton's contention that she

    had an honest belief that she had a valid claim to the trust

    assets.

        We recognize that Warner could have drafted the will to

    avoid the apparent inconsistency challenged by Hunton.  However,

    "few instruments are drafted with perfect precision and

    [Warner's] intentions were nevertheless easily discernible from

    the language [she] used" and from facts which were available to

    Hunton prior to this litigation.  See Merchants National Bank v.

    Old Second National Bank, 164 Ill. App. 3d 11, 16 (1987).  Thus,

    we refuse to equate an easily discernible error in drafting "with

    an ambiguity necessitating a will construction suit and

    reimbursement of attorney fees."  Merchants National Bank, 164

    Ill. App. 3d at 16.  Accordingly, we determine that the trial

    court's decision to deny attorney fees is not an abuse of

    discretion.

        We recognize that the trial court did not make an express

    finding that Hunton's opposition was not based on an honest

    difference of opinion.  However, it is well established that a

    reviewing court may affirm a trial court's decision on an issue

    on any basis appearing in the record.  Bartoszewski v. Village of

    Fox Lake, 269 Ill. App. 3d 978, 986 (1995).  Because the record

    contains overwhelming evidence that Hunton could not honestly

    believe that she had a valid claim to the trust assets, we affirm

    the trial court's denial of attorney fees.

        Hunton cites to Ingalsbe v. Gough, 2 Ill. App. 3d 681

    (1971), to support her argument.  However, Ingalsbe is

    distinguishable from the case at bar.  In Ingalsbe, an ambiguity

    arose due to an amendment to an antilapse statute which had yet

    to be interpreted.  Ingalsbe, 2 Ill. App. 3d at 683.  The case at

    bar did not turn on the interpretation of newly enacted

    legislation.  Rather, the case involved a question of fact, which

    was easily determined after the trial judge examined the

    evidence.  Further, many of the salient facts were known to

    Hunton before discovery.  Thus, Ingalsbe is inapplicable to the

    case at bar.

        Hunton also argues that fees are appropriate in this case

    because the trustee filed suit naming Hunton as a defendant.

    However, Hunton ignores the fact that the trustee's suit was

    necessary only because Hunton opposed the trustee's intended

    distribution by refusing to sign a release.  Thus, we are not

    persuaded by this argument.  See Merchants National Bank, 164

    Ill. App. 3d at 17.

        In addition, Hunton claims that the trial court erroneously

    based its decision to deny attorney fees on the fact that Hunton

    was not the successful party.  Hunton cites the following remarks

    made by the trial judge to support her claim:

             "But under the factual circumstances which have been

        presented and the overwhelming amount of evidence as the

        intent of Laura Warner, I will exercise my discretion to

        deny the fee petition of Mary Beverley Peters Hunton."

    The trial judge's remarks do not support Hunton's claim.

    Instead, her remarks indicate a belief that, because the evidence

    was so overwhelming, it is unlikely that Hunton honestly believed

    that she had a valid claim to the Warner trust.

        Hunton also contends that the trial court's refusal to grant

    attorney fees will have a chilling effect on potential heirs who

    lack the funds to litigate.  We disagree.  Instead, we believe

    that allowing attorney fees in a case involving the

    interpretation of a will that contains mildly inconsistent

    language "would invite heirs-at-law to challenge every will

    without financial risk, regardless of the clarity of the

    testamentary scheme, on the outside chance of having it declared

    invalid."  Merchants National Bank, 164 Ill. App. 3d at 16-17.

        Finally, Hunton claims that the trial court's decision

    denying attorney fees should be reversed because the trial judge

    erroneously considered the size of the portion of the estate at

    issue.  Initially, we disagree with Hunton that an award of

    attorney fees is taken from the entire estate.  It is well

    settled that an award of attorney fees comes out of the share of

    the estate at issue.  Orme v. Northern Trust Co., 25 Ill. 2d 151,

    167 (1962).  However, we agree with Hunton that, in determining

    whether or not to grant attorney fees in a will construction

    case, the sole issue is whether there is an honest difference of

    opinion.  Beck, 272 Ill. App. 3d at 38.  Further, we recognize

    that the trial court may have erroneously considered the size of

    the estate share in controversy when reaching this decision.

    However, we may affirm on any basis appearing in the record.

    Bartoszewski, 269 Ill. App. 3d at 986.  Because we have

    determined that there is ample evidence in the record to affirm

    the trial court's decision to deny attorney fees, Hunton's

    argument is immaterial.

        The judgment of the circuit court of Du Page County is

    affirmed.

        Affirmed.

        INGLIS and DOYLE, JJ., concur.

      

Document Info

Docket Number: 2-96-0746

Filed Date: 3/5/1997

Precedential Status: Precedential

Modified Date: 10/22/2015