Barnhart v. Barnhart, 32493

• Decision Date: 20 May 1953
• Docket Number: No. 32493,32493
• Citation: 114 N.E.2d 378,415 Ill. 303
• Parties: BARNHART et al. v. BARNHART et al.
• Court: Illinois Supreme Court

Page 378

114 N.E.2d 378

415 Ill. 303

BARNHART et al. v. BARNHART et al.

No. 32493.

Supreme Court of Illinois.

May 20, 1953.

Rehearing Denied Sept. 21, 1953.

Kirkland, Fleming, Green, Martin & Ellis, and Bell, Boyd, Marshall & Lloyd, both of Chicago and Edson R. Sunderland, of Ann Arbor, Michigan (Joseph B. Fleming, Dwight P. Green, Joseph H. Pleck, John M. O'Connor, Jr., Laird Bell, Thomas L. Marshall, and Charles T. Martin, Chicago, of counsel), for appellants.

Chapman & Cutler, of Chicago (George H. Jirgal, and John N. Van der Vries, Chicago, of counsel), for appellees Gracia M. F. Barnhart et al.

Vernon W. Foster, of Chicago, for appellee Morgan L. Fitch.

Daniel A. Costigan, William C. Wines, and Harry S. Ditchburne, all of Chicago, for other appellees.

FULTON, Justice.

Appellant, Stella LaZelle Barnhart, individually and as administratrix of the estate of Arthur M. Barnhart, Jr., deceased, appeals from a decree of the circuit court of Cook County entered in a cause wherein Stella LaZelle Barnhart and Livy L. LaZelle, as trustees under the last will and testament of Arthur M. Barnhart, Sr., deceased, and Hiram P. Barnhart, Jr., et al., were defendants and Gracia M. F. Barnhart et al. were plaintiffs. Cross appeals have been filed by the original plaintiffs challenging the correctness of certain rulings of the trial court. Hiram P. Barnhart, Jr., et al. have also filed cross appeals. Morgan L. Fitch, who was named by the decree of the circuit court a successor trustee under the last will and testament of Arthur M. Barnhart, Sr., appears as appellee and has filed a brief and argument in his own behalf.

By their original complaint filed in the circuit court of Cook County on August 13, 1936, plaintiffs, who are descendants of full brothers and sisters of Arthur M. Barnhart, Sr., sought an accounting from Stella LaZelle Barnhart and Livy L. LaZelle as trustees under the will. The complaint also sought removal of the trustees, damages for alleged acts of wrongful investment, waste and mismanagement and the assessment of costs and expenses against the trust estate. The complaint asks that the court find and determine that the plaintiffs are the heirs-at-law of the testator and that they or their descendants are or will be the only persons entitled to share in the distribution of the corpus of the trust. Hiram P. Barnhart, Jr., et al., who are descendants of brothers of the half blood of Arthur M. Barnhart, Sr., were made defendants and as to them the relief sought was that the court find and decree that they had no interest and would have no interest in the corpus of the trust provided for in said will.

After several motions to dismiss had been decided adversely to the defendant trustees, the cause was finally before the court on the second amended and supplemental complaint as amended. On June 24, 1942, upon motion of the defendant-trustees and of Stella LaZelle Barnhart, individually and as administratrix of the estate of Arthur M. Barnhart, Jr., deceased, over the objection of plaintiffs, the cause was referred to a master for the limited purpose of determining whether the plaintiffs and other collateral relatives had any interest in the trust estate, the nature and extent of such interest, if any, and whether or not attorneys' fees and costs should be allowed to the various parties and assessed and paid out of the trust estate. The term of the master to whom the cause was referred expired while the proceedings were pending before him, but the cause was rereferred to him as special commissioner on July 17, 1944. The special commissioner's report filed on May 10, 1951, found that the will was ambiguous and required construction; that Stella LaZelle Barnhart either as heir-at-law of the testator, Arthur M. Barnhart, Sr., or as heir-at-law of her son, Arthur M. Barnhart, Jr., was entitled to the entire corpus of the trust estate; that the plaintiffs and other collateral relatives had no interest in the trust and that all parties were entitled to an allowance of attorneys' fees and costs to be taxed and paid out of the estate. All parties filed objections to the report of the commissioner. After these objections had been heard they were allowed to stand as exceptions. The exceptions were then heard by the trial court which, in an opinion filed October 24, 1951, decreed that it was the intention of the testator, manifest from the terms and provisions of the will, that the corpus of the trust estate be distributed to the persons constituting his heirs-at-law as of the date of the death of his widow, Stella LaZelle Barnhart; that the widow had no interest in the corpus of the trust and that none of the parties was entitled to an allowance of attorneys' fees and costs from the trust. After further testimony was heard the court decided the proportions in which the parties would ultimately share in the corpus of the trust, according to descendants of collateral relatives of the half blood the same status as those of the full blood. The court held in its opinion that those interested would be entitled to an accounting only if they could substantiate the charges of waste and mismanagement alleged in the complaint. It was further decided that a vacancy existed among the trustees under the provisions of the will. The formal decree signed on March 21, 1952, implementing the opinion, appointed Morgan L. Fitch as successor trustee. The decree ordered that one tenth of the costs be taxed against plaintiffs and nine tenths of the costs be taxed against Stella LaZelle Barnhart individually. By the same decree the cause was referred to a master for the purpose of taking testimony on all issues raised by the pleadings and not passed upon the disposed of by the entry of the decree. This decree of March 21, 1952, is the decree from which the appeal and cross appeals have been perfected.

Counsel for appellees and cross appellants, Gracia M. F. Barnhart, et al., and Hiram P. Barnhart, Jr., et al., contend that the decree of March 21, 1952, is not a final and appealable order since it does not dispose of all of the issues in the case and that this court is, therefore, without jurisdiction to entertain the appeal. This raises a question which must be decided before considering any of the other matters urged. It must be remembered that the decree in question determined the ultimate rights of the opposing claimants to the corpus of the trust. While the complaint seeks an accounting and the decree does not dispose of that issue, it seems clear that before plaintiffs could avail themselves of that remedy, they must first establish their interest in the trust estate. Whether or not plaintiffs had such an interest was a separable issue. The defense urged against the complaint from the outset by motion and otherwise was that the plaintiffs had no right to an accounting because they had no interest in the fund. The reference to the master was for the limited purpose of resolving this preliminary question and the decree makes final disposition of it. Thus all rights of the plaintiffs in this case may be regarded as dependent upon the ultimate question resolved by the decree. We have held that a decree is 'final' within the meaning of that term as used in section 77 of the Civil Practice Act (Ill.Rev.Stat.1947, chap. 110, par. 201,) if it finally disposes of the rights of the parties either upon the entire controversy or upon some definite and separate branch thereof. Altschuler v. Altschuler, 399 Ill. 559, 78 N.E.2d 225, 3 A.L.R.2d 333; Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836, 148 A.L.R. 1208. A decree is final if it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by the decree. Moore v. Moyle, 405 Ill. 555, 92 N.E.2d 81. The decree of the circuit court settles and determines the ultimate rights of the parties to the corpus of the trust and is, therefore, upon the above authority a final and appealable order. The remedy by way of an accounting is a mere incident which flows from a right established by the decree. We, therefore, hold that this court has jurisdiction to entertain this appeal.

A consideration of the interesting problem of will construction raised by this appeal demands an examination not only of the provisions of the will of the testator itself but of the circumstances surrounding the testator at the time of its execution. Certain events occurring after the probate of the will are also worthy of mention though not controlling. We shall begin, therefore, by stating those facts adduced at the hearing which we deem to be material to a determination of the issues.

Arthur M. Barnhart, Sr., a man of considerable wealth, who had for many years been engaged in the type foundry business in the city of Chicago with certain of his brothers, and nephews, executed his will on July 20, 1911. At the time the will was executed the testator was 67 years of age. His first wife, by whom he had had no children, had died. His second wife, Stella LaZelle Barnhart, then aged 35 years, was living with testator, as was Arthur M. Barnhart, Jr., a son of the second marriage, aged 9 1/2 years. Another child of the second marriage had died in 1904 at the age of 6 months. Testator's father, Peter Barnhart, had been married twice. Children were born to both marriages and testator was a child of the second marriage. At the time the will was made testator's parents and all of his half brothers and sisters were dead. Many of their descendants were living but it appears that testator was not in contact with them and their whereabouts for the most part were unknown to him. Of testator's full brothers and sisters, five of nine were living at the time he made his will, as were six full...