December 29, 2020
By: Teresa A. Minnich

The rules of proper comma use are regularly applied to determine the meaning of statutes and contracts. A recent Illinois Appellate Court decision reminds grammar buffs that not all commas are created equal. In Hatcher v. Hatcher, the Court interpreted the terms of a trust. The trust named two beneficiaries. A third person was named trustee of the trust. The trust empowered the trustee to distribute trust principal “for the benefit of any one or more of the beneficiaries of the trust as in his sole discretion he shall determine, whether because of sickness, accident or otherwise, and for educational purposes.” One of the beneficiaries was the trustee’s wife.

The trustee distributed income and principal to a joint bank account owned by himself and his wife. The distributions were used to pay their joint debts. The trustee made no distributions to the other beneficiary. Those other beneficiaries attempted to recover money paid to the trustee’s wife.

The legal theory was that the trustee had abused his discretion in “making all distributions of income and principal of the trust solely to his wife because of sickness, accident or otherwise, and for educational purposes”. The beneficiary argued the lack of a comma separating “accident” and “otherwise” means “that the word otherwise is related to the word “accident” and, therefore, did not give the trustee unfettered discretion to distribute trust principal.

Adroitly applying rules of grammar, the Appellate Court rejected this argument. The Court said that serial commas, also known as Oxford commas, are those commas used to separate items in a list of more than two items, and acknowledged “it is entirely common and accepted in American English for the final item in a list to not be preceded by a comma.” As a result of this “optional and not universal” use, the serial comma cannot be reliably used as an interpretive tool. The Court concluded the trustee’s discretion to distribute trust principal was not limited to purposes of education, accident, or sickness because the word “otherwise” was included in the series—whether separated by comma or not. Accordingly, the Court affirmed the trial court’s ruling that Cynthia’s Estate had not been unjustly enriched.