Bennett v. Bennett

• Decision Date: 24 October 1905
• Citation: 75 N.E. 339,217 Ill. 434
• Parties: BENNETT v. BENNETT et al.
• Court: Illinois Supreme Court

217 Ill. 434

75 N.E. 339

BENNETT

v.BENNETT et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Second District.

Bill by Charles W. Bennett against Mary A. Bennett and others. From a judgment of the Appellate Court affirming a decree dismissing the bill, complainant appeals. Affirmed.

W. C. Kellum, for appellant.

Carnes & Dunton and H. T. Smith, for appellees.

On December 27, 1891, Charles D. Bennett, late of De Kalb county, Ill., died, leaving a last will and testament, which was duly admitted to probate in said county on January 9, 1892. The testator left surviving him the defendants Mary A. Bennett, his widow, and Ernest A. Blake, a grandchild, and the complainant, Charles W. Bennett, his only surviving child. By his said will testator appointed his wife, Mary A. Bennett, and the defendant David A. Syme, executrix and executor thereof; the latter being also named as trustee. David A. Syme refusing to act either as executor or trustee, the defendant Mary A. Bennett was appointed sole executrix, duly qualified, and at the time of filing the bill herein was still acting as such. No trustee, at the time of bringing this suit, had been appointed. By the second clause of his will, the testator gave to his wife, Mary A. Bennett, ‘for her comfortable support and maintenance, the use, during her natural life, of all my estate, both real and personal, of whatever name or nature, together with the right and authority to dispose of the same, or any part thereof, as she may see fit, and to use the interestand so much of the principal of my said estate as may be necessary for her support and maintenance, as aforesaid, charged, however, and subject to the payment of the sum of $3,000 to my trustee, David A. Syme, as hereinafter provided, for the benefit of my son, Charles W. Bennett, and also to the payment of a legacy of $500 to my grandson, Ernest A. Blake, as hereinafter provided.’ The third clause of said will, out of which this controversy arises, is as follows: ‘I give, devise, and bequeath to my trustee, David A. Syme, the sum of $3,000 in trust, to invest the same in notes and mortgages on unincumbered real estate, or other safe investments, as his good judgment may dictate, with interest semiannually, to be collected and paid to my son, Charles W. Bennett, semiannually until he attains the age of 40 years, and, if my said wife is then living, to pay to my said son, Charles W. Bennett, at such time, the said sum of $3,000, which shall then become his absolutely; but, if my said wife is not living when my said son becomes 40 years of age, then and in that case, said David A. Syme shall retain the said $3,000 and invest the same, and pay the interest to my said son, Charles W. Bennett, as hereinbefore provided, for 10 years thereafter, or until he arrives at the age of 50 years, at which time the said $3,000 shall be paid to my said son and become his absolutely, and in case of his death before the time or times herein fixed for the payment of the $3,000 to him it shall go to his heirs.’ By the fourth clause of his will the testator devised $500 to to Ernest A. Blake, and in addition thereto $500 and one-third part of the remainder of his estate upon the death of the wife of the testator, but directed that the estate should be held by the trustee until said Ernest A. Blake should attain the age of 22 years. By the sixth clause of the will be devised to his trustee, in trust, the remainder of his estate, to be managed, controlled, and invested for the use and benefit of appellant in the same manner as the $3,000 trust, to be held until appellant should attain the age of 40 years, at which time said remainder was to be paid to him.

Complainant filed his amended bill, setting up the foregoing facts, and the further fact that the sum of $3,000 had been separated from the rest of the estate of Charles D. Bennett, deceased, and since February 29, 1892, has been in the hands of Mary A. Bennett as such executrix; that she has invested said sum on May 16, 1892, in a loan to one Samuel Whitney on his note, secured by unincumbered real estate in said county; said note being payable in five years after date, with interest at 6 per cent., payable semiannually; also that said Mary A. Bennett has paid and accounted to complainant for interest on said sum of $3,000 at the rate of 6 per cent. per annum, semiannually, since the 29th day of February, 1892, up to and including November 16, 1894. The bill herein was filed October 8, 1894. Complainant alleges in his amended bill that he is 34 years of age, in poor health, and unable to perform manual labor; that he has no trade or profession by which he can earn a living; that his only source of income is the interest on this $3,000, or $180 per year, which he avers is insufficient to support him; that he is now in debt about $800, and has no means of paying it; that a trustee should be appointed, and that there should be decreed to be paid to him out of said sum of $3,000 a sufficient amount to pay all his outstanding obligations, and a further sum sufficient to enable him to enter into some trade or business out of which he could earn money enough to support him; that by the terms of the third clause of the will said sum of $3,000 vested in him is subject to levy and sale upon execution, and he fears that the indebtedness against him may be put into judgment and his interest in the $3,000 sold to satisfy the same, and that he will be put to great cost and expense, unless the said sum of $3,000 is paid to him-and prays for the appointment of a trustee, and that said Mary A. Bennett be decreed to pay over to such trustee said sum of $3,000, and that the trustee so appointed be ordered by the court to pay over to complainant the said sum of $3,000 and take his receipt therefor, and that thereupon said trustee be discharged, or that the court may order the trustee to pay complainant a sum sufficient to enter into some business sufficient for his support.

The defendant Mary A. Bennett filed a demurrer to the amended bill, coupled with an answer. The answer admits most of the material allegations of the bill, except as to the health of the complainant and his inability to perform manual labor, and as to such portions of the bill it denies the same, and avers complainant is in good health and able to earn a support, if he would, but that he is of idld and spendthrift habits, and that is was because of the knowledge the testator had of the idle and spendthrift habits and disposition of the complainant to indulge in imprudent speculations and investments, and his prior losses by such conduct and mismanagement of business, that he, the said testator, prudently provided by the will that the said complainant should not receive the said $3,000, except under the circumstances set forth in the third clause of the will; that testator did not intend that complainant should receive the $3,000 at all, unless the contingencies mentioned in said third clause should occur that would entitle him thereto; that the present heir presumptive of said complainant is the defendant Ernest A. Blake; that what complainant is able to earn, added to his income from said $3,000, will be quite sufficient to furnish him a comfortable support and maintenance; that it would not be to his advantage or benefit at the present time to engage in any business as the owner and manager thereof; admits that a trustee should be appointed, but denies that otherwise the complainant is entitled to any of the relief prayed. To so much of the bill as claims that said sum of $3,000 is vested in the complainant, and is subject to levy and sale under executions against him, and that he is entitled to have the same paid to him now, the defendant Mary A. Bennett demurs.

On the hearing the complainant in open court withdrew his application for the appointment of a trustee in place of David A. Syme, who declined to act as such, and thereupon the court sustained the demurrer to the amended bill, and dismissed the same so far as demurred to, and, the complainant having waived a hearing on the other matters in said amended bill and filed no replication to the answer thereto, the court dismissed the amended bill at the cost of the complainant, from which action of the court the complainant prosecutes this appeal.

The court below found by its decree that the principal sum of the $3,000 legacy to be put into the hands of David A. Syme, as trustee, and to be loaned by him, as provided in the third clause of the will of Charles D. Bennett, deceased, the interest to be paid to said complainant semiannually, is not vested in said complainant nor liable for the payment of his debts, but his right thereto is dependent on the contingencies of his living to be 40 years of age and said Mary A. Bennett living, or, in case she is then deceased, on his living to be 50 years of age, and in case of his being deceased before he becomes entitled thereto the said $3,000 is to go to whomsoever may be his heirs, as substituted legatees under said will. The Appellate Court for the Second District affirmed the judgment of the court below. Pending this proceeding, and since the decree below, and since the judgment of the Appellate Court affirming the same, it is made to appear that one Clarence D. Rogers has been duly appointed trustee of the estate of Charles D. Bennett under the provisions of the will here under consideration; and it also is made to appear to the court that the appellee Mary A. Bennett has, since the submission of the cause, departed this life, and Clarence D. Rogers, the trustee above named, has been substituted as appellee herein.RICKS, J. (after stating the facts).

Many questions are raised and urged by appellant which, under the views we entertain of the will in question, seem to be unimportant and not applicable. We regard the trust here created and under consideration as what is known as a ...