| Ill. | Nov 20, 1880
delivered the opinion of the Court:
The several clauses of the last will and testament of James Crozier, deceased, supposed to have a bearing upon the present controversy, will be first noticed in the order of their occurrence.
The second clause is: “I will that my beloved wife have the entire control of my personal and real estate, of whatever kind or nature soever or wheresoever .situated, after the payment of my debts as aforesaid, so long as she shall live, for her support and maintenance in such a manner as her situation in life requires.”
By the third clause the remainder, after the termination of the life estate of the testator’s wife, in certain real estate therein described, is given to Richard Roberts, the son-in-law of the testator’s wife, and the clause concludes in these words:
“ On consideration that he take good care of my beloved wife and trfeat her kindly, should she call on him to do so, and should she choose to live with him and her daughter—it being understood that he and his wife treat my beloved wife as becomes a son and daughter.”
By the fourth clause, certain described real estate is given to Thomas Crozier, the nephew of the testator.
The fifth clause then follows, thus: “All the rest of my estate, real and personal, after the termination of the life estate of my wife, I give to my heirs-at-law, in such shares and to such persons as by the statute of Illinois, at this time, is provided.”
The sixth clause is as follows: “I hereby give to my wife full power to sell all my personal estate and all my real estate, except the lands willed to T. Crozier and Richard Roberts, aforesaid, should it be necessary for her so to do for her maintenance and support—it being understood that she is not to waste any property; but I want to give her full power so as to support, herself well. And, should she choose to help her other daughter, if she should become a widow, or help her said daughter or her children, she has full power to do so before the heirs aforesaid take their remainders—hereby giving my wife full power to sell any of the property aforesaid and give good title to the same, either at public or private sale, using her own judgment as to which shall bring the greatest amount of money.”
It seems quite clear what must have been in the mind of the testator; and there is no arbitrary rule of law to be invoked which forbids that the scheme he intended shall be carried out.
The case shows that the testator had neither children nor descendants of children. There was none except his wife who stood in such relation towards him as is ordinarily regarded as constituting a strong claim to his bounty. Very naturally.in this state of case, the first and paramount object of his anxiety were the comfort and happiness of his wife. Hext to these and subordinate to her interests, he designated her son-in-law and. his nephew as objects of his bounty. These are all whom he deemed it important to remember by name, and plainly, all whom he was specially anxious to provide for. The wife must, in the first instance, have the entire control of all his estate during her life; and, except that specifically devised, she is empowered to sell and convey any and all of it for either of these purposes: 1st. For her necessary maintenance and support. 2d. “ To help her other daughter if she should become a widow.” 3d. To “ help her said daughter or her children.” And she has full power, by the express language of the will, to make such sale and conveyance before the testator’s heirs at law take their remainders. In other words, they take the remainder burdened with the discretionary power in her to sell and convey the real estate for either of these purposes. "We .think it clear that by the words “ other daughter,” the testator meant the daughter of his wife, other than the one married to Roberts, of whom he had previously been speaking, and that by “ said daughter ” he meant Mrs. Roberts. This gives full effect to all the words employed, and any other construction will not. But, even if “said daughter ” be held to mean “ other daughter,” the practical effect, so far as concerns the present case, will be precisely the same. In that event, there were two contingencies in which the testator’s wife was authorized to sell and convey the property to help her “ other daughter ”—namely, first, in case she should become a widow, and secondly in case the testator’s wife should choose to help her and her children. The exercise of the power of sale and conveyance, under any construction of this language, is left discretionary with the testator’s wife. And she is, moreover, further expressly vested with the discretion to sell either at public or private sale, using her own judgment as to which Avould bring the greatest amount of money.
But counsel insist the power to sell and convey were only to be exercised in case it should become necessary for the maintenance and support of the testator’s wife. To so hold is entirely to disregard the language of the testator. He says: “I want to give her full power so as to support herself well; and should she choose to help her other daughter —if she should become a widow—or help her said daughter, or her children, she has full power to do so before the heirs aforesaid take their remainder.” This could not mean that she should have full power to help them from the proceeds of her life estate, for the heirs have nothing to do with that, their interest being expressly limited by the will to the remainder in the real estate after the termination of her life estate therein, and the use of all the property during life had, in the most unqualified manner, been previously given her for her own maintenance and support. But the concluding clause of the sentence shows, beyond question, that the power to sell and convey was for all the purposes previously mentioned. It is, “hereby giving my wife full power to sell any of the property aforesaid and give good title to the same,” etc., etc. This follows immediately and as an addition to the clause which gives authority to help her daughters, and provides the way by which the needed means are to be obtained.
But counsel lay much stress upon a preceding injunction on the testator’s wife, in the same clause of the will, that, “ it being understood that she is not to waste any property,” etc., and contend that, by this it is clear the power of sale was to be exercised only in case of absolute necessity for the maintenance and support of the testator’s wife.
Ordinarily, a trust will not be implied if such a construction of the precatory words would render them repugnant to, or inconsistent with, other parts of the same instrument. Perry on Trusts, (1st ed.) 88, § 115.
And we have just seen that to limit the right to sell and convey, here, to the maintenance and support of the testator’s wife, would be repugnant to and inconsistent with the language giving the wife power to help her daughters.
But this language may have full effect without, in the least, affecting the validity of the sale involved in the present inquiry. The testator did not wish his estate wasted, but he gave his wife power to sell and convey it to help her daughters.
It does not appear that it was wasted and that the sale and conveyance were not in good faith Avithin the discretion of the poAver. Where, as in this will, a discretionary poAver is conferred, and the poAver is exercised in good faith and Avithout fraud or collusion, a court of equity will not revieAv or control it. Perry on Trusts, (1st ed.) § 511; Hill on Trustees, (4th Am. ed.) 760.
The doctrine applicable to cases Avhere it is held the purchaser is bound to see to the application of the purchase money, is not relevant here, The question is purely one of poAver. If the Avife had the power to sell and convey, to help her daughters, then they,and not these appellants, Avere interested in the application of the purchase money.
We think, in the absence of fraud and collusion, which are not charged in the bill, the Avife Avas empoAvered to sell and convey, and the purchasers are entitled to protection under her deeds.
The demurrer was, therefore, properly sustained, and the decree below will be affirmed.
Decree affirmed.