Bd. of Admin. v. Stead

• Decision Date: 18 June 1913
• Citation: 102 N.E. 173,259 Ill. 194
• Parties: BOARD OF ADMINISTRATION et al. v. STEAD et al.
• Court: Illinois Supreme Court

259 Ill. 194

102 N.E. 173

BOARD OF ADMINISTRATION et al.

v.STEAD et al.

Supreme Court of Illinois.

June 18, 1913.

Appeal from Superior Court, Cook County; William E. Dever, Judge.

Suit by the Board of Administration and others against William H. Stead and others. The Washingtonian Home of Chicago filed a cross-bill. From a decree dismissing the bill by consent and also the cross-bill, the Washingtonian Home of Chicago appeals. Affirmed.

A. W. Martin and Edward H. S. Martin, both of Chicago, for appellant.

Foreman, Levin & Robertson, of Chicago, for appellees.

VICKERS, J.

The Board of Administration filed a bill in chancery in the superior court of Cook county against the Attorney General and a number of corporations and associations who were supposed to be interested as devisees under the last will and testament of Jonathan Burr, praying for advice and instruction in regard to the execution of a 99-year lease upon the east half of the east half of lot 6, in block 33, in the original town of Chicago, otherwise described as Nos. 174 and 176 West Randolph street in said city. It is alleged in the bill that said premises are now under lease to Frederick T. Hoyt, which lease expires on May 1, 1922, at a ground rental of $1,600 per annum; that said Hoyt owns the building and improvements on the premises, and has applied for a new lease for 99 years, offering to surrender his present lease and pay rent under the new lease of $2,400 per year for the first 10 years and $4,000 per year for the remainder of the term. The complainant, as successor of the board of trustees of the Illinois Northern Hospital for the Insane at Elgin, claims title to the premises under the last will and testament of Jonathan Burr, deceased. William H. Stead, as Attorney General, and the following incorporated societies or institutions, were made defendants: The Washingtonian Home of Chicago, the American Bible Society, the Chicago Protestant Orphan Asylum, the Chicago Orphan Asylum, the City of Chicago, the Board of Education of the City of Chicago, the Chicago Erring Women's Refuge for Reform, the Chicago Refuge for Girls, the Nursery and Half Orphan Asylum, the Chicago Nursery and Half Orphan Asylum, and the Home for the Friendless. Of these defendants the Washingtonian Home alone answered the bill, in which it denies that the complainant has any interest in or title to the said property, and claims that the premises in question belong to the Washingtonian Home and the other corporations named as defendants, as residuary devisees under the last will of Jonathan Burr. The Washingtonian Home filed a cross-bill, alleging that it is one of the residuary legatees under the Burr will, and as such, with its codefendants to the said original bill other than the Attorney General, is the owner of the premises in controversy. The prayer of the cross-bill is that the last will and codicil of Jonathan Burr may be construed by the court and its meaning ascertained and declared; that an account may be taken, under the direction of the court, of the amount of rents, income, and profits of said real estate which may have been received by the Board of Administration, and that a decree be entered requiring said board to pay cross-complainant and the other corporations made defendants to the original bill whatever amount may be found due, and prays for a partition and division of the real estate involved among the corporations that may be found to be entitled to the same, and in case said premises cannot be divided, that a decree of sale may be entered and a distribution of the proceeds made. The Board of Administration and Frederick T. Hoyt, who was made a defendant to the cross-bill, filed a demurrer to the cross-bill, which was sustained, and cross-complainant electing to stand by said cross-bill, the same was dismissed at the cost of cross-complainant, and the original complainant was permitted to dismiss its bill at its own costs, without prejudice. The Washingtonian Home prayed for and was granted an appeal to this court.

In order to determine whether the court erred in sustaining the demurrer and dismissing the cross-bill it will be necessary to state with some particularity the facts set up in the cross-bill.

Jonathan Burr died February 4, 1869, leaving a will and codicil, by which he devised the real estate in controversy to Thomas B. Bryan in trust, for the benefit of an insane asylum, if one should thereafter be established in the northern part of Illinois. The original will by the first clause directs the payment of all just debts and funeral expenses. By the second to tenth clauses, inclusive, the testator bequeaths specific amounts of money to various relatives. The eleventh clause bequeaths $20,000 to certain trustees named, to invest and pay the income to Lucy Jane Biglow during her natural life, and at her death to pay $2,000 to each of her children, the balance to go into the residuary fund. The twelfth clause gives $2,000 to the Chicago Historical Society in trust, to invest and use the income towards defraying the expenses of its publications. The thirteenth clause devises certain real estate in Chicago to the Home for the Friendless in trust, three-fourths of the income of which is to be expended in furtherance of the objects and purposes for which said institution was organized, and the other one-fourth of the income to be expended in promoting the objects of an institution located on Third avenue, in Chicago, and known as the Burr Industrial and Mission School and Free Chapel. The fourteenth clause, by which the property in controversy was devised to Thomas B. Bryan, is in the following language:

‘Fourteenth-To Thomas B. Bryan I give, devise and bequeath the east half of the east half of lot 6, in block 33, in the original town of Chicago aforesaid, with the buildings and improvements thereon, to have and to hold the same to him, his heirs and assigns forever, but in trust, however, to and for the following uses and purposes, namely: In trust to hold, manage and improve the same and the net annual income thereof to invest, and the same to hold until such time as an insane asylum shall be organized, located and established in the northern part of the state of Illinois under and by virtue of some state or municipal authority or some charter which shall give to the institution a character of permanence and stability, and then in further trust to convey and transfer said premises, and the accumulated income therefrom, to the authority or corporation managing and controlling said asylum, but in trust, however, to hold, manage, improve and invest the same, and the net annual income thereof to use and expend in and towards keeping and maintaining such asylum in a condition to relieve those who are so unfortunate as to need its treatment and care; and in case an effort reasonably promising success shall be made by some competent authority to establish such an asylum, the said trustee is hereby authorized, at his discretion, to aid it, from time to time, in the erection of suitable buildings therefor to the extent of the net income of said property which may be in his hands, but in case such an asylum shall not be established and put in full and successful operation within six years after my decease, then in further trust to convey and transfer said premises, and the net accumulated income therefrom, to my executors hereinafter named, or the survivors or survivor of them, and the same to be by them sold and conveyed and converted into money and cash securities, and the proceeds thereof divided among and paid over to the several institutions and corporations hereinafter named, the recipients of the residue of my estate as hereinafter divided and bequeathed, and in the proportions in which they are, respectively, hereinafter made the recipients of the said residue, to be held by them, respectively, upon the same trusts and for the same purposes as hereinafter declared.’

By the fifteenth clause $5,000 is given in trust to William A. Passavant, to hold and invest until a hospital shall be duly organized and established in Chicago in accordance with the plans suggested by the trustee, and, when said institution is duly organized and incorporated, to pay over said trust fund to said institution, to be by it invested and the net annual income expended for the objects and purposes for which the institution was organized. The sixteenth clause directs that all the rest and residue of the testator's estate be converted into money and cash securities and divided into 11 equal parts, to be disposed of as thereinafter specified. The seventeenth clause gives and bequeaths one-eleventh of all the rest and residue of the testator's property to appellant, to have and hold the same to said institution and its assigns forever, in trust, however, to invest, hold, manage, and control the same, and from time to time to reinvest, and the annual income thereof to use and expend in defraying the current expenses of said institution. Clauses from 18 to 25, inclusive, dispose of the remaining ten-elevenths of the residuary estate among the several corporations or associations named as defendants to the original bill. All of said bequests are given to the respective societies, institutions, and corporations in trust, with power to hold the same and reinvest, and to use the income in furtherance of the charitable purposes for which said institutions were severally and respectively organized.

The foregoing general statement applies to all of the residuary bequests except the twenty-first and twenty-second. By the twenty-first the city of Chicago is given one-eleventh part of the residuary estate, to be held in trust and invested, and the income paid over to the board of education, to be by said board expended for the use and benefit of the public schools of said city and for the purchase of books and other school supplies for indigent children attending...