delivered the opinion of the court:
This was a bill filed by appellee in the circuit court of DeWitt county to quiet the title to twenty acres of land and for the construction of a certain deed. After the pleadings were settled the cause was referred to a master, who found that Charley Harrold took a fee simple title to said premises through a deed from Presley Williams and wife; that the trust estate created by said deed failed and that therefore the rule in Shelley's case applied in the construction of the deed, and that appellants here had no right, title or interest in and to said land. A decree was entered overruling the exceptions to the master’s report and a finding was entered in accordance with said report. Prom that decree this appeal has been perfected.
Presley Williams was the owner of said twenty acres and on January 7, 1895, executed, with his wife, the deed in question. After the usual opening, naming the grantors and their residence, the deed continues: “Por and in consideration of love and affection and five ($5) dollars in hand paid, convey and warrant to Charley Harrold in trust during his natural life and at his death to his lawful heirs, it being expressly understood that but a life estate is hereby deeded to said Charley Harrold, and that he cannot make a good title by deed or other conveyance but is to have the use of the land to be conveyed, only, and is to hold it absolutely in trust for his lawful heirs of DeWitt county and State of Illinois, the following described real estate, to-wit: [describing it.] Hereby reserving the control of said land and the right to collect, have, hold and use the rents and profits of said land to said Presley Williams for and during his natural life; and it is hereby agreed and expressly understood by and between all the parties to this instrument that the title to and in the above described land does not pass from said grantors, Presley Williams and Jemimah Williams, to the said Charley Harrold in trust as above until the death of the said Presley Williams, but at his death the title in said lands in trust is to pass to the said Charley Harrold, but only in trust, it being the intention of the said grantor to reserve and hold a life estate in the above described land to and for the said Presley Williams.”
The record shows that Presley Williams departed this life testate August 13, 1898, and his estate was duly probated; that Charley Harrold had born to him in lawful marriage three children, who are the appellants herein; that on May 4, 1912,. Harrold and his wife conveyed and warranted to Ira D. Wilson, appellee herein, for a consideration of $1500, the fee simple title in said twenty acres of land by deed, which was duly filed for record.
Counsel for the appellants argues that Charley Harrold took a life estate, only, in the deed from Mr. and Mrs. Williams and that his three children took the fee under the designation of “his lawful heirs,” contained in said deed; that whether this is true or not, the deed should be so construed as to exclude the rule in Shelley’s case from applying thereto; that it was plainly the intention of the grantors that Harrold should only take a life estate. Counsel for appellee argue that Charley Harrold took a fee simple title under said deed; that as there was no legal separation of the legal and equitable estates in the conveyance to Harrold, there was a merger of the estates in him as sole trustee and beneficiary of the life estate, and therefore the rule in Shelley’s case applies to the remainder conveyed to the “lawful heirs” and Harrold took title to the entire fee.
The first question to be considered is whether the attempt of Presley Williams and wife to create by their deed a trust in Charley Harrold failed. It has frequently been stated by the authorities that a person cannot both be a trustee and a beneficiary; that “this doctrine results from that of merger of estates rather than from any incompatibility of interest between the trustee and cestui que trust. It is undoubtedly true that the same person cannot be at the same time sole trustee and sole beneficiary of the same identical interest; but a cestui que trust is not absolutely prohibited from occupying the relation of trustee for his own benefit, and especially is this so when he is but one of several trustees, or where he is a trustee for himself and others.” (39 Cyc. 248, and authorities there cited; see, also, 28 Am. & Eng. Ency. of Law,—2d ed.—955; 1 Perry on Trusts,— 6th ed.—sec. 347, note (a), in which are cited, among other authorities, the decisions of this court in Burbach v. Burbach,
These three decisions by this court can in no way be distinguished, on the facts or the law, from the case before us, and therefore the rule laid down in those cases must control here. It may be true that recent authorities are holding more liberally, and the courts are becoming more and more inclined towards carrying out the intention of the grantor or testator in regard to trusts, rather than attempting to defeat the intention by the application of strict rules as to merger or otherwise, as was said in Irving v. Irving,
Counsel for appellants relies on the reasoning of this court in Hagan v. Varney,
Counsel for appellants further argues that even though the trust has failed the rule in Shelley’s case will not apply and merge the fee in Harrold, for the reason, as we understand the argument, that this rule does not apply to trust estates. We find no authorities supporting this argument. In Perry on Trusts (vol. 1, 6th ed. sec. 358,) this question is discussed, and the author says, among other things: “As trusts are wholly independent of tenure they ought not to be affected by the rule, and a few cases have seemed to indicate that they were withdrawn from the operation of it; but it is now established that the same rule shall apply to the same limitation, whether it is of an equitable or a legal estate,”—citing numerous authorities, all apparently upholding the doctrine of the text, and this seems to be the general conclusion reached by the authorities. It is, however, stated by some writers that the rule does not apply to executory trusts, using the word “executory” in a limited sense; that all trusts which are not dry or passive are executory in some sense, but that a trust, to be subject to the rule, must be such a one that its limitations are left to the court to frame, the writing only giving general directions to guide the court in finding what estate is created. For a full discussion of this doctrine see Lewin on Trusts, (11th ed.) pp. 120-130, incl; 1 Perry, on Trusts, (6th ed.) sec. 359; Tiedeman on Real Property, (3d ed.) sec. 322, note 16. So far as we are advised, this court has always assumed that the rule in Shelley’s case applied to trust estates. See Bennett v. Bennett,
There being no trust estate created, the instrument granted a legal life estate to Charley Harrold with remainder to his heirs. “If an estate for life .is granted by any instrument and the remainder is limited by the same instrument, either mediately or immediately, to the heirs of the life tenant, the life tenant takes the remainder as well as the life estate.” (Bails v. Davis,
Counsel for appellants argues that the above rule should not apply because the instrument, instead of leaving the remainder simply to the heirs of Harrold, left it to his “lawful heirs.” The qualifying adjective “lawful” before the word “heirs” does not in any way change the meaning of the word “heirs” to one of purchase rather than a word of limitation. Deemer v. Kessinger, supra; Webbe v. Webbe,
It is further argued by counsel for appellants that the rule should not apply because the instrument not only provides that the land shall go to the lawful heirs of Harrold, but still further particularizes by saying that it should go to “his lawful heirs of DeWitt county and State of Illinois,” and that these words as used can still be said to make a particular description of the heirs the same as if the instrument had used the word “children;” that if the word “heirs” is used as meaning “issue” or “children,” then the rule in Shelley’s case would not apply. (Butler v. Huestis,
The decree of the circuit court will therefore be affirmed.
Decree affirmed.