217 Ill. 434 | Ill. | 1905
delivered the opinion of the court:
Many questions are raised and urged by appellant which, under the views we entertain of the will in question, seem to be unimportant and not applicable. We regard the trust here created and under consideration as what is known as a spendthrift trust, created for the purpose of providing for the maintenance of appellant and at the same time securing it against his improvidence and incapacity for self-protection. Such estates have become recognized, generally, by most of the courts of the United States, and their treatment of the question has gone into the books as the American doctrine upon the subject of and applicable to such trusts. (26 Am. & Eng. Ency. of Law,—2d ed.—137 et seq. and authorities there cited; Steib v. Whitehead, 111 Ill. 247.) Most of the controversy arising in relation to such trusts has involved questions affecting the rights of creditors to the trust fund or property. No such question is here involved. The sole contention is by the appellant, who is the cestui que trust, and who claims that the trust is executed, and if not, that payment in whole, or pro tanto, should be accelerated that he might so apply it as to relieve his creditors.
Appellant’s first and main contention is that the trust is a dry or passive trust, so far as the provisions of the will are concerned, and that it is executed by the Statute of Uses, and that the title to the trust property vested in appellant at the death of the testator.
It is a cardinal rule of construction of wills that the intention of the testator shall be ascertained from all that is contained within the four corners of the will, and when ascertained shall be given effect unless it contravenes some well established principle of law. Whether the trust is executed or executory and whether the estate is vested or contingent are matters of sound construction following the correct interpretation of the provisions of the instrument creating the trust
The testator was, at the time of making his will and at the time of his death, seized of a considerable estate. Appellant was his only living child and was thirty-one years of age. Besides appellant the testator left a grandson, Ernest A. Blake, who was a minor, and also left Mary A. Bennett, the widow of the testator. By clause 3 of the will $3000 was set apart and placed in trust and the income was to be paid to appellant until he attained the age of forty years, at which time, by the provisions of the will, the corpus or principal fund should become the absolute property of appellant provided the wife of the testator was then living, but if the wife or widow should be dead at the time appellant attained the age of forty years the trust fund here in controversy should be held by the trustee ten years longer, and at the expiration of the said ten years should become the absolute property of appellant. The reason for the extension of the time at which appellant might become vested with the property is readily comprehended when the other provisions of the will are looked into. The testator, by his will, directed that $500 should go to his grandson, Ernest A. Blake, upon the death of the testator, and $500 and one-third of the remainder of his estate upon the death of the wife of the testator, and that appellant, after the payment of these sums, should have .two-thirds of the remainder of the testator’s estate, but that it should be held by the trustee until he should attain the age of forty years, when it should be paid to him. It will thus be seen that if the wife of the testator was dead when appellant attained the age of forty years appellant would come into two-thirds of the remainder of the estate of the testator absolutely, and it was the clear purpose of the testator to guard against want or improvidence on the part of appellant by providing that if the contingency should happen upon which he might, at the age of forty years, receive two-thirds of the residuum, there would still be held for him or for his benefit the original $3000, the income of which would be secured to him until he should attain the age of fifty, when the corpus should vest in him.
In the case at bar, owing to the peculiar state of the pleadings, we are not aided by the averments of the answer, but must place our construction of the will solely upon the matters appearing in it and the bill, but we think, from the provisions to which we have adverted, the intention of the testator was clear and manifest that appellant should never be vested with the title to the fund here in question until he should attain the age of forty years, and not then if his mother should be then dead, but that the same, in that case, should be postponed until he should attain the age of fifty years. His grandson, who was a minor, was to have the full benefit of his estate when he attained the age of twenty-two years. Taking these provisions, then, together, it would seem unnecessary to go beyond the will itself to determine the intention of the testator.
In determining the character of the trust here created, whether a spendthrift trust or not, we may look to the provisions of the will and the condition of the parties as disclosed by the bill. (Kaufman v. Breckinridge, 117 Ill. 305.) It is usual in such trusts to find a provision against alienation of the trust fund by the voluntary act of the beneficiary, or in invitum by his creditors. “It is not necessary that an instrument creating a spendthrift trust should contain an expressed declaration that the interest of the cestui que trust in the trust estate shall be beyond the reach of his creditors, provided such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the light of the circumstances.” (26 Am. & Eng. Ency. of Law,—2d ed.—p. 141; Stambaugh’s Estate, 135 Pa. St. 585; Appeal of Grothe, 19 Atl. Rep. 1058; Baker v. Brown, 146 Mass. 369; 15 N. E. Rep. 783; Patten v. Herring, 29 S. W. Rep. 388.) The fact that a-trustee was appointed and vested with the estate and the beneficiary was given the income only is a circumstance from which the intention of the testator to create a spendthrift trust may be inferred. Stambaugh’s Estate, supra.
Appellant contends that there is a present gift to him of the $3000 legacy, with the payment merely deferred to one of the future periods mentioned in the will, and that where such is the case and the subject matter of the bequest is to be at once separated from the estate and vested in the trustee for the benefit of the legatee, the gift vests at once, and this whether the fund is to be held for accumulation and final payment or whether the interest is paid to the legatee as it accrues. In support of this contention appellant cites 29 Am. & Eng. Ency. of Law,—1st ed.—454. The language there used and upon which the rule announced is predicated is, “where there is a clear gift distinct from a direction to pay when the legatee attains a given age, the direction to pay will not postpone the vesting.” If there was a clear gift in presentí the position of appellant would be unassailable. But as we read this will there is no present gift to him of the legacy but the gift is to the trustee, who, as we think, takes the fee charged with the exercise of a discretion as to its investment, and is directed to pay the income to appellant until the times designated to pay the corpus. The language used by the testator with reference to the two designated times of payment is as to the period of forty years, at which time the said sum of $3000 “shall then become his absolutely,” and as to the second period of payment is, “at which time the said $3000 shall be paid to my son and become his absolutely.” So that if the ordinary and usual meaning be given to the language of the will, it would seem entirely clear that it was the intention of the testator that appellant’s right to the corpus should not vest until the period of distribution, and the fact that the fund is segregated at once from the estate and devoted to the particular trust should not, we think, defeat the clearly expressed purpose of the testator. Such fact is one of the tests to be used in doubtful cases in determining whether the legacy is vested or not, and most commonly arises in cases where there is an absence of language that can be construed into a gift as distinguished from a mere direction to pay; but when the language is not doubtful and the intention of the testator, as shown by the language in the will, is clear that the legacy should not vest at the death of the testator, rules of construction used in doubtful cases have no application.
The last expression of the third clause is, “in case of his death before the time or times- herein fixed for the payment of the $3000 to him, it shall go to his heirs.” The appellant urges that this provision, that “it shall go to his heirs,” brings the bequest within the rule of Shelly's case and that the legacy is vested by operation of law; that by analogy to said rule the vesting of the legacy cannot be prevented by the clearly expressed intention of the testator that it shall not be, because, having used the word “heirs” in this manner, the law gives that word controlling effect, and denies to the testator the power to direct his estate in a channel contrary to the course fixed by the law. As applied to a devise of real estate the position of appellant is sound, for the reason that the policy of the law has been to give stability to titles to such property and hold them vested when it can. As applied to gifts or conveyances of personalty the word “heirs,” strictly speaking, has no application. If in a devise of the latter class of property additional words were necessary, the words “executor, administrator and assigns” would be the proper words to show the extent of the estate to the first taker and indicate absolute property. By analogy, however, the rule in Shelly's case is applied in gifts of personalty, but in all cases where 'the word is used in the devise of personalty it is held to yield to the expressed intention of the testator. (Taylor v. Lindsey, 14 R. I. 518; Horn v. Lyeth, 4 H. & J. 431; Williams on Personal Property, 244; Glover v. Condell, 163 Ill. 566; 22 Am. & Eng. Ency. of Law,—1st ed.—512; Gross v. Shellan, 31 Atl. Rep. 812; 4 Kent’s Com. 218.) There being no present grant to the appellant by the will in question, we are disposed to regard the provision as to the heirs taking the property in the event that the appellant should die before the time fixed for him to take it, as being words of purchase or substitution. (Beach on Wills, sec. 287; Williams on Executors,—6th Am. ed.—1034.) Mr. Freeman, in his note to Carpenter v. VanOlinder, 127 Ill. 42, as reported in 11 Am. St. Rep. 106, says: “Hence a devise to A in trust for his heirs as long as he shall live, and after his death to his heirs, their heirs and assigns, vests a life estate only and the fee in his heirs; and generally, where the use only is given to the first taker, and his heirs, designated as remainder-men, take both the legal and beneficial estate, the rule in Shelly’s case is inapplicable.” The rule also seems to be well established and recognized by this court in Baker v. Scott, 62 Ill. 86, that where there is an executory trust created the rule in Shelly’s case has no application. The same rule is also laid down in 27 Am. & Eng. Ency. of Law,—1st ed.—68.
It is also contended by appellant that the legacy vested by the refusal of the trustee to accept the trust. This result can only follow in cases where the entire beneficial interest is in the cestui que trust and the trustee is a mere repository of "the title. (27 Am. & Eng. Ency. of Law,—1st ed.—127.) Such is not the case here. In Glover v. Condell, supra, a trust very similar to this was held an active and not a passive one. It was there said (p. 588) : “But personal property is not within the Statute of Uses. In the case at bar the trustees were to hold the proceeds of sale—the money or securities representing two-thirds of Albert’s share—during his life and invest the same and pay him the interest during his life, so that the trust was an active one and his estate was equitable.”
It is quite apparent that the postponement of the time of the payment of this legacy was not on account of or for the benefit of the fund or estate of the testator, as there was no charge of any kind against it. It was separated from the other funds or portions of the testator’s estate by his direction. The postponement of the time of payment was for reasons personal to the legatee, and if the intention of the testator that the legacy should not vest in appellant until the period of payment was not clear and certain from the language used, in the absence of a present gift to him we would hold that the legacy did not vest until the period of distribution or payment. Scofield v. Olcott, 120 Ill. 362.
We are of the opinion that the chancellor and the Appellate Court placed the proper construction upon the will before us, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.
