240 Ill. 111 | Ill. | 1909
delivered the opinion of the court:
There.is no ambigxiity in the will, and the only basis for the application to a court of equity to construe the provisions of the will is the claim of the residuary legatees, one of whom is one of the executors of the will and a complainant in the bill, that by reason of the contract with and conveyance to Illinois College the Jacksonville Female Academ)'is not entitled to the bequest and devise made to its trustees in the tenth and twelfth clauses of the will.
From the statement of the proposition it is clear that the bill is not one for the construction of a will, the provisions of which are clear and unambiguous, but it is a bill to determine and declare the effect of the conveyance of the academy to Illinois College upon the rights of the devisees and legatees in the will. The original and reply briefs of appellants are almost exclusively devoted to an argument of the proposition that by the contract and conveyance to the Illinois College the trustees of the Jacksonville Female Academy divested themselves of the right to the benefits of the bequest and devise, and that said bequest and devise lapsed and became a part of the residuary estate of the testatrix.
The $10,000 legacy to the trustees of the Jacksonville Female Academy is a money legacy, and as to it no trust is reposed in the executors of the will. Courts of equity will construe wills where necessary to direct the conduct or execution of the trusts reposed in the executor, but where no trust is created, equity will not take jurisdiction to construe a will simply because of uncertainty of the devisee or to settle merely legal titles. (Page on Wills, sec. 8o6.) In Minkler v. Simons, 172 Ill. 323, it was said, on pages 325 and 326: “It is first contended that legal rights, only, are involved, and a court of equity had no jurisdiction to construe the will. We think the law is well settled, where no trust is created neither the heir nor the devisee who claims only a legal title in the estate will be permitted to come into a court of equity for the purpose of obtaining a judicial construction of the provisions of the will. In other words, where only purely legal titles are involved and no other relief is asked, equity will hot assume jurisdiction to declare such legal titles, but will remit the parties to their remedies at law, as declared in Strubher v. Belsey, 79 Ill. 308, and cases there cited.”
In Longwith v. Riggs, 123 Ill. 258, the court said, on page 263: “The equitable jurisdiction to construe wills is an incident of the general jurisdiction over trusts. (Pomeroy’s Eq. sec. 1156.) It is by reason of the jurisdiction of courts of chancery over trusts that courts having equitable powers, as an incident to that jurisdiction, take cognizance and pass upon the interpretation of wills. (Chipman v. Montgomery, 63 N. Y. 221.) It is when the court is moved on behalf of an executor, trustee or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts.”
Where a trust is reposed in the executors of a will they may seek the aid and direction of a court of equity in the management or execution of-the trust. Harrison v. Owsley, 172 Ill. 629.
In Mansfield v. Mansfield, 203 Ill. 92, a clause of the will devised real estate to the testator’s children, to be held by them during natural life, and in the event of the death of any of them before the taking effect of the will, then to his surviving child or children. It was further provided in the same clause that if the circumstances or necessities of any of the testator’s children required, they should have power to sell and convey not exceeding one-third in value of the real estate devised them, respectively. One of the testator’s sons became'heavily involved in debt and judgments were obtained against him and a sale of his land threatened for their satisfaction. To prevent this he made a contract of sale for a portion of the land devised him, conditioned upon it being approved by the courts. A bill was then filed to construe the clause in the will mentioned, to the end that the son might sell and convey one-third in value of the land devised to him. This court held the bill could not be maintained, and said (p. 98) : “As an original proposition, we also think the court below was without jurisdiction to entertain the bill, its only object being to have the circuit court, and, by the terms of the contract between complainant and Blakely, this court, settle the legal title between the complainant and his children,”—citing cases.
The probate court in which the estate is being administered is by the 116th section of the chapter on administration of estates given power and authority to order and direct the payment of legacies mentioned in the will, and this includes the power to determine the legal right of the trustees of the Jacksonville Female Academy to the $10,-000. The executors are not authorized to pay it to the trustees without the order of the probate court, and by section 119 it is provided that a legatee cannot maintain an action against an executor for the payment of a legacy until the probate court shall have ordered it to be paid. Any order made by the probate court, in the exercise of its jurisdiction, as to ordering the payment of legacies may be appealed from by the party aggrieved, but unless so appealed from is valid and binding upon the parties and a protection to the executors. In Page on Wills the author says, (sec. 807,) where a statute gives probate courts authority to direct the payment of legacies, such courts may construe wills in so far as is necessary to direct the payment of legacies. “A court of chancery will not exercise jurisdiction over the administration of estates except in extraordinary cases. Some special reason must be shown why the administration should be taken from the probate court.” Duval v. Duval, 153 Ill. 49, and cases there cited.
As to the homestead property devised by the twelfth clause of the will, it does not appear from the allegations of the bill that any reason exists for asking the aid and direction of a court of equity. No duty with reference to that property is imposed upon the executors until it has ceased to be occupied by the children of the testatrix, or the survivor of them, as a homestead. The court will not anticipate that a controversy will then arise and declare the rights of the parties in the event of such controversy occurring. Courts of equity will never entertain a suit to give a construction to or declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent and uncertain. 3 Pomeroy’s Eq. Jur. sec. 1157; Page on Wills, sec. 806; 22 Ency. of PI. & Pr. p. 1195.
We are of opinion the circuit court properly sustained the demurrer and dismissed the bill for want of equity, and its decree is affirmed.
Decree affirmed.