244 Ill. 101 | Ill. | 1910
delivered the opinion of the court:
Appellant has filed an able and exhaustive brief in which every possible objection to the validity of the first codicil is discussed, but we shall not undertake to refer to or answer the many contentions urged against the correctness of the decisions of the circuit and Appellate Courts. Our observations will be limited to what appear to us to be the controlling authorities and principles in determining the validity of the trust created by the first codicil. The first consideration in the construction of wills is the oft-repeated rule that the intention of the testator must be determined, if this can be done, from the entire instrument, and when ascertained such intention is to be given effect, unless it is contrary to public policy or an established rule of law.
By the original will the entire estate of the testator was devised to his executors in trust for the uses and purposes therein specified, which we have, in substance, set out in the preceding statement. At the termination of the trust, and after the payment of certain specific bequests made, the property remaining in the hands of the trustees was required by the tenth paragraph of the will to be distributed to the testator’s legal heirs in accordance with the laws of descent of the State of Illinois. The trust thus created was held by the chancellor to be void for remoteness and obnoxious to the rule against perpetuities, and the correctness of the decision in that respect is not questioned by either party. The first codicil, the validity of which is the only question before us for decision, recites that since the making of the original will the testator had converted most of his estate into personal property, and that it was largely represented by shares of stock in the Rock Island Brewing Company, to the building up of which industry he had devoted many years of his life. He expressed the desire and wish that as far as possible his holdings in the brewing company be kept intact by his sons after his death. He then devised and bequeathed to his executors and trustees one-third of his holdings in the Rock Island Brewing Company stock in trust for the benefit of his son Ernst Wagner and one-third for the benefit of his son George Wagner, appellant, first deducting from the interest held for the benefit of George Wagner such portion of the $5000 bequeathed by the original will to his children as might be necessary to pay the same. The remaining one-third of the testator’s Rock Island Brewing Company stock was bequeathed to his son Robert A. Wagner absolutely, to be his forever. The codicil directs the trustees to pay to the testator’s sons Ernst and George Wagner the net income derived from the Rock Island Brewing Company stock in such amounts and at such times as in their discretion they shall deem proper, and they are authorized for the support and maintenance of either of said sons, or if for any other purpose they deem it advisable, to pay to the said sons any sum greater than the annual net income from said stock, and, if necessary to raise such additional sums, the trustees are given authority to mortgage, pledge or sell any portion of the stock. The trustees are requested by the codicil to administer the trusts and deal with the sons Ernst and George as nearly as possible as the testator would do if living, “keeping in mind, however, my expressed desire to have the Wagner interests remain identified with the Rock Island Brewing Company, as far as practicable. The trusts hereby created shall terminate in the discretion of the trustees or their successors.”
It is first necessary to determine the object and purpose of the testator in the creation of the trust in the brewing company stock for the benefit of his two sons. If the object was, as contended by appellant, to perpetuate indefinitely the investment in the brewing company stock, then the trust would be invalid for remoteness and as being in violation of the rule against perpetuities. But we do not gather from the testator’s reference to the fact that many years of his life had been given to the building up of the brewing industry in the city of Rock Island, in which the fruits of his long business career were largely invested, and his desire, as far as possible, that his holdings in the Rock Island Brewing Company be kept intact by his sons after his death, that the primary or principal purpose for creating the trust was to continue the investment as it existed ,at his death, indefinitely. That such was not his purpose appears clear from other provisions of the codicil. He gave to his son Robert one-third of his brewing company stock absolutely. He could sell or dipose of it at any time he saw fit. That such authority was given said son is inconsistent with the theory that the testator’s intention was to prevent any of the stock from passing into the hands of others or from being sold and the proceeds used or reinvested in other enterprises. As to the other two-thirds .of his stock, the trustees were authorized to pay the net income from it tó Ernst and George at such times and in such amounts as they deemed proper, and if deemed by them advisable to pay the sons a greater sum than the net income the trustees were authorized to do so, and for the purpose of raising the money they were authorized to pledge or sell the stock. It cannot be doubted that the trust created was an active trust. If the testator had intended to require his investment in the brewing company stock to be continued, he certainly would not have given the trustees power to defeat his purpose and intention by selling or disposing of the stock. The trustees were authorized, during the continuance of the trust, to sell and dispose of the stock held for the benefit of said Ernst and George Wagner and to pay to them the entire proceeds from the sale, less the bequest to the children of George Wagner, if they deemed it advisable, whether necessary for the support of said sons or not.. The trustees were also authorized to terminate the trust at their discretion, and in our opinion, if the trust should be terminated during the life of the two sons, they would be entitled to the corpus of the fund, and upon the termination of the trust the trustees would be required to turn it over to them. It seems plain, therefore, that it was not the purpose of the testator to tie up his brewing company stock for an indefinite period, and that what he said about keeping the investment intact in said stock was advisory, merely. The real object and purpose of the trust was that the property, and the income from it, might be used for the support and maintenance of the testator’s sons Ernst and George, and the question then arises whether the trust is valid as a spendthrift trust.
“Spendthrift trust is the term commonly applied to those trusts that are created with a view of providing a for the maintenance of another and at the same time securing it against his own improvidence or incapacity, for self-protection. The provisions against alienation of the trust fund by the voluntary act of the beneficiary, or in invitum by his creditors, are the usual incidents of such trusts.” (26 Am. & Eng. Ency. of Law,—2d ed.—138.) Such trusts are now generally recognized as valid by the courts of this country, and have been sustained by this court in Steib v. Whitehead, 111 Ill. 247, Bennett v. Bennett, 217 id. 434, King v. King, 168 id. 273, and Chapman v. Cheney, 191 id. 574.
To create a valid spendthrift trust it is not necessary that the cestui que trust should be denominated a spendthrift in the will or that the testator should give his reasons for the creation of it. Nor is it necessary that the will shall in express terms contain all the restrictions and qualifications incident to such trusts. If, upon a consideration of the will, it appears the intention of the testator was to create such a trust, effect will be given to that intention. (Bennett v. Bennett, supra; Baker v. Brown, 146 Mass. 369.) Where the language used is sufficient-to create a spendthrift trust, we think no inquiry can be made whether the person for whose use it was created was, in fact, a spendthrift, and the allegations of the bill in this case that the sons were sui juris, compos mentis and sober and industrious business men cannot be considered in construing the codicil.
Neither do we think it necessary to the creation of a spendthrift trust that there should be a gift over upon the termination of the trust. As we read and understand the codicil, it was the intention of the testator that the whole of the property might be used by the trustees for the support and maintenance of the sons, or they might terminate the trust during the lifetime of the sons and deliver over the corpus to them. Whether the trust -was terminated by the voluntary act of the trustees or by the death of the sons, if at the time of such death there remained all or a portion of the fund it was the intention of the testator that it should go to their heirs, and a failure to make a gift over to the heirs does not render the trust invalid, as being in violation of any rule of law or public policy. This construction renders testate the entire estate, and constructions of wills producing this effect are favored in law.
We are of opinion, under the authority of the cases above cited in this State and the weight of the current authority in other States, the trust created by the codicil is a valid spendthrift trust. We are also of opinion that, even if the trust created by the codicil should be held invalid as a spendthrift trust, it would be valid as a gift to the sons not to take effect in possession until a future day, namely, the termination of the trust. We are aware that there are respectable authorities holding the contrary and a number of such authorities are cited in appellant’s brief, but such trusts are sustained in this State and many others when not in violation of the rule against perpetuities. In Rhoads v. Rhoads, 43 Ill. 239, the testator devised his estate to the executors in trust for his children, with directions and authority to invest the proceeds of the estate in government bonds, and at the expiration of fifteen years after his death to distribute the estate with its accumulations, $10,000 to his wife and the remainder equally among his children. The court, after reviewing the English authorities holding to the contrary, held that the postponement of the enjoyment of the gift did not invalidate it and sustained the will.
In Claflin v. Claflin, 149 Mass. 19, (20 N. E. Rep. 454,) the will under consideration gave one-third of the residue of the testator’s personal estate to trustees for the benefit of a son and directed its payment to him, $10,000 when he reached the age of twenty-one years, $10,000 when he reached the age of twenty-five years and the balance when he reached the age of thirty years. After he had attained the age of twenty-one years and had been paid $10,000, but before he was twenty-five years of age, he filed a bill to compel the trustees to pay him the remainder of the trust fund. His contention was that the provisions of the will postponing payment beyond the time when he arrived at twenty-one years of age were void. The court said: “There is no doubt that his interest in the trust fund is vested and absolute and that no other person has any interest in it, and the authority is undisputed that the- provisions postponing payment to him until some time after he reaches the age of twenty-one years would be treated as void by those courts which hold that restrictions against the alienation of absolute interests in the income of trust property are void. There has, indeed, been no decision of this question in England by the House of Lords and but one by a chancellor, but there are several decisions to this effect by masters of the rolls and by vice-chancellors. (Citing numerous authorities.) These decisions do not proceed on the groupd that it was the intention of the testator that the property should be conveyed to the beneficiary on his reaching the age of twenty-one years, because in each case it was clear that such was not his intention, but on the ground that the direction to withhold the possession of the property from the beneficiary after he reached his majority was inconsistent with the absolute rights of property given him by the will. This court has ordered trust property conveyed by the trustee to-the beneficiary when there was a dry trust, or when the purposes of the trust had been accomplished, or when no good reason was shown why the trust should continue and all the persons interested in it were sui juris and desired that it be terminated; but we have found no expression of any opinion in our Reports that provisions requiring a trustee to hold and manage the trust property until the beneficiary reached an age beyond that of twenty-one years are void if the interest of the beneficiary is vested and absolute. * * * It is plainly his will that neither the income nor any part of the principal should now be paid to the plaintiff. It is true that the plaintiff’s interest is alienable by him and can be talcen by his creditors to pay his debts, but it does not follow because the testator has not imposed all possible restrictions that the restrictions which he has imposed should not be carried into effect. * * * The strict execution of the trust' has not become impossible. The restriction upon the plaintiff’s possession and control is, we think, one that the testator had a right to make. Other provisions for the plaintiff are contained in the will apparently sufficient for his support, and we see no good reason why the intention of the testator should not be carried out.” Rhoads v. Rhoads, supra, was cited in support of this decision.
Gifts to trustees for the benefit of persons who are objects of the testator’s bounty but postponing their enjoyment in possession to a future day, properly limited as to time, have been sustained in Lunt v. Lunt, 108 Ill. 307, Flanner v. Fellows, 206 id. 136, Howe v. Hodge, 152 id. 252, Pearson v. Hanson, 230 id. 610, and Armstrong v. Barbour, 239 id. 389. The principle of these decisions appears to be that the equitable title vests in the beneficiaries immediately upon the death of the testator, that such trusts are not in restraint of alienation, and that the rule against perpetuities is not violated where the time to which the enjoyment in possession is postponed is properly limited by the will.
Kales on Future Interests, in the chapter on “Restraints on Alienation,” discusses Claflin v. Claflin and other cases above cited, and reaches the conclusion that where Steib v. Whitehead, supra, is recognized as law, Claflin v. Claflin and Lunt v. Lunt will be followed, and the postponed enjoyment of an equitable interest, properly limited as to its duration in time, will be held valid. In section 294 the author discusses some of the reasons given by Prof. Gray and Lord Langdale why postponed enjoyment should be held invalid, and says they are chiefly that such provisions are unwise. Discussing this subject the author says: “The worst charge that can be made against holding these postponed enjoyment clauses valid seems to be that they are either harmless, or in an extreme case, viz., where the cestui is a spendthrift and insists on selling his equitable interest for cash, unwise. To defeat the testator’s intention wholly upon so trivial a ground ought not to be thoug'ht of. The attitude of the court in Claflin v. Claflin is in favor of carrying out the settlor’s intention, and the result reached is, it is submitted, sound.”
We are of opinion the decree of the circuit court was right, and the judgment of the Appellate Court affirming that decree is affirmed. T , . ,
T . Judgment affirmed.
