| Ill. | Jan 25, 1889
delivered the opinion of the Court:
This is a bill for partition, exhibited in the Superior Court of Cook county, by Anson B. Jenks, claiming to be the owner, as trustee, of the legal title in fee of an undivided third of certain lands lying near the town of Pullman, and by Charles Joel Walter, his cestui que trust, claiming the equitable title in fee of said third interest in said lands. The defendants in the bill are Huntington W. Jackson and David B. Lyman, who are in possession and claim title as owners in fee of the whole of said lands under the wills of Dr. Philip Maxwell, deceased, and of his widow, Jerusha Maxwell, deceased, by virtue of a sale and conveyance by Joel C. Walter, executor and trustee under the will of said Jerusha Maxwell, to one E. Kellogg Beach, and mesne conveyances from said Beach to them.
The lands in question were patented by the United States to said Dr. Philip Maxwell, who died in 1859, having devised his entire estate, real and personal, to said Jerusha Maxwell, for life, with power in her to devise and dispose of the same by her last will and testament. In November, 1870, said Jerusha Maxwell made her last will and testament. At that time she owned a considerable amount of personal property in her own right, but subsequently, in the great fire of 1871, the building on the premises known as No. 79 Clark street, Chicago, which was a part of the property covered by the power in her husband’s will, was destroyed, and in rebuilding, she expended some $15,000 of her separate property, and likewise became indebted to her son-in-law, Joel C. Walter, in about $29,000, for advances. At the time of her death, in 1875, she left about $30,000 in personal property, and the real estate which was the subject of the power in her husband’s will, and consisted principally of unimproved lands, was of the value of about $175,000, but it was incumbered with back taxes, which were liens upon it, to the amount of something over $6000.
The first item of the will of said Jerusha Maxwell merely made provision for several comparatively small bequests of money. The present controversy turns upon the construction to be given to the second, fourth and fifth items of said will.
The cause was heard in the Superior Court upon bill, answer, replication and proofs, and the court found the issues for the defendants, and dismissed the bill for want of equity. From the decree dismissing the bill, the complainants therein prosecute this appeal.
The contention of appellants is, that under the will of Jerusha Maxwell, the title to one-third of said lands sought to be partitioned, vested in Alonzo J. Willard, trustee for Charles Joel Walter, and passed to Anson B. Jenks, his successor in trust, and that said Jenks, as trustee, is now the owner of the same. The contention of appellees is, that by said will said lands were devised to Joel C. Walter, as trustee, with power to sell and convey the same, and that he exercised such power by the sale and conveyance to Beach, from whom, by mesne conveyances, they acquired title.
The rule which controls all others in the interpretation of wills is, that the intention of the testator or testatrix, to be gathered from the entire will, must govern. Such intention is not to be ascertained from any particular word or expression used in the instrument, but is to be collected from all the words and all the provisions considered as a whole. At the same time, if it is possible, full effect must be given to every word and every clause of the will. The rejection of one clause to uphold another is a desperate remedy, to be resorted to only in case pf necessity. While, where two clauses are diametrically opposed to each other and are wholly irreconcilable, the later must prevail, on the presumption it was intended to modify or abrogate the former provision, yet such later clause, if such a' construction can fairly be given it, should be deemed to affirm, and not to contradict, the earlier clause. So, also, while the general rule is, that words used in one part of a will must be understood in the same sense when used elsewhere in the same instrument, yet where there is something in the context which makes a different meaning imperative, as that otherwise the actual intention of the testator or testatrix would be defeated, or a prior provision expressed in clear and decisive terms would be rendered inoperative, the courts will presume such words were used in different senses, when such different senses are not strained or unnatural, do no violence to the language used, lead to a reasonable conclusion, and harmonize otherwise inconsistent provisions.
There are, so to speak, four trusts created by this will in respect to property. There were three surviving children of Ophelia, the late wife of Joel G. Walter, and they were Philip E. Walter, Ida Ophelia Walter and Charles Joel Walter; and by item 2 of her will the testatrix devised and bequeathed all her property and estate which belonged to her in her own right, to said children, in equal shares. The shares of the two first mentioned children in such property were given directly to them, but in regard to the share of Charles Joel Walter therein, it was directed that it should “be vested in a trustee for him, as hereinafter provided.” The reference here, and that, too, in connection with the disposition to be made of the share of Charles Joel in the separate property of the testatrix, is to item 5 of the will, and on turning to said item 5, it is seen that it is recited therein that said Charles Joel Walter “has shown indications of not being in his right mind,” and provision made that his “entire share or shares, under the will, shall go to and be vested in a trustee,” and that Alonzo J. Willard is nominated and appointed to be such trustee. Whatever may be the other trusts created by the will, there can be no question but that said items 2 and 5, taken and considered together, show that it was the intention of the testatrix that a share in the property owned by her in her own right should vest in said Willard, in trust for said Charles Joel Walter.
Item 4 of the will contains three distinct clauses or provisions. The first of these clauses creates what may, for convenience, be designated the second trust of the will, and in which trust all three of the children of Ophelia, late wife of said Joel G. Walter,—i. e., Philip E., Ida Ophelia and Charles Joel Walter,—are cestids que trust; and the second of said clauses creates what may be denominated the third trust, it being a trust for the benefit of said Ida Ophelia Walter, only. The first clause or provision of said item 4 refers to the power donated by the will of the deceased husband of the testatrix, and in execution of said power, devises and bequeathes all the property and estate whatsoever, covered by the said power, to Joel G. Walter, in trust for the children of Ophelia, his late wife, in equal shares. The second clause of the same item provides that the share “allotted” to Ida Ophelia Walter shall be held in trust for her “as aforesaid,” so that after her arrival at lawful age the net annual income “thereof” shall be paid to her during her life, and that upon her death the full legal title to the share so allotted to her or for her benefit, “as aforesaid,” shall at once vest in her heirs-at-law other than her husband. Both of the trusts created hy this “item 4” are in the property and estate held by the testatrix under the power. One of them is for the benefit of all three of the children, and the other for the individual benefit of Ida Ophelia. Joel C. Walter is designated as the trustee in respect to both of these trusts,—in respect to the first, in express words and by language which is specific in its terms; in respect to the trust for the benefit of Ida Ophelia, by the repeated use of the words “as aforesaid,” in the particular connections in which they are found. It is plain, also, that the first of the trusts reposed in him includes all the property and estate under the power, and that the other of said trusts merely covers such portion of said property and estate as may be “allotted” to said Ida Ophelia as “her share.”
The third clause or provision of said item 4 is: “The trustee * * * under this item of my will shall have power to make division of the property covered by the same, to receive the interest, income, rents and profits thereof, to pay taxes and all other charges thereon, make repairs and improvements, sell and convey, and do all other acts which may be necessary and proper to fully execute the trust reposed in him.” This third clause is to he read in connection with and as having application to both the other provisions or clauses of item 4, and as bearing upon the powers conferred by the will upon the trustee in respect to both of the trusts created by the item. Its language is, “the trustee * * * under this item of my will.” Who is the trustee under said item? Plainly, Joel 0. Walter. He is the only trustee named in said item. But he is nominated trustee in respect to two distinct trusts, both trusts being provided for in the same item. The clause does not, in terms, designate with reference to which of the trusts mentioned in the "item the powers enumerated therein are given. In fact, they are conferred upon him as “trustee” “under this item.” In other words, they are not confined to his trusteeship under the one trust or the other, but are to be held donated to him as trustee under each and both of the trusts, so far as they are capable of application to both or either. "Very evidently these powers were not donated to him solely as trustee of the share allotted to Ida Ophelia, for the “power to make division of the property covered by the item” there would be no occasion or opportunity to invoke in the execution of the provisions of the will in respect to said share, after it was once- set apart to her, and, manifestly, said power was intended for the purpose of enabling the trustee to make division of all the property and estate, under the power in the will of Dr. Maxwell, among the beneficiaries designated in the will of his widow. If the powers enumerated in item 4 are to be restricted to one, only, of the trusts under said item, then it is plain they must be confined to the trust which has for its subject the whole of the property and estate. But we are inclined to the opinion, that while the power to make division was designed to and only could apply to the trust cover-, ing the whole property, yet that the other enumerated powers were donated in respect to both of the trusts. The phraseology of this third clause of the item, as well as the general scope and intention of the will, seems to indicate this. The trustee or trustees of the allotted share of Ida Ophelia would be a trustee or trustees under “this item,”—the 4th,—of the will. “The property covered by the same” (item) would include said share as well as the whole property. The subsequent words, “thereof” and “thereon,” refer to the property covered by the item,—i. e., both all the property devised and bequeathed to Joel G. Walter and the allotted share of Ida Ophelia, and in the concluding words of the sentence the reference is to other acts in execution of “the trusts” reposed, (not the trust reposed,) thereby indicating it was the intention to give the powers in respect to both trusts, and .that there was only- a failure so to do, to the extent that one of said powers,—that of making division,—was inapplicable, under the scheme of the will, to the trust, the subject of which wras, solely, the allotted share of Ida Ophelia.
Having, for the present, regard only to this item 4 of the will, it seems to us very clear therefrom, that it was the intention of the testatrix to vest, immediately upon her death, all the property and estate covered by the power in the will of her deceased husband, in Joel C. Walter, in trust for the children of the deceased wife of said Joel C., in equal shares, and to give power to said trustee to receive the interest, income, rents and profits thereof, and pay the taxes and other charges thereon, and, in his discretion, make repairs and improvements on, and sell and convey, said property and estate, and finally make division between the beneficiaries, thereby ending the general trust covering the whole property, wherein all the children were cestuis que trust. The division being made by such trustee, and the property apportioned and set apart to the several beneficiaries, this item further provides, that “.the share allotted to Ida Ophelia Walter” “shall be held in trust for her, as aforesaid.” How held in trust for her “as aforesaid?” Evidently by Joel G. Walter, and, upon his death, by the executors and trustees of his last will and testament. If the whole matter stood upon this item 4 alone, then, upon the division of the property, the share of Ida Ophelia would remain in the same trustee named in the general trust, but under a different trust, and the shares, as allotted, of Philip E. and Charles Joel, would vest in said Philip E. and Charles Joel, respectively. But, as we have already seen, it was provided in item 5 of the will, that as Charles Joel had shown indications of not being in his right mind, “his entire share or shares,” under the will, should go to and be vested in a trustee, and that Alonzo J. Willard was appointed such trustee. When would the entire share or shares of Charles Joel vest in Willard, as trustee ? Unless otherwise provided, a will speaks from the death of the testator or testatrix. In respect to the share of Charles Joel in the property of the testatrix owned in her own right, and mentioned in item 2, the will, in this item 5, does so speak. But it does not necessarily speak from that time, in regard to the share of Charles Joel in the property under the power, with which, and which only, item 4 deals. It is to be noted, that it is only in this 'first part of item 5, and in speaking of the vesting of titles in the trustee'for said Charles Joel, the expression, “share or shares,” is used, instead of the word “share,” alone. The words, “shall go to and be vested in a trustee,” evidently have reference to both the share in the property out of the power, and the share in the property under the power, and the conclusion, from such expression, would ordinarily be, that the title to both shares vested in such trustee immediately upon the death of the testatrix. But it is manifest this result can not be accomplished in respect to the share* in the property under the power, until a division is made by the general trustee, without completely ignoring the express provision of item 4, devising and bequeathing all the property and estate covered by the power, to Joel C. Walter. The principle that should govern is, to give effect to both items 4 and 5, and carry out the intention of the testatrix, as gathered from all the words and all the provisions of the will, considered as a whole.
The titles to both shares of Charles Joel Walter are eventually to vest in the trustee named in item 5, but the will does not, in express language, designate the time or times when they shall so vest, and in order to carry into effect the substantial requirements of the will, it is necessary to hold that one of these shares is an undivided share, and vests immediately, and that the other is an allotted share, which can vest only when a division is made by the general trustee of the property under the power, and the respective shares therein of the several children ascertained and set apart. This construction merely, and in respect to one, only, of the two shares in property covered by it, postpones the operation of the trust created by item 5, and a different construction would wholly nullify and destroy an explicit provision contained in, and a clearly expressed trust created by, item 4.
The objections urged to the view of the will we have taken are not of controlling weight. We see no valid reason why there may not be two trustees and two separate and distinct trusts in regard to a portion of the property covered by the power, if only these trusts are so arranged, in regard to time and otherwise, as that there shall be no clashing. Here, the general trust which vested in Joel C. Walter naturally and necessarily ended when he made a division of the property in accordance with the express power given him in that behalf. Then, and not until then, did the share of Charles Joel Walter in the estate of Philip Maxwell vest in the trustee named in item 5 of the will, and then, and not until then, was fully accomplished the intention of the will in respect to “the entire share or shares” designed for the benefit of said Charles Joel, which was, that they should go to and be vested in the trustee nominated in said item. We see nothing inconsistent in the provision that Joel C. Walter, while he is trustee of the whole of the property covered by the power, shall have power to sell and convey, and that Willard, trustee for Charles Joel, after the allotment and distribution, shall have power “to sell and convey any property belonging to the share of Charles Joel, when, in his discretion, it shall appear necessary and proper so to do.”
It is no doubt true, that the testatrix, in the disposition of the property, was anxious to secure Charles Joel Walter an ample support. But it is to be borne in mind, that under the will his interest in her separate property was to vest immediately in the trustee appointed to act in his behalf; that at the time she made the will, (in 1870,) the Clark street building had not been destroyed by fire, and consequently she had not expended $15,000 of her own means in rebuilding, and had not borrowed nearly $30,000 for the same purpose, and that the $6000 of back taxes were not then due and unpaid" on the property of her deceased husband. Consequently, the income to be derived from the one-third of her separate property, as it then stood, would have been quite considerable. And, besides this, said trustee was authorized to encroach upon the principal of the fund derived from said property, the provision of the will being, that he should “see that the said Charles Joel is properly maintained and amply provided for out of said property held hereunder by said trustee, he using such an amount for that purpose as, in his discretion, shall seem best.” The testatrix had the utmost confidence in the integrity, sound judgment and business qualifications of Joel C. Walter. This is shown, not only by the provisions of the will itself, but conclusively appears from the evidence dehors the will. She therefore gave him plenary power over the entire estate derived from her husband, until a division thereof was made, and she left it largely to his discretion to determine the time and the manner of making such division. The property under the _ powrer was of the value of some $175,000, and was, with the exception of the house and lot on Clark street, and a dwelling house at Lake Geneva, unimproved, and afforded no income, and the charges thereon, for' taxes and otherwise, were very considerable. She, therefore, not only authorized him to receive the interest, income, rents and profits, and pay the taxes and other charges, but also to make repara and improvements, and sell and convey, and do all other acts necessary and proper to fully execute the trust reposed in him. The power given him to sell and convey was not, in terms, confined to such sales or conveyances as might enable him to make a division or partition, but there being express authority to -repair and improve, he had a clear right to make sales, for the purpose of making repairs or improvements upon the unsold portions of the estate, and also for the purpose of paying taxes and other charges thereon.
In our opinion, no one of the four trusts created by this will are mere naked or passive trusts, but all of them are active trusts. One of them is in all of the property under the power, and is for the benefit of all of the children of the deceased Ophelia, and is vested in Joel C. Walter, as trustee. Another of them begins when the share of Ida Ophelia is allotted, and is only in the share so allotted, and is in ‘the same trustee. Another of the trusts of the will is imposed upon Alonzo J. Willard, as trustee, and begins when the testatrix dies, and at first, and prior to the division of the estate under the power, is confined to the share of Charles Joel in the property owned by the testatrix in her own right; and the remaining trust is in the share of said Charles Joel in the property under the power, and only vests in Willard after the allotment made,—and these two latter trusts, except in respect to the properties which are the subjects of such trusts, and the times when the titles thereto, respectively, vest in said Willard, are really and in fact one and the same trust.
In October, 1879, Joel C. Walter, as executor and trustee, sold and conveyed the land, an undivided one-third interest in which is here in controversy, for the consideration of $11,900, which was then its full value. There is no question of fraud involved in the case. The trust estate, and the beneficiaries therein, received the benefit of the consideration money. There was ample power in Joel 0. Walter, the trustee, under the powers donated him by the will of Jerusha Maxwell, to make the sale and conveyance, and by his deed the title to the whole interest in the land passed to Beach, and through him to appellees.
The Superior Court properly dismissed the bill of appellants for want of equity therein, and the decree of that court is affirmed.
Judgment affirmed.