Glover v. Condell

• Decision Date: 10 November 1896
• Citation: 45 N.E. 173,163 Ill. 566
• Parties: GLOVER et al. v. CONDELL.
• Court: Illinois Supreme Court

163 Ill. 566

45 N.E. 173

GLOVER et al.

v.CONDELL.

Supreme Court of Illinois.

Nov. 10, 1896.

Appeal from appellate court, Third district.

Action in equity by Mary J. Glover and others against Moses B. Condell and others. From a decree of the appellate court (56 Ill. App. 107) reversing that of the circuit court, plaintiffs appeal. Reversed.Carl E. Epler, for appellants.

Govert & Pape and Patton, Hamilton & Patton, for appellee.

This is a bill filed on February 13, 1893, by Mary J. Glover and Emily Montgomery, daughters of Thomas Condell, deceased, and devisees under his will, and Winthrop Sudduth, who was appointed successor in trust under said will, on May 14, 1892, by decree of the circuit court of Adams county, against Moses B. Condell and Thomas E. Condell, sons of said Thomas Condell, and devisees under his will, alleging, among other things, ‘that by virtue of advancements to and releases by said Moses B. and Thomas E., and the matters alleged, neither of them had at the death of said Thomas Condell, nor now have, any interest remaining in or to the estate of said Thomas Condell, deceased, under his will and codicil, either directly or by way of contingent remainder, upon the death of Albert B. Condell,’ hereinafter named; and further alleging that, ‘by reason of the questions arising concerning the construction of said will and codicil, and said releases, upon the matters above stated, your orator, Winthrop Sudduth, trustee, is in doubt to whom to pay the interest accrued on the trust fund of $14,000 since October 30, 1892, the date of the death of said Albert B. Condell, who was entitled to the interests of said fund while he lived, and whether he should pay over the principal of, or only the interest upon, said fund to the parties entitled, and he desires the construction of said will, as to his duties as trustee thereunder, and to administer the trusts of said will under the direction of the court’; and praying ‘that said will and codicil and releases may be construed by the court, and trusts of said will carried into effect, and the rights and interests of all the parties under said will may be ascertained and declared; that the trusts of said will and codicil may be performed and carried into execution by and under the direction of the court; that the duties of said trustees, as to the management, investment, and distribution of the said trust fund under said will be determined; that an account may be taken,-with prayer for general relief.’ Default was enteredagainst Thomas E. Condell. Moses B. Condell filed an answer denying the material allegations of the bill, and denying that he had no further interest in the fund in litigation. The circuit court, upon a hearing, declared and decreed that the two sums of $14,000 held by Sudduth, as trustee, respectively, for Emily E. Montgomery and Albert B. Condell, were and are parts of the testator's estate, and that Moses B. Condell and Thomas E. Condell, having received by way of advancements amounts in excess of the one-sixth share each of the testator's estate, had no interest or right whatever in the fund accruing to Albert B. under the will, but that all interest and right in such trust fund vested in Mary J. Clover and Emily Montgomery, to whom the court decreed the trustee should pay and disburse such fund in accordance with the provisions of the will. Moses B. Condell prosecuted an appeal from the decree of the circuit court to the appellate court. The appellate court reversed the decree of the circuit court, and remanded the cause, with directions ‘to the chancellor to declare, by a decree to be entered in the cause, that the fund created by a will in favor of Albert B. Condell, and upon which he was entitled to receive the interest accruing during his life time, upon the death of said Albert B., constituted a trust fund, to be held by a trustee, acting under the provisions of the will of Thomas Condell, deceased, and to decree that such fund shall be administered as follows: Such trustee shall invest the fund in stocks, or cause it to be loaned out at interest, with good security, and shall pay the interest or dividends derived therefrom to Mary J. Glover, Emily Mongomery, Moses B. Condell, and Thomas E. Condell, in equal parts, unless a greater proportion shall be required to be paid to some one of them to keep them from want, or to furnish them with the necessaries of life for themselves or children, in which event said trustee shall apply to a court sitting in chancery for specific directions as to his duties.’ The present appeal is prosecuted from the judgment of the appellate court.

The material facts, as set up in the pleadings and as established by the proofs, are substantially as follows: Thomas Condell died on October 11, 1880, in Lyon county, Kan., leaving a will, dated December 23, 1865, and a codicil thereto, dated August 19, 1867.

The will is as follows:

‘I, Thomas Condell, of Sangamon county, in the state of Illinois, do make and ordain this, my last will and testament, in manner following, to wit:

‘First. I devise to my wife, Elizabeth H. Condell, so much of my household and kitchen furniture and provisions as she may think fit to retain for her own use.

‘Secondly. I direct that my executors, hereinafter named, shall sell all the rest of my estate, real and personal, which I may leave at my death, except my homestead, on such terms as they may deem advisable; and they are also authorized to sell my homestead, with the consent of my wife, Elizabeth H. Condell, and to make all necessary and proper conveyances of such real estate as they may sell.

‘Thirdly. Out of the first proceeds of my estate my executors are to pay to my wife, Elizabeth H. Condell, such an amount as will, with the amount charged to her in the account attached to this will, make up the sum of five thousand dollars, to be at her absolute disposal.

‘Fourthly. All the remainder of the proceeds of my estate, including cash on hand, debts due to me, stocks, or bonds, to which shall be added all the advances I have heretofore made to each one of my children or shall hereafter make from time to time, as the same are or hereafter may be charged and set forth in the account attached to this will, which account will be charged in my own handwriting, and the sum of my estate then on hand, composed of all advances made to my children, debts due to me by my children for money loaned them, debts due to me by other persons, stocks, bonds, etc. (except the specific sum devised to my wife), shall then be divided into six equal parts,-one part for the use of my wife, and one part for the use of each of my children, Moses B. Condell, Mary Jane Glover, Thomas E. Condell, Emily Montgomery, and Albert B. Condell, to be disposed of as hereinafter directed.

‘(a) The sixth part devised to my wife is to be held in trust by my executors, hereinafter named, and invested in stocks, or loaned out at interest, with good security, during the lifetime of my wife, and the interest or dividends thereof are to be paid to my wife as they may accrue and are received, for her own use during her natural life; and after her death the same is to be held in trust by my executors as trustees, to be invested in stocks, or loaned out at interest, with good security, and the interest or dividends is to be divided amongst my children in such sums to each, and in such manner as she, my wife, may direct by will, as she may think their circumstances may require; and if my wife should not make a will, then my executors, as trustees, shall hold the same in trust, and pay the interest or dividends derived therefrom to my children in such proportions as their circumstances may require, to keep them from want or to furnish them the necessaries of life for themselves and children.

‘(b) The parts devised for the use of each one of my children are to be made up of the amounts charged in the account kept and to be kept as aforesaid against each one of them, and such sum of money, or notes, or stocks, as will make the one-sixth part as aforesaid, and so much is to be paid at once to Moses B. Condell as will, with the advances charged to him, amount to one-half of his sixth part as aforesaid; and the other half of the sixth part devised to him is to be held by my executors as trustees, and in trust for him, and is to be loaned out on good security, or kept invested in stocks, and the interest or dividends is to be paid over to him as the same accrues and is received during his natural life, and after his death the principal of his share or part is to be paid over to his heirs.

‘(c) And so much is to be paid over at once to Mary Jane Glover as will, with the advances charged to her, amount to one-third of her sixth part as aforesaid; and the other two-thirds of her sixth part as devised to her is to be held by my executors as trustees, and in trust for her, and is to be loaned out on good security, or kept invested in good stocks, and the interest or dividends is to be paid over to her as the same accrues and is received during her natural life, and after her death the principal of her share or part is to be paid over to her heirs.

‘(d) And so much is to be paid at once to Thomas E. Condell as will, with the advances charged to him, amount to one-third of his sixth part as aforesaid; and the other two-thirds of his sixth part devised to him is to be loaned out on good security, or kept invested in stocks, and the interest or dividends is to be paid over to him as the same accrues and is received during his natural life, and after his death the principal of his share or part is to be paid over to his heirs.

‘(e) And so much is to be paid at once to Emily Montgomery as will, with the advances charged to her, amount to one-third of her sixth part as aforesaid; and the other two-thirds of the sixth part devised to her is to be held by my executors as trustees, and in trust for her, and is to be loaned out...