Crerar v. Williams

• Citation: 34 N.E. 467,145 Ill. 625
• Parties: CRERAR et al. v. WILLIAMS et al.
• Decision Date: 19 June 1893
• Court: Supreme Court of Illinois

145 Ill. 625

34 N.E. 467

CRERAR et al.

v.WILLIAMS et al.¹

Supreme Court of Illinois.

June 19, 1893.

Appeal from appellate court, first district.

Bill by Donald Crerar, Peter Crerar, Mary Crerar, Catherine Cramb, Elizabeth McGregor, Duncan Stewart, Alexander Stewart, Peter Stewart, Margaret Crerar, Elizabeth Menzies, Catherine Forsythe, and Elizabeth McIntosh against Norman Williams and Huntington W. Jackson, individually, and as executors of, and trustees under, the last will of John Crerar, deceased, the trustees of the Second Presbyterian Church of Chicago, the Second Presbyterian Church of Chicago, and the Chicago Literary Club, to have certain bequests in said will declared void. The bill was dismissed on demurrer, and the appellate court affirmed the decree. Complainants appeal. Affirmed.

F. A. Stirtan, (A. W. Browne, A. B. Jenks, and W. A. Cunnea, of counsel,) for appellants.

James L. High, Williams, Holt & Wheeler, and Lyman & Jackson, (John H. Mulkey, of counsel,) for appellees.

WILKIN, J.

This was a bill in chancery, by appellants against appellees, praying that certain clauses in the last will of John Crerar, deceased, be declared void, and the bequests therein named decreed to them, as heirs at law. The circuit court of Cook county sustained a general demurrer to the bill, and entered a decree dismissing it at the costs of the complainants. This is an appeal from the judgment of the appellate court, affirming that decree. 44 Ill. App. 497.

A copy of the will, consisting of 52 paragraphs or clauses, was filed with, and made a part of, the bill. The validity of the instrument as a whole is not questioned, but eight of the bequests therein named are alleged to be void for the reason that the language used by the testator is insufficient, in law, to make valid testamentary gifts. Those bequests are as follows: ‘23d. The silverware now at Tiffany's, and the books, pictures, ware, and furniture belonging to me, I direct to be distributed among my personal friends by my executors and trustees, in such manner as they shall deem best.’ ‘25th. I give and bequeath to the trustees of the Second Presbyterian Church of Chicago, for and on account of said church, so long as said church preserves and maintains the principles of the Presbyterian faith, the sum of one hundred thousand dollars, ($100.000.) 26. I give and bequeath to the trustees of the Second Presbyterian Church of Chicago, for and on account of the mission schools of said church in Chicago, the sum of one hundred thousand dollars, ($100,000.00;) and it is my desire that the income derived from said sum of one hundred thousand dollars ($100,000.00) shall be employed by said trustees in such manner as shall seem to them best and prudent for the promotion and continuance of the mission schools of said church.’ ‘33d. I give and bequeath to the Chicago Bible Society the sum of twenty-five thousand dollars, ($25,000.)’ ‘39th. I give and bequeath to Norman Williams and Huntington W. Jackson, in trust, for and on account of the Chicago Literary Club, the sum of ten thousand dollars, ($10,000.)’ ‘44th. I give and bequeath to Norman Williams and Huntington W. Jackson the sum of one hundred thousand dollars, ($100,000,) to be expended by them in the erection of a colossal statute of Abraham Lincoln; such statue to be upon and within appropriate designs of stone, iron, bronze, or other metal; the treatment of the subject and the location of the statue to be determined by said Norman Williams and Huntington W. Jackson.’ ‘49th. I hereby authorize and empower my executors and trustees to set apart so much of my estate or invest such a sum of money as in their judgment may seem necessary and proper, and to pay from the income thereof all costs, charges, and expenses, including the payment mentioned in item second, arising from, or in the course of, the execution and administration of this will and its trusts. Any surplus income shall yearly be paid over and devoted to the purposes set forth in item 50th, and when, in the judgment of my said executors and trustees, it is proper, the principal sum herein provided for shall be paid over and devoted to the purposes set forth in item 50th. Fiftieth. Recognizing the fact that I have been a resident of Chicago since 1862, and that the greater part of my fortune has been accumulated here, and acknowledging with hearty gratitude the kindness which has always been extended to me by my many friends, and by my business and social acquaintances and associates, I give, devise, and bequeath all the rest, remainder, and residue of my estate, both real and personal, for the erection, creation, maintenance, and endowment of a free public library, to be called ‘The John Crerar Library,’ and to be located in the city of Chicago, Illinois,-a preference being given to the south division of the city, in as much as the Newberry library will be located in the north division. I direct that my executors and trustees cause an act of incorporation under the laws of Illinois to be procured to carry out the purposes of this bequest, and I request that Norman Williams be made the first president thereof, and that, in addition to my executors and trustees, the following named friends of mine will act as the first board of directors in such corporation, and aid and assist my executors and trustees therein, namely: Marshall Field, E. W. Blatchford, T. B. Blackstone, Robert T. Lincoln, Henry W. Bishop, Edward G. Mason, Albert Keep, Edson Keith, Simon J. McPherson, John M. Clark, and George A. Armour, or their survivors. I desire the buildingto be tasteful, substantial, and fireproof, and that a sufficient fund be reserved over and above the cost of its construction to provide, maintain, and support a library for all time. I desire the books and periodicals selected with a view to create and sustain a healthy moral and Christian sentiment in the community, and that all nastiness and immorality be excluded. I do not mean by this that there shall not be anything but hymnbooks and sermons, but I mean that dirty French novels, and all skeptical trash, and works of questionable moral tone, shall never be found in this library. I want its atmosphere that of Christian refinement, and its aim and object the building up of character, and I rest content that the friends that I have named will carry out my wishes in these particulars.'

The first four clauses of the will (more particularly the fourth) are pertinent to the questions raised in argument, and they are as follows: ‘First. I hereby make, constitute, and appoint my friends Norman Williams and Huntington Wolcott Jackson, both of Chicago, Illinois, executors of this, my last will and testatment, and trustees of my estate, and the survivor of them, or their appointed successors, to have and to hold the same upon the trusts, and subject to the conditions and limitations, hereinafter mentioned. Second. I hereby waive, as I have a right to do, under the statutes in such case made and provided, the giving of bonds or security by my said executors and trustees. As they have been true friends in life, so they will be when I am gone, and I intrust the management of my estate to their joint care. It is my wish that my executors and trustess shall only be accountable for what they receive, and not be charged with any loss unless it happen by their careless neglect or faulty attention; and I will and direct that they shall be paid for the execution of this trust reasonable fees and compensation, together with all costs and expenses incurred. Third. I direct that in case of the death, incapability, or refusal to act of either of the foregoing executors and trustees, or their appointed successor, that the survivor shall appoint such executor and trustee within thirty days after said death, incapability, or refusal to act of said executor and trustee, or the appointed successor, which appointment shall be approved of, in writing, by one of the judges of the United States circuit or United States district courts for the northern district of Illinois. Fourth. I give, devise, and bequeath unto my said executors and trustees all of my property and estate, of whatever name or nature, real, personal, and mixed, and wherever situated, in trust nevertheless, that is to say, upon the following trusts and conditions: To sell and dispose of all of my said property and estate, except as may be hereinafter specified, and convert the same into cash, at such time or times, and upon such terms and conditions, as to my said executors and trustees shall seem meet, and to make, execute, and deliver all deeds of conveyance and other instruments in writing as may be necessary and proper for that purpose; to exchange, invest, and reinvest all or any of my property; compromise debts due my estate; and to do all things in the same manner as I might do if living, and as shall seem expedient and best to them, to enable them to carry out the purposes and intents of this, my last will and testament.’

The first ground of reversal is that the circuit court erred in not overruling the demurrer to the bill, that the complainants might prove the laws of the states of New York, Iowa, and Texas applicable to the construction of said will, it being alleged in the bill that the testator died seised of real estate situated in those states. Waiving all other answers to this point, it is sufficient to say the bill fails to allege what the laws of those states are in that regard, and they were not, therefore, the subject of proof. The demurrer admitted all facts well pleaded, but nothing more. It will scarcely be contended that a demurrerto a pleading should be overruled in order to allow a party to make proof of facts not alleged therein. The first point is clearly untenable.

It is not denied that there is an attempt, by the provisions of the fiftieth clause of the will, to make a general residuary bequest of all the testator's estate....