Denegre v. Walker
73 N.E. 409
Ill.
1905
Check Treatment
Mr. ChiEE Justice Ricics

delivered the opinion of the court:

We think the first clause of the will, which reads, “I direct my said trustees to care for, rent and manage my real property, to pay all taxes, assessments and insurance thereon, and to make all necessary repairs, in their discretion,” gave the trustees, under the directions of a court of chancery, (if not without its aid,) power to make the lease. A court of chancery has, to some extent, a general supervision over trust estates, and may direct such a disposition as in its discretion seems beneficial to all parties interested, even going so far as to order the sale of the trust estate and a re-investment of the proceeds without authority being given by the will, if the conditions are such that it is manifestly in the interest of the trust estate. Hale v. Hale, 146 Ill. 227; Gavin v. Curtin, 171 id. 640.

In the case of Marsh v. Reed, 184 Ill. 263, where a similar question arose, the court ordered the trustees to make a ninety-nine-year lease although in direct contradiction of the limitation of the will, which provided “that no lease or demise shall be for a longer term or period than ten years,” and on this question we said (p. 272) : “The bill did not ask for interference with, nor does the decree in any manner interfere with, the design of the donor as to the devolution of the title to the trust property. The decree leaves the title to the property in the trustee, who remains charged with the duty to convey it in exact obedience to the wishes of the creator of the trust. The donor clothed the trustee with authority to rent the property and to collect the rents therefrom during the continuation of the trust, and in so doing placed a limitation upon the duration of any lease of the property to be made by the trustee. The effect of the decree is to enlarge the powers of the trustee in this respect, leaving the subject matter of the trust in all other respects unimpaired. In other words, the decree does not defeat the trust, but was entered upon the theory its provisions were necessary to carry into execution the design of the' donor. The requirement that the leasing should be for periods not longer than ten years was no doubt dictated by the belief of the donor that the rental value of the property would increase, and that short terms of letting the property for rent would best conserve one of the ends he designed to secure, namely, to provide an income for his wife and his children. The business judgment of the donor was no doubt correct at the time, but in this instance, as is so frequently true in other cases, it is demonstrated it is not within the power and judgment of man to infallibly anticipate future events and direct that which shall be the wiser course to be pursued in after years. The question being one which relates merely to the better or more judicious mode of managing and controlling the subject matter of the trust in order the design and wishes of the donor may be more completely accomplished, the stringent rule which properly obtains when the application is to divest the trustee of the title to the property which is the subject matter of the trust and. vest such title in direct opposition to the will of the donor, ought not to be given full application.”

The facts here are so similar to Marsh v. Reed, supra, that a re-discussion of the principles hardly seems necessary. In the case at bar the trustees had the unqualified right to make a lease, and the only question is whether or not the term of the lease is. unreasonable. The evidence discloses that the real estate in question is centrally located in the business district of Chicago, improved with a four-story, stone building, old and without modern conveniences, without elevator service, and without any means of heating except by stoves in each room. The only access to the upper floors is by rñeans of ‘wooden staircases, and the premises are surrounded with modern, improved buildings. It further appears that it is impossible to get first-class tenants. Part of the rooms are at present vacant on account of their inadequate condition to attract tenants. The rentals for some time past have been diminishing, and it is conceded that the situation will become worse. All parties interested, capable of consenting, consent to make the lease. The infants, of course, are incapable of consenting, and no doubt if they were capable they would, under the conditions here presented, also consent. They have no interest except a contingent interest, and the improvement of the property surely cannot lessen the value of their contingent interest.

It is further insisted that persons not yet in esse may, on the happening of certain contingencies, become interested in this estate, and that no decree can bind such persons. This contention is without merit. In the case of Hale v. Hale, supra, in discussing this question, we said (p. 259) : “Such possible parties cannot, as a matter of course, be brought before the court in person, and it would be highly inconvenient and unjust that the rights of all parties in being should be required to await the possible birth of new claimants until the possibility of such birth has become extinct. If persons in being are before the court who have the same interest and are equally certain to bring forward the entire merits of the question and thus give such interests effective protection, the dictates both of convenience and justice require that there should be a complete decree. '* * * The rights of those in esse and those not in esse are protected by the decree in precisely the same way and to the same extent. * * * The decree, therefore, must be held to be valid as a conclusive disposition of the rights of all the beneficiaries, as well those not in esse as those who were made defendants to the bill by name.” So in this case, parties not in esse are protected the same as those before the court. Nor can we see how their interests could be diminished by the making of the lease.

Under the facts disclosed in this record "we think the decree of the court is not only just and reasonable, but it is manifestly for the benefit of all parties interested, both those in esse and those not in esse.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.