| Ill. | Nov 11, 1887
delivered the opinion of the Court:
We have arrived at the same conclusion reached by the chancellor below, but by a somewhat different process of reasoning.
We are inclined to think the depositions of Robert Furniss Long and Elizabeth Long, two of the complainants, taken after the death of Hadden, were incompetent to be read in evidence as against his heirs-at-law, and they prove nothing that we deem of any moment against Dean, his grantee. But omitting those depositions, the patent establishes, beyond all question, that the only title that Robert Furniss Long had in the land was as joint trustee with Robert Whatkinson Long, for the wife of the former, Elizabeth Long, and her children. The patent recites that “Robert Furniss' Long and Robert Whatkinson Long, in trust for Elizabeth Long and her children, of Cook county, Illinois, have deposited in the land office of the United States a certificate of the register of the land office at Chicago, whereby it appears that full payment has been made by the said Robert Furniss Long and Robert. Whatkinson Long, trustees as aforesaid,” for the tract of land therein described, adding: “Which said tract has been purchased by said Robert Furniss Long and Robert Whatkinson Long, trustees as aforesaid, and the land is therefore conveyed unto the said Robert Furniss Long and Robert Whatkinson Long, trustees as aforesaid.” There is nothing in the record tending to contradict this recital, and it must therefore be accepted as conclusive as to the facts recited, and therefore that a trust, only, is conveyed by the patent.
The case is unlike Witham v. Brooner, 63 Ill. 344" date_filed="1872-01-15" court="Ill." case_name="Witham v. Brooner">63 Ill. 344, Lynch v. Swayne, 83 id. 336, and Kirkland v. Cox, 94 id. 400, where it was held, that under the operation of section 3, chapter 24, of the Revised Statutes of 1845, a conveyance in trust, or to the use of any person, which requires no duties, prescribes the execution of no trust, but leaves the trustee only a passive title, carries to the cestid que trust lawful seizin, estate and possession. The trust here created is for a married woman and her children. At the date of its creation she was not, under the law then in force, sid juris, in all respects, with reference to her separate property, and some or all of her children were then minors, and therefore incapable of legally contracting in regard to their property; and in such cases it is held the statute will not vest the estate in the cestui que trust, but the estate will vest in the trustee for the cestui que trust. Perry on Trusts, (1st ed.) secs. 310, 311, and authorities cited in note 1, on page 29.0, and in note 3, on page 291.
We are unable to agree with counsel for appellees, that the language employed in this patent created a life estate in Elizabeth Long,.with remainder over, after her death, to her children. There is no language creating a particular estate in Elizabeth Long, and that is indispensable to the creation of a remainder. No words are employed showing an intention to carve out a life estate." We agree with them that the words, '“children,” here, are words of purchase and not of limitation, but they are to be read conjunctively with the name of Elizabeth Long. The pleadings show that Robert Furniss Long was the husband, and that Robert Whatkinson Long was the ■step-son, of Elizabeth Long. The transaction was therefore in the nature of a family settlement, in which the present as well as the remote welfare of the children was as much an object of concern as the present and remote welfare of Elizabeth Long. In such cases, the rule relied upon by counsel for appellant, as laid down in Handberry v. Doolittle, 38 Ill. 206, does not apply. That applies only to cases where a class of persons are to come into immediate possession upon the death of the testator. Here, the object and intention is the support of a family, in which after-born children are as much the concern of the donor as those then in being; and so it is said: “Whenever the fortune of a married woman is within the jurisdiction of the court, either by having been paid into court or by a suit concerning its possession, the court always directs :an inquiry whether a settlement has been made; and the constant habit is to direct a settlement, not only upon the wife, but upon the children also. The wife can not say that she claims a settlement for herself, and not for the children. She has the, option to have no settlement; but if a settlement is made, it must be upon the wife and children.” Perry on Trusts, (1st ed.) sec. 627. And this includes children unborn as well as those ■ then in being. (1 Bishop on the Law of Married Women, ■sec. 673.) And so a grant to a wife, and her child begotten by ihe grantor, has been held to give a joint estate to the wife and a child subsequently born. (Powell v. Powell, 5 Bush, 619" date_filed="1869-09-29" court="Ky. Ct. App." case_name="Powell v. Powell">5 Bush, 619.) And so, “if there be a devise or limitation to the use of the ■children of A, the estate may vest in joint tenancy in one, and afterwards in other children, as they progressively are born.” 4 Kent’s Com. (8th ed.) 376, *359. A conveyance, as here, to the use of a woman and her children, plainly means to her and all of her children, the right vesting in each child, > successively, as born. No other view is consistent with the object and purpose of such a limitation.
It is not pretended, in the view that the legal estate did not vest in the cestuis que trust, eo instanti, the execution of the deed, that there is any difficulty in the trustees holding for the benefit of the unborn child. Hadden was not a purchaser in good faith, without notice. The only proof in regard to his obtaining title is, that Robert Furniss Long and Elizabeth Long conveyed to him, and he immediately went into possession. The rule is thus laid down by Sugden, in his work on Vendors, (8th Am. ed.) vol. 2, page 561: “In all cases where a purchaser can not make.out a title but by a deed which leads him to another fact, whether by description .of the parties, recital or otherwise, he will be cognizant thereof, for it was crassa negligentia that he sought not after it.” Hadden, here, could not make out a title but by the patent, and that being obtained would have disclosed the trust, for there is not the slightest pretense that any other title was exhibited as that under which they held. It was by reason of his own gross negligence that he did not know the contents of the patent,—if, in fact, he did not know them,—and he could, therefore, only have taken under the deed to him, subject to the trust. But his deed to-Dean was clearly color of title, and on Dean’s part it was obtained in good faith; and since there was the requisite proof of possession, and payment of taxes thereunder, and the lapse of more than the period of seven years between the time Dean obtained it and the bringing of suit, the bar of the Statute of Limitations is complete as to all the parties except Harry 0. Long, who was only twenty-one years and some odd months old when the suit was brought, and who, consequently, is within the saving clause of the act.
We are, therefore, of opinion that neither the errors nor cross-errors are well assigned, and the decree below is affirmed.
Decree affirmed.