124 Ill. 254 | Ill. | 1888
delivered the opinion of the Court:
This case involves the proper construction of the will of Caroline Ogden McCagg, as changed by her codicil thereto. By the original will, all her estate was devised to her executors in trust, to be by them divided into five equal shares, corresponding with the number of her children,—two daughters and three sons. When this division was made by her executors, they, as trustees, were required to give to the daughters, Caroline and Frances, their respective shares of the estate, being; one-fifth to each, absolutely. The remaining three shares the executors were directed to invest, collect the income therefrom, and hold the same separately,—that is, in three shares,—for the benefit of her three sons, William, Mahlon and Louis, respectively, during the term of their respective lives, and to pay over each year the income derived from William’s part or share,, to a trustee appointed in the will, and to pay the other two sons the income derived from their part or share during their natural lives. By the fourth clause of the will, provision was made for the disposition of the income on a son’s part or share in case of his death after the -testatrix. Upon the death of any one of the sons, the executors were directed to give the share set apart for his use and benefit, to the two daughters, or the survivor of them, to “be used by them, either all or as much of said part or share” as they might deem desirable, for the benefit of the children of such deceased son, if any should he living. By the sixth clause it was provided, that in ease any of her children should die before her decease, the number of shares- into which her estate should he divided should be diminished accordingly, so that if one died before her, the estate would be divided into four shares, thus cutting off from her bounty the children of a son so dying. That contingency happened in her lifetime, by the death of her son William, ■June 27, 1877, leaving three children, which it is safe to assume led to the making of the codicil, to avoid disinheriting her grandchildren, no provision remaining for their benefit in the original will. A person capable of disposing of property by will must be presumed to know and intend the effect of language employed by him or her, and it must be presumed that the -change in Mrs. McOagg’s will was made for a purpose, rand to -effect the disposition of her estate differently, in some respects, from that made by the original will.
By the codicil made in 1879, after knowledge of the death of her son William, leaving infant children, she revoked the ■clause appointing Wheeler trustee for said son, and also revoked the-sixth clause of her will, which would have required her executors to divide the estate into four instead of five shares, and in lieu and substitution of the fourth clause of her will provided-as follows: “Upon the death of any of my sons, (naming them) I direct my said trustee or trustees to give the part or share, or parts or shares, set apart for the use or benefit of the said deceased son or sons, during his or their lives, to my said daughters, Caroline Ogden Jones and Frances Ogden Jones, or the survivor of them then living, to be used by them, or the survivor of them, either wholly or in such parts or shares as they, or the survivor of them, in their or her discretion, shall deem desirable, for the benefit of the children, if there should be any living, of said deceased son or sons.” The controversy relates to the proper construction of this amended or substituted clause of the will, appellees contending that a trust is thereby impressed upon the one-fifth share ■set apart for the benefit of the son William, in the hands of the daughters, Caroline and Frances, for the use and benefit ■of his children, and the court below so held. Appellants, however, contend that they take the absolute title to the one-fifth part that vrauld have been set aside for the use of William had he survived the testatrix.
The testatrix, in devising one-fifth of her estate to each of her daughters, in fee, uses apt language. They are to be given their respective shares “absolutely.” The direction as to a deceased son’s share is expressed in different phraseology. The share or part devised for the benefit of the deceased son is: “To my daughters, * * * or the survivor of them then living, to be used by them * * * either wholly or in such parts or shares as they, * * * in their discretion, shall deem desirable, for the benefit of the children,” etc. This language precludes the idea of an intention to make an absolute gift of such share to the daughters. The share was to be used by them for the benefit of the children. The purpose for which the daughters are to take, is definitely fixed by the language employed. It is for the use of the children of the deceased son. No particular form of words or language is necessary, in a gift of property, to create a trust. It will be sufficient, especially in the case of wills, that such intention is apparent from the whole will, when considered in all its parts, under the circumstances of the particular case.
If the testatrix had intended no provision for the benefit of the children of a deceased son, there was no necessity for revoking the sixth clause of the will, or of changing the fourth. The' precise result contended for by appellants would have occurred if the codicil had not been made, so far as the effect upon the children of the deceased son is concerned. The will and the codicil are to be construed together, in the light of the circumstances surrounding the estate and the testatrix at the time they were severally made. And, as before stated, it is to be presumed that in making the change in her will in respect of her grandchildren, she designed and intended to change the disposition of her estate as to them, and understood and intended the language employed by her should have its legitimate and recognized effect in producing that result. It is apparent, we think, that this fifth share was, by the will and codicil, placed in the hands of the daughters, in trust, to be used by them for the benefit of the children of the deceased son. Precatory words used in a will, equally with direct fiduciary expressions, are frequently sufficient to create a trust by implication. (Hill on Trustees, p. 13, and authorities; Perry on Trusts, secs. 112-121.) It is true that the daughters are invested with a large discretion as to the manner in which they shall execute the trust for the use and benefit of these children; but the devise being to them for the use and benefit of the children of the deceased son, the discretion vested in them will not defeat the trust.
It is, however, urged, that there is uncertainty as to the subject and object of the trust. In this we do not concur. The subject matter of the trust is the one-fifth part of the estate set -apart by the executors, which would have been to the deceased son had he been living at the death of the testatrix, and the children of such son are the objects for which it was created. The share thus set apart was not to be paid over to the daughters absolutely, or for their own benefit, but for the use designated by the donor in the creation of a trust. The daughters, as trustees of this share, are not invested with discretion to withhold the trust fund absolutely from the cestuis que tmst. The fund is not theirs, in equity, and they can not make it so by a refusal or neglect to exercise the discretion vested in them. Their discretion as trustees of this fund is subject to the control of the courts of equity, and can not be arbitrarily exercised so as to deprive the. beneficiaries of all' benefit of the fund.
Much stress is laid upon the words, “wholly or in such parts as they, (the trustees) or the survivor of them, in their or her discretion, shall deem desirable,” etc. It is evident, we think, that the testatrix had in contemplation, one son already having died, that there might be the death of others before her decease, and intended making a provision that would apply, in that event, to the shares of each of such sons. .As to the children of William, they being minors, the daughters, as their trustees, under this clause might apply this share wholly, at once, for their benefit, or in such part as they might deem most beneficial to them. The trustees were made the judges of what use of the estate was most for their benefit. Undoubtedly, if they deemed it most desirable, they had discretion to-invest the funds in their hands for the use and benefit of the cestuis que trust, or to provide for their support and education, expending such sum therefor as to them might seem desirable. But it is unnecessary to discuss this branch of the subject, as the decree of the court does not seek to interfere with the discretion vested in appellants, or direct the manner of its exercise. When that discretion is abused, if it ever is, will be the time for a court of equity to interfere.
Both the daughters taking this share in trust for the children of the deceased son, William, are living, and- it is unnecessary to discuss or decide whether they hold as joint tenants or not. It is enough that they take no beneficial interest therein, but simply hold the same in trust for the defendants, children of their deceased brother, William. It may, however, be added, that as the survivor is required to use this share for the use and benefit of the children indicated, it is manifest that it was to be kept intact for such use, for if each of the trustees took an equal part, the survivor would be unable, or might be, to use the whole for the benefit of the cestuis que trust.
Perceiving no error in this record, the decree of the circuit court is affirmed.
Decree affirmed.
