Plaintiff Eugene Orme instituted proceedings in 1943 in the circuit court of Cook County to construe the will of Louisa G. Bigelow, which established a trust presently held by the defendant Northern Trust Company. The decree, rejecting plaintiff’s interpretation of the instrument but authorizing that attorney fees be paid from the estate, was
The issues presented by this consolidated appeal include: whether a 1920 trial court decree barred plaintiff Orme’s action under the doctrine of res judicata; whether the Rule in Shelley’s case applied to the Bigelow will and' created a fee simple interest in plaintiff’s devisor; whether an adoptee of testatrix’s grandchild is included within the designation
From the voluminous record it appears that on May 26, 1873, Louisa G. Bigelow executed her will creating a trust for her three minor granddaughters, ages 8, 6 and 4, respectively. The will, which will be considered in greater detail hereinafter, essentially provided life estates for the granddaughters, and on the death of the last surviving granddaughter the trust estate was to be divided equally among the “children or heirs” of the granddaughters; Yz to the “child or children, heirs or heirs” of each of them. In case of the death of any of the granddaughters “without issue,” the property was to go to the “issue, heir or heirs” of the other granddaughters, and if all three grandchildren died “without issue or heirs” then the property was to go to the testatrix’s immediate heirs and legal representatives according to the laws of Illinois. The will, apparently drafted by an American lawyer, was executed in Switzerland where testatrix, a woman over 70, was then residing. She died there August 31, 1873, and the will was probated in Illinois.
The granddaughters, who each married and had children, are referred to herein as Josephine Caldwell, Louise de Haven, and Sarah von Campe. The oldest, Josephine, died in 1919, leaving five children. They instituted proceedings to determine their rights under the will to the income from the share enjoyed by Josephine during her lifetime, and as affected by certain conveyances executed by Josephine’s son William. That action joined Louise and Sarah, and culminated in the “1920 decree,” which defendants claim is dispositive of this litigation. The terms of that decree will therefore be examined when we consider the merits of that claim.
In 1941 the second granddaughter, Louise, died. It appears
After the trustee refused to recognize Orme’s interest under that codicil,-Orme then instituted this proceeding in 1943. His complaint urges that the Bigelow will be construed to give Louise a fee-simple interest by operation of the Rule in Shelley’s case, or alternatively, that the will was not capable of construction, so that Mrs. Bigelow died intestate with respect to the equitable remainder in trust.
The litigation proceeded tortuously during the ensuing years, with multifarious motions to dismiss argued repetitively by the trustee and by the parties, and with amended pleadings, counterclaims and subsidiary litigation. Raymond de Haven filed a counterclaim to Ji of the de Haven share as the adopted heir of Louise; Josephine’s children insisted by motions that the cause was barred by the 1920 decree; and in 1949 the Attorney General of the United States became a party by virtue of vesting the interests of Louise’s German daughters (Adelheit von Hardenberg and Irmgard von Alten) under the Trading With the Enemy Act. The case was delayed several years by subsidiary litigation adjudicating the propriety of the vesting and the dismissal of the- Germans from the case. Orme v. Northern Trust Co.
In 1951 the testatrix’s third granddaughter, Sarah von Campe, died in Switzerland. She wаs survived by her daughter, defendant Alice Lohrer, and by two sons, Edwin and Otto von Campe. Although Sarah had in her lifetime favored plaintiff’s claim, she had been persuaded by her attorney to join the trustee in opposing it. Allegedly as a consequence of this pending litigation, she devised her entire estate to her daughter, who irrevocably assigned Y to her brother Edwin. The interest of Otto, an enemy alien, was vested by the Attorney General.
After pleading consolidations and fact stipulations, the cause was finally tried before a master during some 24 days in 1955. The master’s report, filed in 1957, recommended that the Bigelow will bе construed to give an equitable life estate to testatrix’s three granddaughters with equitable remainders to their “issue,” rather than to their heirs-at-law; and that since the Rule in Shelley’s case would not apply, the wills of Louise de Haven and Sarah von Campe would not transfer interests in the Bigelow estate, and plaintiff’s claim should be denied. The report further recommended that the decree should not affect the interests of those entitled to distribution of the share formerly held for Josephine, and that all parties be allowed attorney fees, which would be charged against the shares of Louisе and Sarah.
Upon failure of the parties to agree on the amount of legal fees, hearings on this issue were held before the master, who issued a report recommending fees totalling $221,000. The master’s recommendations with respect to the substantive rights of the parties and the allocation of legal fees were adopted by the circuit court in its decree of March 2, 1959. The matter of fees became the basis of the Attorney General’s appeal to the Appellate Court, which affirmed the circuit court, except that it increased by some $3,000 the counsel feеs allowed de Haven, to include services
In adjudicating the diverse contentions of each - of the parties on this consolidated appeal, we shall consider first whether this litigation is barred by the 1920 decree under the doctrine of res judicata. Since plaintiff’s devisor, Louise de Haven, was joined in that earlier proceeding which involved a partial construction of the Bigelow will, plaintiff would ordinarily be bound under that doctrine by the issues determined, and thosе which properly could'have been presented there. Altemeier v. Harris,
As we have noted, that litigation was instituted, by Josephine’s children on her death to determine the disposition of her share of the income, particularly as it was affected by certain conveyances by her bankrupt son William. The main issue was whether William’s share was to be divided among Josephine’s four other children, or go to William’s wife and children under his deeds."
Since the Bigelow will was silent on the disposition of income on the death of testatrix’s grandchild with issue while the other grandchildren were living, the court endeavored tо find guidance in other provisions of the will. After concluding that the will was valid and must continue until the death of the last grandchild, the decree made certain findings with respect to the principal and income of Josephine’s share. It recited that by a construction of the will and as a result of the events which have happened, on Josephine’s death her four children and the wife and children of her son William came into possession and enjoyment (subject to the trust) of an equitable’ but vested, fee. in enumerated percentages of the share in which Josephine had a life interest. The decree further provided that the income therefrom was to be divided among them in the same proportion as their interest in the fee.
Although the decree recited that the question of construction with respect to Josephine’s interest related-equally
In judging the scope of the 1920 decree we find significance in its omissions and reservations. Nowhere is there any reference to “remainders,” or any construction of the words “children or heirs,” either as words of “purchase” or “limitation,” or any other statement of the basis for its conclusion. Moreover, the decree itself specifiеs that it does not pass upon certain enumerated contingencies on the death of Louise or Sarah, or “upon any question of construction not herein determined and settled.” (Emphasis supplied.)
Even more cogent is the fact that the fcourt in the earlier litigation was confronted with entirely different issues. The court was not called upon, as in the instant case, to determine whether the interests of the granddaughter’s children were acquired by “purchase” or by “descent.” It was only required to determine whether Josephine’s children were entitled to her share of the income and just how thеir interests were affected by William’s deeds. The adversaries there were William, his wife and children on one hand and his brothers and sisters on the other. Hence, the Rule in Shelley’s case was neither determinative nor involved in the adjudication of their adverse claims. That situation is in sharp contrast with the case at bar which raises squarely for the first time the issue of whether the testatrix’s granddaughter had an interest capable of being devised. On that issue the Rule in Shelley’s case is determinative.
It is therefore incumbent upon us to determine the merits of plaintiff’s claim that the Rule in Shelley’s case applied to the Bigelow will and gave Louise de Haven a fee interest which she devised to plaintiff. And although that venerable Rule was abolished in Illinois in 1953 (Ill. Rev. Stat. 1955, chap. 30, pars. 186, 187,) since it was in force when the Bigelow will was executed, (Baker v. Scott,
The Rule in Shelley’s case is simply that when a life estate is given to a person, followed by a remainder to his heirs, the heirs take nothing, but the life tenant takes the entire fee. The rule applies only where the gift in remainder refers to an indefinite line of succession, rather than to a specific class of takers. (Carey & Schuyler, Illinois Law of Future Interests, p. 151.) Before the Rule in Shelley’s сase can apply, the will must be construed to determine if such life estates and remainders were created. Lydick v. Tate,
The relevant portions of the Bigelow will are paragraphs 4; 5, 6 and 7-of section 2. Paragraph 4 provides for the payment of income from the real and personal property to the- grandchildren in equal parts during their natural lives. Paragraph 5 provides for the distribution of income on the death of a granddaughter without issue, and gives her share to the other grandchildren. Paragraph 6 provides that the
In construing this classic example of inept legal draftsmanship, the words “children or heirs” must be viewed in the light of the context of the will. (Baker v. Forsuman,
Plaintiff’s interpretation also conflicts with testаtrix’s statement of her intention in this same paragraph. Here she
It would unduly prolong this opinion and be of limited value if we were to review the exhaustive authorities cited by counsel, since no will has a twin or even а brother. (Hartwick v. Heberling,
Those features also distinguish the case at bar from Hartwick v. Heberling,
The case at bar is more analogous to the cases holding
In our judgment the words “children or hеirs” in the Bigelow will, construed in their context, and in the light of the decisions, meant that the property should go to the children of testatrix’s granddaughters, if there were any living, or, if not, then to the issue of each grandchild. Under this interpretation the will created a life estate in each granddaughter, and a remainder to her children or issue. The Rule in Shelley’s case, is therefore, not applicable, and plaintiff’s claim, based thereon, must be denied.
We must determine next whether Raymond de Haven, as the adopted heir of Louise, is entitled to share in the estate as a member of the designated class оf remaindermen. We find no merit in the Attorney General’s collateral attack on de Haven’s adoption. Since the Attorney General was not a party to that proceeding, he can question only want of jurisdiction of the subject matter. (Gebhardt v. Warren,
We recognize, as de Haven insists, that the testatrix is presumed to have executed her will in accordance with existing adoption law (Belfield v. Findlay,
While we perceive de Haven’s distinction between taking through an adopting parent and taking directly from an ancestor, as noted in the cited dictum in Continental Illinois Nat. Bank and Trust Co. v. Clancy,
With respect to the claims of defendants von Harden-berg and von Alten, Louise’s German children, they now contend that they acquired their interests, not on the death of their mother in 1941, but on the death of Sarah von Campe, the last surviving grandchild, in 1951; hence, since their interests were acquired after 1946, they could not be vested by the Attorney General. They argue further that this issue was not determined in the prior litigation in this court.
We find no merit to either of these arguments. Our prior judgment, (Orme v. Northern Trust Co.
With respect to the amount and allocation of counsel fees, the parties are in disagreement with each other. In will construction cases the costs of litigation are borne by the estate on the theory that the testator expressed his intention so ambiguously as to necessitate construction of the instrument in оrder to resolve adverse claims to the property. (Dean v. Northern Trust Co.
In applying that criterion, analogy may be made to Cahill v. Cahill,
Defendants contend that the fees allowed plaintiff were excessive. However, a cursory reviеw of this record, without attempting to summarize plaintiff’s four schedules of services, reveals that this litigation, extending over 15 years, and including some 50 parties, necessitated research and argument on a multitude of legal questions. These problems and services included: locating and securing jurisdiction of foreign and enemy nationals in time of war; the applicability of the doctrine of res judicata (argued some three times) and of the Rule in Shelley’s case to the terms of the Bigelow will; the validity and effect of the de Haven adoption in Colorado; establishing Louise de Haven’s citizenship;. the рropriety of the Attorney General’s participation under the Trading With the Enemy Act; the subsidiary litigation over the dismissal of the German beneficiaries; the effect of the death of Sarah Von Campe; the right of the trustee to withdraw the State Street property from the trust; the consolidated pleadings and rearguments thereon; the stipulation of facts, Exhibits, and preparation for trial; and finally, the trial itself and subsequent arguments on the findings. •
Plaintiff’s counsel lists some 3,643 hours of service over 15 years, including 41 x hours in court. The master allowed hinu fees for 3,582 hours at a base' rate of $25 for court and research time alike; which amounted to $89,550.' That'
We cannot accept the Attorney General’s oversimplification of this litigation as involving merely a construction of the words “children or heirs” in the Bigelow will. In our judgment the issues were interrelated and defy separation in computing fees. In fact, the master’s denial of fees for services relating to the million dollar Statе Street property was tantamount to a substantial reduction of plaintiff’s fees. Further exclusions would merely penalize plaintiff for endeavoring to press his claim to a conclusion, and to hurdle the legal roadblocks interposed by defendants’ ingenious counsel. The litigation here was costly, not because plaintiff’s counsel spent a disproportionate amount of time on any question of law, (Irwin v. Swinney, (W. D. Mo., W. D.)
It may be noted, moreover, that even though plaintiff had to meet all thе arguments of all the parties, his allowance for fees barely exceeded the $84,712.50 allowed the trustee, who divided the burden of litigation with the Attorney General and duplicated the arguments of the various parties, and was also awarded some $19,145 for nonlegal services.
In our judgment Raymond de Haven was properly allowed fees covering his entire claim, including the defense of the colláteral attack on his adoption, since the elimination of his claim," either on jurisdictional grounds or by a construction of the will, would have benefited all those claiming the de Haven share. Those fees were therefore properly charged solely against the de Haven share.
With respect to the legal fees allowed the German daughters and niece of Louise, we see'no reason to interfere
In determining the proper allocation of these fees we must reject defendаnt Lohrer’s contention that this litigation involves only the de Haven share, which should solely bear its costs. In view of the omissions, reservations and scope of the 1920 decree, this litigation resolves for the first time the nature and extent of the interest of Louise and Sarah and their children. Defendant Lohrer’s interest would not have been the same if plaintiff had prevailed in his interpretation of the will. Had plaintiff established the applicability of the Rule in Shelley’s case, testatrix’s granddaughter Sarah would have had a fee simple, which defendant Lohrer would now hold as sole devisee of Sarah. Under our interpretation, Sarah had only a life estate, and defendant Lohrer acquired a J/z interest in the fee under the Bigelow will, as did her brothers Edwin and Otto. Inasmuch as she had sufficient interest in this litigation to have incurred $9,000 in counsel fees to contest it, it hardly behooves her to insist that this litigation involves only the de Haven share. Consequently, the chancellor and the Appellate Court properly assessed fees against both the von Campe and de Haven shares.
Whether the Caldwell portion of the estate should also bear a proportionate share of the total fees authorized is a more difficult question. There is a plausible ring to the Attorney General’s contention that if the 1920 decree were not res judicata of the issues raised by the plaintiff, then the litigation equally concerned the three portions of the estate. It is patent, however, that the artfully drawn 1920 decree did specifically enumerate the exact percentage of the equitable fee vested in each of the Caldwells, and provided that such interests were indefeasible. No such determination
In view of the propriety of the standard for computing the individual counsel fees, and the amount of the total estate, which is approximately one and one-half million dollars, it is our judgment that neither the total fees assessed nor the amount assessed against the respective shares can be deemed arbitrary or excessive. Cf. Logan v. Harris Trust & Savings Bank,
Under this analysis, the judgment of the Appellate Court is substantially affirmed. However, in view of our modification in the allocation of the trustee’s counsel fees, the cause must be remanded to the circuit court with directions to enter a decree in accordance with the views expressed herein.
Judgment modified and affirmed and cause remanded, with directions.