Arnold v. Alden

• Decision Date: 21 April 1898
• Parties: ARNOLD et al. v. ALDEN et al.
• Court: Illinois Supreme Court

173 Ill. 229

50 N.E. 704

ARNOLD et al.

v.ALDEN et al.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from circuit court, Dekalb county; Charles Kellum, Judge.

Bill by Philander M. Alden and another, trustees under the will of James S. Waterman, deceased, against Sarah Arnold, an infant, and others, to construe the will, etc. From a decree adjusting the rights of the various parties, defendants appeal. Modified.Plum & Cloyes, for appellants Harrison and others.

W. C. Kellum, for appellants Charles F. Arnold, Minnie Scott, Eva J. Burley, and Arthur Rowley.

Carnes & Dunton and John P. Wilson, for appellee P. M. Alden.

This is a bill filed on September 5, 1894, by Philander M. Alden and George S. Robinson, trustees under the will of James S. Waterman, deceased. The bill, as originally filed and as amended, asks for a construction of the will, that the accounts of the trustees be audited and approved, that compensation be awarded them for services performed after July 1, 1891, and that they be permitted to resign their trust, and that successors in trust be appointed. The facts, as set forth in the pleadings and master's report, are as follows: On November 28, 1870, James S. Waterman executed his will by the terms of which he gave to his wife, Abbey L. Waterman, one-third of all his property, and the remaining two-thirds, after some minor bequests, he disposed of by the fourth clause of his will. Said fourth clause is as follows: ‘Fourth. I give, bequeath, and devise all the rest, residue, and remainder of my estate, both real and personal, to the said Philander M. Alden and George S. Robinson, of Sycamore, Illinois, the executors of this, my last will and testament, hereinafter nominated and appointed, in trust for the use and benefit of my said brothers and sisters, to wit, John C. Waterman, Charles Waterman, Robert W. Waterman, Charlotte Waterman, Mary Wells, and Sarah E. Waterman, to have, hold, manage, and control the same for such purpose for and during the term of twenty-one years from and after the date of my decease, and that, during the continuance of said trust estateas aforesaid, to receive, collect, and pay over to my said brothers and sisters above named the net income and profits thereof in equal proportions to each annually; the child or children of a deceased brother or sister to take the same portion the father or mother would have taken if living. And, at the expiration of said twenty-one years after my decease, I give, bequeath, and devise to my said brothers and sisters, their heirs and assigns, forever, the said rest, residue, and remainder of my estate, both real and personal, to be equally divided between them, share and share alike; the child or children of any deceased brother or sister to take the same share the father or mother would have taken if living. And in case of the death of any of my said brothers or sisters, leaving no issue, the share such brother or sister would have taken if living to be equally divided among my surviving brothers and sisters.’ At the date of the execution of the will, all the brothers and sisters of the deceased named in said fourth clause were living. On July 19, 1883, James S. Waterman died, leaving, him surviving, all of said brothers and sisters, except Mary Wells, who had died in March, 1878, leaving, her surviving, four children, to wit, Elizabeth M. Chase, Helen M. Thomas, Abbey J. Kinney, and John Frank Wells. On September 18, 1883, the will was duly probated, and the said Alden and Robinson qualified as executors, and entered upon their duties as such, and also entered upon their duties as trustees under said fourth clause. After the death of the testator, to wit, on April 12, 1891, his brother Robert W. Waterman died, leaving a widow and six children. On May 9, 1891, the testator's sister Charlotte J. Waterman died, unmarried and without children. On October 19, 1883, his brother John C. Waterman died, leaving eight children On June 7, 1894, his sister, Sarah E. Waterman, a widow, died, leaving, her surviving, three children, to wit, two daughters, Abbey J. Harrison and Clara W. Hayden, and one son, Charles H. Waterman, who are appellants herein, and leaving, her surviving, three grandchildren, to wit, Eva J. Burley, Charles F. Arnold, and Sarah Arnold (the latter a minor), children of a deceased daughter of Sarah E. Waterman, named Mary C. Arnold, who died January 1, 1891. The said Sarah E. Waterman also left, surviving her, two grandchildren, named Minnie Scott (Statt) and Arthur Rowley, the children of a deceased daughter of Sarah E. Waterman, named Frances A. Rowley, who died in March, 1878. A guardian ad litem was appointed for the minor Sarah Arnold. The five grandchildren of Sarah E. Waterman are also appellants herein. The testator's brother Charles Waterman is still living, and has one son, named Waldo Waterman. All of said children and grandchildren and said surviving brother are made parties defendant to the bill and the amendment thereto. Some of the defendants answered, and some demurred to, the bill; and some answered a portion, and demurred to other portions, of the bill. Before the filing of the present bill there had been an accounting in a court of chancery, setting the account of these trustees from the time of their acceptance of the trust up to August 15, 1893. Some of the facts in relation to said former bill and accounting may be seen by reference to the case of Waterman v. Alden, 144 Ill. 90, 32 N. E. 972.

In the case at bar an order of reference was made to a special master to examine and state the account from August 15, 1893, between said trustees and the various cestuis que trustent named in the bill, and to report what would be a reasonable compensation to be allowed said trustees and the surviving trustee, Alden, from July 1, 1891, to July 19, 1896, for collecting and disbursing income. The master found that the sum of $2,500 would be such reasonable compensation. No exception was taken to this finding. The court found, on issue joined on demurrer, that the trustees were entitled to the compensation found by the master, by virtue of the act of 1891, and decreed accordingly. The master found (and the court decreed in accordance with such finding) that, by the true construction of said will, the words of survivorship contained in said fourth clause related to the time of the death of said testator; that the children of said Mary Wells take the share to which their mother would have been entitled had she survived the testator; that upon the death of said Charlotte J. Waterman, leaving no child or children, or descendants of any child or children, the share of income accruing after her demise, and the principal fund, which would have gone to her had she survived to take the same under the will, belonged to the brother and sister surviving Charlotte, to wit, Charles and Sarah, and the children of deceased brothers and sisters, taken as a class, and constituting, with the brother and sister, five classes; the surviving children of deceased parents taking in equal proportions the shares their respective ancestors would be entitled to if living. The decree of the court below also ordered that the children of Mary Wells, deceased, taken as a class, on the death of the testator, took, as vested and certain estate, in equal parts, the share of said Mary Wells, to wit, an undivided one-sixth of said trust estate, afterwards, by the death of Charlotte, enlarged to an undivided one-fifth; also, that, on the decease of John C. Waterman, his children, taken as a class, took, as vested and certain estate, in equeal parts, the share of the said John C. Waterman, to wit, an undivided one-sixth, enlarged as aforesaid to an undivided one-fifth; that, on the death of Robert W. Waterman, his children, taken as a class, took, as a vested and certain estate, in equal parts, his portion, amounting to one-fifth, as aforesaid, except the portion of the income upon one-sixth which had accrued prior to the death of said Robert. The court also ordered and decreed that, on the death of Sarah E. Waterman, her surviving children, taken as a class, took, as vested and certain estate, in equal parts, the portion of said Sarah E. Waterman, to wit, an undivided one-sixth, enlarged to one-fifth, as aforesaid, except such part of the income upon the share of said Sarah as had accrued before her death.

MAGRUDER, J. (after stating the facts).

1. The first question in this case is whether the court below decided correctly that the trustees were entitled to compensation, under the provisions of the act of June 17, 1891, for services rendered as trustees since July 1, 1891. The act of June 17, 1891, entitled ‘An act concerning compensation of trustees,’ is as follows: ‘That, where a trustee or trustees shall hereafter act under any power or appointment given or created by any will, testament, or codicil, and in such will, testament or codicil, except in case of trusts for charitable, religious or educational purposes, shall be contained no provision respecting the compensation to be allowed or paid such trustee or trustees, a reasonable compensation may be charged and allowed, demanded and collected therefor.’ In the case at bar the trustees had acted as executors and trustees under the will for nearly eight years before the act of 1891 went into effect. The will contained no provision allowing them any compensation, and they received no compensation for their services as trustees prior to July 1, 1891. When they accepted the trust under the will, and entered upon their duties as such, there was no law in this state which entitled them to compensation for their services. The rule, laid down in the text-books, and established by the courts of equity in England, is that a trustee is not entitled to compensation for his services. Prior to the passage of the act of 1891, we decided in several cases that the English rule is formally...