Art Institute of Chicago v. Castle

• Decision Date: 02 April 1956
• Docket Number: Gen. No. 46771
• Citation: Art Institute of Chicago v. Castle, 133 N.E.2d 748, 9 Ill.App.2d 473 (Ill. App. 1956)
• Parties: The ART INSTITUTE OF CHICAGO, Plaintiff, v. Latham CASTLE, Attorney General of The State of Illinois, Defendant. NATIONAL SCULPTURE SOCIETY, Petitioner to Intervene-Appellant, v. The ART INSTITUTE OF CHICAGO, Plaintiff and Appellee, and Latham Castle, Attorney General of The State of Illinois, Defendant and Appellee.
• Court: Appellate Court of Illinois

Page 748

133 N.E.2d 748

9 Ill.App.2d 473

The ART INSTITUTE OF CHICAGO, Plaintiff, v. Latham CASTLE, Attorney General of The State of Illinois, Defendant.

NATIONAL SCULPTURE SOCIETY, Petitioner to Intervene-Appellant, v. The ART INSTITUTE OF CHICAGO, Plaintiff and Appellee, and Latham Castle, Attorney General of The State of Illinois,

Defendant and Appellee.

Gen. No. 46771.

Appellate Court of Illinois, First District, First Division.

April 2, 1956.

David Oppenheim, New York City, Hastings, Snyder & Rockwell, Chicago, Laurens G. Hastings, George W. K. Snyder, David P. List, Chicago, of counsel, for appellant.

Latham Castle, Atty. Gen., William C. Wines, Raymond S. Sarnow, Asst. Attys. Gen., Eckhart, Klein, McSwain & Campbell, Chicago, Percy B. Eckhart, William A. McSwain, Howard F. Husum, Chicago, of counsel, for appellee.

BURKE, Judge.

On November 25, 1904, Benjamin F. Ferguson made his last will. The Northern Trust Company was named as trustee. He died on April 10, 1905. The will was admitted to probate in the Probate Court of Cook County and the estate was duly administered and distributed. Subparagraph (e) of the Fifth paragraph of the will reads:

'My said Trustee after paying the bequests hereinabove mentioned and establishing or realizing and keeping intact a permanent trust fund of not less than $1,000,000.00 shall annually thereafter or oftener, if required, pay the entire net income arising therefrom (after deducting its compensation as Trustee herein mentioned) to The Art Institute of Chicago, to be known as the B. F. Ferguson Monument Fund and entirely and exclusively used and expended by it under the direction of its Board of Trustees in the erection and maintenance of enduring statuary and monuments, in the whole or in part of stone, granite, or bronze, in the parks, along the boulevards, or in other public places within the City of Chicago, Illinois, commemorating worthy men or women of America, or important events in American History. The plans or designs for such statuary or monuments and the location of the same shall be determined by the Board of Trustees of such Institute.'

On May 22, 1933, the Circuit Court entered a decree in the case entitled 'The Art Institute of Chicago, a corporation, v. Otto Kerner, Attorney General of the State of Illinois,' construing the word 'monument' to mean and include a memorial building. The decree authorizes the expenditure by the Art Institute of Chicago of moneys belonging to the fund for the erection of a memorial building east of the Illinois Central Railroad right of way in Grant Park to be the key building in a building program for the Institute which included several other buildings. The memorial building authorized by the decree has never been constructed.

In a complaint filed on January 7, 1955, by the Institute against the Attorney General of Illinois the plaintiff says that it now proposes to erect a B. F. Ferguson Memorial Building on a different site, that the present plans which have been completed by its architects and approved by its Board of Trustees provide for the erection of a five-story administration building in Grant Park immediately west of the right of way of the Illinois Central Railroad and immediately north of and adjacent to the present permanent Art Institute Building, rather than east of the railroad as contemplated at the time of the 1933 decree. Continuing, the complaint states that the building shall be used as an administration building for the Art Institute and shall contain offices, shops, studios and other rooms supplementing the existing facilities; that the building shall be of a type of architecture that will, in the opinion of the trustees of the Institute, be suitable and fitting as a memorial building; that the building will be erected upon land owned by the Chicago Park District and that by contract between the District and the Institute the latter will have the permanent use and occupancy of the building. The complaint further recites that in view of the fact that the 1933 decree authorizes the expenditure by plaintiff of moneys from the fund for the erection of a memorial building as specifically described in that decree, the plaintiff is in doubt as to whether the language of the will as construed in the decree means and includes any other memorial building, and prays that the court construe the will as construed in the 1933 decree and determine whether the language of the will as in that decree construed means and includes any other memorial building, and whether the use of the funds may be properly expended by it for the erection and maintenance of a memorial building as described in the complaint.

The Attorney General filed an answer admitting the factual allegations and submitting the matters concerning the interests of the people of the State of Illinois to the consideration and protection of the court, and praying that in the event a decree is entered pursuant to the complaint that the decree will contain provisions to protect the interests of the people. The National Sculpture Society filed an amended petition representing that it is a corporation not for profit created under the laws of New York, organized for artistic and educational purposes and for the purpose of fostering the development and appreciation of sculpture, spreading the knowledge of good sculpture, fostering the taste for and encouraging the production of ideal sculpture for households and museums, and promoting the decoration of public and other buildings, squares and parks with sculpture of a high class; that it has promoted and fostered many exhibitions of outstanding sculpture throughout the United States; that its more than 300 members include most of the distinguished sculptors in the United States; that the trustee under the will has not been a party and was not a party to the 1933 case; that if the plaintiff is permitted to expend moneys from the fund to erect and maintain a building as described in the complaint, the intent of the testator may be defeated; that sculptors as a class will be deprived of participation in the erection of 'enduring statutary and monuments' in accordance with the will to their professional and financial detriment; that if the moneys of the fund are used for the purpose of erecting the building described in the complaint, a precedent will be established which will have the effect of encouraging the erection of similar buildings or other structures in lieu of statuary and like memorials provided for in the wills of testators to the...