| Ill. | Nov 10, 1896
There are now in the hands of the appellant, Sudduth, as trustee, notes and securities, amounting to §14,000.00, together with interest on said sum since October 30,1892, which represent two-thirds of the sixth part devised to Albert B. Condell, deceased, under the will of his father, Thomas Condell. The question in this case is as to the ownership of the trust fund thus held by the trustee. The appellee, Moses B. Condell, claims that, since the death of his brother, Albert B. Condell, he is entitled to a proportionate share in the fund in question as one of the four surviving children of the testator. The appellants, Mary J. Glover and Emily Montgomery, claim that they are entitled to the whole of said fund, and that neither the appellee, nor Thomas E. Condell, has any interest therein. The appellant, Sudduth, as trustee, asks the instruction of the court as to the disposition to be made of the fund, both as to the income derived from the investment thereof and as to the principal of the fund itself, and not only as to the persons between whom the fund should be divided, but also as to the proportions in which the division should be made.
The grounds, upon which appellants base their contention, that the appellee has no interest in the fund, are, first, that he is barred from asserting such interest by the quit-claim deed or release, dated March 14, 1883, and executed by himself and his wife; and, second, that any interest which he would otherwise have had in the fund was extinguished by advancements made to him by the testator. In seeking a solution of the question involved, the subject will be considered from the two standpoints of the release and the advancements.
First, as to the release or quit-claim deed. In order to determine whether or not the instrument of March 14, 1888, had the effect of cutting off appellee’s claim to any part of the fund in question, it will be necessary to consider what is the character of the interest, which the surviving children of the testator took in the share, of Albert B. Condell after his death without living heirs of his body. The nature of this interest is fixed by the terms, and provisions of the will itself. Although the fund of §14,000.00 grew out of what was done under the agreement of January 19, 1882, yet, by the terms of that agreement, the fund was turned over to the trustee appointed under the will for the use of Albert “according to the will.” And .it is conceded by both sides, that the will operates to control the disposition of the fund. What then are the terms and provisions of the will, so far as they bear upon the interest of the testator’s children in the two-thirds share of Albert after he died without living heirs of his body?
The will directs the executors to sell all the estate, real and personal, except so much of the household furniture, etc., as the testator’s wife might think fit to retain; and all the legacies are to be paid out of the proceeds of the sale. The will is, therefore, to be regarded as a devise of money or personalty, and not of land. (Crerar v. Williams, 145 Ill. 625" date_filed="1893-06-19" court="Ill." case_name="Crerar v. Williams">145 Ill. 625).
The legacies in the will of Thomas Condell to his wife, Elizabeth H. Condell, failed or lapsed by reason of her death before the death of the testator. This is true not only of the provision for the payment to her during her life of the interest or dividends on the one-sixth part of the estate mentioned in paragraph (a) of the fourth clause of the will, but also of the provision for adding the share of any child dying without living heirs of his body to the sum held in trust for her benefit during her natural life, as contained in paragraph (g). The general rule is, that, if a legatee dies before the testator, the legacy lapses, because the gift cannot take effect until the death of the testator, and, if the legatee is then dead, he cannot be benefited thereby. (2 Woerner on Am. Law of Adm. sec. 434; 13 Am. &Eng. Ency. of Law, p. 28). This rule, however, does not extend to a legacy given over after the death of the first legatee. (Prescott v. Prescott, 7 Metc. (Mass.) 141). Paragraph (f) of the fourth clause of the will provides, that two-thirds of the sixth part devised to Albert B. Condell, or, as the case now stands, the fund of §14,000.00, “is to be held by my executors as trustees, and in trust for him, and is to be loaned out on good security or kept invested in stocks, and the interest or dividends is to be paid to him as the same accrues and is received, during his natural life, and after his death the principal of his share or part is to be paid to his heirs.” The second sentence of paragraph (g) of the fourth clause provides, that, “in the event of the death of any of my children without living heirs of their body, their share of my estate shall be added to the sum held in trust for the benefit of my wife, Elizabeth H. Condell, during her natural life, and after her death the same shall be divided amongst my children in the same manner as is provided for the distribution of her share.” Because the share of Albert, dying without living children of his body, could not be added to the sum held in trust for the benefit of the testator’s wife by reason of her death before the death of the testator-, it does not follow, that the last provision, to-wit: “the same shall be divided amongst my children in the same manner as is provided for the distribution of her share,” is to be regarded as nugatory and of no effect. We have been referred to no authority so holding, nor have we been favored with any argument in favor of such a position. On the contrary, counsel on both sides have treated the provision in regard to division among the children as being in force, though they differ as to its proper construction. We shall, therefore, consider the last sentence of paragraph (g) as though it read as follows: “In the event of the death of any of my children without living heirs of their body, their share of my estate * * * shall be divided amongst my children in the same manner as is provided for the distribution of her share.”
What is meant by the expression: “in the same manner as is provided for the distribution of her share?” The reference here is evidently to paragraph (a) of the fourth clause, where one-sixth part of the remainder of the estate is required to be invested by the executors and the interest or dividends thereof to be paid to the wife during her life, and where, in the event of the wife dying without a will, as was the case here, it is provided as follows: “Then my executors, as trustees, shall hold the same in trust, and pay the interest or dividends derived therefrom to my children in such proportions as their circumstances may require to keep them from want or to furnish them with the necessaries of life for themselves and children.”
It will be noticed, that paragraph (a) only provides for the payment of the interest or dividends derived from the wife’s share to the children. It nowhere provides for the disposition of the principal of the one-sixth share set apart for the use of the wife during her life. Whether such principal was or was not intestate property, it is unnecessary for us to determine, as no question is made as to the wife’s share. Its consideration is only important as bearing upon the meaning of paragraph (g), which directs that Albert’s share shall be divided “in the same manner as is provided for the distribution of her (the wife’s) share.” There is no provision for the distribution of the wife’s share, but only a provision for the distribution of the interest or dividends derived from that share.
We do not understand, that the words, “the same,” as used in the above quoted portion of paragraph (g) refer to the income of Albert’s share, or to the interest or dividends therefrom, but we think that they refer to the principal of Albert’s share as referred to in paragraph (f). Paragraph (7) says: “In the event of the death of any of my children without living heirs of their body their share of my estate shall be added to the sum held in trust for the benefit of my wife during her natural life,” etc. The words, “their share of my estate,” as here used, must mean the principal of the share, because it is to be added to the “sum,” that is, the principal held in trust for the wife. The income of the son’s share would not be added to the principal of the wife’s share; it is the share itself which is to be added to the amount invested for the wife’s use. Paragraph (g) then proceeds as follows: “and after her death the same shall be divided.” Clearly, in the grammatical construction of the sentence, the words, “the same,” refer back to the words: “their share of my estate,” that is to say, to the principal of the share of the deceased child.
As the principal of the two-thirds share of the deceased child dying without living heirs of his body is thus to be divided amongst the children in the same manner as is provided for the distribution of the wife’s share, and as no provision is made for the distribution of the wife’s share, it follows either that paragraph (g) provides for no mode of dividing the deceased child’s share among the surviving children, or that such deceased child’s share is to be divided amongst the children in the same manner as is provided for the distribution of the income or interest or dividends of the wife’s share. We are inclined to regard the latter construction as the proper one. There is here evidently an omission by the testator of the words, “of the income,” or “of the interest,” or “of the dividends.” With the omission supplied, the last clause of paragraph (g) would read as follows: “The same shall be divided amongst my children in the same manner as is provided for the distribution of the dividends of her share.” This harmonizes with the previous part of the will, to-wit: paragraph (a), where provision is made for the distribution of the dividends of the wife’s share. Jarman, in his work on Wills, (vol. 2 Randolph & Talcott’s 5th Am. ed. top p. 60) says: “It is established that where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context.” (Kellogg v. Mix, 37 Conn. 243" date_filed="1870-09-15" court="Conn." case_name="Kellogg v. Mix">37 Conn. 243). The insertion of the words above indicated effectuates the clear intention of the testator, and is necessary to give expression to his meaning. Without them, there is manifest ambiguity upon the face of the will. (2 Jarman on Wills,—R. & T.’s 5th Am. ed.— p. 60, note 1).
After these preliminary explanations, the provision of the will in regard to the disposition of the fund in controversy, which represents two-thirds of the sixth part devised by the testator to Albert, is substantially and in brief, as follows: the executors as trustees are to hold said two-thirds in trust for Albert, and lend it out or invest it, and pay him the interest or dividends therefrom during his life, and, after his death, pay the principal thereof to his heirs, but, in the event of his death without living heirs of his body, the same is to be divided among the children of the testator in such proportions as their circumstances may require to keep them from want, or to-furnish them with the necessaries of life for themselves and children. The question again recurs: what interest in the two-thirds of Albert’s share did this provision of the will give to the children of the testator after the death of Albert without living heirs of his body?
Leaving for the present the consideration of the original gift, it cannot be said that there are any words in the gift over, which import an indefinite failure of issue or contravene the rule against perpetuities. The language of the gift over is, that “in the event of the death of any of my children without living heirs of their body,” etc. The words, “without living heirs of their body,” import a definite failure of issue; and the language used refers to the death of any one of the children of the testator without heirs "of his body, or issue, living at the time of his death. (Smith v. Kimbell, 153 Ill. 368" date_filed="1894-10-29" court="Ill." case_name="Smith v. Kimbell">153 Ill. 368). Where the limitation over is upon the first taker “dying without issue living,” the will means issue living at the death of the first taker; and the limitation over is not too remote, but is good as an executory devise. (4 Kent’s Com.-—• 12th ed.—marg. p. 277). Where the bequest is of personal property, slight circumstances, and other expressions, in the will will be laid hold of as indications of an intention, that a limitation over on death without issue shall take effect at a definite time, to-wit: at the death of the first taker. (Bedford's Appeal, 40 Pa. St. 18; Ladd v. Harvey, 21 N. H. 514; 4 Kent’s Com.—12th ed.—marg. p. 282).
The construction of the words of the gift over in the case at bar as importing a definite failure of issue is supported not only by the use of the qualifying word, “living,” but also by the fact, that the share of any one of the children dying without living heirs of his body is to be divided among the remaining children of the testator. These children are mentioned by name in the will, and belong to the same class as the first taker, and must be regarded as his survivors or persons in being at the time of his death. As was said by Mr. Justice Strong in Bedford's Appeal, supra: “It has often been held, that a limitation over by will to survivors or persons in being, after the death of the first taker without issue, raises a strong presumption that the testator did not contemplate an indefinite failure of issue.”
A gift over upon a definite failure of issue does not alter the construction of the preceding limitation, but engrafts upon it an executory devise to operate upon the happening of the event specified. (11 Am. & Eng. Ency. of Law, p. 924). As applied to land an executory devise is “such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law.” (2 Washburn on Real Prop.—5th ed.—marg. p. 341.) One species of executory devise, as applied to lands, is “where a fee simple is devised to one, but is to determine upon some future event, and the estate thereupon to go over to another.” (Id. p. 344.) Or, stated more generally, one species of executory devise relative to real estate is “where the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency.” (4 Kent’s Com. marg. p. 268). Limitations over upon the death of the first taker without issue are construed as executory devises on definite failure of issue after an estate in fee simple. (2 Jarman on Wills—R. & T.’s 5th Am. ed.— p. 485). Thus, a devise to A and his heirs, with a gift to B, in case A dies without issue- surviving at the time of his death, gives B an executory devise. (20 Am. & Eng. Ency. of Law, p. 920, and cases in note 1).
Substantially the same rule applies to personal property. It has been said, that all future interests in personalty, whether vested or contingent, and whether preceded by a prior interest or not, are in their nature executory, and fall under the rules by which that species of limitation is regulated. (20 Am. & Eng. Ency. of Law, p. 930). Preston divides executory limitations of personalty into three kinds, and says that the second sort is where there is a complete disposition of the property, and there is a substitution of another person to take in some event which is to defeat or abridge the former gift. (2 Preston on Abst. 142, 143; 20 Am. & Eng. Ency. of Law, p. 936).
Here, the original disposition of the two-sixths part of Albert’s share was that it should be held in trust by the trustees and invested, and the interest or dividends paid to him during his life, and after his death the principal of his share was to be paid to his heirs.
It is a general rule, that where there is a gift of personalty to A and his heirs, A will take the absolute interest. Strictly, the words, “heirs” and “heirs of his body,” are inapplicable to personal property. Whereas real estate is conveyed to a man, his heirs and assigns, personal property is assigned to him, his executors, administrators and assigns. So, where there is a gift to A and his representatives, A will take the absolute property. So, also, a gift to A for life, and then to his personal representatives, will give A the absolute property. (Williams on Personal Prop. marg. pp. 242, 243; Theobald on Law of Wills,—2d ed.—p. 371; 29 Am. & Eng. Ency. of Law, pp. 436, 437). This rule applies where the personal property is in the hands of trustees; “thus, if money or stock be settled in trust for A for life and after his decease in trust for his executors, administrators and assigns, A will be simply entitled absolutely; in the same manner as a gift of lands to A for his life, with remainder to his heirs and assigns, gives him an estate in fee simple.” (Williams on Personal Prop. marg. p. 244). This is an application by analogy of the rule in Shelly's case to personal property. (22 Am. & Eng. Ency. of Law, p. 512, and cases cited in note 3). Though, strictly speaking, this rule has reference to real estate only, yet it is often applied to grants of personalty by way of analogy for the purposes of construction, and when so applied yields more readily to the apparent intention of the testator than it does in grants of realty. (Taylor v. Lindsay, 14 R. I. 518; Horne v. Lyeth, 4 Har. & John. 431; Williams on Personal Prop. marg. p. 244).
The rule in Shelly's case applies to equitable as well as legal estates, but requires that both estates, the prior estate limited to the ancestor and the subsequent estate limited to the heirs, shall be of the same quality, that is, both legal or both equitable, because, if the prior estate is an equitable or trust estate and the subsequent estate is a legal one, the two do not unite as an estate of inheritance in the ancestor. (4 Kent’s Com. marg. pp. 210, 211). Thus, if the legal estate is given to A in trust for B for life and the legal remainder to the heirs of B at his death, the rule cannot apply, as the legal and equitable estates cannot so coalesce as to give B either a legal or equitable fee. (1 Perry on Trusts,—3d ed.—sec. 358). So, also, if the trustee holding the property for A for life has active duties to perform, but at the death of A the trust for the heirs is merely passive, the statute will execute the use, so that the estate of the heirs is a legal one, while the prior estate is equitable. (22 Am. & Eng. Ency. of Law, p. 509, and cases in note 4).
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. At his death the principal of the share is to be paid to his heirs, and so, for the purpose of turning the share over to the heirs by payment, or delivery, or assignment of securities, the legal title at his death still remained in the trustees, and until such payment, delivery or assignment the estate of the heirs was equitable. In such cases the legal title remains in the trustee “until the purposes of the trust are accomplished, and until the possession of the property is in some way transferred to the person entitled to the use, or the last use.” (1 Perry on Trusts, —3d ed.—secs. 311, 303; Kirkland v. Cox, 94 Ill. 400" date_filed="1880-01-15" court="Ill." case_name="Kirkland v. Cox">94 Ill. 400). If, therefore, in this case the original devise to the trustees of the fund to be invested for Albert during his life and to be paid to his heirs at his death, considered separately from the gift over to the children of the testator,"be construed by the application thereto of the principles involved in Shelly’s case, it cannot be said, that the prior estate given for life to Albert, and the subsequent estate to go to his heirs, are not both of the same quality.
But, whether the rule in Shelly’s case be applied by analogy to the original devise or bequest herein mentioned; or whether it be regarded as a gift to Albert and his heirs, in either case he thereby took the ownership of the fund, subject to the limitation over thereof to the children of the testator, upon the contingency of his death without living heirs of his -body at the time of his death.
At common law there could be no limitation over of a chattel, so that, where a chattel or other personal property was given to one for life with afiimitation over to another, the former took the absolute title, and the limitation over was void both at law and in equity, but in the course of time equity has established the doctrine that, where there is a gift of personal property to one for life with a limitation over to another, such limitation is good as an executory devise. (Welsch v. Belleville Savings Bank, 94 Ill. 191" date_filed="1879-11-15" court="Ill." case_name="Welsch v. Belleville Savings Bank">94 Ill. 191; 2 Kent’s Com. marg. p. 352; 1 Schouler on Personal Prop. sec. 138). Cases, which hold that, where there is a gift of personal property to A and his heirs, A takes the property absolutely and there can be no limitation over in the event of his dying without issue, will be found, upon examination, to be cases where the words used import an indefinite failure of issue. Thus, in Albee v. Carpenter, 12 Cush. 382, it was held that a devise to A and her heirs of the residue of the testator’s property, “and if said A die without issue or heirs,” remainder over to others, gave A an estate tail by implication; and that any words in a devise of real estate, which would give an estate tail to the first taker with or without a remainder over, would, in a bequest of personal property, give the first taker an absolute estate, and the remainder over would be void; but the holding was placed upon the ground, than the gift over was upon a general failure of issue, and for that reason made the estate an estate tail in the first taker, and it was there said by Chief Justice Shaw: “ ‘If she has no issue living at the time of her decease’ may be a contingency, the happening of which may give effect to a bequest over as an executory devise, because it must vest at her decease and, therefore, has no greater effect than a gift for life.” So, in the case at bar, the words of the gift over have been construed to mean in substance, that, if Albert shall die without heirs of his body living at the time of his death, the fund shall be divided amongst the testator’s children; and, therefore, effect will be given to the gift or bequest over as an executory devise. “Limitations over in chattels have been supported like limitations of real property very generally. (Holmes v. Williams, 1 Root, 332" date_filed="1791-09-15" court="Conn." case_name="Holmes v. Williams">1 Root, 332, and many other cases). In many of the foregoing cases limitations of personal property over upon failure of issue of the first taker have been held good as limited upon a definite failure of issue.” (3 Jarman on Wills,— R. & T.’s 5th Am. ed.—p. 374, note 1).
In Theobald on Wills,—2d ed., at page 371,—after stating the doctrine, that a bequest of personalty to a man and his heirs would no doubt pass the absolute interest, the author says : “Of course if, in wills, * * * the gift over upon failure of issue can be limited to failure of issue at the death of the tenant for life, a prior gift to A and the heirs of his body gives A an interest defeasible upon failure of issue at his death.” Here, Albert took an absolute interest in the fund defeasible upon failure of living heirs of his body at his death. And this is so notwithstanding the fund was in the hands of trustees.
In Hughes v. Sayer, 1 P. Wms. 534, where one, having two nephews, devised his personal estate to A and B, and if either should die without children, then to the survivor, the devise was held to be good.
In Jackson v. Noble, 2 Keen’s Ch. 590, the testator gave real and personal estate to his daughter A and to two other persons, upon trust, to permit A to receive the rents and interest for life for her separate use, and after her decease, in trust, to convey to her heirs, executors, etc.; but in case A should marry and haVe no children, then the property to belong to D; or in case of his decease before A, then to his children; it was held, that A took an absolute equitable estate with an executory gift over to D and his children, etc.
In Edelen v. Middleton, 9 Gill, (Md.) 161, where a testator made a bequest to his son to be paid to him after the natural life of his wife and himself, at which death might last happen, but in case his son should die without lawful issue and before he possessed the property, the whole to go to his daughter; and the son died without issue in the lifetime of the testator; it was held that the limitation over to the daughter was good as an executory devise ; that, by the words used, the testator showed that he meant a definite failure of issue, a dying without issue before the right to possess the property could accrue; that the widow took a life estate, etc.
In Ladd v. Harvey, 21 N. H. 514, personal property was given by a will to L. and her heirs, “in case she should leave at the time of her decease a living child or children born of her body,” otherwise the property was to go to her father; and it was held, that the will referred to the legatee’s dying without issue living at the time of her death, and that the limitation over to her father was a good executory devise. So, also, where a testator bequeathed leasehold property to A and to his lawful heirs, and if he die and leave no lawful heir, then to B, it was held that the limitation to B was good, the words “leaving no lawful heir” being in the first place interpreted to mean “leaving no lawful issue,” and then being confined to “leaving no issue at the time of his death.” (Goodtitle v. Peyden, 2 T. R. 720). (See also Boyd v. Strahan, 36 Ill. 355" date_filed="1865-01-15" court="Ill." case_name="Boyd v. Strahan">36 Ill. 355; Siegwald v. Siegwald, 37 id. 430; Summers v. Smith, 127 id. 645; Giles v. Anslow, 128 id. 187).
This court has held in a number of cases that although a fee cannot be limited upon a fee by deed, yet it can be so limited by will by way of executory devise. (Ackless v. Seekright, Breese, 76; Siegwald v. Siegwald, 37 Ill. 430" date_filed="1865-04-15" court="Ill." case_name="Siegwald v. Siegwald">37 Ill. 430; McCampbell v. Mason, 151 id. 500; Smith v. Kimbell, 153 id. 368; Palmer v. Cook, 159 id. 300). The case of Ewing v. Barnes, 156 Ill. 61" date_filed="1895-04-02" court="Ill." case_name="Ewing v. Barnes">156 Ill. 61, so far as it holds to the contrary, is overruled. The language used in Silva v. Hopkinson, 158 Ill. 386" date_filed="1895-10-11" court="Ill." case_name="Silva v. Hopkinson">158 Ill. 386, should be construed as applicable only to the facts of that case, and not as contravening the doctrine of Siegwald v. Siegwald, supra, and the other cases of a like character above referred to. If a fee can be limited upon a féé by way of executory devise as to real estate, there- is no reason why, in case of a gift of personal property to one person, there cannot be a limitation over of such property by way of executory devise to other persons, especially where, as here, the latter belong to the same class as the first taker; provided always such limitation over does not contravene the rule against perpetuities, that is to say, provided it is to take effect upon a definite failure of issue. Indeed, Mr. Gray, in his work on the rule against perpetuities, says, at the close of the chapter on future interests in real estate and personal property, (sec. 98): “The result of the investigation pursued in the present chapter-is this: Originally the creation of future interests at law was greatly restricted, but now, either by the Statutes of Uses and Wills, or by modern legislation, or by the gradual action of the courts, all restraints on the creation of future interests, except those arising from remoteness, have been done away.”
From what has been said it follows that, Albert having taken an absolute interest in the fund in question determinable in the event of his death without living heirs of his body at the time of his death, and having died without living heirs of his body at the time of his death, the fund is to be divided amongst the surviving children of the testator, to-wit: Mary J. Glover, Emily Montgomery, Thomas E. Condell and Moses B. Condell in such proportions as their circumstances may require to keep them from want, or to furnish them with the necessaries of life for themselves and their children; and that the appellee, Moses B. Condell, is entitled to participate in that division, unless the interest to come to him upon such division has been released by the quitclaim executed by him.
The interest of appellee in the share of his brother, Albert, had not accrued when the quit-claim was executed. It was then a future contingent interest which might never ripen into possession. It was limited to take effect upon a contingency which might never happen, to-wit: upon the death of Albert without living heirs of his body. By an executory devise no estate vests upon the death of the testator, but only on some future contingency. (Griswold v. Greer, 18 Ga. 545" date_filed="1855-08-15" court="Ga." case_name="Griswold v. Greer">18 Ga. 545; Bristol v. Atwater, 50 Conn. 402" date_filed="1882-12-15" court="Conn." case_name="Bristol v. Atwater">50 Conn. 402). We do not deem it necessary to discuss the question whether such a contingent, executory interest is assignable in equity or not. For the purposes of the present case it may be admitted that such an interest is assignable. If the instrument of release executed by appellee purported to release a future interest of any kind, then the question of the assignability of the interest in question would be presented. But the release is an ordinary quit-claim of all the •“claim, right, title and interest,” etc., of appellee and his wife, and contains no covenants of warranty. It is well settled that such an instrument does not pass a subsequently acquired interest. (Holbrook v. Debo, 99 Ill. 372" date_filed="1881-06-20" court="Ill." case_name="Holbrook v. Debo">99 Ill. 372). “A conveyance of all the right, title and interest in lands is certainly sufficient to pass the land itself, if the party conveying has an estate therein at the time of the conveyance, but it passes no estate which is not then possessed by the party.” (Blanchard v. Brooks, 12 Pick. 47). A quit-claim is sufficient to pass any estate which the person executing it has at the time of such execution, but it cannot effect by way of release a future contingent interest limited to the surviving members of a class upon the event of the death of one of them without living issue at the time of his death, there being no terms used in such quit-claim or release, which can be construed as referring to future interests. (Striker v. Mott, 28 N.Y. 82" date_filed="1863-09-05" court="NY" case_name="Striker v. . Mott">28 N. Y. 82). In order to create an assignment of future interests and .contingencies, “there must be on the face of the instrument expressly, or collected from its provisions by necessary implication, language- of present transfer directly applying to the future as well as to the existing property, or else language importing a present contract or agreement between the parties to sell or assign the future property.” (3 Pomeroy’s Eq. Jur. sec. 1290). Here, the quit-claim does not amount to a release of future interests. While, therefore, the instrument of release executed by Moses B. Condell had the effect of passing all his interest in the share specifically set off to him or for his use in his father’s estate, yet it did not have the effect of passing the future contingent interest in his brother Albert’s share limited over to him so as to take effect only in the uncertain event of Albert’s death without living heirs of his body.
The court could here direct the fund in question to be divided among the children of the testator in such proportions as their circumstances may require to keep them from want, or to furnish them the necessaries of life for themselves and children, if there were any evidence in the record upon that subject. Where a power in relation to the distribution of a fund is conferred by the testator upon a trustee, the court will place itself in the position of the trustee, if the discretion of the latter is to be governed by some rule or state of facts which the court can inquire into and apply as effectually as a private individual could do; in such case, the court “can look with the eyes of the trustee” and substitute its own.judgment for his. (1 Perry on Trusts,—4th ed.—secs. 255,117). But there in no evidence in the record to show, that any of the testator’s children or grandchildren are in such circumstances as require them to be kept from want or to be furnished with the necessaries of life. Hence, the court will execute the trust by dividing the fund equally among the children, on the ground that equality is equity. (Idem. sec. 255). Counsel for appellants concedes in his brief, that, in the absence of evidence as to the circumstances of the testator’s children, all the court can do is to carry out testator’s general intent and divide the fund equally among the children entitled thereto. The difference between appellants and appellee is not as to the principal of equality in the division, but as to the persons among whom the division should be made, appellants contending that the division should be between Mrs. Glover and Mrs. Montgomery only, and appellee contending that it should be made between them and himself and his brother, Thomas E. Condell.
Our conclusion is, that the fund here in question, with the interest accrued thereon since the death of Albert B. Condell, should be equally divided among the four surviving children of the testator above named, unless the right to such division, so far as appellee is concerned, has been cut off by advancements made to him in the lifetime of his father.
Second—As to the advancements. Upon this branch of the case the contention of appellants is, that the moneys, charged to Moses B. Condell in the account attached to the will, and the notes against him held by the testator at the time of the latter’s death, are advancements, and that, as such advancements exceed in amount his share of the estate, he is not entitled to any interest in the fund in question without bringing into hotchpot what he has received. It is not at all clear, that the testator did not intend to draw a distinction between the advancements made to his children and the debts due to him from them, as evidenced by their notes. The intention to make such a distinction is very strongly indicated by the language used in the fourth section of the will and in the various clauses embraced under that section. But whether the notes, as well as the moneys charged in the account, are to be embraced in the amount of the advancements, or not, can make no difference in view of the language used in the first clause of the codicil. That language is as follows: “If, in the settlement of my estate according to the provisions of the foregoing will, it should appear that the amount advanced and loaned to my son Moses B. Condell should exceed his share of my estate, then his share shall be what he has already received and his notes shall be canceled and delivered to him.” The will and the codicil are to be construed together. (Jones v. Jones, 124 Ill. 254" date_filed="1888-03-26" court="Ill." case_name="Jones v. Jones">124 Ill. 254). When they are construed together here, it will appear that the amount of the advances and loans to Moses B. Condell was not intended to be set over against the contingent and executory interest which might come to him in the event of the death of his brother, Albert, without living heirs of his body. The words, “settlement of my estate,” refer to the adjustment of the estate in the due course of administration in the probate court, when the debts are paid, the credits are collected, and nothing remains but to proceed with the steps for the division of the residue. (Giles v. Anslow, 128 Ill. 187" date_filed="1889-04-05" court="Ill." case_name="Giles v. Anslow">128 Ill. 187; Valentine v. Ruste, 93 id. 585; Calkins v. Smith, 41 Mich. 409" date_filed="1879-07-03" court="Mich." case_name="Calkins v. Estate of Smith">41 Mich. 409). The reference here is not to the settlement of the trust imposed upon the executors by the will. An executor may serve in two capacities, and have two different sets of duties to perform. When he acts simply as executor, he performs the functions of administration, such as receiving and paying what is due to and from the estate. But, in addition to these duties, he may be appointed testamentary trustee under the will, and have another class of duties to perform as the donee of a power in trust. (Calkins v. Smith, supra; 7 Am. & Eng. Ency. of Law, p. 179; 1 Perry on Trusts, sec. 262; Nevitt v. Woodburn, 160 Ill. 203" date_filed="1895-10-11" court="Ill." case_name="Nevitt v. Woodburn">160 Ill. 203). The trust may last longer than the administration of the estate. The settlement here referred to is that which is made with the probate court under the 114th section of the Administration act, where it is provided, that “the county court shall enforce the settlements of estates within the time prescribed by law,” etc. (1 Starr & Cur. Stat. p. 243).
That the settlement as executor, and not as trustee, is referred to is further apparent from the fact, that, when it takes place, the notes of Moses B. Condell are to be surrendered and delivered up to him, showing it to have been within the contemplation of the testator that his son, Moses, would then be alive; and. it could not have been intended, that the notes should remain uncanceled and undelivered until the executory interests of Moses in the shares of his brothers and sisters should have been determined by their respective deaths.
The share of Moses was to be what he had already received and his notes were to be canceled and delivered to him if, at such settlement, it should appear that the amount advanced and loaned to him should exceed “his share of my estate.” The word, “share,” as here used, has the same meaning which it has when used in section 4 of the will and the clauses thereunder; that is to say, it refers to the one-sixth share given to Moses by the will, and does not include the executory contingent interest to accrue upon the death of Albert without living heirs of his body.
The word “share” in a will does not apply to executory interests taken under the will. “Accrued shares will not pass under the word share or portion.” (Theobald on Wills,—2d ed.—p. 516; 3 Jarman on Wills,—R. & T.’s 5th Am. ed.—p. 560).
In view of the first clause of the codicil, we are of the opinion that the advancements and loans made to Moses B. Condell do not have the effect of destroying or cutting off his interest in the fund in question.
For the reasons here stated the judgment of the Appellate Court and the decree of the circuit court are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
Mr. Justice Carter took no part in the decision of this case, having been of counsel in the court below.