Continental Bank v. State of Ill.

                                             First Division
                                             September 30, 1996









No. 1-95-0942

CONTINENTAL BANK, N.A. of Chicago,      )    APPEAL FROM THE
Illinois, as Trustee of the Residuary   )    CIRCUIT COURT OF
Trust Created Under the Will of         )    COOK COUNTY.
Frederick W. Croll, Dated 3/8/56;       )
ROBERT F. CROLL, RICHARD C. CROLL, and  )
JOHN B. CROLL,                          )
                                        )
     Plaintiffs/Petitioners-Appellees,  )                        
                                        )
     v.                                 )
                                        )
THE STATE OF ILLINOIS,                  )    
                                        )
     Defendant/Respondent-Appellant,    )
                                        )
THE COUNTY OF COOK; and their agent,    )
EDWARD J. ROSEWELL, Cook County         )
Treasurer,                              )
                                        )
     Defendants,                        )
                                        )
JUDY BAAR TOPINKA, Illinois State       )
Treasurer; and THE PEOPLE OF THE STATE  )
OF ILLINOIS, ex rel. JAMES E. RYAN,     )
Attorney General,                       )    HONORABLE
                                        )    FRANCIS BARTH,
     Defendants/Respondents-Appellants. )    JUDGE PRESIDING.


     JUSTICE WOLFSON delivered the opinion of the court:
     Every once in a while a court is required to pick through
the bones of a statute that has been laid to rest by legislative
fiat.  This is such a case.  The statute is the Illinois
Inheritance and Transfer Tax Act, repealed in 1982 but of
consequence in cases where the issue concerns reassessment of a
tax already paid.
BACKGROUND
     This is an appeal by the State of Illinois (State) from a
judgment entered on a petition for inheritance tax reassessment
brought by the Continental Bank (Continental), as trustee of a
residuary trust created by the will of Frederick W. Croll
(Croll).  The facts are not in dispute.
     Croll died on July 15, 1959, leaving an estate valued at
$9,789,125.77 to his wife, Florence, and his three sons, Robert,
Richard, and John.  The distribution of the estate was governed
by Croll's will.  Among other things, the will provided for the
creation of two trusts.  Half of the estate was to be placed in a
trust for the benefit of Florence (the Marital Trust).  The
remaining half of the estate (the residuary estate) was to be
divided equally into three separate trusts, one for the benefit
of each of the three children (collectively referred to as the
Residuary Trust).  The trusts were to be administered by a
corporate trustee (Continental) and two individual trustees.  If
possible, Florence and one of the sons or two of the sons were to
act as the individual trustees.
     The Marital Trust is what is at issue in this case.  Under
the terms of the will, Florence was to receive the income from
the corpus of the Marital Trust during her life (life estate). 
Florence had no power to withdraw the principal.  But if the 

income from the trust was insufficient for Florence's support,
maintenance, or medical needs, the corporate trustee had the
uncontrolled discretion to distribute, in any year, up to 5% of
the corpus of the Marital Trust to Florence.
     Florence was given a testamentary power of appointment over
the corpus of the trust.  This meant that, at her death, Florence
could distribute the principal of the trust as appointed in her
will.  In the event that Florence failed to exercise her right of
appointment, the corpus of the trust was to be added to the
residuary estate and distributed according to the provisions in
Croll's will regarding the Residuary Trust.
     The distribution of Croll's estate was subject to taxation
in accord with the Illinois Inheritance and Transfer Tax Act (the
Act).  Ill. Rev. Stat. 1959, ch. 120, sec. 375 et. seq., now
repealed, P.A. 82-1021. 1982 Ill. Laws 2902, 2909.  In order to
determine the amount of taxes to be paid by Croll's estate,
certain assumptions were imposed by law.
     Taxes were assessed on the value of the life estate and the
remainder in accord with sections 1, 2, and 25 of the Act.  Ill.
Rev. Stat. 1959, ch. 120, sec. 375, 376, and 398.  Section 25
provided:
     "When property is transferred or limited in trust or
     otherwise, and the rights, interest or estates of the
     transferees or beneficiaries are dependent upon
     contingencies or conditions whereby they may be wholly
     or in part created, defeated, extended or abridged, a
     tax shall be imposed upon the transfer at the rate
     which would be applicable under the provisions of this 
     Act on the happening of the most probable of the
     contingencies or conditions . . . On the happening of
     any contingency whereby the property, or any part
     thereof is transferred to a person, corporation or
     institution exempt from taxation under the provisions
     of the inheritance tax laws of this State, or to any
     person, corporation, or institution taxable at a rate
     less than the rate imposed and paid, the person,
     corporation or institution shall be entitled to a
     reassessment or redetermination of the tax and to a
     return by the State Treasurer of so much of the tax
     imposed and paid as is the difference between the
     amount paid and the amount which the person,
     corporation, or institution should pay under the
     inheritance tax laws.
                         *  *  *
          Where an estate for life or for years can be
     divested by the act or omission of the legatee or
     devisee it shall be taxed as if there were no
     possibility of such divesting."
     In accord with section 25, taxes were paid by Croll's estate
for the transfer of the life estate to Florence and the remainder
to the three sons, based on the assumption that the remainder
would be distributed to the residuary estate upon Florence's
death, without her exercising the right of appointment.
     The value of the life estate was determined by multiplying
the fair market value of the corpus of the trust by an assumed
interest rate of 5%, and then by Florence's life expectancy
(based on mortality tables).  Ill. Rev. Stat. 1959, ch. 120, sec.
376.  The value of the remainder was determined by subtracting
the value of the life estate from the fair market value of the
corpus of the marital trust.  Ill. Rev. Stat. 1959, ch. 120, sec.
376.
     It is clear from the computations that, in valuing the life
estate and remainder, it was assumed that Florence would take the
income from the trust but no additional distributions of
principal.  The life estate was valued at $2,625,574.91 and the
remainder was valued at 3,102,556.20.
     Florence died testate in February 1992.  In her will,
Florence exercised her power of appointment over the corpus of
the trust.  She thereby extinguished the remainder interest that
had been created by Croll's will.  In accord with section 1(4) of
the Act, the property over which a power of appointment is
exercised is no longer deemed a taxable transfer from the
original (Croll's) estate, but instead is treated as if it were
the property of the donee's (Florence's) estate.  Ill. Rev. Stat.
1959, ch. 120, par. 375(4).  Thus, the inheritance taxes that had
been paid by Croll's estate, based on the assumption that the
right of appointment would not be exercised, were now recoverable
under the provisions of section 25 of the Act.
     A petition for reassessment of the inheritance tax for
Croll's estate was submitted by Continental Bank and Croll's sons
(petitioners).  The petitioners contended that a refund was due
on the amount of taxes paid on the remainder interest, without
regard to any distributions that may have been made to Florence
from the corpus of the Marital Trust.  The petitioners requested
a refund in the amount of $434,357.89.
     The State agreed that a reassessment and refund were in
order.  However, the State argued that the reassessment should
take into account any distributions actually made by the
corporate trustee to Florence from the corpus of the Marital
Trust.  Such distributions, said the State, were transfers from
Croll's estate to Florence, subject to taxation.  Any such
transfer would reduce the amount of refund due under the
reassessment.  The State requested trust records to determine
what, if any, distributions had occurred.
     After a hearing on the matter, the circuit court ruled that
any distributions of principal were "legally irrelevant" to the
reassessment and denied the State's request for trust records.  A
motion for reconsideration was denied.
     The circuit court entered an Order Reassessing the
Inheritance Tax and judgment was entered on the court's finding
that a refund of $434,357.89 was due.  The State appealed and the
circuit court stayed the refund pending appeal.

OPINION
     The single issue before this court is whether a trustee's
discretionary distributions of principal from a marital trust to
the life tenant are relevant to the reassessment and refund of
inheritance taxes on the remainder interest under the provisions
of the Illinois Inheritance and Transfer Tax Act.
     It is petitioners' position that discretionary transfers of
principal by a trustee are irrelevant because the tax laws make
no specific reference to such transfers in any part of the Act,
particularly in section 25, when discussing reassessment.  This
silence, say the petitioners, should be construed in favor of the
taxpayer.
     The State contends that the resolution of this issue is
governed by In re the Estate of Curtis, 28 Ill. 2d 172, 190 N.E.2d 172 (1963).  Based on the reasoning in Curtis, the State
contends that any distributions of principal made to Florence
from the marital trust must be considered transfers taxable to
Croll's estate and taken into consideration when reassessing the
tax on the remainder interest.
     Analysis of the issue before this court begins with an
understanding of Curtis.
     John G. Curtis died testate in 1956.  His will provided for
the creation of a marital trust for the benefit of his wife.  In
addition to receiving a life estate in the income from the trust,
the widow was granted "the right at any time and from time to
time to withdraw any part or all of the principal of the Marital
Trust."  28 Ill. 2d  at 174.  If any principal remained after the
widow's death, it was to be added to a residuary trust for the
benefit of other named successors.
     Based on the Illinois Inheritance Tax Act in effect at that
time, the remainder interest was taxed based on the assumption
that the widow would not exercise her right to withdraw and that
the principal would become part of the residuary trust.  Ill.
Rev. Stat. 1955, ch. 120, par. 398.  In 1958, however, the widow
withdrew the entire principal of the marital estate.
     The trustees petitioned for a reassessment of the
inheritance tax.  Since the Act did not say how to treat a
remainder interest if a power of withdrawal was exercised, the
trustees reasoned that the power to withdraw should be likened to
a power of appointment under subsection 4 of section 1 of the
Act.  Ill. Rev. Stat. 1955, ch. 120, par. 375(4).  If so treated,
the remainder interest of the marital estate would not be a
taxable transfer in the estate of the deceased.  Instead, the
remainder interest would shift to become a part of the widow's
estate, taxable only at the time of her death.  Employing this
reasoning, a refund of all of the inheritance taxes paid on the
remainder interest was requested.
     The State agreed that a reassessment was proper, but denied
that the remainder interest in the marital estate should be
excluded when recomputing the inheritance taxes for Curtis'
estate.  The remainder interest, argued the State, should be
taxed in the deceased estate as a transfer to the widow.
     The circuit court found in favor of the State and the
decision was affirmed on appeal.  On appeal, our Supreme Court
found that the remainder interest was a taxable part of the
deceased's estate.  Without deciding whether the power to
withdraw was a right of appointment, the Court held that "the
privilege of withdrawal was a valuable right flowing from the
trustor to his widow, and although the right itself was not
immediately taxable to the widow, when she chose to exercise that
right and accept the property, the transfer was completed and the
property became taxable to her as a transfer from the trustor." 
In re the Estate of Curtis, 28 Ill. 2d  at 179.
     Despite the fact that there was no explicit language in the
Inheritance Tax Act which would support its finding, the Illinois
Supreme Court reached its conclusion, saying that "the intention
of the legislature is to be gathered not only from the language
used but also from the reasons for the enactment and the purposes
to be thereby attained."  In re the Estate of Curtis, 28 Ill. 2d 
at 179.  The Court also noted that "the Inheritance Tax Act was
designed to tax the privilege of succeeding to the property
rights of a deceased" and the timely collection of the taxes. 
The Court said:
     "It is unbelievable that our legislature intended by
     this act to exempt from the donor's estate all property
     passing by the exercise of a power of appointment and
     thereby delay the collection of any inheritance tax
     thereon until the death of the donee of such power.  To
     so hold would be to materially affect the revenue
     producing purpose of the entire Inheritance Tax Act."
     The Curtis decision guides us to our conclusion in this
case.  Curtis involved a remainder interest to the residuary
estate that was extinguished, as does this case.  But it was the
treatment of the remainder interest when a power of withdrawal
was exercised that was at issue.  The Act made no provision for
such an event.  The court had to look to the purpose of the Act
to determine the proper way of handling a situation which was not
covered by the Act.
     In this case the Act tells us what to do when the remainder
interest is extinguished by a testamentary power of appointment  
--- add it to the estate of the person exercising the power of
appointment and remove it from the estate of the donor of the
power of appointment.  The question is whether, when reassessing
taxes on the trustor's estate due to the extinguished remainder
interest, we must ignore the realities that have transpired since
the death of the donor and be tied to the mathematical figure
that was determined earlier, based on the number of assumptions
that were made to facilitate the recoupment of taxes.  We think 
that question must be answered in the negative.
     Viewing the Inheritance Tax Act in light of the Curtis
decision, the trial court erred when it decided that any
distributions of principal from the marital trust made by the
trustee to Florence were irrelevant to the reassessment of
inheritance taxes.  The purpose of the Act is to impose a tax on
"the transfer of any property, real, personal, or mixed, or of
any interest therein or income therefrom, in trust or otherwise,
to persons, institutions or corporations, not hereinafter
exempted..."  Ill. Rev. Stat. 1959, ch. 120, par. 375.  It was
the intention of the legislature to tax this kind of transfer.
     When a transfer involved a future, contingent interest,
certain legal fictions had to be created to facilitate the timely
collection of taxes.  Where property or an interest in property
was divided into a life estate and a future, contingent
remainder, the Act provided for a means of valuing both of these
interests for taxation purposes.  Ill. Rev. Stat. 1959, ch. 120,
par. 376.  Payment of taxes was not delayed on the value of the
future, contingent interest.  Instead, taxes were levied on the
basis of certain assumptions.
     Section 25 of the Act set forth the manner in which
contingent interests were to be calculated.  This section
provided the basis for making certain assumptions and the means
to obtain a reassessment and refund if the assumptions proved to
be in error, resulting in an overpayment of taxes.
     Section 25 provided that tax should be
     "... imposed upon the transfer at the rate which would
     be applicable under the provisions of this Act on the
     happening of the most probable of the contingencies or
     conditions, based on the likely number and relationship
     of those to whom the property will eventually be
     transferred taking into consideration any applicable
     mortality and other experience tables and the number
     and ages of all persons in being when the tax is
     assessed." (Emphasis added.)
     For example, in this case the contingent remainder interest
was to pass to the Croll sons.  Thus, the tax rate assessed
against the remainder interest was determined on the basis of the
sons' familial relationship to the deceased and the statistical
assumption that they would outlive their mother and complete the
transfer.
     In addition, according to another paragraph of section 25,
the Act imposed the assumption that where an estate could be
divested by an act or omission of the legatee, taxation should be
imposed as if there were no such possibility of divestiture.  In
other words, where, as in this case, the future contingent
interest could be expunged by a testamentary right of
appointment, this possibility was ignored when determining the
inheritance taxes on the estate. 
     As noted earlier, the Act specifically provided that where a
person is granted a right of appointment and exercises that
right, the transfer is treated as though the property was
"bequeathed or devised by such donee by will."  Ill. Rev. Stat.
1959, ch. 120, par. 375(4).  This provision has been interpreted
to mean that the taxable transfer shifts from the estate of the
donor to the estate of the donee.  See J. Nelson Young, Curtis
Decision Marks A Significant Change in the Illinois Inheritance
Tax, 52 Ill. Bar. J. 226, 228 (1963).
     Section 25 states that, "[o]n the happening of any
contingency" in which the property would become exempt from
taxation or that the tax rate would be lower, a reassessment or
redetermination of the tax is in order, with a return "of so much
of the tax imposed and paid as is the difference between the
amount paid and the amount which the person, corporation, or
institution should pay under the inheritance tax laws."
     Consequently, in this case, once Florence exercised her
testamentary right of appointment, the remainder interest was no
longer a taxable transfer in Croll's estate and the taxes already
paid were subject to reassessment.
     Although section 25 does not address distributions of
principal from the life estate or, for that matter, any other
events that might affect the remainder interest, the language
cited above does not preclude consideration of such events when
deciding the amount that the person "should pay."
     In the present case, Florence did not have the ability to
withdraw the entire principal, as the donee did in Curtis.  But
she was not without power over the distribution of principal from
the marital trust.  The corporate trustee could be removed by
Florence and her son, Florence could have refused to accept the
distribution of funds, and she need not have requested additional
funds.  In any event, the right to receive distributions of
principal was a "valuable right flowing from the trustor to his
widow," which, though not immediately taxable, became subject to
taxation when the transfer was completed.  In re the Estate of
Curtis, 28 Ill. 2d  at 179.
     The Marital Trust provided that the corporate trustee could
distribute up to 5% of the corpus of the marital trust yearly. 
Since the marital trust in this case exceeded four million
dollars, there was a potential for Florence to receive a
significant amount of money over her lifetime.  As in Curtis, we
find it "unbelievable that the legislature intended to exempt"
such funds from taxation.  
     For this reason, a reassessment of inheritance taxes should
not have been limited to the extinguished remainder interest, but
should have taken into consideration distributions, if any, of
principal to the life tenant (Florence).  Florence may not have
received any of the corpus of the trust, but the State was
entitled to discover whether any distributions had been made.
     The Curtis decision generated much discussion among the
leading tax authorities of this state.  It was noted by Professor
Young, who was generally recognized as a tax law authority, that
based on the 1959 amendment to section 25 of the Inheritance Tax
laws, application of Curtis could result in significant tax
savings to the tax payer.  See J. Nelson Young, Curtis Decision
Marks A Significant Change in the Illinois Inheritance Tax, 52
Ill. Bar J. 226, 230-31 (1963).  It was suggested that, if the
legislative intent to protect revenue was to be furthered,
amendment was necessary.
     The legislature responded, amending the Act.  As proposed by
Professor Young, where the testator granted a person an unlimited
power to "withdraw, invade, consume or appropriate" the future
contingent remainder interest for oneself, the assumption in
section 25 was changed.   For the purposes of determining the
inheritance tax due, it would now be assumed that the power would
be exercised.  As always, the tax was subject to reassessment
should this assumption be incorrect.
     Petitioners rely on the fact that amendment of the law
subsequent to Curtis addressed only the "unlimited" power of a
donee to invade principal.  This fact, they say, supports their
position that discretionary distributions of principal by a
trustee based on need factors are not intended to be interpreted
as taxable transfers in the donor's estate and should not be
considered is the reassessment.
     We do not see any real difference, for inheritance tax
purposes, between an unlimited power to withdraw principal by a
donee and a discretionary power of distribution by a trustee. 
Professor Young wrote:
     "Applying the Curtis doctrine to transfers by which a
     trustee is given a completely discretionary power to
     invade corpus for the income beneficiary, the section
     25 tax would be assessed on the assumption that the
     power would be exercised to the fullest extent in the
     same manner as if the income beneficiary had been given
     the power of withdrawal."  52 Ill. Bar J. 226, 235.
     Although the legislature did not act on this recommendation 
when it amended the statute, we do not interpret the
legislature's silence in this area to mean that it intended to
exempt such transfers from taxation.
     Certainly, under the 1959 amendment, when contingencies
which would serve to increase the tax assessment occur, a section
25 reassessment is not necessary.  Nevertheless, where, as here,
a remainder interest is extinguished, resulting in a tax
reassessment and refund, it makes sense to take into account all
actual events which would factor into the reassessment.
CONCLUSION
     Based on the reasoning in Curtis, distributions of principal
from a marital trust should be deemed transfers taxable in the
donor's estate.  The general purpose of the Act is to tax all
such transfers.  To accomplish this purpose in a timely fashion
certain legal fictions initially are assumed.  However, it is
appropriate, when a reassessment is requested, that the
recalculation should dispel legal fictions and take into account
what actually happened.  When calculating the refund due, the
trial court should consider any distributions of principal to
Florence.  
     The trial court's order is vacated and this cause is
remanded for proceedings consistent with this opinion.
     VACATED AND REMANDED.
     BUCKLEY, J., concurs.
     CAMPBELL, P.J., dissenting. 
1-95-0942
     JUSTICE CAMPBELL, dissenting:
     I respectfully dissent from the opinion of the majority.  
Section 25 of the 1959 version of the Illinois Inheritance Tax
Act (Act) provides for a tax upon the transfer of inherited
property as well as for reassessment of the tax when a power of
appointment is exercised contrary to an assumption upon which a
prior tax was assessed:
          "When property is transferred or limited in
          trust or otherwise, and the rights, interest
          or estates of the transferees, or benefici-
          aries are dependent upon contingencies or
          conditions whereby they may be wholly or in
          part created, defeated, extended or abridged,
          a tax shall be imposed upon the transfer at
          the rate which would be applicable * * *.
                                   * * *
          "On the happening of any contingency whereby
          the property, or any part thereof is trans-
          ferred to a person, corporation or institu-
          tion exempt from taxation under the provi-
          sions of the inheritance tax laws of this
          State, or to any person corporation or insti-
          tution taxable at a rate less than the rate
          imposed and paid, the person, corporation or
          institution shall be entitled to a reassess-
          ment or redetermination of the tax and to a
          return by the State Treasurer of so much of
          the tax imposed and paid as is the difference
          between the amount paid and the amount which
          the person, corporation or institution should
          pay under the inheritance tax laws."  Ill.
          Rev. Stat. ch. 120, par. 398, sec. 25 (1959).
          (Emphasis supplied).
Thus, the Act assessed a tax on the contingent future interest
under Frederick Croll's estate.  See Ill. Rev. Stat. ch. 120 par.
375, sec. 1(4) (1959).  That future interest was extinguished
when Mrs. Croll exercised a testamentary power of appointment and
directed that the principal of the Trust be transferred to her
estate.  That transfer was not subject to tax.  As quoted above,
section 25 of the Act provides that where a property interest is
extinguished due to the exercise of a power of appointment over
the property, reassessment and redetermination of tax is appro-
priate.  
     The Act is structured such that a tax is assessed on certain
assumptions, and those assumptions hold, regardless of subsequent
events, unless the Act provides otherwise.  The legislature
assumed that Mrs. Croll's power of appointment would go unexer-
cised and that the remainder interest would eventually vest.  The
Act therefore assessed a tax on the contingent future interest
under Frederick Croll's estate.  
     Our supreme court has definitively held that: "[t]axing
statutes are to be strictly construed.  Their language is not to
be extended or enlarged by implication, beyond its clear import. 
In cases of doubt they are construed most strongly against the
government and in favor of the taxpayer."  Arenson v. Department
of Revenue, No. 2-95-0940 (Second Dist. April 26, 1996) (citing
Van's Material Co., Inc. v. Department of Revenue, 131 Ill. 2d 196, 545 N.E.2d 695 (1989); Mahon v. Nudelman, 377 Ill. 331, 335
(1941).)  Thus, it is apropos that the Act is completely silent
on distributions of principal by a trustee.  There is no refer-
ence in the act to Trustee distributions of principal affecting
either the assessment of tax on a life estate or the reassessment
of tax on the exercise of a power of appointment.     The Act
therefore cannot be contorted to extrapolate the imposition of a
tax on discretionary distributions of principal by a corporate
trustee.  
     However, contrary to the record, the majority engages in
hypothetical supposition in determining that the Treasurer may
consider any distributions possibly made to Mrs. Croll.  For
example, the majority speculates that "the corporate trustee
could be removed by Florence and her son," or that "Florence
could have refused to accept the distribution of funds."  (Empha-
sis supplied).  The record does not reveal that either of these
events in fact occurred.  
     In addition, the majority presumes that the petitioners are
attempting to avoid a tax by claiming that certain transfers are
"exempt" from taxation.  The majority has misread section 25. 
Section 25 provides for a refund of taxes paid to either an
exempt individual, corporation, etc., or to an individual,
corporation, etc., "taxable at a rate less than the rate imposed
and paid."  Petitioners are claiming the latter, not the former.
     Moreover, the present case is distinguishable from In re
Estate of Curtis, 28 Ill. 2d 172, 190 N.E.2d 723 (1963), upon
which the majority relies.  In Curtis, the life tenant of a
marital trust was granted an unlimited power to withdraw funds
from the trust principal.  Shortly after the death of the trust-
or, and long before her own death, the life tenant, Mrs. Curtis,
exercised this power by withdrawing all of the principal, thereby
extinguishing the remainder interest in the trust.  After Mrs.
Curtis' death, the trustees petitioned for a reassessment of the
tax originally paid on the remainder interest following her life
estate.  The trustees argued that Mrs. Curtis' exercise of her
power of withdrawal was the same as the exercise of a power of
appointment, which, under section 1(4) of the Act, would mean it
was taxable against her estate as a transfer upon her death, not
upon the death of her husband.  Therefore, the trustees argued
that the inheritance tax payable by reason of the trustor's death
was less than previously assessed, and the estate was entitled to
a refund of approximately $100,000.  Curtis, 28 Ill. 2d  at 175,
     The State responded that the total withdrawal of the princi-
pal by Ms. Curtis was not the same as an exercise of a power of
appointment, and that while reassessment was necessary, the
remainder interest of the marital trust should be excluded in
computing the reassessment.  Rather, the State argued that the
value of the remainder should be taxed in the trustor's estate as
a transfer to his widow, thereby resulting in a reduced refund of
approximately $12,000.  The circuit court agreed with the State
and reassessed the inheritance tax accordingly.
     On appeal, our supreme court affirmed the reassessment of
the circuit court, holding that "under the circumstances of this
case,"  the value of the remainder interest of the marital trust
was properly taxed as a transfer from the donor to his widow. 
Curtis, 28 Ill. 2d  at 178-79.  While the Curtis court did not
conclude that the withdrawal privilege was a power of appointment
per se, the majority concludes without authority that there is no
"real difference" between an unlimited power of a donee to
withdraw principal and a discretionary power of distribution by a
trustee.       
     In the present case, distributions of principal under this
instrument were limited by an ascertainable standard.  The
corporate trustee had the sole right under circumstances re-
stricted to insufficient income for proper support, maintenance
and medical attention to make small distributions to Mrs. Croll
from the trust corpus.  Mrs. Croll had no power of withdrawal,
but rather a mere testamentary power of appointment. (The major-
ity incorrectly states that Mrs. Croll was "not without power
over the distribution of principal from the marital trust.")
While Mrs. Curtis circumvented the trust apparatus by terminating
the trust and taking the entire principal shortly after her
husband died, Mrs. Croll could not have done the same.  The
trustee had the sole power of distributing to Mrs. Croll a
maximum of 5% per annum of the principal, at which rate it would
have been mathematically impossible to extinguish the principal
through distributions.  Thus, it is clear that distributions of
principal were limited by an ascertainable standard.
     The primary rule of statutory construction is to ascertain
and give effect to the intent of the legislature.  Legislative
intent is best determined by the statutory language, which should
be given its plain and ordinary meaning: "[t]here is no rule of
construction which authorizes a Court to declare that the
legislature did not mean what the plain language of the statute
imports."  Solich v. George & Anna Portes Cancer Prevention Ctr.,
158 Ill. 2d 76, 630 N.E.2d 820, 823 (1994).  Contrary to the
determination of the majority, the supreme court in Curtis did
not declare the exercise of a testamentary power of appointment a
"taxable transfer" under the Act.  
     "[T]he enumeration of one thing in a statute implies the
exclusion of all others."  Baker v. Miller, 159 Ill. 2d 249, 636 N.E.2d 551, 556 (1994).  In subsequent amendments to the Act, the
legislature continued to ignore discretionary distributions of
principal, despite the recommendations of commentators.  In 1965
the Act was amended so that a beneficiary's power to withdraw
principal would be assumed to be exercised and the initial tax
would be assessed as though the first spouse gave all of the
property to the survivor.  See Ill. Rev. Stat. ch. 120, par. 398,
sec. 25 (1965).  Because our General Assembly did not choose to
amend the Act to impose a tax upon "any distribution" from the
corpus of an estate nor to specify all situations under which a
tax would not be triggered, our supreme court's holding in Curtis
is limited to the specific facts and circumstances of that case.
     "When the legislature is silent, a court may not fill a void
through judicial interpretation."  Gabriel Builders v. Westchest-
er Condominium Ass'n, 268 Ill. App. 3d 1065, 645 N.E.2d 453, 455
(1994).  I believe that the majority here engages in impermiss-
ible judicial legislation by redrafting section 25 to impose
additional taxes upon alleged distributions of the principal of a
trust.