all right good morning everyone welcome to the on my tele court first district first division we're going to ask the lawyers who are going to argue today to step up introduce yoursel change then if we have a lot of questions or if argument becomes repetitive please remember to speak loudly our microphones really don't amplify very well they simply are for tape recording purposes in please understand we have read the research and are familiar with the facts of the case trustee petition the trial court to construe this trust alleging that it contained a latent ambiguity the trust provision it issue presents a matter of first impression in the illinois  court's there's no reported decision that any of the parties or court has found healing with the type of ambiguity presented here and that is where a gift or a bequest is made to it identifies a class such as grandchildren name specific members and then additional members are born later there's no reporters decision you'll see in the briefing or the crowd court's opinion on that issue and the bank alleged in its petition that it's a matter of first impression and nobody's he think the pennsylvania supreme court case is your best authority for your argument is the best what the authority for your god where i think actually that three other state court opinions on i think they're and alice these are all the same they're all good authority they're obviously not authority in the true sense and but as we try to stress in our briefs and i can address this today that the court's question we believe those opinions are harmonious with more general illinois principles of trust construction we think all the illinois cases are also in accord with the certainly that's right finding that the trust provision is ambiguous and second with the construction that we are urging that mr cox intended to make a gift a class gift to all of his grandchildren but the pennsylvania it certainly illustrated of the type of analysis that we would ask this court to und to grandchildren who come after that da in the trial for obviously held as a matter of law in a trance destruction action the method of analysis is first therefore he says determine whether the provision it issue is ambiguous and that then determines whether ex is relevant to the analysis here the trial court construe this provision at the initial threshold issue as unambiguous and i would like to spend my time here obviously first addressing the court's questions  second reviewing the trust vision and why we believe it's ambiguous and why we believe the trial court erred and then the proper construction then if there's time to get to the issue of fees of i don't think there's a lot of debate about the law governing that facets he was born in one thousand zero three he formed the first the corporation which became a very successful company this trust was funded with stock in diversity corp and because that company was so successful even after supporting this  former wife of mr conch for fifty plus years there's nearly two million dollars left in the trust after she died fifty six years later and that's the purpose of the trust issue now but we do think that the trust the funding of the trust only with stock in this corporation does seek actually to the extremes of governance that would be relevant to the interpretation yeah the relevant part of mr cox life that's obviously relevant is he married several times four times and he had many grandchildren through his children from his different marriages and this trust as the court is aware rose established as part of the divorce settlement in a divorce with his third wife phyllis picker and in that marriage there were no children and the terms of the trust work mrs peck or miss parker was a life time beneficiary and she supported the rest of her life with that trust and then after she died with continental about that now at that point he couldn't amend the provision to add the extra grandchildren but was wasn't there something where he allowed some extra money to the younger grandchildren sort of to make up for what they would lose when the third wife died absolutely not ok and one of the issues here is the trapper never got to the extensive record and never dealt with it and the idea that he made up this is that you know he was a very wealthy grandparents and so there was some money set aside in his will for them but exactly what it made up for me this trust is actually a relatively small in the context of the overall wealth that mr  had and that his grandchildren and children and as a result of all this family well there was actually the divorce from the second wife there was a much larger trust also funded with stock in this company and there is no way from this appeal record well you know that these these are the ones who get the rest of the money when it was guys and he had other grandchildren and you know it so how do you reconcile that with the fact that he meant for all of them to get th and that first of all if i could correct the premise i believe that the lord said it better i did not come out of a dispute over who are the beneficiaries of this grandchildren it was it was an aside in that letter and how it came to be framed that way first as a matter of law at expense of evidence from twenty years later is nonetheless that better says what it says why he wrote that whether he was parroting an interpretation he heard from the trust officer i mean our contention actually if when we examine the whole record which said and that became the interpretation internally and he was writing mr cox was writing in that letter about it was a much bigger issue about there's a dispute over control of the stock there was a big fight between mr cox and the second wife over control respect his second wife over you know they had a lot of litigation going on at that time and that letter needs to be construed in our view in that context he was writing to  bank ocus on control of the stock and he made an aside reference to the trust as the trust for the fourth branch of them that's true but whether it had nothing to do with a dispute or clarifying his company and if he explains it that he is relevant then we should have an opportunity in the trial court to have an argument based on extrinsic evidence but what happened as a trial court cut off the threshold threshold question saying there's no ambiguity i'm not going to look at any extremes of evidence but there's a whole record of what was happening in the seventy's and the context of that letter and to look at it in isolation we believe is misleading and we didn't get to that point and then there's also the issue of fees which are contingent on whether the court thinks is a good faith honest difference of opinion here and that is in part the pendant on the court's finding whether there's an on interpretation and then to have a ruling that we believe is there from which the question of whether fees are paid from the trust it becomes in doubt and the court as we say that it punted on that issue  know because that bad is relevant and this is where we believe the critical error is that the trial court made and in determining whether there's an ambiguity the butts of later grandchildren is relevant because there isn't this temporal cut off when it comes to determining whether there's an ambiguity and if you look at the three it because again we don't have an illinois case on point but if you look at the three cases we set in the other states that's clearly you know they say it becomes him big finding that there is no ambiguity we did ask the court to give guidance as to the relevant scope of extrinsic evidence is it limited in time to as of the date of execution relative it's determining an intent we asked the court to give the trial court guidance as to the issue of fees because we think that we there was a motion for summary judgment that the court didn't decide because it wanted briefing from bank of america which decided to abstain appropriately in our view but the there is no disagreement as to the law whether there's peace there has to be an honest difference of opinion it seems to me just looking at this trust provision and love all the law that's relevant from other states which clearly an honest difference of opinion and recently sort of looked at these provisions have come out finding they may class just to everyone on specific gifts so we asked for that guidance to be given to the trial  can i throw some of your previous questions of course first of all as of the day trust was executed there was clearly no ambiguity there were four people  that he provided for there were good reasons to provide for them at that time and those reasons work but he had a daughter susan who had gone through an unfortunate to force him to bab and i believe that he felt sorry for her and he provided for the two babies he provided also for two brothers shaws who were his eldest grandchildren born of his for  names trumps a class designation it's clear yet at that point that there is no ambiguity as secondly i'd like to address the issue of ex evidence the trial court very clearly meticulously up and kept his remarks carefully to only extr that was available at the time they have to trust was entered into so for example he noted in footnote to that there were other letters that were available but they were never went to those two letters that you were referring to even though they exist at his college so when i file let me guess you yes you know it seems the ambiguity that your opponent is arguing about really isn't have graph c of the cross that has to do with the words then living and namely in which he names well it wouldn't necessarily make it clearer because this is what he intended if he had intended something different he would have simply said i leave to my grandchildren without and mentioning any names at all there was no need t but but lets look at that point of your turn the attorney joseph rosenberg was not only an attorney for the set work here he was also attorney for the settlement in the christian divorce for the mil cox divorce which was a nine hundred fifty five so in other words this attorney was totally familiar with all the familial situations of the contacts family but that can go both ways when a concert i mean i wouldn't have my divorce attorney in my will  difference between adopted grandchildren and is regularly born grange and therefore their grandchildren what what counsel continues to try to do here is to create some type of super exception so that if the the if the court has never dealt with this exact fact situation it's something special it's not something spec the same rules apply and the rules that is set out in young versus whistler and ten other cases which are cited are very clear and how these things are handled and the the question of uniqueness has been handled before that in connection with grandchildren but first of all the record in this case was incomplete until nine days ago ed at which point a supplemental record was certified seventy two letter it included the first two pages and then just skipped over and went to the next number it also did not a clue include the second letter that settler wrote to the bank in august contained these two letters was named grandchildren's motion for summary judgment against bank of america challenging their fees and and and other costs of there was mention of this document in my grief but i couldn't cite anything because that was not at the time in the record it is now in the the difficulties regarding the posting of the diverse stack he is confusing letters which are in the continental file but whether the forest limit extraneous evidence to only have evidence available at the time the trust was entered into so these letters were written twenty years later so you're saying the judge made a mistake no i'm not i'm not i'm saying that the judge was absolutely true to combined into one and the first motion dealt solely with the issues which the judge addressed the second motion dealt with this was basically saying that you know  then a number of all these agreements and went into great detail a good at again in my brief before this court because mr lieberman totally ignored the fact that continental bank testator's intent separate from trying to determine whether there's an ambiguity ok two separate questions can you separate tests that's what i'm saying i'm saying that if we're only  that's what i'm saying and thank you i don't know i think it's kind of basic so is it your position that whether we look within the four points of the document or service paul wrote a letter to william the eldest son of the set or telling him that he has four children were beneficiaries of the picker trust a trust saying with good reason is look i didn't initiate this they brought me in i should get paid i grete you should get pity but not by the trust our position is and we still have pending you this comes from bank of america need to address a need issues or questions either but you want to say you're from the panel compelled to respond as it is trustworthy given the document in front of us we did what we thought was proper which was the language on its face was even the trustees over different periods of time had different interpretations of this instrument way back in time continental bank for reasons that we think have to do with misquoting the doc in the from the get go came to one and then as counsel alluded to in two thousand and six my clients got a letter saying they were beneficiaries and for five years that nothing changed they were told they were beneficiaries and the next thing that happened they were told that mrs picker died and that the bank was bringing court took a pretty hard position on that bank for being partisan and i trust instruction action and the law in illinois since that decision is trustees have to be very careful to be renewed right down the middle and that's what this trustee did and bringing this petition and they in good faith and we believe quite correctly found this provision ambiguous and since they had told different trustees beneficiaries different things at different times seem to me the prudent action in terms of the for the properly authenticated because of that and then it also determined as a matter of law it could not preview post hoc extensive evidence i can't i don't know whether i don't know what the reason was it didn't look at this record it certainly is a letter they were certainly attach intent we discussed the city of rockford again on page thirteen of our brief enough for bed in construing an ambiguous deed the intention of the parties may be ascertained by considering the surrounding circumstances circumstances existing at the time of its execution that's the law in illinois that's the only supreme court city of rockford that's the case one of the cases the principle case that the trial court relied on to say i'm not to look at extrinsic evidence to determine ambiguity and psych and we believe the trial court was correct in football too when it said i'm not looking at post hoc extrinsic evidence such as letters from twenty years later and we can have a trial in a proceeding on everything that happened over those twenty years and how th letter came to be and what was in the files of continental bank which we did submit on summary judgment but that's a much more complicated undertaking and it's not one that the law allows the trial court or we submit about what the term surviving issue means in the instrument when there's adopted surviving issue including doctors it's an interesting case on that point but it has nothing to do with the type of ambiguity here as to the type of ambiguity here if mr cox intended to exclude later board grandchildren he absolutely could have expressed lee said so and that's what a seasoned trust the state lawyer would would deal with that contingency probably and see they contingency but he