Brownback v. Keister

• Decision Date: 21 February 1906
• Citation: 220 Ill. 544,77 N.E. 75
• Parties: BROWNBACK v. KEISTER et al.
• Court: Illinois Supreme Court

220 Ill. 544

77 N.E. 75

BROWNBACK

v.KEISTER et al.

Supreme Court of Illinois.

Feb. 21, 1906.

Appeal from Circuit Court, Macon County; Solon Philbrick, Judge.

Bill by Joseph M. Brownback against John F. Keister and others. From a decree sustaining a demurrer to the bill, and denying complainant's motion for leave to file a supplemental bill, and dismissing the bill for want of equity, he appeals. Affirmed.Hugh Crea and Hugh W. Housum, for appellant.

Finn & McIntosh, for appellees.

This is an appeal from a decree of the circuit court of Macon county sustaining a demurrer interposed by appellees to appellant's bill, denying appellant's motion for leave to file a supplemental bill, and dismissing the bill for want of equity. It appears from the bill that on November 5, 1891, one Peter Keister died, seised in fee of the real estate involved in this suit, and that he left a will, which was probated in Macon county, the fifth item of which was as follows: ‘I give, devise and bequeath to John F. Keister and Jacob S. Keller the following described lands situated in the county of Macon and state of Illinois, to wit: The northwest quarter of section twenty-eight (28), and the north half of the northwest quarter and thirty-two (32) acres off the west end of the south half of the northwest quarter of section twenty-seven (27), all in township seventeen (17), north, range two (2) east of the third principal meridian. In trust, nevertheless, for the use and benefit of my son, Julius Keister, and Matilda, his present wife, and their children now living, said trustees shall rent the said land for such terms and rentals as they may deem for the best interests of said beneficiaries and use the funds coming to their hands, first, to pay all taxes and special assessments upon the same; second, to pay to my wife, Susan Keister, annually, the sum of three hundred and ninety dollars ($390) for the term of her natural life; third, to pay themselves a reasonable sum for their services as such trustees; and fourth, after paying for all reasonable and necessary repairs upon said premises, to pay the residue of such rentals in equal shares to my son, Julius Keister, Matilda Keister, John L. Keister, Emma McDermot, Peter W. Keister, J. Norman Keister, Arthur G. Keister and Frank Keister, but if the said Matilda Keister is divorced from my son, Julius, or after his death shall marry again, she shall not receive any portion of such rentals, but such rentals shall be divided among the other persons in this item named, share and share alike, nor shall the said Matilda Keister ever receive any more than one-eighth part of the residue of such rentals, but if any of the children of said Julius and Matilda Keister shall die leaving children, the share of such deceased child shall be paid to its children, and if any of their said children shall die without descendants, the share of such deceased child shall be distributed equally among the other beneficiaries here in this item named, except to said Matilda Keister. After the death of my said wife and the said Julius Keister, and the death or marriage of said Matilda Keister, and when all of the above-named children have reached the age of twenty-one years, the trust hereby created shall terminate and said lands in the item described shall vest in fee simple absolutely in the said now living children of my said son, Julius, and his present wife, Matilda, and their descendants, share and share alike, the descendants of any of said above-named children taking the share of their parents.’ It further appears from the bill that John F. Keister and Jacob S. Keller accepted the trust created by said item, took possession of the premises, and acted as trustees until March 1, 1904; that Susan Keister and Julius Keister are both deceased; that John L. Keister, Emma McDermot, Peter W. Keister, J. Norman Keister, Arthur G. Keister, and Frank Keister, who are all the children of Julius and Matilda Keister, are living, and are over 21 years of age; and that Matilda Keister is still living and unmarried. The bill further sets out that, after the death of Susan Keister and Julius Keister, Matilda Keister by warranty deed conveyed all her interest in the said land in section 28 to one Edward A. Hanes, and all her interest in said land in section 27 to one W. Frank Godwin; that each of the said six children above named, except Frank A. Keister, by warranty deeds conveyed to said Hanes an undivided one-sixth interest in the said land in section 28, and three of said children each conveyed to Hanes an undivided one-sixth interest in the land in section 27, the remaining three children conveying all their interest in the land in section 27 to Godwin; that afterwards Hanes by warranty deed conveyed to complainant, Joseph M. Brownback, who is the appellant here, an undivided five-sixths interest in the land in section 28 and an undivided one-half interest in the land in section 27, John F. Keister and Jacob S. Keller, as trustees under the will of Peter Keister and individually, conveyed to the complainant an undivided five-sixths interest in the land in section 28 and an undivided one-half interest in the land in section 27, and Frank A. Keister conveyed to complainant an undivided one-sixth interest in the land in section 28; that at the time of making the several conveyances above mentioned each of said children, respectively, executed a bond to the purchaser of his or her interest, conditioned upon the execution and delivery of a quitclaim deed to such purchaser for the premises at the termination of the trust created by the will of Peter Keister, deceased. The bill avers that by reason of the conveyances above set out the complainant became vested with the fee-simple title in and to the land in section 28 and in and to an undivided one-half of the land in section 27, and entitled to the possession, rents, issues, and profits thereof; that Peter W. Keister is in possession of the land in section 28 and James I. Keller is in possession of the land in section 27, and that both refuse to attorn to complainant or to recognize him as the owner of said land; that the said six children claim that the fee to the premises does not become vested in them until the happening of four contingencies, namely, the death of Susan Keister, the death of Julius Keister, the death or remarriage of Matilda Keister, and the arrival at legal age of all of said children, and that, inasmuch as only three of those contingencies have happened, said fee-simple title has not become vested and will not become vested in them until the death or remarriage of Matilda Keister, but that the complainant avers and insists that, by reason of the conveyances by Matilda Keister to Hanes and to Godwin of all her right, title, and interest in said premises, the remainder in fee thereby became accelerated and all her interest became merged in the fee, and that the fee thus vested in Hanes passed to complainant by the conveyance of Hanes to him. The bill sets up various defects in the title to the premises, which existed prior to the ownership of Peter Keister, and avers that they are clouds upon the title of complainant. The prayer of the bill is that the court remove the clouds from the title; correct and reform certain defective conveyances specifically mentioned in the bill; construe the will of Peter Keister, deceased, and the trust thereby created; decree that co...