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.