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deficiency * * * or by and with the full descriptive name of the
fiduciary entitled to institute a case on behalf of such person.
See Rule 23(a)(1).” Rule 60(c) states that the capacity of a
fiduciary or other representative to litigate in the Court “shall
be determined in accordance with the law of the jurisdiction from
which such person’s authority is derived.” The record shows that
Illinois State law is controlling in this case.
Under Illinois law, only the trustee14 is authorized to
commence litigation on behalf of a trust. 760 Ill. Comp. Stat.
Ann. 5/4.11 (West 1992).15 In this respect, the Illinois Trusts
and Trustees Act does not grant the power to sue on behalf of a
trust to a director, a fiduciary, or any other legal
representative. See Restatement, Trusts 2d, sec. 16A (1959)
(“The officers and directors of a corporation, although they are
fiduciaries, are not trustees.”). In the present case, Adorno
14 For purposes of the Ill. Trusts and Trustees Act, see
760 Ill. Comp. Stat. Ann. 5/1 (West 1992), a “trust” means a
trust created by agreement, declaration or other written
instrument. 760 Ill. Comp. Stat. Ann. 5/2(1) (West 1992). Thus,
the Ill. Trusts and Trustees Act is applicable to a business
trust. See id. at 5/4.23. A “trustee” is defined as “the
trustee or any successor or added trustee of the trust, whether
appointed by or pursuant to the instrument creating the trust, by
order of court or otherwise”. 760 Ill. Comp. Stat. Ann. 5/2(2)
(West 1992).
15 See Pierce v. Chester Johnson Elec. Co., 454 N.E.2d 55,
57 (Ill. App. Ct. 1983) (trustees possess a specific statutory
power to sue in a representative capacity on behalf of a trust);
see also United States ex rel. Mosay v. Buffalo Bros. Mgmt., 20
F.3d 739, 742 (7th Cir. 1994) (“a trustee is the one who has the
legal right to sue”).
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Last modified: May 25, 2011