152 Ill. 252 | Ill. | 1894

Mr. Justice Baker

delivered the opinion of the court:

The principal controversy in this case is in respect to the disposition which the testator made, or attempted to make, of the residue of his estate. The main questions at issue are these : First, do the trusts declared in the residuary clause of the will offend the rule against perpetuities ; and second, did the'testator declare any trust as to his tracts of land situated in the State of Illinois which contained one hundred and sixty acres or more in a body.

The polar star in the interpretation of a will is the intention of the testator. This intention is to be gathered from the words and expressions used in the will itself. The different provisions and parts of the instrument are to be compared with and read in the light of each other, so as, if possible, to deduce therefrom an harmonious whole. The general intent of the will is to be carried into effect at the expense of any particular intent, provided such general intent is consistent with the rules of law, for where there are conflicting intents that which is the most important must prevail.

The general scope and plan of the will under consideration were, first, to make provision for the wife of the testator ; second, to make provision for his children ; and third, to make provision for his grandchildren. By the second paragraph of the will he gave to his wife a life estate in the homestead, and gave to her, absolutely, all his household furniture, his horse, cow, carriage and harness, and $20,000 in money. By the third, fourth and fifth paragraphs he gave and devised to each of his three, daughters a life estate in a section of land, or in lands that were equal in quantity to a section, with remainder over in fee to the children of each, respectively. In paragraph 6 he states that he had already deeded a section of land to each of his two sons, and then in section 8 he manifests clearly that it was his intention that all the rest, residue and remainder of his property should, through the machinery of a trust, be appropriated to the use and benefit of his grandchildren.

In the first part of the paragraph he gives to his executors, in trust, all the rest, residue and remainder of his property, both real and personal, and wheresoever situated. This description includes, as being within the purview of the proposed trust, all the land that the testator owned that was not otherwise disposed of by the will, and not only the land that was located elsewhere than in Illinois, and the tracts of land, wherever located, that contained less than one hundred and sixty acres in a body, but also the tracts of land situated in the. State of Illinois that contained one hundred and sixty acres in a body. The testatof then proceeds to declare the trust upon which he gives to his executors all the residue of his property, real and personal. He first says : “All my real estate not situated in the State of Illinois, and all my small tracts of less than one hundred and sixty acres in a body, shall be sold, and the proceeds arising from such sales, and all moneys coming to their hands under this paragraph, shall be invested and kept secured on farm lands, the interest being yearly turned into principal, and the fund thus arising shall be divided among all my grandchildren, as they shall respectively arrive at the age of thirty (30) years.” Now, what is the scheme of this paragraph of the will as thus far read ? Manifestly it contemplated the formation of a trust for accumulation,—the amassing of an aggregate fund until some one of the grandchildren of the testator should reach the age of thirty years. Of what was this fund to be composed ? The proceeds arising from sales of real estate not situated in Illinois and of small tracts of land of less than one hundred and sixty acres in a body were to be one element of the fund. So was interest to be an element, and also interest upon interest yearly turned into principal; also all moneys coming to the hands of the executors and trustees under said paragraph 8. This latter would include all moneys on hand or collected that formed a part of the residuary estate, and also the proceeds realized from sales of personal property that formed a part of said residuary estate. Besides this, as we shall shortly see, still other elements were to enter into the formation of this fund.

Said paragraph 8 then proceeds as follows : “So long as any real estate shall remain unsold, the rent or income from it shall be put and kept at interest, and disposed of in the manner provided for the other funds named in this paragraph.” It is urged in some of the briefs and arguments of counsel that this last quoted sentence disposes only of the income arising from "the lands which the testator had directed to be sold, between the time of his death and the times of sales, and that the expression “so long as any real estate shall remain unsold” can not have reference to lands which he had not authorized the executors to sell. We are unable to see any sufficient reason why said expression cannot have reference to any or all of the lands given to tbp executors in trust. The testator does not say, “so long as any such real estate shall remain unsold,” nor does he say, “so long as any of said real estate shall remain unsold,” nor does he use any like or equivalent language. If he had, then there might be some ground for claiming that the word “such” or the word “said” had reference only to the lands in respect to which power of sale was given in the antecedent sentence. The language here used by the testator is, “so long as any real estate shall remain unsold.”

The rule is, that in construing a will the words and expressions used are to be taken in their ordinary, proper and grammatical sense, unless it already appears from the will that the testator used them in a different sense. The words “any real estate” are broad enough to include, and do include, the tracts of land in this State that contain one hundred and sixty acres or more, as well as the tracts in this State that contain less than one hundred and sixty acres and the tracts elsewhere located. That which the testator undoubtedly meant and intended was, that the trustees should rent all the lands that were unsold,—those that were under the power of sale up to the respective times at which they were sold, and those not under- the power up to the time they were divided among the grandchildren,—and that the rents or income derived therefrom should be put and kept at interest, and form a constituent part of the trust for accumulation or aggregate fund for distribution. “Remain unsold” can be predicated of the real estate not subject to the power of sale, as well as of the real estate under that power. In fact, if we assume that the intention of the testator was that the trustees should rent or derive income from all the real estate given them by the residuary clause of the will, and put and keep such rent or income at interest so long as such real estate remained under their supervision and control, and regardless of the fact whether such real estate was under or without the power of sale, then it may well be doubted whether he could have selected a terser and more apt phrase to designate the lands in respect to which he expressed such intention than that which he used when he said, “So long as any real estate shall remain unsold.” “Remain unsold f remain where?—in whose hands?—under whose control and management? The phrase is, perhaps, elliptical; and, if so, that which is omitted is some such expression as “subject to the trust,” or “in the possession and under the control of my executors.” But upon the whole we are inclined to think that the idea that we have in mind, and that was manifestly in the mind of the testator, is sufficiently indicated, under the circumstances of the trust and of the property, and without supplying any words, by the single and simple word used,—i.e., “unsold.”

It is unreasonable, and almost absurd, to suppose that the testator intended that the small tracts of land, while in the possession and under the control of executors, should be a source of income and profit, and at the same time the large tracts of land, while in like condition, not be rented. It is also unreasonable to suppose that the testator intended that his grandchildren should have full possession and control, immediately upon his death, of the large tracts of land, while at the same time he postponed their possession and control of the small tracts of land, and of the funds derived from the sale or the renting of the same, until they should arrive at the mature age. of thirty years. And besides all this, the literal, ordinary and grammatical interpretations that we have placed upon the words “any real estate,’’ and upon the words “remain unsold,” produce a result which is in strict harmony and accord with the general plan and scheme of the testator as developed in this paragraph 8 of the will, while other theories, urged in the arguménts of counsel, are incongruous therewith.

But this provision of the will now under examination brings within the purview of the trust declared, not only the rents or income to be derived from the large tracts of land situated in the State of Illinois, but also the lands themselves. It is not only now the law, but has been since the days of Lord Coke, that a devise of the rents and profits or of the income of land passes the land itself, both at law and in equity; and this rule of property is founded on the feudal law, according to which the whole beneficial interest in the land consisted in the right to take rents and profits. 2 Jarman on Wills, (5th Am. ed.) chap. 24, p. 403; Coke’s Lit. 46; Schouler on Wills, sec. 503, p. 506, and authorities cited in notes 4 and 5.

The interpretation we have placed upon this sentence of the residuary paragraph is fully justified by the language used therein, and it is in consonance with the rule of law that no one is supposed to make his will without meaning to dispose of all his estate, and that therefore no presumption of an intention to die intestate as to any part of his property is allowable when the words of a testator’s will may fairly carry the whole. Schouler on Wills, sec. 490, p. 495.

The next sentence of said paragraph 8 reads thus: “But if my executors, in the execution of this trust, shall think it better to divide such lands, or any part of the same, among my said grandchildren instead of making such sale, they are hereby fully authorized to do so, and divide the proceeds of what they shall sell.” It is, perhaps, more difficult to ascertain with certainty the true intent and meaning of this provision of paragraph 8 than it is to determine the intention. manifested in the other sentences of said paragraph. Its language is confused, and its words are scattered in a very awkward way. We will, for the present, eliminate the parenthetical phrase, “instead of making such sale.” The testator then says: “If my executors, in the execution of this trust, shall think it better to divide such lands, or any part of the same, among my said grandchildren, * * * they are hereby fully authorized to do so.” The inquiry arises, what lands are referred to? To what lands do the words “suchlands” refer? In the immediately preceding sentence of the paragraph the testator makes certain provisions in regard to “any real estate” that shall “remain unsold,” and, as we have already seen, these phrases have reference to or include all of the lands given to the executors by the residuary clause of the will,—to the lands excepted from the power of sale given in the first sentence of the declaration of trust, as well as to the lands expressly placed under that power; and then, having made said certain provisions in regard to all the lands given in the residuary clause, he immediately, and in the very next sentence, says “such lands.”' It is evident that these words refer to the real estate spoken of in said preceding sentence, and it follows from this that the executors were fully authorized, in the sentence now under consideration, to divide the tracts of land located in the State of Illinois and containing one hundred and sixty acres or more in a body, and also, if they thought it better, the lands covered by the power of sale, or any part of the same, among the grandchildren of the testator ; and it also follows that the making of such division would be “in execution of the trust.” The language of this sentence is, moreover, clearly indicative of the intention of the testator that we have hereinbefore found to be expressed in another sentence,— 1 e., that the equitable or beneficial interest in the large tracts of land in this State should, at least eventually, be in said grandchildren, or in such of them as should attain the age of thirty years.

To recur, now, to the parenthetical phrase hitherto excluded from view, and to the concluding clause of the sentence. The trustees were authorized, should they think it better, to divide all the lands devised to them, or a part of said lands, “instead of making such sqle, *' * * and divide the proceeds of what they shall sell.” The words “such sale,” here found, must necessarily relate to the power of sale given in the first sentence of the declaration of trust, for that is the only power of sale given to the executors. There is no authority given them anywhere in the will to sell the tracts of land in this State containing one hundred and sixty acres or more in a body. In other words, the testator first peremptorily directed a sale of specified lands, and he here qualifies that direction by authorizing his executors to divide all the lands given them by the residuary clause,—not only all the lands excepted from the power of sale, but also, if they “shall think it better,” all or any part of the lands that were in the first instance directed to be sold.

Prom each and both of the two sentences of the will that we have last passed in review, it seems to be manifest that it was the intention of the testator that the executors should divide among his grandchildren the large tracts of land in Illinois. This being so, is there anything to show that the trust as to these lands was to differ from the trust imposed on the other lands and the moneys arising from other sources, with respect to the persons who should ultimately take or with respect to the time of distribution? We think not. We find nothing in the will or in the record to indicate that the testator contemplated that a division of these particular lands should be made at the time of or soon after his death. At the date of his will all the grandchildren were minors, and even at his death only one was of age, and almost all the rest were mere infants, and wholly incapable of themselves managing property. It is unreasonable to suppose that he intended that this part of the residue should be divided at his death, when he so emphatically postponed the division of the great mass of the residue until the grandchildren should respectively attain the age of thirty years. Division at his death means a gift to those, only, of his grandchildren who are then living; and why should he intend to discriminate between the grandchildren living at bis death and those born after his decease, with respect to this part of the residue and not as to the rest of it? No reasonable ground based on the language of the will, or based on his general scheme of distribution, can be assigned for such intention. But there are two things which are decisive of this matter. As we have already seen, it was the intention of the testator that the rent and income derived from these large tracts of land should be put and kept at interest, and both rents and interest constitute part of the aggregate fund for distribution; and, as we have also already seen, the executors were authorized by the will to divide among the grandchildren, not only the large tracts of land in Illinois, but also the small tracts of land therein and the lands located in other jurisdictions, and as to these latter, or their proceeds, the time for distribution was deferred to a future period, and it is not to be presumed that he had in view two distributions of his real estate among his grandchildren, especially so when such a conclusion would be inconsistent with the general intention, plan and scope of his will. And so we answer the second of the main questions involved in this litigation, by saying that the testator did declare a trust as to his tracts of land situated in the State of Illinois which contained one hundred and sixty acres or more in a body, and that that trust is the same trust that he declared in respect to all the rest of his residuary estate.

If the whole case rested right here, and there was no further provision in the residuary clause, or elsewhere within the four corners of the will, bearing upon the first of the main questions here at issue, then it would necessarily follow that the trusts declared in said residuary clause offend the rule against perpetuities, and are void. In at least four different cases the rule ag-ainst perpetuities has been defined by this court, as follows : “A perpetuity is a limitation taking the subject thereof out of commerce for a longer period than a life or lives in being and twenty-one years beyond, and in case of a posthumous child a few months more, allowing for the time of gestation.” (Rhoads v. Rhoads, 43 Ill. 239 ; Waldo et al. v. Cummings et al. 45 id. 421; Lunt v. Lunt, 108 id. 307; Hart v. Seymour, 147 id. 598.) Gray, in his treatise on the Rule Against Perpetuities, (p. 144,) states the true form of the rule to be this : “No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest and on page 194 he says that the true object of the rule is to prevent the creation of interests on remote contingencies, and that its effect in removing restrictions on the immediate conveyance of property is only an incident.

It is, among other things, claimed by counsel for appellants that the disposition made by the will of the residuary estate is not in contravention of the rule, because by the will the legal title to the lands was vested' in the executors. This claim is not well made. A perpetuity will no more be tolerated when it is covered by a trust than when it displays itself undisguised in the settlement of a legal estate, and courts of equity will not permit limitations of future equitable interests to transcend the limits assigned for the limitation of similar légal interests or executory devises, and shifting and springing uses at law. (1 Perry on Trusts, secs. 378, 382, 383 ; Gray on Perpetuities, pp. 144, 228; Marsden on Perpetuities, p. 4.) And it is also the rule that trusts for accumulation must be strictly confined within the limits of the rule against perpetuities. 1 Perry on Trusts, sec. 393; Schouler on Wills, sec. 21.

It seems to us that in the case at bar the directions given by the testator with respect to the distribution of the accumulated fund are the same, in effect, as if he had directed the fund to be equally divided among all his grandchildren who attain thirty years of age, or among such of his grandchildren .as attain that age. His language is : “The fund thus arising shall be divided among all my grandchildren, as they shall respectively arrive at the age of thirty years.” As already suggested, if the whole case of the grandchildren was based upon this provision,.then the trust would be void, for the case would be governed by the leading case of Leake v. Robinson, 2 Mer. 363, which has been followed in numerous subsequent decisions, and was cited and quoted from with approval in Blatchford v. Newberry, 99 Ill. 45.

In Leake v. Robinson, Sir William Grant, Master of the Rolls, said“Having ascertained the persons intended to take, the next question is at what time the interests given were intended to vest. There is no direct gift to any of these classes of persons. It is only through the medium of directions given to the trustees that we can ascertain the benefits intended for them. * * * As to the capital, there being, as I have already said, no direct gift to the grandchildren, we are to see in what event the trustees are to make it over to them. There is, with regard to this, some difference of expression in the different parts of the will. In some instances the testator directs the payment to be to such child or children as shall attain twenty-five. In others the payment is to be made upon attainment of the age of twenty-five. In the residuary clause it is from and immediately after such child or children shall attain the age of twenty-five that the trustees are to transfer the property. But I think the testator, in each instance, means precisely the same thing, and that none were to take vested interests before the specified period. The attainment of twenty-five is necessary to entitle any child to claim a transfer. It is not the enjoyment that is postponed, for there is no antecedent gift, as there was in the case of May v. Wood, of which the enjoyment could be postponed. The direction to pay is the gift, and that gift is only to attach to children that shall attain twenty-five. * * * It was supposed that the clauses in the will where the word ‘such’ is left out might be construed differently from those in which it is inserted, and that although where the payment is to be to such child or children as shall attain twenty-five, nothing could vest in any one not answering that description, yet where the payment is to children upon the attainment of twenty-five the vesting is not postponed. If there were an antecedent gift, a direction to pay upon the attainment of twenty-five certainly would not postpone the vesting. But if I give to persons of any description when they attain twenty-five, or upon their attainment of twenty-five, or from and after their attaining twenty-five, is it not precisely the same thing as if I gave to such of those persons as should attain twenty-five? Hone but a person who can predicate of himself that he has attained twenty-five can claim anything under such a gift. * * * All is to go to those who do attain twenty-five. How is it possible, therefore, that a child can be said to have a vested interest before twenty-five, when it has neither a right of enjoyment, a capacity of transmission, or a ground of claim, until it shall have attained that age? That, etc., etc., etc., are all of them circumstances that appear to me not at all to affect the question of vesting, as none of these clauses makes any new gift to the grandchildren, nor can they alter the terms or conditions of that which had been already made. Then, assuming that after-born grandchildren were to be let in, and that the vesting was not to take place till twenty-five, the consequence is that it might not take place till more than twenty-one years after a life or lives in being at the death of the testator. * * * On the whole, my opinion is that all the bequests to the grandchildren, as classes, * * * are wholly void.”

But in the case at bar, paragraph 8, the residuary clause of the will, closes with this sentence: “My intention in disposing of the property named in this paragraph is to divide it equally among all my grandchildren.” This, in our opinion, distinguishes this case from Leake v. Robinson, supra. There, the direction to the trustees to pay was the gift, and the only gift, and the Master of the Rolls, in the language that-he used in delivering his judgment, gave frequent intimations that if there had been, in addition, a “direct gift,” an “antecedent gift” or a “new gift” to the grandchildren, his judgment would have been otherwise.

No particular form of words is required in a will. All that is necessary is that the words used by the testator show what his intention is,—what disposition he makes of his property.. Here, the language used by the testator is in prcesenti. At the beginning of the paragraph he gives all of his residuary estate to his executors, “in trust for the following purposes.” Then he gives certain directions to his executors in respect to sales of real estate, distribution of the property among all his grandchildren as they shall respectively arrive at the age of thirty years, etc., and he closes the paragraph by saying: “My intention in disposing of the property named in this paragraph is to divide it equally among all my grandchildren.” This language clearly points out both the subject and the objects of his bounty, and indicates a gift to his grandchildren, as a class, of the beneficial interest in and equitable title to all of the residuary estate. Such interest and title vested in the grandchildren immediately upon the death of the testator, but subject to open up and let in after-born grandchildren. It will not do to say that the testator conceived that his directions for a division among his grandchildren were not sufficiently explicit, and that he therefore added this last clause for the purpose of indicating that the property should be divided among them equally. The language of the directions that he had already given to the trustees carried with it the force of a direction to divide equally, and he must be presumed to have known the meaning of the language that he himself had just used. Nor will it do to say that there is nothing in the clause that is testamentary in itself, or that amounts to a gift independently of the directions to the trustees. Strike out all the directions to the trustees, and leave nothing in the paragraph except the gift to them “in trust for the following purposes” and this last clause, and you will still have abundant language in the paragraph to pass the beneficial interest in the residuary estate to the grandchildren. Nay, more; it would seem that if such directions were stricken out, then, there being a mere passive or naked trust, by force of the Statute of Uses (Rev. Stat. chap. 30, sec. 3,) the legal estate and fee, so far as the lands are concerned, would be transferred to and vested in the grandchildren.

This case falls within the rule announced by Lord Chancellor Cottenham, in Matter of Trusts of the Will of Thomas Bartholomew, 1 MacN. & G. 354. There, a testator, by his will, directed the investment of £2000, and the payment of the interest to his daughter for life, and from and after her death declared that the trustees should hold the fund upon trust to pay the same or assign the securities, wherever the same might be then placed or invested, unto, between and amongst all and every the child and children of his said daughter, as and when they should severally attain the respective age of twenty-one years, in equal shares and proportions, share and share alike, “to whom I • give and bequeath the same accordingly.” It was there held that these words contained a direct gift, independently of the direction to pay, the words “to whom” referring to all and every the child and children of the testator’s daughter, and consequently that a child .of the testator’s daughter, dying under twenty-one, took a vested interest in the legacy.

Since we have arrived at the conclusion that the beneficial right, title and interest in the residuary estate vested, upon the death of the testator, in his grandchildren, although not to take effect in possession until a future day, it follows that the trusts declared in the residuary clause of the will are not to be regarded as obnoxious to the rule of law for the prevention of perpetuities.

A point is made in respect to the vesting of the accumulations of interest. .Where property and the principal of a fund vest in interest upon the death of the testator, the rents from the one and the interest from the other are mere accretions to the property and the fund, respectively, and they equitably belong to the cestuis que trust, and go with and vest with the property and the principal of the fund.

In paragraphs 10 and 11 of the will of the testator, provisions are made for conditional limitations in favor of surviving grandchildren. The conditions on which these gifts over are limited are too remote because they may happen beyond a life or lives in being and twenty-one years. They are therefore void. But their being void does not affect the validity of the gifts made in the residuary clause or paragraph. When-.a subsequent condition or limitation over is void, by reason of its being impossible, repugnant or contrary to law, the estate becomes vested in the first taker, discharged of the condition or limitation over, according to the terms in which it was granted or devised; if for life, it then takes effect as a life estate ; if in fee, then as a fee simple absolute. Proprietors of the Church in Brattle Square v. Grant, 3 Gray, 142; Taylor v. Frobisher, 10 Eng. L. & Eq. 116 (16 Jur. 283); Den d. Trumbull v. Gibbons, 2 Zabr. (N. J.) 117.

The circuit court of LaSalle county erred in entering a decree finding and decreeing that the eighth paragraph, or residuary clause, of the will was void, that a portion of the property given by the will should be distributed as intestate estate, and that the grandchildren of Peter Howe, deceased, did not take anything under the will. For these errors the decree is reversed, and the cause is remanded for further proceedings not inconsistent herewith. And it is further ordered that the executors of the estate of Peter Howe, deceased, pay the costs of this appeal in due course of administration.

Reversed and remanded.