Cherry v. Greene

• Decision Date: 25 January 1886
• Citation: 115 Ill. 591,4 N.E. 257
• Parties: CHERRY and others v. GREENE.
• Court: Illinois Supreme Court

115 Ill. 591

4 N.E. 257

CHERRY and others

v.GREENE.

Supreme Court of Illinois.

Filed January 25, 1886.

Appeal from appellate court, First district.

George Bass, for appellant.

George W. Smith, for appellee.

MAGRUDER, J.

In this case a bill was filed by the appellees, against the appellant, to enforce the specific performance of a contract for the sale of five acres of land, and a decree entered granting the prayer of the bill. The decree was affirmed by the appellate court, from which the case is brought by appeal to this court. The defendant below, appellant here, refused to carry out her contract of purchase, on the ground that Crapo and Clifford, trustees, two of the appellees here, and two of the complainants who filed the bill below, and who held the title to one-sixth of the premises in question as trustees, had no power to sell and convey to her the said one-sixth, under the following instrument:

‘Know all men by these presents, that I, Robert B. Greene, of New Bedford, county of Bristol, commonwealth of Massachusetts, in consideration of one dollar and other valuable consideration, hereby give, grant, bargain, sell, and convey to William W. Crapo and Charles W. Clifford, of said New Bedford, all my property and estate, real and personal, of every name and nature, wherever situated, including herein all my right, title, and interest in and to the property and estate of my beloved father, David R. Greene, late of New Bedford, aforesaid, to have and to hold the said property and estate, unto them, their heirs and assigns, forever, but strictly in trust to the following uses and purposes, to-wit: First. To pay all my just debts and the expenses of this trust. Second. To devote so much of the principal or income thereof as may be necessary for the use and support of myself and my family, and as to any portion of said fund, or its income, so expended, the receipt of myself of my wife shall be a sufficient discharge to my said trustees. Third. In case of my death, if my heirs at law shall in writing so request, said trust shall determine, and said fund shall be paid over to my wife and children in the proportion to which they would be entitled as my heirs at law, and; in default of said request, to devote as much of the principal or income of said fund as may be necessary for the use and support of my wife and children. Fourth. Upon the death of my wife, if she survives me, and upon the death of each of my children who shall survive me, if this trust has not previously terminated, to pay over the proportion of said fund to which said wife or child would have been entitled in case of a division of said fund at the death of my said wife or child, to such person or persons as my said wife or child shall by will appoint. Fifth. If, after the death of myself, my wife, and my children there shall remain any portion of said fund in the hands of my said trustees otherwise unprovided for by this instrument, to pay over the same to such person or persons as my wife may direct.

‘And I, Mary P. B. Greene, wife of the said Robert B. Greene, join in this deed in token of my release of all right to dower and homestead in the aforegranted premises.

‘In witness whereof, we have hereunto set our hands and seals this sixth day of July, A. D....