Bear v. Millikin Trust Co.

• Decision Date: 19 October 1929
• Docket Number: No. 17069.,17069.
• Citation: 336 Ill. 366,168 N.E. 349
• Parties: BEAR v. MILLIKIN TRUST CO. et al.
• Court: Illinois Supreme Court

336 Ill. 366

168 N.E. 349

BEAR

v.MILLIKIN TRUST CO. et al.

No. 17069.

Supreme Court of Illinois.

Oct. 19, 1929.

Bill in equity for partition by Paul C. Bear against the Millikin Trust Company and others. From an adverse judgment, complainant appeals.

Decree affirmed.Appeal from Circuit Court, Piatt County; George A. Sentel, judge.

McMillen & McMillen, of Decatur, Herrick & Herrick, of Farmer City, and Horace B. Garman, of Decatur, for appellant.

Mills Bros. & Armstrong and Vail, Pogue & Allen, all of Decatur, for appellee Trust Company.

E. J. Hawbaker, of Monticello, guardian ad litem for minor appellees.

DUNN, J.

This appeal is from a decree of the circuit court of Piatt county sustaining a demurrer to a bill in equity for the partition of certain land formerly belonging to Carlton J. Bear and for the cancellation of a deed executed by Bear in his lifetime to the Millikin Trust Company.

Carlton J. Bear died intestate on July 28, 1919, leaving Bertha R. Bear, his wife, surviving, and his heirs were his four sons, Paul C., Lee M., Lloyd J., and Ralph W., and his daughter, Grace M. Martin. The widow, Bertha R. Bear, died on July 1, 1924, leaving a will. Paul C. Bear, Lee M. Bear, and Grace M. Martin, three of the heirs of Carlton, J. Bear, filed a bill to the October term, 1924, of the circuit court of Piatt county in which they alleged Carlton J. Bear's ownership, in his lifetime, of about 1,500 acres of land in Piatt county (describing it), and averred that by his death intestate they and their brothers Lloyd J. and Ralph W. Bear each became seized of an undivided one-fifth of the premises. The bill further averred that on April 4, 1917, Carlton J. Bear, then being of the age of 61 years, together with his wife, Bertha R. Bear, executed a certain pretended indenture of trust, by which he undertook to transfer and convey to the Millikin Trust Company the premises, together with certain shares of the capital stock of certain corporations which were named and the proceeds of the sale of certain land then owned by the grantor in the states of Mississippi and Arkansas; that the instrument was recorded in the office of the recorder of Piatt county, and a copy of it was attached to and made a part of the bill. The bill further represented that the instrument was without consideration, was an attempt by the grantor to make a testamentary disposition of the property described in it without complying with the laws of the state applicable to wills; that it was not signed, executed, attested, and published as a will, in compliance with law; that it is vague, uncertain, ambiguous, and for other good reasons appearing from an examination of it is void; that it attempts to create estates which will not vest within the period allowed by law, and violates the rule against perpetuities; that it is a cloud upon the title of the complainants, and their tenants in common, and ought therefore to be set aside.

The instrument is in form a deed conveying real and personal property to the Millikin Trust Company in trust, the first paragraph of which conveys and describes the property. The next three paragraphs fix the powers, duties, and compensation of the trustee and reserve to the grantor the right at any time during his life, upon notice to the trustee, to vote the shares of stock conveyed by the instrument. Paragraph 5 requires the net income from the real estate to be paid to the persons entitled thereto semiannually, on the 1st days of March and September, the entire net income from the trust estate to be paid to the grantor during his life. Paragraph 6 provides that, after the death of the grantor, the net income from the shares of stock transferred to the trustee shall be paid to his widow during her life, in addition to the provisions for her made in other clauses of the instrument, and the net annual income from the remainder of the trust estate shall be divided equally among the widow and the grantor's children (naming them) share and share alike, or among such of them as shall be then living at the time of the semiannual income payments during the life of the widow. Paragraph 7 provides that, in case of the death of either of the children during the life of the widow and after the death of the grantor, leaving no wife, husband, or descendant surviving, then the net semiannual income shall during the life of the widow be paid to her and the then surviving children of the grantor, share and share alike. Paragraph 8 provides that, after the death of the grantor, in case of the death of either or any of his sons or his daughter,Grace M. Martin, if such deceased son or deceased daughter shall leave a wife or husband surviving, such surviving wife or husband shall receive during the life of the widow the share of the semiannual income said son, sons or daughter, respectively, would have received; and, in the event of the death of such surviving wives of a son or sons, or husband of the daughter of the grantor, after his death and during the life of his widow, the surviving child or children, or descendants of such child or children, per stirpes, shall receive the share of the semiannual net income such deceased widow of the son or sons, or deceased husband of the daughter, would have received if living. Paragraph 9 provides that, if the grantor should survive his wife, then after his death the net income from all sources of the trust estate should be paid to the sons and daughter of the grantor then living, during their respective lives, except as otherwise provided share and share alike. Paragraph 10 provides that, in case of the death of either or any of said sons or daughter of the grantor, whether before or after the death of the grantor, and in case Bertha R. Bear should die during the life of the grantor, and such deceased son, sons, or daughter leave no wife, husband, child, children, or descendants surviving them, the net semi-annual income shall be paid, share and share alike, to the surviving children of the grantor during their respective lives, except as otherwise provided. Paragraph 11 provides that, after the death of the grantor, should be survive his wife, then, in case either of his said children shall have died before the death of the grantor, or shall have died after his death and shall have left a widow or husband surviving, such surviving widow and surviving husband also surviving the grantor, shall receive the semiannual net income their respective husband or wife would have received if living, but not for a longer period than the period of the trust nor for a longer period than the life of the last surviving child of the grantor, and not for a longer period than the time of the respective distribution of the trust estate or distribution of the shares such surviving wife or husband represents. Should such surviving widow of a son or husband of the daughter of the grantor die, and there be no child, children, or descendants of such son, sons, or daughter of the grantor surviving them, such income shall thereafter be distributed among the others entitled to the semiannual income, share and share alike. If the grantor survives his wife, then after his death, in case of the death of a surviving widow of a deceased son of the grantor and in case of the death of a surviving husband of the deceased daughter of the grantor, the share of the deceased widow of any of the sons and the share of the deceased husband of the deceased daughter of the grantor, the semiannual net income that would have been paid to the son or daughter and then to the surviving widow or husband shall be paid to the child, children, or descendants of a child or children per stirpes of such son or sons of the grantor having so died, and to the child, children, or descendants of such deceased daughter per stirpes whose surviving husband so died; provided, in such case, that, if there is no child or descendant of a deceased son of the grantor, which son's widow so died, and there is no child or descendant of the deceased daughter of the grantor whose surviving husband so died, then the share or shares of the semiannual income of the trust estate that would have gone to such sons of the grantor or to such daughter and then to the surviving widow or husband, shall be paid to the then surviving children of the grantor, share and share alike, or to those entitled to share in the net semiannual income elsewhere provided, according to the class, whether direct or per stirpes. Paragraph 12 provides that, if the surviving widow of a son or the surviving husband of the daughter of the grantor should marry again, then the income that would have been paid to him or her under any of the provisions of the trust shall immediately cease and be paid to the surviving children of such deceased son or daughter, or, if there is no surviving child or descendant of such son or daughter, then the income such surviving widow or surviving husband would have received to be distributed among the other children of the grantor and his wife. By paragraph 13 the grantor reserves to himself the right, during his life, to make a division of his Piatt county real estate among his children, such division, when made in writing and filed with the trustee, to control the trustee in making final distribution and conveyance of the estate in kind. Should the grantor avail himself of this privilege and reservation, the trustee shall thereafter, in leasing lands to the sons and daughter, if they so desire, lease to each the respective allotment that the grantor shall have made. Until such time as the grantor shall make such allotment the trustee shall give preference to the sons of the grantor, leasing to each the premises upon which each resided at the date of the deed, and, should the son-in-law, Orville Martin, and his wife, the grantor's daughter, desire to lease the land upon which Ed Clark was residing as a tenant at the date of the deed, the trustee shall...