| Ill. | Feb 19, 1900
delivered the opinion of the court:
The findings of the master and chancellor as to the facts we find fully supported by the evidence preserved in the record. It is not otherwise contended, but the position of counsel for the appellants is, (1) that a court of equity is without jurisdiction to authorize the trustee to execute a lease for a long'er period than that fixed by the testator in the will; and (2) that if such jurisdiction is not wanting, the case presented does not justify the exercise of the power to so authorize the execution of a lease in opposition to the expressed will of the donor of the trust.
That courts of equity have jurisdiction to entertain and grant the prayer of bills of this character cannot be regarded as am open question in this court. (Gavin v. Curtin, 171 Ill. 640" date_filed="1898-02-14" court="Ill." case_name="Gavin v. Curtin">171 Ill. 640; Johns v. Johns, 172 id. 472.) In Gavin v. Curtin, supra, the jurisdiction of chancery in such cases, was asserted, aud the case in its facts found to warrant the exercise of the equitable power of the court. In Johns v. Johns, supra, the jurisdiction of a court of chancery to thus deal with trusts was recognized, but it was there held the case presented did not warrant the exercise of the power possessed by the court. In each of these cases the bill prayed the trustee should be authorized to sell and convey the title to real estate which was the subject matter of the respective trusts. In the Johns case it was said (p. 482): “The duty of the court in such instance is to regard the express wish of the donor and to lend its aid to the accomplishment of his desires, and the best interest of those entitled to the annual income of the subject matter of the trust is, it is believed, never considered a sufficient reason for breaking in upon such a trust and disposing of the subject matter thereof in violation of the intention and purpose of the donor. In the late case of Gavin v. Gurtin, supra, speaking with relation to the circumstances which ought to authorize courts to defeat the will of a donor in such instance, we said: ‘The exercise of that power can only be justified by some exigency which makes the action of the court, in a sense, indispensable to the preservation of the interests of the parties in the subject matter of the trust, or, possibly, in case of some other necessity of the most urgent character.”’
It is not necessary in the case at bar we should consider whether the allegations and proofs in this case are sufficient to bring the case within the rule there announced, for the reason the bill in the case át bar does not ask, nor does the decree purport to authorize, the trustee to sell and dispose of the subject matter of the trust. The donor designed the trust to subserve two purposes: (1) To secure the appropriation of the income of the property to certain purposes during the existence of the life of his wife and his children; and (2) to preserve the title to the property,—that is, the property itself,— and vest the possession of and title to the property in his grandchildren or their children upon the death of the wife and children of the donor. The bill did not ask for interference with, nor does the decree in any manner interfere with, the design of the donor as to the devolution of the title to the trust property. The decree leaves the title to the property in the trustee, who remains charged with the duty to convey it in exact obedience to the wishes of the creator of the trust. The donor clothed the trustee with authority to rent the property and to collect the rents therefrom during the continuation of the trust, and in so doing placed a limitation upon the duration of any lease of the property to be made by the trustee. The effect of the decree is to enlarge the powers of the trustee in this respect, leaving the subject matter of the trust in all other respects unimpaired. In other words, the decree does not defeat the trust, but was entered upon the theory its provisions were necessary to carry into execution the design of the donor. The requirement that the leasing should be for periods not longer than ten years was no doubt dictated by the belief of the donor that the rental value of the property would increase, and that short terms of letting the property.for rent would best conserve one of the ends, he designed to secure, namely, to provide an income for his wife and his children. The business judgment of the donor was no doubt correct at the time, but in.this instance, as is so frequently true in other cases, it is demonstrated it is not within the power and judgment of man to infallibly anticipate future events and direct that which shall be the wiser course to be-pursued in after years. The question being one which relates merely to the better or more judicious mode of managing and controlling the subject matter of the trust in order the design and wishes of the donor may be more completely accomplished, the stringent rule which properly obtains when the application is to divest the trustee of the title to the property which is the subject matter of the trust and vest such title in direct opposition to the will of the donor ought not be given full application.
The equitable principle applicable when the directions of a donor as to the manner of executing the trust are found to be defective and unwise is well stated in Curtiss v. Brown, 29 Ill. 201" date_filed="1862-04-15" court="Ill." case_name="Curtiss v. Brown">29 Ill. 201, as follows (p. 230): “Exigencíes often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of a court of chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had he anticipated the emergency.”
Courts of chancery should exercise the jurisdiction and power vested in such tribunals to change the directions of the donor as to the course to be pursued in the mere matter of managing the trust property, when it is clearly made to appear that conditions are so changed and different as to imperatively require the substitution of some other course of management in order the purpose of the creator of the trust may be conserved and accomplished. The evidence in this case clearly demonstrates that without relief against the provision that the property shall not be leased for a longer period than ten years the trust property will be substantially unproductive and the purpose of the donor to provide an income for his children out of the income of said trust estate wholly defeated. Relief of that character is in aid of the design of the donor,—-not subversive thereof,—and may be properly granted. The trust is "not violative of the rule against perpetuities, nor does the execution of a lease for ninety-nine years create a perpetuity. The title to the trust property is vested in the trustee during the lives of the children of the donor and until the youngest child of such children should attain the ag'e of twenty-one years. The vesting of the title by conveyance from the trustee is to occur at the expiration of a number of lives of persons then in being or within twenty-one years thereafter. In case of the birth of a posthumous child of one of the children of the testator the vesting may not occur within twenty-one years after the expiration of the lives in being when the limitation was created, but that period may be increased by the period of gestation. (Waldo v. Cummings, 45 Ill. 421" date_filed="1867-09-15" court="Ill." case_name="Waldo v. Cummings">45 Ill. 421; 18 Am. & Eng. Ency. of Law, 340, 341.) A lease for a longer period than that designated by the donor may operate to prevent the remainder-men from entering into actual personal possession and control of the premises at the time the right to such possession would have accrued under a lease for the period of ten years, but will not prevent tile investiture of title in the parties to take at the time such parties will become entitled to be invested with such title by the provisions of the trust instrument.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Phillips and Magruder, JJ., dissenting.