| Ill. | Jan 15, 1880
delivered the opinion of the Court:
In this form of action, since the naked legal title must control, we think it sufficient to show that title is not in appellees, and the judgment below can not, therefore, be sustained.
The rule is, undoubtedly, as claimed by appellees’ counsel, that trustees must be presumed to take an estate only commensurate with the charges or duties imposed on them; but this, however, is subject to the qualification that such presumption shall be consistent with the intention of the party creating the trust, as manifested by the words employed in the instrument by which it is created. Doe d. Shelley v. Edlin, 4 Adol. & El. 582—589, (31 Eng. Com. Law, 143); Doe d. Cadogan v. Ewart, 7 Adol. & El. 636, 666; Doe d. Davies v. Davies, 1 Adol. & El. N. S. 430, (41 Eng. Com. Law, 611).
Under the statute of uses, which is in force here, where an estate is conveyed to one person for the use of or upon a trust for another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created, although express words of trust are used. Perry on Trusts, sec. 298. And so we have expressly held. Witham v. Brooner, 63 Ill. 344" date_filed="1872-01-15" court="Ill." case_name="Witham v. Brooner">63 Ill. 344; Lynch et al. v. Swayne et al. 83 id. 336.
But this, it will be observed, has reference only to passive trusts, or what are sometimes termed simple or dry trusts; and in such eases the legal estate never vests in the feoffee for a moment, but is instantaneously transferred to the..cestui que use as soon as the use is declared. 2 Blackstone’s Com. (Sharswood’s ed.) 331, 332; and Witham v. Brooner, supra.
It is said in Perry on Trusts, sec. 300: “ Although it is probable that it was the intent of the statute \i. e., of uses] to convert all uses or trusts into legal estates, yet the convenience to the subject of being able to keep the legal title to an estate in one person, while the beneficial interest should be in another, was too great to be given up altogether, and courts of equity were astute in finding reasons to withdraw a conveyance from the operation of the statute. Three principal reasons or rules of construction were laid down whereby conveyances were excepted from such operation: First, where a use was limited upon a use; second, where a copyhold or leasehold estate, or personal property was limited to uses; third, where such powers or duties were imposed with the estate upon a donee to uses that it was necessary that he should continue to hold the legal title in order to perform his duty or execute the power. In all of these three instances courts, both of law and equity, held that the statute did not execute the use, but that such use remained as it was before the statute, a mere equitable interest to be administered in a court of equity.” And again, in sec. 305, it is said: “The third rule of construction is less technical, and relates to special or active trusts, which were never within the purview of the statute. Therefore, if any agency, duty or power be imposed on the trustee, as, by a limitation to a trustee and his heirs to pay the rents, or to convey the estate, or if any control is to be exercised or duty performed by the trustee in applying the rents to a person’s maintenance, or in making repairs, or to preserve contingent remainders, or to raise a sum of money, or to dispose of the estate by sale, in all these and in other and like cases, the operation of the statute is excluded, and the trusts or uses remain mere equitable estates. So, if the. trustee is to exercise any discretion in the management of the estate, in the investment of the proceeds or the principal, or in the application of the income, or if the purpose of the trust is to protect the estate for a given time, or until the death of some one, or until division.” * * * And again, in regard to enlarging and extending estates given to trustees, the same author, in sec. 315, says: “So, if land is devised to trustees without the word heirs, and a trust is declared which can not be fully executed but by the trustees taking an inheritance, the court will enlarge or extend their estate into a fee simple to enable them to carry out the intention of the donors. Thus, if land is conveyed to trustees without the word heirs, in trust to sell, they must have the fee, otherwise they could not sell. The construction would be the same if the trust was to sell the whole or a part, for no purchasers would be safe unless they could have the fee, and a trust to convey or to lease at discretion would be subject to the same rule. A fortiori, if an estate is limited to trustees and their heirs, in trust to sell or mortgage or to lease at discretion, or if they are to convey the property in fee, or to divide it equally among certain persons, for to do any or all of these acts requires a legal fee.” See, also, to the same effect, Hill on Trustees, (4 Am. ed.) 376; Doe d. Dees v. Williams, 2 Meeson and Welsby (Exch.) 749.
In those cases where the legal fee is not vested in the trustee, it will, of course, in the absence of a devise prevailing to the contrary, vest in the heir at law. And there are also cases in which, it having been the duty of the trustee to convey to the heir at law, it will be presumed, after the lapse of considerable time, that such conveyance has been made. Hill on Trustees (4 Am. ed.) 401; Perry on Trusts, sec. 350; Gibson v. Rees et al. 50 Ill. 383" date_filed="1869-01-15" court="Ill." case_name="Gibson v. Rees">50 Ill. 383; Pollock v. Maison, 41 id. 516. But it is not claimed, nor could it be, that there is any foundation for such presumption in the facts found in this record.
In Harris v. Cornell, 80 Ill. 67, it was said, referring to Hardin v. Osborn, Sept. T. 1875, that it had been held the purposes of a trust having been accomplished, the owner of the trust became, by operation of law, reinvested with the legal title and could sue in ejectment. This was unadvisedly said. A rehearing was granted in Hardin v. Osborn, and the opinion therein referred to was withdrawn. In McNab v. Young et al. 81 Ill. 11" date_filed="1875-09-15" court="Ill." case_name="McNab v. Young">81 Ill. 11, language of like import as that used in Harris v. Cornell, supra, was used upon the authority of the same case, although it is therein erroneously referred to as being reported in 60 Ill. at p. 93. The case there reported, of that name, does not discuss that or any kindred question.
The true doctrine in regard to active trusts, and that adhered to by this court, is expressed in Vallette v. Bennett, 69 Ill., at p. 636, that where the legal title is vested in the trustee, nothing short of a reconveyance can place the legal title back in the grantor or his heirs, subject, of course, to the qualification that, under certain circumstances, such reconveyance will be presumed without direct proof of the fact.
The language of Walsh’s will is: “As to my worldly estate, all the real, personal and mixed, of which I shall die seized and possessed, * * * I hereby grant, devise, convey and confirm unto,” (naming the trustees) “in trust,” etc. He then directs his said trustees to assume and take entire control of his estate; to collect all outstanding dues, rents, profits and interests of whatever character, derived therefrom, and to govern and control all such interests as may accrue and arise to said estate from time to time; to make such disposal of said estate as shall in their judgment benefit and increase the value of said estate; that said trustees “shall pay, or cause to be paid, out of said estate,” to his daughter, Mary Lucy,'“such installments of money as in the judgment of said trustees shall be deemed proper and sufficient to meet her current expenses, and provide her an ample and comfortable support; ” that said trustees should transfer his estate to his said daughter upon her reaching the age of thirty-five.years, she being then unmarried, but if then married, they are directed to transfer the estate to her only upon the contingency that they should deem her husband a person in whom confidence might be placed; but if the trustees should deem the husband an incompetent and unfit person to have the care and control of the estate, they are directed to continue to make payments to his daughter, “in such amounts and at such times as in their judgment they may think proper,” and that the circumstances and station of his daughter may demand; that in the event of the death of his daughter without issue, certain specific legacies, amounting to some $2600 in the aggregate, are given, and the balance of his estate is to be divided equally between the House of the Good Shepherd, Saint Joseph’s Male Orphan Asylum, and Saint Ann’s Infant Asylum; and he then exempts his trustees from liability for all losses occurring without their fault.
This very clearly gave the entire control and management of the estate to the trustees until Mary Lucy should arrive at the age of thirty-five years—being unmarried;—and she having died before she reached that age, the control and management of the estate continued to devolve upon them. The language employed so plainly conveys this idea, that it can admit of no controversy.
The power “to make such disposal of the estate as shall,” in the judgment of the trustees, “benefit and increase the value of said estate,”—as also the duty of paying Mary Lucy “such installments of money as in the judgment of said trustees shall be proper, and sufficient to meet her current expenses and provide an ample and comfortable support ”— necessarily imply the power to sell the lands and convert them into money or interest bearing securities; for this might well, in the judgment of the trustees, benefit and increase the estate, and be essential to make payment of the sums directed to be paid to Mary Lucy. The power implied to sell, is to sell the whole title,—and to this is essential the power to convey that title, requiring, as a condition precedent, a fee simple estate in the trustees.
The property is devised to the trustees to sell and convey, if they deem it advisable, or to hold and control until it is to be transferred as directed; and in the contingency that has arisen, it was intended that it should be the duty of the trustees to make the equal division of the property between the corporations designated and convey it accordingly,—for the grant to these corporations is in severalty, and not as tenants in common, and their title must necessarily rest on the conveyance of the trustees.
Whether the corporations can hold or not, is not now material. The words of the devise show the intention of the testator that the trustees should take a fee, whether he was mistaken in the law as respects the objects of his intended bounty or not. The only difference would be, if the corporations can not take, the trustees, instead of holding the legal title in trust for them, hold it in trust for the heirs-at-law. Hill on Trustees, (4 Am. ed.) 208-9.
The legal title, then, being in the trustees, the heirs-at-law could not maintain ejectment. Perry on Trusts, §§ 17, 328, 520; Hill on Trustees, (4 Am. ed.) 422-3, *274; id. 482, *317; id. 672, *428; id. 784, *503; Law of Trusts and Trustees, by Bullard & Tiffany, p. 811.
The judgment of the circuit court is reversed.
Judgment reversed.