first case and our call this morning is going to number twenty three case number one zero seven seven eight seven the citizens national bank of paris versus kids hope united cas this case are not and great controversy a good county children's almost created before the turn century and which only as an orphanage and was incorporated with the state some farmland which was a pay seventy five percent of the income for their county children so when twenty five percent of the uyghur county cemetery that trust further contained language provided in the event either or both of the for organization should cease to operate or exist then said bank is trustee is to distribute said portion or portions of said that income to such charitable organization organizations as it deems worthy of  or sister ms davis also set up a trust and she died in april of one nine hundred seventy one again providing farmland would be placed in the trust with seventy five percent of the that income to the children's home and twenty five percent to that same cemetery and it further provided that event either the aforesaid organization shall cease to function in its present capacity then the part of the trust fund which would have gone to that organization should be divided equally between them or between and then the name three specific charitable organizations being the first methodist church of paris that person memorial foundation jaeger county chapter of the american cancer society in july of two thousand and one corporate entity that continues on the other one show for all intents and purposes cease to exist all the assets liabilities and responsibilities are transferred over to the new corporation whether it should be granted the primary consideration which is court has expressed repeatedly in determining what is meant by a trust or a will is just discover the settlers intent which the court will then effect and the intent must be ascertained by the entire document this to cast you mention of the policy either any reasons why or why we policy i don't see any reason i think before for public policy issues it was a case perhaps where the money was to go to some individual or other non charitable cause perhaps that would be something worth it for public policy purposes we do want to continue the charitable nature of the gift but these gifts are to continue it may be different charity but in their charitable nature side i don't see a public policy provision for that then it's your question  if i understood your earlier comment that once the children's home was assimilated or merged into or taken over by a little system and then it's united that since that a question made to two colleges a spec in the thirty's drake college and penn college penn college came into a position where they had some financial difficulties and the new college was formed called william and college and it turned out th a show that william penn college had the same trustees as penn college they used the same facilities they rented emmet eventually acquired them and then they eventually they had same faculty and penn college even continued existence as a fundraising part of william penn college in that case that i will court determined that no it shouldn't laughs if there were similar languages as case that it's actually a continuation of the same thing and i would think based on that language if the children's home had been maintained  operated in a similar fashion that case would seem to have some controlling impact in that the same facility maybe a different organization with the same facility be operated in the same condition in this case though the  e provides a corporation terminated cease to exist eventually the property was liquidated and it's not a i guess a different title or company running the same business or structure well i would say that the ceased to exist or operate i just i don't see that is that necessarily different language that's not there for it's not functioning that would be the same you could of scenario in any differen even if one structure that existed at the time of wrong because that's true so it's true in response to the other question i would feel that maybe it if the facility is still running still being operated even though it's under a for the proposition that the same activities are going so well i'm i'm not sure that the act provides courses ceases to exist but then does provide that the corporation that still exists acquires all their property and their rights and their liabilities and continues to to function are born izzo for from their perspective i can see why they would say well this is money is coming kids hope and it should be money it's coming to us but we're looking at the perspective that it's with the testator's wanted at the time they drafted the trust and trust said that the gift was to stop when they keep children from no longer existed so we would say that it has ceased and therefore that the income has stopped as of the the point that they no longer existed and then he can hope as the overall or merge corporation would not necessary be entitled t proceedings is our obligation here to identify the testers and i believe that's what the court is always in case of primary obligation and trust her will  intended there be some alternative distributions i think ms davis gave a stronger indication of her will or she specifically mentioned other it could count to charities that she wanted to receive the proceeds if they had become the children's home  we look at some of those other cases i mean i want to and you have the name change you know whenever any of the board of directors you no longer have any the prompt if you look at some of these other cases that have been cited there's there's new entities using the other same facilities you know with church to name it changed because it's basically the same people operating the same thing the church that no longer was following that they said that if lamps were going in the in the hagans way the case and i were using the same facilities under different names were doing many of the same things in this case so there is no corporation there is no same board of directors or is no property so while that we don't deny the kids hope offers many of the same services to foster are now the nature and the amount ok the children home started out as an orphanage i think in one nine hundred eighty was converted more that changed by laws into a group home where they had kids from other well at the sides and your county come and people leg or county the numbers i don't we don't know that you're not arguing that one one plant of superior over another area are mean you're not arguing one plan is to use a period to the other you mean that  better than the it's ok knight is that what you're asking and i'm not asking that i mean asking you what you put if you have a position of neighbors one well one one solution over the other when they seem to be very very comparable to they have many of the same comparable services i would agree with that ok now whether the the number in the scope at the time i don't have that information but they do have a lot of the same services with the servant the change in services making i wouldn't doubt it again and there's no i don't think i've mentioned record other than just my experience was in the courtroom i would say that it probably somewhat less services and they were before because of the time the child was almost running a group home and there's a number of other issues setting from strictly a foster or an orphanage setting that would allow them to take contracts from d c if s for placement what is the relief you're requesting is it just that your motion for summary judgment be granted for this matter be we managed to the circuit court and know that these wills are made in the sixty's and saying we're trying to determine each  which is the primary concern we think of the courts and that the alternative provisions for the gift should apply that there should be any testimony or evidence offered as to if there would be as to what the count was it please the court counsel i am assistant attorney general richard haas neck and i am counsel for the attorney general in her capacity as the representative of the people of the state of illinois who are by provisions as to the blackman trusts which had the restrictive provision the gift over language that said that the gift to the home should laps should go to alternative designated charities if that organization ceased to operate or exist the appellate court said that on this record the proper conclusion is that none of the events identified triggered that lapse clause that the entity by virtue of the merger did not cease to exist that the successor took over its rights and responsibilities and specifically committed to continue its functions and to did so although there has been some variation over time in the exact services provided largely due to the change of the or the evolution of societies use about how best to deal with dependent children and needy children in these circumstances and with respect to the do this trust again the provision is different and the public court said we need to get facts here to show y person had a separate a specific intent or desire about when there might be a condition that would cause a lapse and trigger the gift over provision old only the current circumstances at the time are well meant to determining what the the settlers intent was in each of these cases and that includes and i think the camp fire girls case decision by this court makes clear you look at the surrounding circumstances to determine intent you're not limited to the four corners of the document in that case actually exemplifies very well that principle and for the davis trust i think the the critical missing fact is we don't know how the organization you do county children's home functioning at that time when that trust was created now i would like to sort of take a step back and and they are friday ask a question please do are you are you  on the davis trust yes we are it's essential to figure out the meaning of that language in the settlers intent regarding the continuation of the of the operations or functioning of the home as an organization in its then present capacity to know what it was the record does not show that there was an orphanage that was still operating at the time i think there's been an argument to that effect but the actual facts submitted by the limited stipulation provided by the parties before the attorney general got involved  leave out that sort of critically important element to be able to determine we don't we've got a benchmark of comparison we know that there was no work in each today i don't know that there were a work when it was open in in illinois at the time  operative time for determining the intent of the settle or mistrust in certainly they were providing foster care placement services and the evolution in our society has been to try and do that on a proactive basis as early as possible not having children languish in orphanages for years but rather trying to get a placement right away and that's the evolution of the pre merger organization we don't know how quickly that develops and exactly at what point the orphanage closed but without that critical fact i think the the the circuit court was unable to determine on on this record whether either shot aside should be granted summary judgment and i want to comment here too about the fact that the circuit court rebuffed the suggestion that the attorney general should be involved as a party in this case i think this court's precedents are are awfully clear that the attorney general by common law and longstanding practice and now by statute is the exclusive representative of the ultimate charitable beneficiaries of all charities in illinois and after the suggestion was made that we should be made a part of the circuit court said oh no no we don't you know we're not going to do that well part of the problem with that is just generally is that it means that we have no role in developing the record for being able to determine how to interpret the intent especially of the davis trust where this critical fact is omitted and i'm not going to cast you know blame or point accusatory fingers here about how that stipulation was prepared in the circuit court but it is something when you would the attorney general take the same position with regard to this language if if in fact there were no services provided to people families or children in it if there was a merger and you know this an organization was of sort of been and they were providing services elsewhere but now there would that would would then would then the seem like the settlers intent would be well it's obvious that they wanted to benefit how many instances i think the position would be different i mean you have a clear cases sometimes where a charitable entity no longer can fulfill the function for which the gift was made and they go on to doing something else entirely in the court has stepped in and said oh no you don't you know don't it if intent in knowing donor to have intent is important and just because something was given for one chair will purpose doesn't mean it can be diverted  other charitable purpose now there is a line that has to be drawn but it's sort of a flexible practical one and i think you put your finger on one of the key points here and that is that as there's been this sort of slow progression in the nature of services provided to underprivileged children and independent children kids hope not only committed to continue to provide services as the predecessor entity merged into it had provided  historically but also did so it actually continued to provide foster placement services in in your county and to provide other types of services for needy and independent children in edgar county and i think that factor is  very important to our position that the merger and change over time in the way those services provided did not trigger this lapse provision i'd like to address quickly also just earlier comment or question i have another no i don't think so i mean there's the natural approach to this is to look at a number of relevant factors i suppose a sort of like a bundle of rights type analysis in here it's a bundle of services and the fact that nobody's really running well for ages anymore diminishes the significance to the fact that they don't have an orphanage and they don't need a property and the expense that that would entail that would be diminishing the resources that they could devote to providing the services that they do their mission here is to help children it's not to continue to maintain an edifice or a museum of for some historical purpose and i also did want to answer your question about the policy here although often specify that that there's a gift over in the event that the named entity should cease to exist and if unlike every other court that has addressed this issue and i cited them in our brief in the public or has mentioned one of the landmark cases the hagans will case out of iowa if this court were to say that the language ceased to exist is triggered whenever there's nothing more than a merger of two trubel entities with a succession of the operations of both into a new entity the policy implications i think would be huge because it would suggest that all of a sudden we're getting a country interpretation to language that has a settled meaning both documents to ask them wait a minute here do we need to change this so that we can undo the fact that there's now a precedent in illinois that goes contrary all the other cases throughout the land some of those trusts in wills can no longer be changed it's too late to settle or it's no longer a lot of the policy implications are very significant and that is one of the reasons that we have sought to intervene in this case i do i want to make one little point before returning to the merits of the analysis on both cases and that is in our brief we have mentioned the camp fire girls pronouncement that when you're dealing with a trust so the settlers intent is determined as of the time that the trust is executed that is what the case sa but it seems a little bit unusual because normally when you have a trust provision in a will as in this case a testamentary trust will usually speaks from the moment of death and i went back and looked at the camp fire girls case and it is distinguishable on the ground that that was an interview trust and so the rule that they announced in their case is clearly applicable to an interview i was surprised but the holding doesn't necessarily apply to a testamentary trust i don't think that that will make a difference in this case but i don't want the court to assume necessarily that the rule applicable in one setting necessarily applies in the other or make a holding to that effect without it least focusing on that distinction mr since you you're advocating but as long as the facility continues to operate it says that the gift shall stand as long as the organization shall continue to operate and that's a significant difference if there is a provision in a gift that doesn't just devote charitable funds to a specific purpose or function or type of service the if they're not earmarked but it's a general unrestricted gift then the gift goes to the organization for the general bundle of services that it provides and the assumption there and the log reflects this is that it's intrusted to that organization to see how best to fulfill those services which may vary somewhat over time again there has to be sort of a tipping point where there's such a dramatic difference between what was done before and what may be done later that th organization no longer operates in a reasonably similar fashion to what it did before and that would cause the gift over to be activated but here i think the record is sufficiently clear that the entity did n exist it may have ceased to exist as the statute says as a separate cooperation but it didn't it wasn't extinguished he wasn't like he went through receivership on his assets liquidated then there's somebody trying to buy up the assets as as happened in the back case discussed in the and here the operation of the organization continued they may have close the facility but so to answer your question it would not be critical that the orphanage may still have been open at the time that the i think the two go together they go hand in hand it is an important public policy to honor the intent of a settler that is a paramount consideration in all of these cases the courts are not there to determine what would have been a better provision  for those for the settle or to have made it is their job given sometimes the limits of foresight as to how the world may change over time but to determine what the settlers intent was and i think the camp fire girls case  shows that the care with which the courts assume that responsibility it and i i say that the public policy is consistent with that because these are taxes these are gifts these are gifts made by people who decide that it's important in our society for philanthropic reasons to devote resources to specific particular organizations or quasi is and they're motivated to do so because they believe that that's going to be better for society there are a lot of gifts that are made to educational institutions to hospitals and to to organizations like this one so i think the two really go hand in hand there is no conflict there there is the additional policy consideration here that this language is so common in so doing with respect to the blackman trust in particular is one that would have dramatic impact upon lots of other instruments that are out there we can't say that the language ceased to exist for some idiosyncratic reason and in this case meant something different than the same language directed by lawyers throughout the state is going to have an entirely different meaning especially when there's often much less a little other information to be able to general's brief there's an addition consideration why the court can determine this as a matter of law and that is that it's all documentary evidence even if there were an issue of fact that would normally be subject to some type of d review apart from the summary judgment posture in this case it's sort of like a stipulated bench trial where there's no testimony it's all documentary evidence in the court has reaffirmed the rule recently this past term that in that case there's no deference given to the trial of course the factual findings at all it all becomes essentially a matter of law in the sense that it's a matter for the for the court of review to decide without deference to a trial court's decision so we think the the evidence on the blackman trust appellate court's analysis here focusing on the question whether in light of a provision like this the operative discussion should be whether there is whether the successor organization is still suited to carry on the purposes that it was formed to create and that the creator of the trust intended it to fulfil at the time and to say that a merger essentially breaks that defies that intent is i think as described in one of the cases sort of a finicky legalism that has been astute by by other courts i see that i'm cutting into my co counsel let me ask you this are the merger documents in the record i there is also the other evidence to that effect which is relevant the merger instrument provides that the successor entity into which both buyer entities merge commits to continue to carry out the functions and operations of the your county  children's home from before the merger but there's also evidence that they actually did that they continue to provide forrester placement services and other services to children and egger county and in response to justice carmen's comment i think that continued operation it please the court counsel i don't know how much time i had i understood we were sharing time i mean how many is that correct i mean things like that's what i thought thank you primary goal should be and i understand there's a lot of policy and kids hope does a lot of good things but what did these ladies want when they set it up and they wanted to make sure the children's almost supported they had other entities and your counted and wanted to have taken care of  seven seven eight seven will be taken under advi