Rubin v. National Boulevard Bank

534 N.E.2d 482, 179 Ill. App. 3d 287, 128 Ill. Dec. 300, 1989 Ill. App. LEXIS 82
CourtAppellate Court of Illinois
DecidedJanuary 30, 1989
Docket88-0934
StatusPublished
Cited by15 cases

This text of 534 N.E.2d 482 (Rubin v. National Boulevard Bank) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rubin v. National Boulevard Bank, 534 N.E.2d 482, 179 Ill. App. 3d 287, 128 Ill. Dec. 300, 1989 Ill. App. LEXIS 82 (Ill. Ct. App. 1989).

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order upholding the validity of an agreement to create a trust and directing the creation of a trust. The' issues raised on appeal are whether the trial court erred in imposing a trust and whether the trust should have been imposed retroactively to the date of decedent’s death.

On January 16, 1974, Donna Rubin and plaintiff, Stephen Rubin, were divorced. On the same day, the decedent, Morrie Chaitlen, the father of Donna Rubin, executed an agreement to the effect that he would provide for the support, maintenance and education of the two minor children of the parties in the event that his daughter failed to do so.

The written memorandum provides, in part, as follows:

“In return for effecting the foregoing and for your agreeing that my daughter and I have custody of your minor children, Michael and Wendy Rubin, I will execute a general release to Stephen D. Rubin and to Graver-Dearborn Corporation and Donna will agree to be primarily responsible for the support, maintenance and education of the children. If for any reason she is unable to support, maintain and educate the children, I will agree to assume the responsibility for their support, maintenance and education during whatever period of time that Donna is unable to do so.
In order to fulfill my contingent responsibility to support, maintain and educate Michael and Wendy Rubin if my daughter Donna shall fail to do so, and I shall die during this period, I will, by my last will, provide for the creation of a trust or trusts in such amounts as will amply provide for their support, maintenance and their primary, secondary and college education after my death if my daughter Donna is unable to support, maintain and educate the children.”

Morrie Chaitlen died on August 24, 1983. His will, which was admitted to probate on September 28, 1983, failed to create the trust as provided in the above agreement.

The parties disagree as to the obligation of Morrie Chaitlen under the written agreement. The executor contends that Chaitlen was only obligated to provide for the children via a trust in the event that his daughter failed to provide for the children during his lifetime. The executor claims that as Donna Rubin continued to provide for her children from January 1974 until the time of Chaitlen’s death, the decedent was not obligated to provide for the children in his will. The plaintiff contends that the language of the agreement obligated Chaitlen to provide for his grandchildren after his death in the event that his daughter failed to do so and that Donna Rubin had failed to support the children subsequent to her father’s death. The parties agree that no evidence was heard with respect to specific costs for the support, maintenance or education of the children subsequent to the death of decedent.

The trial court held that a trust in the amount of $240,000 should be established but that the trust should be prospective only. Both parties appealed.

The executor argues that the trial court erred in construing the agreement. The executor’s position is that under the language of the agreement, the decedent was only obligated to provide a trust for the grandchildren in the event that his daughter failed to' support the children during decedent’s lifetime, and as that condition precedent did not occur, decedent was not obligated to provide for the children in his will. The executor argues that the contingent nature of the decedent’s obligation is reflected in the following language:

“In order to fulfill my contingent responsibility to support, maintain and educate Michael and Wendy Rubin, if my daughter Donna shall fail to do so, and I shall die during this period ***.” (Emphasis added.)

The executor’s reading of this provision is that Donna’s inability to provide support during decedent’s lifetime is an express condition precedent to decedent’s responsibility to provide for the children in his will.

The executor also argues that the written memorandum was ambiguous with respect to decedent’s responsibility to provide for his grandchildren, and therefore, under Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 326 N.E.2d 33, the court should have allowed extrinsic evidence to be submitted for the purpose of determining the true meaning of the contract. The executor’s position is that the agreement could have been understood to be either that the decedent was not obligated to provide in his will for the grandchildren until his daughter became unable to provide the necessary support or that decedent was required to provide for such support regardless of his daughter’s ability to provide support. For this reason, the executor contends that it should have been permitted to introduce a progression of eight drafts which culminated in the written memorandum. We disagree with both arguments.

In interpreting a contract, the court must determine its meaning from the language used by the parties. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287-88, 458 N.E.2d 480.) A court may resort to rules of construction if the language is ambiguous; but ambiguity exists only where a contract is reasonably susceptible of different constructions, not merely where the parties disagree on the proper construction. (Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168, 171, 520 N.E.2d 67.) In interpreting a contract, the court must consider the entire document, not merely an isolated part of the contract. Shelton v. Andres (1985), 106 Ill. 2d 153, 159, 478 N.E.2d 311.

Applying the above well-settled principles, we find that there was no condition precedent to the imposition of the trust nor was there any ambiguity to warrant the introduction of extrinsic evidence. At the time the agreement was entered into, Wendy was six years of age and Michael was three years of age. The agreement provided that in the event his daughter failed to provide for them, including their college educations, a trust would be set up in the will to do so. Under the executor’s alternative interpretation, if the decedent had died the day after the agreement was executed and his daughter thereafter failed to provide for the children, decedent’s estate would have no duty to do so. Such a result would be completely contrary to the stated interest of the decedent to be contingently responsible for his grandchildren’s support and education until they completed college. The only reasonable interpretation of the phrase “if my daughter Donna shall fail to do so, and I shall die during this period” is that the “period” referred to is the time between the execution of the contract and the completion of the children’s college education.

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Bluebook (online)
534 N.E.2d 482, 179 Ill. App. 3d 287, 128 Ill. Dec. 300, 1989 Ill. App. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-national-boulevard-bank-illappct-1989.