Scott v. Perona, Perona & Tonozzi , 115 Ill. App. 3d 76 ( 1983 )

PRESIDING JUSTICE STOUDER,

dissenting:

I differ with my colleagues as to the result of this appeal and, specifically, as to their application of Stephens v. Collison (1916), 274 Ill. 389, 113 N.E. 691, to the facts in this case.

The majority has chosen to affirm the trial court’s decision on the basis of the law stated in Stephens v. Collison (1916), 274 Ill. 389, 113 N.E. 691. The theory of law upon which the holding in Stephens is based was first advanced on appeal by the defendant, the First State Bank of Princeton. The trial court based its ruling upon an entirely different theory of law, one which I believe did not justify the result reached by the trial court, namely, that the trustees of a trust subsequently determined to be void, have no fiduciary duties to the trust beneficiaries.

The court in Stephens held that equity could not compel the beneficiaries under a testamentary trust to accept a compromise settlement of a lawsuit which would so alter the terms of the trust that its purposes would be entirely defeated. In that case, one of the beneficiaries of a trust had proposed the settlement in an attempt to compromise litigation she had commenced against the estate of the decedent involving the validity of the will, itself, and certain deeds executed by the decedent.

The factual situation in the case at hand is different from that of Stephens. Here we have a beneficiary of a testamentary trust who is also a co-trustee, declining to compromise litigation brought by third parties attacking the validity of the will. Such a compromise could have preserved the basic terms of the trust. The fact that the objecting beneficiary was also a trustee and by statute had the power to compromise litigation which could void or invalidate the trust (Ill. Rev. Stat. 1981, ch. 17, pars. 1665, 1672) required that he, along with his co-trustee, submit any possible settlement proposal to the court for approval, otherwise, his dual role could place him in a position of conflict of interest and possibly result in breach of his fiduciary duties to the trust beneficiaries.

Based upon my analysis of this case, I believe that the trial court’s order dismissing the action against the defendant co-trustees should be reversed.