Gen. No. 11,011 | Ill. App. Ct. | Apr 11, 1904
delivered the opinion of the court.
The contention of plaintiff in error is that he is the surviving and sole trustee under this will and codicil. It is admitted that Brenan and Healy had renounced as trustees and had refused to act as such before the cause was heard. The intention of the testator, when ascertained, governs. That intention is to be determined by an examination of the whole instrument, viewed in the light of the settled rules of law, so far as they are applicable.
By this will the testator did not name Brenan and Healy as trustees, but did name them as executors. They become trustees because he gives, devises and bequeaths to his executors, “ or to the survivor of them ” all the rest and residue of his estate “ in trust,” etc. In other words they are not appointed as executors and trustees, but are appointed as executors only. They become trustees by implication of law, for the reason that the testator imposes upon them further and other duties than the mere settlement of his estate. In the second codicil he nominates and appoints “ my nephew, John Mangle,with Thomas Brenan nominated and appointed in my said will, as and to be the executors of my said last will and testament and all the codicils thereto; the appointment of James Healy mentioned in my said last will and testament as executor being hereby revoked and set aside.” The same language is used in the removal of Healy and in the appointment of Mangle in his stead as is used in the will -in naming Brenan and Healy as his executors.
In the same codicil, after this change in the person of one of his executors is made, the testator directs that his “ said trustees ” pay out of his estate to Maria Mullanny $60 per month during her life, etc. From the context it is clear that by the phrase “ said trustees ” the testator referred to Mangle and Brenan, then his executors. Mo further change is made. It follows that when the testator departed this life Thomas Brenan and John Mangle were his executors, and by implication of law were also his trustees. Afterward Brenan resigned, and Mangle only remained. In this state of the case the court below entered the decree from which this appeal was taken.
The question arises, was there a vacancy in the office of trustee, or did such duties devolve upon Mangle only ? It is elementary that when a vacancy occurs in such an office, and the will does not place the power of appointment elsewhere, a court of chancery, upon proper application, may and should fill the vacancy. The desire of the testator, if expressed, should be and is respected. He may mold the trust in whatever form he pleases. If under the terms of the will there be no vacancy, the court has no power to interfere by a new appointment.
The testator must be held to know the law. Had he intended that his estate should always be under the charge of two persons, he would have stated in substance that in case of the death, of the failure to qualify, or of the resignation of one of his executors, the survivor of them, or the court should have the power to appoint another; since the law is well settled that where two persons are appointed as trustees without direction as to successors, and one of them dies, or resigns, or renounces the trust, the entire trust devolves upon the one remaining. In such case, and so long as the survivor continues to act, there is no vacancy, and hence there is neither cause for nor power in a court of chancery to name a second trustee. .This is the settled law. In Adams v. Taunton, 5 Maddox, 435, the testator devised all his estate to A. and C., their heirs, executors, administrators and assigns, in trust to sell the same and to divide the proceeds as was in his will provided; and he also made A. and 0. his executors and declared that the receipts of A. and 0. should be a sufficient discharge to purchasers. After the death of the testator, C. renounced the trust. A. proved the will and sold the real estate, in part, to Taunton, who refused to complete his purchase for the reason that C. declined to join in the receipt for the purchase money. A. filed a bill for specific performance. After full argument the vice chancellor said: “ It being now settled that a devise to A., B. and 0. upon trust is a good devise as to such of the three as accept the trust, it follows by necessary construction that by the receipt of the trustee is to be intended the receipt of those who accept the trust.” In Brownell v. Reed, 1 Hare, 434, it is decided that “The disclaimer of one of several trustees did not, in law, affect the estate of the others, but had the effect of vesting it in them exclusively. (Citing cases.) The testator must be presumed to know what the legal consequences of the death or disclaimer of some of the devisees would be.” See, also, Sands v. Nuyce, 8 Simons, 130; Cook v. Crawford, 13 Simons, 90; Shockley v. Fisher, 75 Mo. 498" date_filed="1882-04-15" court="Mo." case_name="Shockley v. Fisher">75 Mo. 498; Long v. Long, 62 Md. 57; King v. Donnelly, 5 Paige Ch., 46" date_filed="1835-01-20" court="None" case_name="King v. Donnelly">5 Paige, 46; Ellis v. Ry. Co., 107 Mass. 13; In re Turner, 2 De Gex, F. & J., 527; Hill on Trustees, (side page,) 226; Perry on Trusts, sec. 273. “ It is clear that by the common law, and also by an express provision of the statute (sec. 5, ch. 30), the estate of trustees is held in joint tenancy, and hence upon the death of one of several trustees nothing passes to his heir or personal representatives, but the whole estate devolves upon the survivor.” Golder v. Bressler, 105 Ill. 434. See also Mittel v. Kral, 133 Ill. 70.
The revocation of the appointment of James Healy as executor revoked his implied appointment as trustee. It is manifest that in this case the testator intended that the same person who acted as executor should, by virtue of that office,' also actas trustee. Barnet v. Wilkins, 5 Jur. N. S. 687; Schouler on Executors, 247, 2nd ed. We are of the opinion that John Bangle is the sole surviving executor and trustee under said will and codicil. It follows that the decree entered herein must be and it is affirmed so far as it finds John Bangle was appointed trustee as well as executor of said will in the place of James Healy removed; and that it must be and it is reversed so far as it finds it was the intention of said testator that there should be two trustees under his said will, and decrees the appointment of a second trustee; and the cause is remanded with directions to the court below to enter a decree in accordance with this finding.
Plaintiff in error will recover his costs in this court and in the Superior Court.
Reversed and remanded with directions.