FIFTH DIVISION

									March 29, 2002 

No. 1-00-3376

In re ESTATE OF 

	GENEVIEVE ROMANOWSKI, 

		Deceased.

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Appeal from the

Circuit Court of

Cook County, Probate

Division

Honorable

Jeffrey A. Malak,

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Before she died, Genevieve Romanowski gave her daughter  Evelyn Wall power of attorney in a statutory short form power of

attorney.  Evelyn, acting in that capacity, deeded a piece of

commercial property into trust, designating Genevieve beneficiary

of that trust, and herself and her daughter, Eileen Wall, as the

contingent beneficiaries.  When Genevieve died, the property was

sold with Evelyn and Eileen retaining the proceeds of the sale. 

Edward, Genevieve's son, filed a petition for letters of

administration which was granted over objection.  The estate filed

a motion for summary determination of major issues of respondent's

liability on petition to recover property.  The trial court found

in favor of the estate, ordering Evelyn and Eileen (the Walls) to

turn over all of the proceeds from the sale to the estate.  The

Walls now timely appeal from that order.  No questions are raised on the pleadings.   

	On appeal, the Walls argue that: (1) the trial court erred in

finding there existed no genuine issue of material fact in dispute;

(2) the trial court erred in finding Evelyn Wall acted beyond the

scope of the power of attorney; and (3) the trial court erred in

declaring void the designation of Evelyn and Eileen Wall as

contingent beneficiaries.  For the reasons that follow, we affirm.

I.   STATEMENT OF FACTS 

	On January 10, 1993, Genevieve Romanowski executed a statutory

short form power of attorney designating her daughter, Evelyn Wall,

as her agent for property matters.  The statutory short form power

of attorney was signed by both Genevieve and Evelyn.  No specific

limitations or expansions were designated by Genevieve in the

spaces provided on the form.

	Genevieve owned various assets, one of which included a rent-

producing, multiple-unit, residential and commercial building in

Chicago.  On March 25, 1993, Evelyn, acting under the power of

attorney, executed a land trust agreement, creating trust No. 3189,

with the First National Bank of LaGrange.  Evelyn executed a deed

in trust, conveying the building into the trust.  Evelyn designated

Genevieve as the beneficiary of the land trust and designated

herself and her daughter, Eileen Wall, as the only contingent

beneficiaries upon the death of Genevieve.

	On May 13, 1997, Genevieve died leaving no will.  Genevieve was survived by her four children, Edward Romanowski, John

Romanowski, Nancy Scymczak and Evelyn Wall.  On September 29, 1998,

Evelyn directed the trust to sell the building.  As the trust's

purported contingent beneficiaries, Evelyn and Eileen received and

retained the proceeds from the building sale.  The proceeds totaled

$569,722.64.  

	On January 11, 1999, Edward filed a petition for letters of

administration.  Evelyn filed a cross-petition for letters of

administration, asserting that she sold the building and retained

the proceeds in accordance with the power of attorney and,

therefore, no letters should be issued because there were no debts

or property to administer.  On January 29, 1999, the trial court

granted Edward's petition and letters of administration were

issued.  

	On February 16, 1999, as independent administrator of

Genevieve's estate, Edward filed a petition for citations for

recovery of property.  The petition requested that Evelyn turn over

the proceeds from the sale of the building.  In August of 1999, the

trial court preliminarily enjoined Evelyn from transferring or

dissipating the funds from the sale.  On October 4, 1999, Evelyn

filed a responsive pleading to the petition.  On May 10, 2000, the

estate then filed a motion for summary determination of the major

issue of respondent's liability on the petition to recover

property.

	On August 9, 2000, the motion for summary determination proceeded to hearing.  The trial court found that Evelyn exceeded

the scope of her agency authority.  The court found that Evelyn did

not have the authority to designate herself and Eileen as

contingent beneficiaries of the trust and, therefore, declared the

designation void.  The court ordered that the proceeds of the sale

of the building were property of the estate.  Evelyn now timely

appeals.  

II.  ANALYSIS

	Summary judgment is proper when the pleadings, depositions,

admissions on file and any affidavits show that there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). The

interpretation of a formal power of attorney and the effect of

relevant statutory provisions on the powers granted the agent named

therein are questions of law that are appropriately decided on a

motion for summary judgment.  Wirtz Realty Corp. v. Freund, 308 Ill. App. 3d 866, 873, 721 N.E.2d 589 (1999). The standard of

review on a summary judgment ruling involving statutory

interpretation is de novo.  King v. Industrial Comm'n, 189 Ill. 2d 167, 171, 724 N.E.2d 896 (2000).

	Evelyn argues that the trial court erred in finding that there

existed no genuine issue of material fact in dispute. 

Specifically, Evelyn maintains that the intent of Genevieve with

regard to the building was a disputed issue of material fact.  Evelyn argues in her brief that the "repeated implications

contained in the motion for summary determination as to what

Genevieve wanted to accomplish, versus what she allegedly did

accomplish by executing the Power of Attorney, go to Genevieve's

intent, which is a genuine issue of material fact in dispute

between the parties."

	For the purposes of appeal, this argument is waived.  A party

claiming he has not been given the opportunity to prove his case

must provide a reviewing court with an adequate offer of proof as

to what the excluded evidence would have been.  Chicago Park District v. Richardson, 220 Ill. App. 3d 696, 701, 581 N.E.2d 97 (1991).  The purpose of an offer of proof is to disclose the nature

of the offered evidence for the information of the trial judge and

opposing counsel, and to allow the reviewing court to determine

whether exclusion was erroneous and harmful.  Wright v. Stokes, 167 Ill. App. 3d 887, 522 N.E.2d 308 (1988).  "To be adequate, an offer

of proof must apprise the trial court of what the offered evidence

is or what the expected testimony will be, by whom it will be

presented and its purpose."  Chicago Park District v. Richardson, 220 Ill. App. 3d at 701.  In the absence of an offer of proof, the

issue of whether evidence was improperly excluded will be deemed

waived. Tarshes v. Lake Shore Harley Davidson, 171 Ill. App. 3d 143, 524 N.E.2d 1136 (1988).

	In this case, Evelyn is essentially complaining that she was

not allowed to prove her case where the trial court prevented her from introducing evidence as to Genevieve's intent.  This argument

is not persuasive where Evelyn failed to file a verified answer to

the motion for summary determination on the petition to recover

property.  Although Evelyn had generally argued in her pleadings

that Genevieve intended to name Evelyn and Eileen as contingent

beneficiaries, she did not file an affidavit or offer of proof as

to the evidence from which that intent could be ascertained.  In

fact, the only evidence introduced to support this assertion was

Evelyn's statement in a responsive pleading that the trust officer

at the bank contacted Genevieve and confirmed that she did wish to

have the trust established and to have Evelyn and Eileen named

contingent beneficiaries.  However, Evelyn never tendered an

affidavit of the officer attesting to such or sought to call him as

a witness to make an offer of proof.  By failing to make adequate

offers of proof on this issue, Evelyn cannot complain that the

trial court erred in failing to admit evidence.  Based on the

record before us, we can only speculate whether Evelyn was

prejudiced by the failure to admit evidence of Genevieve's intent,

and therefore Evelyn's argument is waived.

	Even were the argument not deemed waived, the trial court did

not commit reversible error in granting the motion for summary

determination.  A written power of attorney must be strictly

construed so as to reflect the "clear and obvious intent of the

parties."  Amcore Bank N.A. v. Hahnaman-Albrecht, Inc., 326 Ill. App. 3d 126, 135, 759 N.E.2d 174, 182 (2001), quoting Fort Dearborn Life Insurance, Co. v. Holcomb, 316 Ill. App. 3d 485, 499 (2000).  In the case at bar, Genevieve Romanowski utilized the statutory

short form power of attorney in appointing Evelyn as her agent. 

The instrument at issue provided:

	"POWER OF ATTORNEY made this 10th day of January (month)  1993 (year)

	1. I, Genevieve Romanowski 1619 West North Avenue Chicago, IL  60622, (insert name and address of principal) hereby appoint:

	Evelyn Wall 146 North Drexel, La Grange, IL  60525 (insert name and address of agent)

	as my attorney-in-fact (my agent) to act for me and in my

name (in any way I could act in person) with respect to

the following powers, as defined in Section 3-4 of the

'Statutory Short Form Power of Attorney for Property Law'

(including all amendments), but subject to any

limitations on or additions to the specified powers

inserted in paragraph 2 or 3 below:

	(YOU MUST STRIKE OUT ANY ONE OR MORE OF THE FOLLOWING

CATEGORIES OF POWERS YOU DO NOT WANT YOUR AGENT TO HAVE.

FAILURE TO STRIKE THE TITLE OF ANY CATEGORY WILL CAUSE

THE POWERS DESCRIBED IN THAT CATEGORY TO BE GRANTED TO

THE AGENT. TO STRIKE OUT A CATEGORY YOU MUST DRAW A LINE

THROUGH THE TITLE OF THAT CATEGORY.)

	(a) Real estate transactions.

	(b) Financial institution transactions.

	(c) Stock and bond transactions.

	(d) Tangible personal property transactions.

	(e) Safe deposit box transactions.

	(f) Insurance and annuity transactions.

	(g) Retirement plan transactions.

	(h) Social Security, employment and military service

benefits.

	(i) Tax matters.

	(j) Claims and litigation.

	(k) Commodity and option transactions.

	(l) Business operations.

	(m) Borrowing transactions.

	(n) Estate transactions.

	(o) All other property powers and transactions.

	(LIMITATIONS ON AND ADDITIONS TO THE AGENT'S POWERS MAY BE INCLUDED IN THIS POWER OF ATTORNEY IF THEY ARE

SPECIFICALLY DESCRIBED BELOW.)

	2. The powers granted above shall not include the

following powers or shall be modified or limited in the

following particulars (here you may include any specific

limitations you deem appropriate, such as a prohibition

or conditions on the sale of particular stock or real

estate or special rules on borrowing by the agent):                                                              

	3. In addition to the powers granted above, I grant my

agent the following powers (here you may add any other

delegable powers including, without limitation, power to

make gifts, exercise powers of appointment, name or

change beneficiaries or joint tenants or revoke or amend

any trust specifically referred to below):                                                                       

                                                       "   

The standardized form, as provided by section 3 of the "Statutory

Short Form Power of Attorney for Property Law" (Short Form Act) 755

ILCS 45/3 (West 1998), provided a space under paragraph 2 where

specific limitations on the power of attorney can be enumerated and

a space under paragraph 3 where additional powers can be given. 

Both the  space provided under paragraph 2 and the space provided

under paragraph 3 were left blank on the form at issue in this

case.  Genevieve's statutory short form power of attorney was clear

and unambiguous.  Paragraph 3 provided that if the principal wished

to grant the agent the power to name a beneficiary, such a grant

should be added in the space provided.  In determining Genevieve's intent with regard to the designating of contingent beneficiaries,

the court correctly strictly construed the written power of

attorney and considered the fact that the space under paragraph 3

was left blank.  

	Genevieve's alleged oral representation to the trust officer

that she agreed with the creation of the trust and the designation

of contingent beneficiaries would have been inadmissible evidence

of assent to the delegation of trust beneficiaries.  As the estate

recognizes, the parol evidence rule precludes a party from

introducing or relying upon evidence of a party's intention in

entering into a written agreement where that agreement is

unambiguous. 

	Looking to the tenets of Illinois probate law, it is

fundamental that any disposition by way of verbal guidelines is

prohibited by the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1

et seq. (West 1998)).  In re Estate of Reiman, 115 Ill. App. 3d 879, 881, 450 N.E.2d 928 (1983).  Section 4-3(a) of the Probate Act

provides that every will must be in writing and signed by the

testator.  In re Estate of Koziol, 236 Ill. App. 3d 478, 603 N.E.2d 60 (1992).  "'The rules governing the admission of extrinsic evidence to aid in the construction of a will are well settled in

this State, the crucial determination in each case being whether as

a matter of law the will is ambiguous, necessitating extrinsic

evidence. [Citation.]'" In re Estate of Giganti, 231 Ill. App. 3d 828, 831, 596 N.E.2d 1224 (1992).  This same rule applies to contracts.  Chicago Investment Corp. v. Dolins, 93 Ill. App. 3d 971, 418 N.E.2d 59 (1981).  In Illinois, contract interpretation

follows the "four corners" doctrine, so that we look only to the

language of the contract to determine if it is susceptible to more

than one meaning. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462, 706 N.E.2d 882, 885 (1999). A party does not

create an ambiguity and thereby open the door to extrinsic evidence

merely by offering evidence that the testator did not intend to say

what is otherwise clearly stated in a will. Coussee v. Estate of Efston, 262 Ill. App. 3d 419, 425-26, 633 N.E.2d 815 (1994).

	While no Illinois cases are directly on point, in light of the

tenets of law governing testamentary dispositions and contracts, we

hold that it is improper to admit oral evidence as to the

delegation of contingent beneficiaries of a trust through a power

of attorney when it appears the same is governed by an unambiguous

written agreement in existence.  The decision in Estate of Huston v. Greene, 51 Cal. App. 4th 1721, 1727 60 Cal. Rptr. 2d 217, 221 (1997), offers guidance on this issue.  As the California court of

appeals held: 

	"'A power of attorney is a written authorization to an

agent to perform specified acts on behalf of the

principal. [Citation.] The rights and liabilities created

by the exercise of such authority are centered in the law

of agency. [Citation.] [Citation.] Ratification of an

agent's act' can be made only in the manner that would

have been necessary to confer an original authority for

the act ratified...[Citation.] Because a power of

attorney must be in writing, any act performed by the

agent acting under the power of attorney must therefore

be ratified in writing to be valid."

Therefore, because the short form was in writing and was

unambiguous, Genevieve's purported oral assent is not admissible

evidence to establish her intent that Evelyn have authority to name

contingent beneficiaries to the trust.  For these reasons, we hold

that the trial court properly granted summary judgment to the

estate.

	Evelyn next argues that the trial court erred in finding that she acted beyond the scope of her agency authority in designating

herself and her daughter, Eileen, as contingent beneficiaries to

the land trust.  She maintains that these designations were

permissible under the language of the Illinois Power of Attorney

Act (Act) (755 ILCS 45/1-1 et seq. (West 1998)) .

	In 1987 the Illinois legislature enacted the Illinois Power of

Attorney Act.  Under the Act, a power of attorney can be designated

through a short form power of attorney.  The statutory short form

was enacted with the purpose that "the public interest requires a

standardized form of power of attorney that individuals may use to

authorize an agent to act for them in dealing with their property

and financial affairs." 755 ILCS 45/3-1 (West 1998).  The Act

further provides that "[a] short statutory form offering a set of

optional powers is necessary so that the individual may design the

power of attorney best suited to his or her needs in a simple

fashion and be assured that the agent's authority will be honored

by third parties with whom the agent deals, regardless of the

physical or mental condition of the principal at the time the power is exercised."  755 ILCS 45/3-1 (West 1998). The portions of the

statute relevant to this case provide:

	"§ 3-4. Explanation of powers granted in the statutory

short form power of attorney for property. This Section

defines each category of powers listed in the statutory

short form power of attorney for property and the effect

of granting powers to an agent.***	The agent will have

authority to exercise each granted power for and in the

name of the principal with respect to all of the

principal's interests in every type of property or

transaction covered by the granted power at the time of

exercise***but the agent will not have power under any of

the statutory categories (a) through (o) to make gifts of

the principal's property, to exercise powers to appoint

to others or to change any beneficiary whom the principal

has designated to take the principal's interests at death

under any will, trust, joint tenancy, beneficiary form or

contractual arrangement.* * *

	(a) Real estate transactions.  The agent is authorized

to: buy, sell, exchange, rent and lease real estate

(which term includes, without limitation, real estate

subject to a land trust and all beneficial interests in

and powers of direction under any land trust); collect

all rent, sale proceeds and earnings from real estate;

convey, assign and accept title to***trusts and exercise

all powers under land trusts***.

	* * *

	(n) Estate transactions.  The agent is authorized to:

accept, receipt for, exercise, release, reject, renounce,

assign, disclaim, demand, sue for, claim and recover any

legacy, bequest, devise, gift or other property interest

or payment due or payable to or for the principal; assert

any interest in and exercise any power over any trust,

estate or property subject to fiduciary control;

establish a revocable trust solely for the benefit of the

principal that terminates at the death of the principal

and is then distributable to the legal representative of

the estate of the principal***provided, however, that the

agent may not make or change a will and may not revoke or

amend a trust revocable or amendable by the principal or

require the trustee of any trust for the benefit of the

principal to pay income or principal to the agent unless

specific authority to that end is given, and specific

reference to the trust is made, in the statutory property

power form."  755 ILCS 45/3-4 (West 1998).

	In interpreting the Act, we hold that Evelyn exceeded her scope of authority as Genevieve's agent in naming herself and her

daughter as contingent beneficiaries of the trust.  In Fort Dearborn Life Insurance Co. v. Holcomb, 316 Ill. App. 3d 485, 496, 736 N.E.2d 578 (2000), this court noted that the omission of

paragraph 3 from a power of attorney form evinces an intent by the

principal that his agent not be granted any additional powers,

"such as the power to name or change beneficiaries." (Emphasis

omitted.) In that case, Paul Downing appointed his wife Susan as

his agent in a document entitled "Power of Attorney."  After this

appointment, Paul and Susan began experiencing marital problems. 

A dissolution of marriage was pending when Paul died.  Paul was

named the insured on two life insurance policies issued by the Fort

Dearborn Life Insurance Company.  Shortly before Paul died, Susan

executed change of beneficiary forms naming herself as sole

beneficiary of the policies.  In holding that Susan, as an agent,

could not name herself as the beneficiary of her estranged

husband's life insurance policy, this court noted  "[a] written

power of attorney must be strictly construed so as to reflect the

'clear and obvious intent of the parties. [Citation.]"  Fort Dearborn Life Insurance Co. v. Holcomb, 316 Ill. App. 3d at 499.

	In applying this analysis to the case at bar, we again

acknowledge that Genevieve left the space for providing additional

powers under paragraph 3 blank.  Paragraph 3 provides that "in

addition to the powers granted above, I grant my agent the

following powers (here you add any other delegable powers including, without limitations, power to make gifts, exercise

powers of appointment, name or change beneficiaries or joint

tenants or revoke or amend any trust specifically referred to

below)."  Genevieve did not specify under paragraph 3 of the

statutory short form that Evelyn had the power to make a

designation of contingent beneficiary to the land trust.  As the

trial court stated during the hearing on the preliminary

injunction: 

	"The Power of Attorney Act very specifically states that

you have all of these powers, A through O, and they're

very broad powers, but that included in those powers is

not the authority to change any disposition, to change a

joint-tenancy account, a payment-on-death account, a

trust, anything."

Genevieve's failure to specifically enumerate any additional powers

under paragraph 3three evinced an intent that Evelyn not be granted the

power to name or change beneficiaries to the trust.  Fort Dearborn Life Insurance Co. v. Holcomb, 316 Ill. App. 3d at 496.

	The Walls argue that the language in subsection 3-4(a)

addressing land trusts allowed Evelyn to name the contingent

beneficiaries to the trust in question.  We disagree.  As

previously stated, section 3-4 states that "the agent will not have

power under any of the statutory categories (a) through (o) to make

gifts of the principal's property, to exercise powers to appoint to

others or to change any beneficiary whom the principal has designated to take the principal's interests at death under any

will, trust, joint tenancy, beneficiary form or contractual

arrangement."  755 ILCS 45/3-4 (West 1998).  While subsection (a)

does permit the creation of a land trust, it does not permit

distribution of that land trust.  The Walls' interpretation of

subsection (a) directly conflicts with subsection 3-4(n)'s

provision that "[t]he agent is authorized to***establish a revocable trust solely for the benefit of the principal that terminates at the death of the principal and is then distributable

to the legal representative of the estate of the principal. 

(Emphasis added.) 755 ILCS 45/3-4(n) (West 1998).  When Evelyn set up the trust that is the subject of this case, subsection 3-4(n)

authorized her to set up a revocable trust for the sole benefit of

Genevieve which was to terminate upon Genevieve's death.  However,

that subsection of the Act also provided that Evelyn only had the

authority to make the trust distributable to the legal

representative of the estate upon Genevieve's death.  To hold that

subsection (a) allows the agent to name any person as a contingent

beneficiary of a trust would be wholly inconsistent with subsection

(n).  In interpreting a statute, courts must read the statute as a

whole and in a manner that makes its provisions consistent with

other statutes.  Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 634 N.E.2d 712 (1994). 

	We hold that when read in conjunction with one another,

sections 3-4(a) and 3-4(n) of the Act require that, for an agent to possess the power to name or change contingent beneficiaries under

the Act, the power of attorney form must specifically state that

the agent has such powers.  While Illinois state case law is sparse

on this issue, the District Court for the Northern District of

Illinois, interpreting Illinois law, has supported this

interpretation.  In Taylor v. Kemper Financial Services, Co., __________ No. 98 C 0929. (N. D. Ill. 1999), the district court held that an agent

does not have the power to change any beneficiary whom the

principal has designated to take the principal's interests at

death, unless the power to do so has been written in paragraph 3 of

the statutory short form.  In that case, since the space below

paragraph 3 was left blank, the court strictly construed the power

of attorney when concluding that the form did not reflect a clear

intent to grant the agent authority to change the named

beneficiary.

	At the hearing on the preliminary injunction below, the trial court did express a passing concern that subsection 3-4(n) of the

Act was "talking about dealing with an inter vivos trust, a trust

where there is principal and income," and not necessarily a land

trust.  However, as case law illustrates, the owner of a beneficial

interest in a land trust is accorded basic powers, two of which are

to receive all income generated by the properties and to receive

the proceeds of any sale of the property.  In re Estate of Crooks, 266 Ill. App. 3d 715, 722, 638 N.E.2d 729 (1994).  Land trusts are

regarded, therefore, as income-producing trusts as well and, as a result, the provisions of subsection 3-4(n) logically also apply to

land trusts.  In addition, the court in Payne v. River Forest State Bank & Trust Co., 81 Ill. App. 3d 1128, 1135, 401 N.E.2d 1229 (1980), quoting Schumann-Heink v. Folsom, 328 Ill. 321, 327 (1927), noted, in applying the trust principles articulated in cases

involving inter vivos trusts to a case involving a land trust, " '[b]ecause a new use is being made of the trust does not mean new

principles of law are to be applied in determining the rights of

the trustee [or], the cestuis que [trust].' "  Consequently we hold that the language of subsection 3-4(n) applies to land trusts as

well.

	Evelyn makes a final argument that the application of section

3-4 is limited in that it "clearly refers to designations made

prior to appointment of an agent pursuant to power of attorney." 

However, Evelyn has cited no case law supporting the notion that

section 3-4 only applies to existing estate plans, trusts and

testamentary dispositions.  On the contrary, since the Act creates

the general power of an agent to create a trust, logic dictates

that the guidelines in the Act would not be limited only to trusts

created before designation of the power of attorney.  A plain

reading of the Act grants the agent the power to create trusts but

prohibits the agent from naming himself or herself as a beneficiary

(contingent or otherwise) without specific authority.  Further,

paragraph 3 of the instrument in question specifically states that

if the principal wants the agent to have the power to name beneficiaries, the principal should specifically list that power in

the space provided.  As this space was left blank by the principal,

the trial court correctly ruled that the agent's designation of

herself and her daughter as contingent beneficiaries was void. 

	For the foregoing reasons we affirm the decision of the trial court.

	Affirmed.

	GREIMAN and REID, JJ., concur.