| Ill. | Jan 21, 1890
delivered the opinion of the Court:
This was an action of ejectment, brought by Martin C. Walton, Frank H. Van Pelt and Nelson C. Walton Jr., against Sally M. Follansbee, Charles Follansbee and B. A. Meiswinkel, to recover lot 44, block 4, Fort Dearborn addition to Chicago. The defendants pleaded not guilty, and at the trial, the court, at the close of the evidence, refused all the instructions to the jury asked by the plaintiffs, and instructed the jury to find their verdict for the defendants, and the jury having, in obedience to said instruction, found the defendants not guilty, the court, after denying the plaintiffs’ motion for a new trial, rendered judgment for the defendants, and the plaintiffs now bring the case to this court by appeal. Both the plaintiffs and defendants claim title to the premises in controversy under the following deed:
“This indenture, made this twenty-fourth day of March, A. D. 1858, between Nelson C. Walton, of the city of San Francisco, of the first part, George W. Walton and Margaret E. Young of the second part, and Eliza Ann Walton, wife of Nelson C. Walton, of the third part, witnesseth: That the said party of the first part, in consideration of the love and affection cherished by him for his said wife, and for the purpose of securing to her a comfortable provision for herself and her children, has given and granted, and by these presents does give, grant and convey, unto said parties of the second part, and to the survivor of them, and to the heirs and assigns of such survivor, the following lots and parcels of ground in the city of Chicago, Cook county, State of Illinois, to-wit: Lot number forty-four, in block number four, in Fort Dearborn addition to Chicago. Also all the right, title and interest of said party of the first part in and to lot number three in block eighteen of Kinzie’s addition to Chicago. Also lot number sixteen in block thirty, School Section addition to Chicago. Also lot number ten,, block sixty-two, School Section addition to Chicago, together with all rights, privileges and appurtenances thereto belonging: To have and to hold, to said parties of the second part, and to the survivor of them, and the heirs and assigns of such survivor, forever: In trust, and for the following purpose, to-wit:
“That said parties of the second part shall enter upon said real estate and manage and lease the same for any term not exceeding two years, without the written consent of said party of the third part, and collect the rent and pay over the same to said Eliza Ann Walton or to her order, and for her sole and separate use, and for the purpose aforesaid appoint an attorney or attorneys. Said parties of the second part shall at ah times execute such leases, conveyances, contracts and agreements in reference to said premises or any portion thereof as said party of the third part shall request in writing signed by her alone. No contract, conveyance or lease for a longer term than two years of any portion of said premises shall be executed by said trustees without such written request. Said parties of the second part shall at all times suffer and permit said party of the third part to occupy, use and enjoy said premises or any portion thereof free from liability for any debts of said party of the first part, during the term of her natural life; and in case of her decease before said party of the first part, the property above described shall descend to and vest in her children; and in default of children surviving, shall revert to said party of the first part. In case of the decease of said party of the first part before said party of the third part, the said premises shall become the absolute property of said party of the third part, and the trust herein created shall thereupon cease and determine.
“The said parties of the second part and third part accept the provisions of this trust and covenant to fulfill the same.
“In witness whereof said parties have hereunto set their hands and seals, the day and year aforesaid.
“Nelson G. Walton, (Seal.)
“Eliza Ann Walton, (Seal.)
“Geobge W. Walton, (Seal.)
“Mabgabet E. Young. (Seal.)”'
Said deed was duly acknowledged April 14, 1858, by Nelson 0. Walton and Eliza Ann Walton, the latter therein relinquishing her dower, and on the 1st day of May, 1858, it was placed on record. Of the plaintiffs, Martin C. Walton and Nelson C. Walton Jr. are the children of said Nelson C. Walton and Eliza Ann Walton, and Holman Van Pelt is their grandson, he being the son of a deceased daughter.
On the 12th day of October, 1859, a deed tras executed by Nelson C. Walton, George W. Walton, Margaret E. Walrath, (formerly Margaret E. Young), and Austin Walrath her husband, of the first part, Isaac Wickersham and Sidney Abel of the second part, and Eliza Ann Walton of the third part, in which, after reciting, in substance, the terms of the deed above set forth, and that said Eliza Ann Walton, by her signature thereto, requested the execution of said second deed, said parties of the first part, in consideration of the premises and of one dollar to them in hand paid, sold, released and conveyed to said parties of the second part, and to the survivor of them, and to the heirs or assigns of such survivor, the said parcels of land conveyed by the deed first above mentioned, “to have and to hold, to said parties of the second part, and to the survivor of them, and the heirs or assigns of such survivor, forever.” Said deed contained a declaration of trust substantially identical with that contained in the deed of March 24, 1858, except that the clause relating to the execution of leases, etc., by said parties of the second part as trustees was in the following words: “Said parties of the second part shall at all times execute such leases, deeds, mortgages, conveyances, contracts, or agreements embracing or affecting said premises, or any portion thereof, as said party of the third part shall in writing request.”
The defendants read in evidence at the trial an instrument bearing date December 1, 1861, signed by Eliza Ann Walton and acknowledged by her April 13,1862, in which she requested Isaac G. Wickersham and Sidney Abel, and also George W. Walton and Margaret E. Walrath, to join in the execution of a deed of conveyance of said lot 44, block 4, in Fort Dearborn '.addition to Chicago, to Elbridge G. Walton, and stating in said instrument that said proposed deed had been drafted at her sole instance and request, and had already been signed by herself, her husband Nelson C. Walton and her daughter Josephine M. Walton, and declaring that said deed was intended to convey all the right, title and interest whatsoever of said George W. Walton, Margaret E. Walrath, Isaac G. Wick•ersham and Sidney Abel, and each and every of them, as trustees or otherwise, under said deed of March 24,1858, and said deed of October 12, 1859; and said Eliza Ann Walton, in said instrument, acknowledged the receipt, for her separate use, from said Elbridge G. Walton, of the sum of $2000, in full of the purchase money of said lot, and she also declared that, in consideration of the execution of said deed by said trustees, she, by said instrument, released and discharged said trustees and each and every of them from all further or other care or charge by reason of the trusts, provisions, powers or conditions contained in said two deeds or either of them.
The defendants also read in evidence a deed bearing date December 1, 1861, executed by Nelson C. Walton, Eliza Ann Walton his wife, Josephine M. Walton their daughter, and by Isaac G. Wickersham, Sidney Abel, George W. Walton, Margaret E. Walrath and Austin Walrath her husband, to Elbridge G. Walton, by which said grantors, in consideration of the sum of $2000, granted, bargained and sold to said grantee, said lot 44, block 4, Fort Dearborn addition to Chicago. It was also proved that afterwards, by several mesne conveyances, the title vested in Elbridge G. Walton by the last mentioned deed was conveyed to Charles Follansbee, one of the defendants.
Eliza Ann Walton died about March 30,1874, leaving three children, viz., Martin C., Nelson C. Jr. and Josephine M., and Josephine died December 16, 1879, leaving Frank H. Van Pelt her only child. Nelson C. Walton is still living.
The decision of the case must necessarily depend upon ithe nature of the legal estate in the lot in question vested in George W. Walton and Margaret E. Young by the deed of March 24, 1858. If that deed vested in them as trustees an estate in fee, it is apparent that, by means of the several deeds above mentioned, such legal estate has been conveyed to and vested, in Charles Follansbee, and in that case the plaintiffs manifestly can not recover. In this suit legal titles only can be tried. It is therefore immaterial whether said trustees conveyed away the legal title rightfully or in violation of their trust, as in either case their deed was effectual to pass such, title. Reece v. Allen, 5 Gilm. 236; Graham v. Anderson, 42 Ill. 514" date_filed="1867-01-15" court="Ill." case_name="Graham v. Anderson">42 Ill. 514; Dawson v. Hayden, 67 id. 52; Rice v. Brown, 77 id. 549; Chapin v. Billings, 91 id. 539.
The plaintiffs claim that there was no proper proof of the-execution of the instrument read in evidence by which Eliza Arm Walton requested said trustees to execute a conveyance-of said lot to Elbridge G. Walton, and the newly discovered evidence produced by-the plaintiffs in support of their motion for a new trial tended to show that said instrument was not, in fact drafted until long after the execution of said deed. Even admitting that the execution of said instrument was, necessary to enable the trustees to convey without a violation of their trust, and that her joining in the deed itself was not. sufficient to answer the requirements of the trust deed, it is, upon the principle above stated, wholly immaterial in this ease-whether she executed said instrument before or after the trustees made the conveyance, or whether she executed it at all, as in either case such conveyance was effectual to the extent, of conveying the legal estate.
What then was the nature and extent of the legal estate-vested in said trustees by said deed of March 24,1858 ? It can not be doubted that the language of the deed was sufficient, if the purposes of the trust required it, to vest in them the fee. The grant was to said trustees, and to the survivor of them,- and to the heirs or assigns of the survivor. But the extent or quantity of the estate taken by a trustee is determined, not by the circumstance that words of inheritance in the trustee are •or are not, used in the deed, but by the intent of the parties, and such intent is to be determined by the scope and extent of the trust. His interest therefore is measured, not by words of inheritance or otherwise, but by the object and extent of "the trust upon which the estate is given. On this principle, two rules of construction have been adopted by the courts, ■first, wherever a trust is created, a legal estate, sufficient for ■the purposes of the trust, shall, if possible, be implied in the ■trustee, whatever may be the limitation in the instrument, whether to him and his heirs or not; and, second, although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried farther than the complete execution of the trust necessarily requires. 1 Perry on Trusts, sec. 312, and authorities cited in notes.
In considering the provisions of said deed for the purpose ■of determining the scope and extent of the trust, it seems too plain for argument that the parties intended to create a trust which should subsist only during the joint lives of Nelson G. Walton and his wife. This is evident from language which is too plain to require construction. It was expressly provided that, in case of the death of Eliza Ann Walton leaving her husband surviving her, the property in said deed described ■should descend to and vest in her children, or in default of •children, that it should revert to her husband, the grantor. It "was further provided that, in case of the death of Nelson C. Walton before the death of his wife, said premises should "become the absolute property of his wife, and that said trust •should thereupon cease and determine.
It is true the instrument requires the trustees to execute such leases, conveyances, contracts and agreements in reference to said premises or any part thereof as Mrs. Walton •should in writing request, but this clause must be construed with proper reference to the other provisions above mentioned. A deed should be so construed if possible as to give force to all its provisions, and there is no difficulty in construing the clause last mentioned so as to give it effect, and at the same time give full force and effect to all the other provisions of the deed. The “leases, conveyances, contracts and agreements” there referred to must obviously be construed to mean, leases, conveyances, contracts and agreements of and concerning the estate which was made the subject matter of the trust, viz., an estate in the lots conveyed for the joint lives of the grantor and his. wife. Such construction does no violence to the language employed, and makes said clause harmonize perfectly with those clauses of the deed which provide for the disposition of the property in the event of the death of either the grantor or his wife.
If, on the other hand, the deed is so construed as to give-the trustees power and make it their duty to convey the fee, or any interest extending beyond the joint lives of the grantor and his wife, the disposition attempted to be made of the property upon the death of either of said parties would be rendered nugatory and of no effect.
The trust then being only for the joint lives of the grantor and his wife, and involving no duty which made it necessary for the trustees to have an estate for a longer period, the deed, notwithstanding the limitation to the heirs of the survivor of said trustees, must be held to have vested in them only an estate for the joint lives of Mr. and Mrs. Walton, with a contingent remainder over to the children of Mrs. Walton, the contingencies being, that Mrs. Walton should die before her husband, and that said children should be alive at her death. Upon the death of their mother they became vested with the fee, not by operation of the Statute of Uses, but by virtue of the estate in remainder created and granted directly to them. by the deed itself.
We have now to consider the effect upon the rights of the-plaintiffs, and particularly upon the rights of Frank H. Van-Pelt, of the execution by Josephine M. Walton, the mother of said YanPelt, of the deed of December 1, 1861, by which she and the other grantors to said deed granted, bargained and sold to Elbridge G-. Walton the lot in question. It must be admitted that at the time of that conveyance, Josephine M. Walton had no vested interest in said lot. The remainder created by the deed of March 24, 1858, was limited both upon a dubious and uncertain event, viz., the death of Mrs. Walton during the lifetime of her husband, and to dubious and uncertain persons, viz., the children of Mrs. Walton who should be alive at her death. At the time of the conveyance to Elbridge Gr. Walton, Mrs. Walton was living, and the parties to whom the remainder would go in case of her death before her husband were not then ascertained. The remainder was to such of her children as should then be living, and no estate therefore could vest in either of them until the death of their mother. Haward v. Peavey, 128 Ill. 430" date_filed="1889-05-16" court="Ill." case_name="Haward v. Peavey">128 Ill. 430.
But the deed to Elbridge G. Walton contained the following covenant: “And the said Nelson C. Walton, Eliza Ann Walton and Josephine Walton, for themselves, their heirs, executors, administrators and assigns, do covenant, grant, bargain and agree, to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents, they are well seized of the premises above conveyed, as of a good, sure, perfect, absolute and indefeasible estate of inheritance in the law in fee simple, and have good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, contingent estates and incumbrances of what kind or nature soever, and the above bargained premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said Nelson 0. Walton, Eliza Ann Walton and Josephine M. Walton, shall and will warrant and defend.”
Josephine M. Walton was living at the death of her mother, and the estate she then took by way of remainder was an after acquired estate which, upon well settled principles of law, enured, by force of her covenant, to her grantee, and she was estopped to claim title as against said grantee. Said estoppel was binding not only upon her, but is equally binding upon said Frank H. Van Pelt, her son, who now claims title as her heir. Tiedeman on Real Property, sec. 728 et seq., and authorities cited. The title claimed by him must therefore necessarily fail.
It follows from what has been said, that two of the plaintiffs, Martin 0. Walton and Nelson C. Walton Jr., have each proved title in fee in themselves, as tenants in common, to an undivided one-third of the lot in question, while the evidence shows that the other plaintiff has no title. Under these circumstances, the two plaintiffs who have proved title, should have been permitted to recover. The case comes within the provisions of the twenty-eighth section of the statute in relation to Ejectment, viz., that it shall not be an objection to a recovery in any action of ejectment, that any one of several plaintiffs fails to prove an interest in the premises claimed, but those entitled shall have judgment according to their rights, for the whole or such portion as he or they might have recovered if he or they - had sued in his or their own name only. The court therefore erred in his instruction to-the jury to find generally for the defendants, but should have instructed them to find a verdict in favor of the two plaintiffs who proved title for an undivided one-third each of said lot in fee. For the error in giving the instruction, and in refusing to set the verdict aside and to award to said two defendants a new trial, the judgment will be reversed and the cause remanded.
Judgment reversed.