247 Ill. App. 98 | Ill. App. Ct. | 1927
delivered the opinion of the court.
The main contention of appellants’ counsel is that the circuit court erred in dismissing complainants’ amended bill for want of equity, because, by virtue of the transactions and decrees of 1908, the three charitable corporations in consideration of their releases each received $40,000, and there resulted a large ‘1 saving” to the estate ($653,747.05, as found by the master) which became intestate property and should be distributed accordingly.
When said 1908 decrees were entered the probable termination of the trust under the will of Jonathan Clark was about 51 years thereafter. When that time arrived, as provided in the will, one-half of the property in the hands of the trustees, including accumulations, was to be distributed to his then living descendants, and the other half to the three charitable corporations. And, as we understand counsels’ argument, it is that, as at the expiration of the trust period the living descendants were limited to receiving only one half of the property, and as the total sum ($120,000) received by said corporations was paid out of the funds of the estate, and as said sum was much less than half of the value of the testator’s property in 1908, after talcing into account the property set apart to the widow in settlement of her claims, and other proper deductions, the difference (whatever it may be found to have been) between said half of the value of said property and said sum of $120,000 became intestate property and should now be distributed.
We cannot agree with the contention or argument, and, after reviewing the provisions of the will, the .1908 decrees and the evidence, we are of the opinion that the decree, dismissing complainants’ bill for want of equity, was warranted under the law and the evidence. And we think that the court’s findings in the decree, also, were warranted. Some of these, findings are, substantially, that the 1908 transactions and decrees did not result in any saving which became intestate property or otherwise subject to distribution; that, if there was a saving, it, under the terms of the will, could only be distributed at the expiration of the trust period to the then living descendants of the testator; that the widow and the other heirs, by paying $120,000 from their personal funds to the .three corporations, purchased the then vested rights and interests of the corporations in the testator’s property and future accumulations ; that the bargain was not one between the corporations and the trustees; that no showing has been made that the purchase was unlawful or prejudicial to the interests of any of the present complainants ; ánd that, in any event, the 1908 decrees are res adjudicaba of all these questions.
To support their contention appellants ’ counsel place great reliance upon the case of Dunham v. Estate of Stephens, 190 Ill. App. 554, decided by the third district. That case involved the question whether the difference between the amount certain legatees would have received under a will, and the amount for which they sold and assigned, their legacies, became intestate property and descended to the testator’s heirs-at-law. The court held that, as the amount paid to said legatees for their interests under the will came from the funds' of the estate, and as a large sum thereby was saved to the estate, the money so saved “became intestate estate and should descend accordingly.” But the facts, upon which the court’s holding was based, differ materially from those in the present case, where, instead of the estate acquiring the interests of the settling legatees, those interests were purchased out of funds belonging to other beneficiaries under the will, and subject to the general trust provisions of the will. In the present case, there was a pending contest over the validity of the will, and also family disputes and differences, and a bargain or compromise agreement was made between all the beneficiaries of the will whereby a decree should be entered sustaining the will, and certain beneficiaries should receive money in consideration of their releasing all their rights and interests under the will. Such compromise agreements are favored by courts of equity. (Cole v. Cole, 292 Ill. 154, 165; Hall v. Hall, 125 Ill. 95, 101; McDole v. Kingsley, 163 Ill. 433, 437.) Furthermore, in the present case, it appears that the bargain (including the other elements of the entire settlement transaction) was confirmed by a decree of a court of equity in July, 1908, and that the bargain, and the entire compromise settlement as agreed to by all parties in interest, was consummated shortly thereafter. In the opinion of the court in the Dunham, case it appears that the agreement in that case “contains no intimation that any person is to secure the benefit of the assignment of the legacies” of those beneficiaries who settled. In the present case it is otherwise. Under the terms of the will of Jonathan Clark, a trust for accumulation, so to speak, was intended and provided for. As stated in the will, he believed it would be for the best interests of the named beneficiaries that his property be held by the trustees “undivided, as long as possible.” He directed that the trust should not terminate until 20 years after the death of the last survivor of his widow and five children. He further directed that the “surplus” of the net income of the property, after paying the expenses, annuities, etc., “may he invested by said trustees from time to time, * * * either in erection of buildings upon any lands I may hold under ground leases, * * * or in repairing or rebuilding any of such buildings, * * * or in the purchase of the fee simple title to any of the lands of which I may hold a ground lease, or in safe, interest bearing securities.” In the July, 1908, decree, the terms and elements of the compromise agreement were fully set forth. In addition to those terms and elements, which we have mentioned above in our statement of the case, were the following, as found in said decree: “The said compromise agreement further contemplates and indudes the provision that when the same shall have been carried into full effect by grants, assignments, releases and payments, * * * all the remainder of the said property not conveyed or assigned to Alice Clark shall remain in the hands of the trustees * * * subject to the trusts of said will in all respects. (Except in respect to such trusts as are by the will created for charitable uses, which charitable trusts are hereby adjudged to be wholly extinguished so far as concerns the trustees under said will and the other beneficiaries thereunder, by and upon the payment to said charitable corporations of said sum of $40,000 each, as herein provided), said property so remaining in the hands of said trustees under said will to be dealt with as in said will directed, during the entire period of said trust, but that the entire trust property as it then is shall be distributed at the expiration of said trust as required by the terms of said will among the then descendants of Jonathan Clark, but none of any of said corporate legatees, or their successors, or persons claiming under them, * * *.”
It thus appears that in. the compromise agreement in the present case, confirmed by said decree, it was agreed between all the parties, including the present complainants, that, if there was any “saving” by virtue of said transactions, it was to be treated as a part of the remainder or residue of the testator’s estate and should be distributed at the expiration of the trust period among the then living descendants of the testator.
In the reply brief of complainants’ counsel are repeated statements to the effect that the money which was paid to the three charitable corporations belonged “to the estate”; that the widow and other heirs of the testator did not purchase out of their own funds the interests of said corporations under the will; that “the trustees merely traded property for money with which to purchase the charities’ interests,” and that “the money was provided by the exchanging of the Follies’ Theatre property with the heirs for the money the heirs were to receive.” We shall not discuss these statements further than to say that in our opinion they are not supported by the evidence, and are contrary to the findings in said July, 1908, decree, and to the order of the probate court, entered when the estate in that court was settled and the executors discharged.
And we are of the opinion that the decree in the present case was correct for the further reason that the former decree of July, 1908, supplemented by the November, 1908, decree, are res ad judicata of the questions under discussion, and a bar to the maintenance of said bill, which is in the nature of a collateral attack upon said decrees, from which no appeal was prosecuted and which stand in full force and effect. (Swiggart v. Harber, 4 Scam. (Ill.) 364, 371; Miller v. Rowan, 251 Ill. 344, 348; Matthews v. Boner, 292 Ill. 592, 595; Beck v. Lash, 303 Ill. 549, 556.) If any of the parties to said consolidated causes, Nos. 279,244 and 240,613,. at the time the July, 1908, decree was entered, thought that as a result of the transactions and compromise agreement there was any intestate property to be distributed they should then have raised the point, and, not having done so, are in no position to do so now under the present bill. “The doctrine of res adjudicata extends not only to every matter that was actually determined in the former suit, but to every other matter which might have been raised and determined in it.” (South Park Com’rs v. Montgomery Ward & Co., 248 Ill. 299, 312; Godschalck v. Weber, 247 Ill. 269, 274; Tinker v. Babcock, 204 Ill. 571, 575.) And said decrees are binding not only upon those parties who were minors at the time they" were entered, but also upon all persons who have since come into being, having interests identical in character or of the same class. (Hopkins v. Patton, 257 Ill. 346, 349; Weborpals v. Jenny, 300 Ill. 145, 155.)
Much of the brief of counsel for the defendant trustees presents contentions and arguments showing that the master’s finding (that, because of said transactions and decrees of 1908, there was a net “saving” of $653,747.05) was wholly unwarranted under the then existing elements and conditions as disclosed from the evidence, but, in view of our holdings, we deem it unnecessary to discuss those contentions or arguments, or the counter ones advanced by complainants ’ counsel.
As to the further contention of complainants’ connsel that both master and court were wrong in finding that “complainants have failed to prove that they are entitled under the law to any increase in the amount of the annuities received by them,” the same is not urged strongly by counsel in their brief, nor was it in the oral argument of the case. Complainants ’ contention that they are entitled to an increase in the amounts of the annuities, over and above those named by the testator, is based upon the fact that the cost of living has increased greatly since the testator’s death in 1902. But this fact cannot justify the court in virtually making another will than that made by the testator, especially as the evidence does not disclose that any of the present annuitants are in want or that there is any necessity for increasing the annuities. (Johns v. Johns, 172 Ill. 472, 485; Cary v. Cary, 309 Ill. 330, 335.) Furthermore, .if the court should increase the amounts of the annuities received by the present annuitants, it would decrease the amounts to be received at the expiration of the trust period by the then living descendants of the testator, and this would not be justified under the terms of the will and the evident intention of the testator. (Ruggles v. Tyson, 104 Wis. 500, 520; In re Ryder, 11 Paige Ch. 185, 187.) Counsel admit that they can find “no case on all fours” sustaining their contention.
And we do not think that the chancellor erred in refusing to allow to complainants the solicitors’ fees of their counsel to be paid out of the funds of the estate. Their bill did not involve a construction of an ambiguous will, and the services rendered by their solicitors were not rendered for the advantage of the estate in the trustees’ hands. The bill was rather an attack upon the fund in an effort to reduce it. It did not purport to aid the trustees in their administration of the trust or in their complying with the will of the testator. (Wilson v. Clayburgh, 215 Ill. 506, 507; Haines v. Hay, 169 Ill. 93, 97; Billings v. Warren, 216 Ill. 281, 288; Board of Administration v. Stead, 259 Ill. 194, 210.)
The decree of the circuit court, dismissing complainants’ bill for want of equity, should be affirmed, and it is so ordered.
Affirmed.
Barnes, P. J., and Scanlan, J., concur.