all right and mr english whenever you're ready into deciding this is what the court have to look at what documents of the court have to consider and under what standard first of all the stay in the you're talking about the standard for you never do i'm talking about the trial court ok the what factors of the judge have been looking at i think the judge should have looked at the key thing is what the terms and conditions of the lane interest were at the time that william exercise the power of that it need to look at the land trust agreement and get the amendment to the interesting thing he can certainly consider the terms the conditions under which he was made which was following the divorce between william and judy so those would be the three what about the m s a i'm sorry the marital subtle agreement well that's if you were when we construe a document we look at the trust we look at the conditions under which it was exercised and we looked you could look to clear up any ambiguity you could look at the at the terms and conditions of the marital settlement marital separation agreement to see that the parties have divided up the interest in the marital residence actually a land trust in the marital settlement of separation agreement which treating this as a piece of real estate was really a land trust that held real estate but look at that they divided it up between judy received a seventy five percent interest as her sole in separate property and william who received twenty five percent in says sold separate property and then there were a r series of release by both parties now there is a provision in the marital separation agreement that says that quote husband and wife  now that when i first read that provision i thought they were referring to how they help title at when they were married now i looked at that and saw well this is one it's not accurate because they didn't hold title as joint tenants with right survivorship when we when we review the land trust agreement and here we can see that and  if they were attempting to create a joint tenancy with rights a survivorship they were not successful in doing so because it didn't meet the qualifications to create a joint tenancy on at best it was an attempt to create one the produce clearly said again she's going on seventy five percent williams going on twenty five percent but they did not own equal undivided interests so how could they create a lane trust where they didn't have the unity of interest needed to create only interest what they didn't  amendment that judy and william made nine months or so after the divorce and that's a very important document here i think if we look at the terms and conditions of your original interest in and the original interest can be found in your appendix it page zero twenty eight two hundred twenty nine and the amendment which is takes the form of an assignment can be found in page  fifty nine they create judy and william while they were married created a lane trust but the terms of the interest ribbit unusual your original trust provided and i quote beneficial interest in col cloudless but then immediately following that is the following language if i me indulge through to read it judy a nickel applets together with william g nickel applets or the survivor there  may sell or sign transfer otherwise dispose of any part of the beneficial interest under this trust in me use and consume the proceeds thereof and they may also amend alter or revoke from time to time what they mean when they said this of the trust says that judy owned the entire beneficial interest didn't say they owned it is joint tenants with rights of survivorship she only entire beneficial interest so it says that even though although she only entire beneficial interest that she and william could deal with they could sell it they could use it they could withdraw it so in effect the land trust provides to have powers over judy's entire beneficial interest and that if william survives judy the same rights would pass the would that's what the original document section two of the joint tenancy act but it does not you might you might get a better position if they had assignment amended that specific survival language and it did that well it yes it did but if with the bye bye  and judy who owned the entire beneficial interest remember she assigned twenty five percent of the beneficial interest in the land trust to william so now wm owns twenty five percent she owns twenty five seventy five percent of the beneficial interest in the land trust and you are correct your honor that the assignment did not specifically still it was setting up twenty five percent to be owned by one party seventy five percent to be owned by the other party how could you then interpret a document to say well the party that has is so it would have by implication affected that provision just as in a dorm in case there was a provision in the land trust that said that all of the beneficiaries could exercise a power of appointment and in dormant the grant or had issued an assignment that said week that the two of you have a power direction but i still have a power of direction and the pla well you didn't amend that particular provision so we can exercise the power direction any way we want to and the courts and all it was clear and heart healthy to court is the words you sign it said twenty five percent to william it did not see with rights a survivorship it did not say as a joint tenant so it did not comply with section two of the joint tenancy year and i will this op all even though they had been divorced and had allocated the interest in this land trust continued to hold the property in trust long after their divorce so if they continued to do that they would have created a tendency in common judy has seventy five percent william has forty five percent each can alienate their interest freely you know that would accomplish it but they chose to leave it in the trust governed by this trust document which has this language about what the survivor can do but that language was amended by the sign is signed when in fact did do away with the rights to survivorship it by clear implication amended the language in the original trust document the follows the statement to judy own the entire beneficial interest clear implication yes your honor because again  let's assume before death let's assume that there are a lot of if someone if judy or try to use william's twenty five percent i don't think a court would allow t happen because they each receive their respective interest is their sole and separate property so that if they wanted to maintain the joint tenancy then they original trust even though the use the word survivor it was not you have to construe what the trust document said and so we looked at what the trust document said before it was amended once it was amended then of marital settlement agreement and statement where they said they that the myrtle residence is owned in joint tenancy here i forget the exact words but then and them then went on five assignment where he where it sat power of direction to be exercised jointly by julian wm right now that's the power of direction after the of the embankment and the power of direction had a specific purpose said they could they would exercise it jointly didn't say the survivor would exercise it it said they would exercise a jointly again the failure to use the word survivor indicated that creates survivorship i think is fatal to williams unilateral exercise the power of direction after the divorce but what's more important the specific provisions in the assignment where it says that the the power of direction c exercise jointly by y the key thing here is what did the land trust say how do you interpret the land trust at the time william exercised his power of direction and then if that doesn't convince the court that it was an improper exercise of power direction then we need to look at what the marital settlement agreement says and we both i think we've had a nice discussion about what the marital settlement agreement says what it doesn't say only thing i didn't address right thank you thank you and this is signed the document is is part of the land trust because it affects those rights and it's signed by both of the parties do you agree that here it is errors have a claim to seventy five percent of the proceeds of the property is ever judgment they're trying to separate themselves from everything right and she's going to pay one hundred percent taxes mortgage upkeep he has no responsibility whatsoever for  if they want to sell the property if she remarries if and always so no it was our yes they were trying to separate themselves completely i think care of this wasn't wrong  so how can we not look at the divorce agreement which intended to separate them permanently and to give a right of survivorship would be just as if one hundred percent the rule doesn't apply i don't understand right well i why why why is that makes them cream it specifically awarded portions of of this property in willie and it didn't address the survivorsh the meyers cases this is the find out whether this divorce agreement had a clear expression of surrender of the interest that's that that's the language used in that miers cases the surrender of an interest william did not surrender his interest in this property because he actually retained an interest going forward and while he had no interest he only had in years a survivorship to start right in seventy two it's really well i'm not sure that that's the case because the uncertainty to the land first agreement says it does have that language resistor nikolaus was a law but then it goes on to say that william and judy whole jointly is i think what it is describing is a beneficial interest it's very specific that's what a beneficial interest is and use the proceeds consume the proceeds that's that's the beneficial interest and i think it's more specific even than this this single censuses judy alone it's very i think it's very complete in saying that this is beneficial interest as it is jointly so i went on to say that then this time it changes because yes i make it very clear that he only has twenty five percent of the entire beneficial mantras that's what it's that so if that's your argument that's definitely a change right yes my question was that definitely changed because twenty five percent was given him the beneficial there's no question that that was a portion differently than how it was previously or should the question is what happens to the right of survivorship that stated in marital settlement is to get the parties separated forever separating their property and decide all these issues and they spent two pages of which we only have we don't have page sixty six i think critics think fortunately that all has to do with this the survivorship was not discussed in this in this marital separation agreement and if something exists out there it's not addressed in the in the separation agreement and it remains in place the fact of the present us and that they're that courts should consider i think it's very similar to this case today which i cited in the briefs which same situation divorce couple had real estate in the land trust their their separation agreement know that separation agreement had given a fifty fifty split and said in that situation where each party clearly evidences that it did and intention to keep the property in joint tenancy then it's not our place to she's one hundred percent responsible for everything going forward well i think it is similar in that they this this marital separation agreement did did note that fact as a pointed out didn't say anything that would be moved removed from th this is joint arrangement and said that actually it should be sold by nine hundred ninety two when the when the couple's youngest child reached the age of eighteen but that didn't happen and also said that it would be sold and when judy remarried that did happen even though both of them like the way that that that that's what people well i think it goes to the survivorship the survivorship arrangement the this is this was in place the whole time it was a place the whole time in this land trust from the beginning each party had the right and the ability to change that arrangement going forward the separation agreement i believe didn't didn't address this type of ship a provision that said the parties close second is that so so the question of the second prong is asked we should ask whether the waiver provision in the dream it specifically states that the parties are waiving any expectancy or beneficial interest in that asset i think the answer is no because the divorce agreement specifically towards william and interest in the waitress property i know it goes back to it's a similar reason why the first problem is is is not met but it's absolutely true if william keeps interest in this property and the case all talk about whether the spouse of renters ages weather's a clear expression of the of the desire to surrender that interest and that's not that's not existing here and and i think that the trial court properly dismissed this counter claim as well as the underlying claim which was which is felt the chicago title but is not part of th state when we have a situation like this with a joint senate and a right of survivorship it's we have to go back to the land trust documents those those are really the paramount consideration and they weren't changed by the assignment they were changed by the very quickly i think a lot of the things in the discussion that just occurred be had in our discussion i would just like to again go back to the marriage of dudek and again he difference have in this case and all the agreements said we are also marina said it's ok so property husband gets a couple thousand dollars off the top and then everything else is divided fifty fifty so they had  they struck that they had a joint tenancy in the beginning they said ok we're going to we clearly intend to keep it as a joint tenancy but unlike the case here that settlement agreement said nothing about dividing the interest between the parties it said we're going to continue no only just land yes joint tenants we're here said we're going to continue to only twenty five percent for william and seventy five percent for judy m d and then lastly he meant going back to the amendment which is a very important document in this case we're i do not know here it did if there was any joint tenancy your rights is survivorship that amendment extinguished those rights because they had