255 Ill. 332 | Ill. | 1912
This was a bill in chancery filed by Saxton S. Barrett, as executor and individually, against Mary K. Barrett and the other defendants in error, in the superior court of Cook county, for a construction of the last will and testament of John R. Barrett, deceased. The defendants appeared in person or. by guardian ad litem and answered the bill, and a replication was filed. The cause was tried without a reference, and a decree was entered holding the second and third paragraphs of the will void as in contravention of the rule against perpetuities, and that all of the property of which the testator died seized and possessed was intestate and passed under the laws of descent of the State of Illinois to the heirs of the testator, with the exception of the property given to the widow under the first paragraph of the will. From that decree the complainant *334 has prosecuted this writ of error, and has assigned as error the action of the trial court in holding the second and third paragraphs of the will of John R. Barrett void.
The facts are brief and are not in dispute. John R. Barrett died in Chicago on January 12, 1910, leaving him surviving his widow, Mary K. Barrett, and four sons, — George K. Barrett, Saxton S. Barrett, Roland B. Barrett and Arthur M. Barrett, — and seized and possessed of real and personal property. On the sixth day of July, 1909, he executed his last will and testament, which was admitted to probate in the probate court of Cook county on March 4, 1910, which, omitting the formal parts, is as follows:
"First — I give, devise and bequeath to my wife, Mary K. Barrett, all articles of personal property, such as books, furniture, pictures, watches, jewelry, wearing apparel and articles of virtu, owned by me at the time of my death, to be her sole and absolute property forever.
"Second — I hereby give, devise and bequeath to my trustee hereinafter named, all the rest and residue and remainder of my estate owned by me at my death, consisting principally of bonds, mortgages, notes and other evidences of indebtedness, in trust for the following purposes: To hold, handle, invest, re-invest, collect the income therefrom and to pay the said income thereof to my wife, Mary K. Barrett, during her lifetime, provided she elects to take under this my last will and relinquishes all statutory and other rights that she may be entitled to, and after the death of my said wife, Mary K. Barrett, to pay the said income to my four sons, George K. Barrett, Saxton S. Barrett, Roland B. Barrett and Arthur M. Barrett, share and share alike, during their respectives lives. Upon the death of Arthur M. Barrett the share of the income of my said estate paid him during lifetime shall be by my trustee paid to my grand-daughter, Mary Katherine Barrett, during her lifetime. Upon the death of my son George *335 K. Barrett the share of the income of my said estate paid to him during his lifetime shall be by my said trustee paid to his lawful issue, share and share alike, (except in the case of his daughter, Mary Katherine Barrett,) for and during their respectives lives. Upon the death of my said son Saxton S. Barrett the share of the income of my said estate paid to him during his lifetime shall be by my said trustee paid to his lawful issue, share and share alike, during their respective lives. And upon the death of my said son Roland B. Barrett the share of the income of my said estate paid him during his lifetime shall be by my said trustee paid to his lawful issue, share and share alike, during their respective lives. If any of my said sons shall leave no lawful issue them surviving, or in case my grand-daughter, Mary Katherine Barrett, shall not survive her uncle Arthur M. Barrett, then I direct that the share intended for such lawful issue and the said Mary Katherine Barrett be by my said trustee handled and disposed of as part of my original estate. Upon the death of all of my sons and their lawful issue named herein as beneficiaries under this will, I direct my trustee to divide the residue and remainder of my estate equally between the lawful issue and next of kin of my said grandchildren, share and share alike, to be their sole and absolute property forever, my intention being that my trustee shall pay all of the income of my estate to my wife while she lives, then to my sons while they, respectively, live, and upon the death of either or all of my sons George K., Saxton S. and Roland B., that their lawful issue, if any, shall have said income per stirpes during life; that upon the death of my son Arthur M. his share of the said income shall be paid to my grand-daughter, Mary Katherine Barrett, while she lives, and after the death of all my sons and grandchildren my trustee shall divide my estate equally between the lawful issue and next of kin of my said grandchildren. *336 "Third — I desire that my trustee shall permit the interest and income from my said estate to accumulate for at least twelve months and then to pay it out in quarterly installment dividends, payable January, April, July and October I of each year. I direct that as any part of my estate becomes converted into money by the maturity and collection of bonds, notes of hand, etc., or in case of any additions thereto by inheritance or otherwise, the same shall be re-invested in the best possible manner, preferably through Wood, Gundy Co. of Toronto, Ontario, in Canadian municipal bonds bearing five per cent interest per annum, payable semi-annually, and that if necessary to procure bonds bearing this interest rate a premium be paid therefor, and that bills of sale be taken, together with the opinion of a reputable attorney or attorneys as to the legality and desirability of such bonds, and that my said trustee prepare a full descriptive list, showing dates, amounts, time of maturity, rate of interest, date of interest, payment and signature of all notes, bonds, mortgages and other evidences of indebtedness, as soon as my said estate comes to his hands; that said list be revised from time to time as any changes are made by maturity and conversion of any of said securities, and that my said trustee deliver a copy of said list and revised list to all beneficiaries under this my last will, from time to time during the continuance of his duties.
"Fourth — It is my intention that the ($9000) nine thousand dollars in municipal and other bonds in the name of my sister, Callysta A. Barrett, together with the interest accruing thereon, be treated and considered the same as bonds held and owned entirely by me, and that she shall not receive the income therefrom so long as her present income from other sources continues.
"Fifth — I hereby nominate and appoint my son Saxton S. Barrett to be the executor and trustee of this my last will and testament, and I direct that he be not required *337 to give bond for the faithful performance of his duties as such, and in case of his death or inability to act before the termination of his trust, that the First Trust and Savings Bank of Chicago shall act as such executor and trustee."
Subsequent to the death of John R. Barrett the son George K. Barrett departed this life intestate, and his administrator and heirs have been substituted as parties defendant in his stead. Callysta A. Barrett, mentioned in the fourth paragraph of the will, who was made a party to the bill, disclaimed any interest under the will.
The parties agree that the will, in so far as it provides that upon the death of the widow, children and grandchildren of John R. Barrett the trustee shall turn over the body of the estate to the great-grandchildren of Barrett, creates a perpetuity and is, void, and the only question in difference between them is upon this proposition: Conceding the portion of the will disposing of the corpus of the estate to be void, can the provisions of the will which provide that the trustee shall pay the income of the estate to the widow during her natural life, then to the four sons during their lives, and afterwards to the grandchildren during their lives, be sustained notwithstanding the invalidity of the provisions of the will which dispose of the body of the estate upon the death of the last surviving grandchild? The trial court was of the opinion that the provisions of the will creating said trust were so far connected as to form one complete scheme for the disposition and distribution of the testator's estate, and that the trust created by his will to effect such disposition and distribution was indivisible, and that as one principal part of the scheme for the disposition and distribution of the estate was void the entire scheme must fail, and the entire estate, so far as it was covered by paragraphs 2 and 3 of the will, must be disposed of and distributed as intestate estate.
It is plain the provisions of the will which gave the life use of the property first to the widow, then to the *338 sons and afterwards to the grandchildren, standing alone and but for the subsequent provision providing the corpus of the estate should be divided among the great-grandchildren of the testator, would be a valid disposition of the use and enjoyment of the several life estates created in the property, as those life estates would all vest within the lifetime of the widow and the four sons and within twenty-one years after the death of the last survivor of the four sons. We think it obvious, however, from the language of the entire will, that the testator had in his mind, when he executed his will, a plan for the disposition of all his estate and not for the creation therein only of certain life estates, and that for the courts to hold that his plan or scheme of disposition or division must fail in so far as he sought to dispose of the corpus of the estate but could be sustained as to the life estates would be to make a new will for the testator, which the courts are powerless to do. The testator sought by his will to create a trust and to appoint a trustee, and to provide that the trustee should take possession of his estate and handle it, pay the income to certain beneficiaries, and then to distribute the corpus of the estate to certain beneficiaries pointed out by him in the will. Had the testator known that one provision of the will he was executing was void for remoteness, he would, without doubt, have executed a different will.
The principle is well established that where several trusts are created by will which are independent of each other and each is complete within itself, some of which are lawful and others are unlawful, and which may be separated from each other, the illegal trusts may be cut out of the will and the legal ones permitted to stand. There is, however, a well recognized limitation in all the reported cases and by the text writers upon this rule which is equally well established with the rule, which is, that when some of the trusts in the will are legal and some are illegal, if they are so connected together as to constitute an entire scheme *339 for the disposition of the estate, so that the presumed wishes of the testator would be defeated if one portion were retained and other portions rejected, or if manifest injustice would result from such construction to the beneficiaries or to some of them, then all the trusts must be construed together and all must stand or all must fall. There seems to be a further limitation upon the rule recognized by the authorities, which is, that the devise or bequest held to be legal and sustained must be direct to the beneficiary and should be sustained only when the first gift is an absolute gift of the estate. Elaborate briefs have been filed on both sides of the question here involved and numerous cases have been cited to illustrate the foregoing rule and its limitations as it has been applied by this and other courts. The rule is, however, plain, and, as we believe, never applies when its application would have the effect to make for the testator a new will.
In Lawrence v. Smith,
In Eldred v. Meek,
In Owsley v. Harrison,
In Reid v. Voorhees,
In Johnson v. Preston,
The plaintiff in error relies upon the following Illinois cases:Howe v. Hodge,
The case at bar, in every essential, corresponds with one or the other, and in most respects with all, of the Illinois *347 cases in which the entire trust scheme has been held invalid. The following are some of its essential characteristics: (1) The entire property is devised to a trustee, in whom the legal title vests, and this, as is well said in Amory v. Lord, 5 Seld. 403, "completely negatives any theory of separate or separable trusts;" (2) the will presents one entire, complete and connected scheme for the disposition of the entire property, and all of the provisions thereof are connected and interdependent; (3) the valid clauses of the will make no disposition of the fee; (4) it cannot be made to appear that the enforcement of the other provisions, after cutting off the void limitation in fee to the great-grandchildren, effects the primary purpose of the testator.
Every case in this State, so far as we have been able to discover, where the will devises the property directly and completely to the trustee and then directs him to make certain provisions out of the income thereof has held the trust to be entire and not separable. It is difficult to see upon what theory it could be argued that this will creates any separate trust or separate interest on behalf of any beneficiary. The estate is in the hands of the trustee as a whole. It is to be handled, invested and re-invested and the income collected as a whole. There is at no time any separation, or any hint of a separation, of the fund itself until it is to be divided among the great-grandchildren. The trustee holds the legal title until the last one of the grandchildren is dead.
From a careful consideration of this will we are impressed with the view that John R. Barrett intended to dispose of his entire estate, not alone to create certain life estates therein, but to dispose of the fee, and that to only carry into execution the first part of the will and to eliminate the last would be entirely foreign to the intention of the testator. In the Eldred case, supra, the application of the rule contended for by the plaintiff in error is thus limited, *348
where it is said: "Courts must construe a will according to its own terms. They cannot make a new will or build up a scheme for the purpose of carrying out what might be thought was or would be in accordance with the wishes of the testator. (Tilden v. Green,
Since the submission of this cause Saxton S. Barrett, the plaintiff in error, has died, and his death having been suggested on the record, the First Trust and Savings Bank, a corporation, has been by order of court substituted as plaintiff in error in his stead, and the judgment in this case will be entered accordingly.
We are of the opinion that this case was properly disposed of by the trial court and that its decree should be affirmed.
The decree of the superior court will be affirmed.
Decree affirmed.
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