Altenheim German Home v. Bank of America

              No. 2--06--0699 Filed: 9-24-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ALTENHEIM GERMAN HOME, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, ))
v. ) No. 05--CH--1029
)
BANK OF AMERICA, N.A., and )
TONYA HINTZPETER, ) Honorable
) Kenneth L. Popejoy,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________________________
JUSTICE BYRNE delivered the opinion of the court:
Herman C. Hintzpeter, the trustor, executed a trust agreement in 1961 to distribute income
and principal of a trust fund to his children, grandchildren, and great-grandchildren. The agreement
provides that plaintiff, Altenheim German Home (Altenheim), is entitled to the principal and
undistributed income of a portion of the trust fund if there is no great-grandchild eligible to receive
it. Defendant Tonya Hintzpeter (Tonya) is an adopted great-grandchild of the trustor and claims a
right to the disputed portion of the trust fund. Defendant Bank of America, N.A., is the successor
in interest to the trustee and supports Tonya's position.
Altenheim filed a complaint for declaratory and injunctive relief to establish its rights under
the trust agreement. Defendants responded with a motion to dismiss under section 2--619(a)(9) of
the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2006)), arguing that the trust