¶1dissenting:
¶2It is difficult to perceive that we achieve a rational purpose in holding that the several respondents are barred from electing to receive their interests in a manner other than that preferred by a trustee.
¶3The principal opinion leaves unresolved and undefined the question of the “time for distribution.” It may be the date of sale, a trustee’s report of sale, a petition for distribution, or the writing of the checks by the trustee, or the cashing of his check by an individual distributee. The possibility of divestiture must be determined at some point in time but that point remains undetermined.
¶4It is unnecessary to agree with respondents that the death of the life tenant was the point at which possible further divestiture was barred. Here, the trustee had administered the trust estate for the authorized period of one year. He had petitioned the court to direct the sale of the real estate and in such petition computed and stated the interests of the respondents, and had prayed that the court determine the interests of the parties and direct the “distribution of the proceeds of sale accordingly.” Immediately, the respondents, whose respective interests were so stated, filed pleading setting up their agreement and election to take the trust estate in kind.
¶5The principal opinion finds no reason to prevent the termination of the trust by reason of the conditions stated in Guttman v. Schiller (1963), 39 Ill. App. 2d 58, 187 N.E.2d 315, other than the asserted possibility of divestiture prior to the time of distribution.
¶6The decree of the trial court finds that the allegations of the petition to sell real estate filed by the trustee are true. This presumably is a finding that the allegations of the petition which set forth the interests of the several respondents are true and correct. Such findings rationally would support a decree for distribution in kind forthwith.
¶7Language from the opinion in Klocksieben v. Orris (1942), 317 Ill. App. 115, 45 N.E.2d 504, is cited. That will provided for a trustee’s sale within four years after the death of the life tenant mother. The apparent purpose was to seek and procure an advantageous sale. Testator’s daughter died about 14 months after the death of the life tenant mother. The executor of the deceased daughter argued that as against the deceased daughter’s children, the interest should be a part of the daughter’s estate. The facts here are so different that any stated concept of the “time for distribution” is hardly persuasive by comparison.
¶8In Wiener v. Severson (1957), 11 Ill. 2d 347, 143, N.E.2d 225, the testator created a trust to be “immediately terminated” on the death of the survivor of two life tenants and named two children to take at such time. The will provided that if either of the latter should die “before the termination of this trust and before the distribution thereof,” the survivor should take. A beneficiary survived the life tenants but died before the actual distribution. The surviving beneficiary claimed the entire estate because the deceased beneficiary did not survive “actual distribution.” In affirming the decree giving a one-half interest to the estate of the deceased beneficiary, the court stated:
“Under the construction urged by appellant the time at which important rights are determined would depend upon the delay or diligence with which distribution might be made. Since the date of actual payment would be uncertain, and to some extent within the control of interested parties, an intention to make the children’s interests dependent upon survival thereof is unlikely, and should not be inferred in the absence of clear and explicit provisions to that effect. (See 96 C.J.S. 116, Wills, sec. 727, and cases therein cited construing provisions for a gift over on death before payment or distribution as referring to the time the share is payable, rather than the time of actual payment.) 000 Actual receipt may be delayed by so many different causes that courts are unwilling to impute to the testator an intention to make such an event determine the time at which an interest may be divested.” 11 Ill. 2d 347, 352-53, 143 N.E.2d 225, 228.
¶9The Severson opinion quoted language from Costello v. Warnisher (1955), 4 Ill. App. 2d 571, 581, 124 N.E.2d 542, 546:
“The intervals between request and sale, sale and distribution, and then payment were used rather with a contemplation that these events were concurrent.”
¶10So here the intervals between the petition to sell and the sale and distribution of proceeds should be treated as simultaneous or concurrent within the context of the will.
¶11The facts in this case present no overriding reason for delaying the distribution beyond the filing of the petition for sale and the filing of the election for distribution in kind by respondents. I would reverse and remand the case.