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In re Gleeson's Will - 1 Ill. App. 2d 409, 117 N.E.2d 792 (App. Ct. 1954)

Rule:

The desires of a testator in the appointment of a trustee will be observed although he may see fit to appoint a person whose relationship to the estate is such that a court of equity would not appoint him if the appointment was to be made by the court. 

Facts:

After decedent's husband died, the trustee was the supervisor and operator of the decedent's farms. As a result of the trustee's efforts, the profitability of the farms improved. The decedent executed a will devising the farm property to a testamentary trust in which the trustee was given broad authority to manage, operate, and control the farms on behalf of the heirs. After the decedent's death, the trustee filed a petition to establish a testamentary trust created under the decedent's will and to confirm his appointment as trustee. The heirs opposed the petition and filed a counterclaim to remove the trustee asserting that the trustee had breached the fiduciary relationship with the decedent by profiting personally from such trust, that the trustee was a contingent remainderman with interests adverse to the heirs interest and  that an irreconcilable hostility existed between the trustee and the heirs. The circuit court entered judgment in the trustee's favor and the heirs appealed.

Issue:

Was it proper for the court to grant the trustee's petition?

Answer:

Yes.

Conclusion:

The court affirmed the judgment granting the trustee's petition to establish a testamentary trust created under the decedent's will and to confirm his appointment as trustee. The court held that the circuit court's finding that the trustee engaged in no dishonesty or abuse of his fiduciary duties was not clearly and palpably erroneous, and would not be disturbed on appeal.  The court further noted that the fact that the trustee was a contingent remainderman under the will did not render him ineligible to serve as trustee because a court of equity was required to observe the desires of a testator. Lastly, the hostility between the trustees and heirs was insufficient to overrule the circuit court's decision.

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