Dee v. Dee

• Decision Date: 24 October 1904
• Citation: 72 N.E. 429,212 Ill. 338
• Parties: DEE v. DEE et al.
• Court: Illinois Supreme Court

212 Ill. 338

72 N.E. 429

DEE

v.DEE et al. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Suit by John Dee against Hanorah Dee and others. From a decree in favor of defendants, complainant appeals. Reversed.D. D. Donahue, H. M. Murray, Fleming, Trowbridge & Oglevee, and H. L. Fleming, for appellant.

Barry & Morrissey, for appellee Honorah Dee.

Lillard & Williams, for other appellees.

SCOTT, J.

The bill herein represents that Patrick Dee died on August 15, 1889; that he left surviving him Hanorah Dee, his wife, and eleven children; that four of those children have since deceased, leaving no descendants. One of them, who was a daughter, however, had married and died without descendants, but her husband survived. John Dee, complainant in the bill and appellant here, is one of the surviving children of Patrick Dee, and the other children who survive and Hanorah Dee, the widow, are defendants in the bill and appellees.

It appears from the bill that Patrick Dee left a last will and testament, which was probated September 16, 1889, in McLean county, which, omitting formal parts, is as follows:

‘First. I will and direct that all my just debts and funeral expenses be paid in full.

‘Second. I give and bequeath to my beloved wife, Hanorah Dee all of my property, both real and personal to her use during her life or as long as she shall remain my widow to receive all the rents and profits thereof for the benefit of my family, and at her decease to be divided as follows, to wit:

‘Third. I will and direct that as soon as the farm on which I now reside, known as the Jennings farm is paid for, my said wife shall purchase eighty (80) acres of land for my son William Dee to be paid for out of the proceeds of all the land owned at the time: Provided, if my said wife should die before the said Jennings farm is fully paid for, then and in that case the said William Dee is to have the eighty (80) acres on which I now reside being the west half of the southwest quarter (S. W. 1/4) of section No. four (4) township twenty-three (23) north range four (4) east of the 3rd P. M.

‘Fourth. I will and direct that after the decease of my said wife, Hanorah Dee all my property both real and personal shall be divided between all of my children, both boys and girls equally, share and share alike.’

The fifth clause appointed the wife and William, one of the sons, executrix and executor but they did not quality.

The bill further alleges that the testator left 501 acres of land and $4,000 worth of personal property; that by the will Hanorah Dee was created a trustee to collect the rents and profits and the income of the personal property during life or widowhood, and that each of the children and the wife was given a one-twelfth part of the income, rents, and profits, as beneflciaries of the trust; that she accepted the trust, and that she has disposed of the $4,000 worth of personal property without accounting for the same; that Hanorah Dee has purchased 230 acres of land and a certain lot in the city of Bloomington with the rents and profits of the land and the proceeds of the sale of the personal property received by her, and that the title has been taken by her in her name and in the name of William Dee, but that these lands in equity belong to the complainant and the other beneficiaries; that the fee in remainder to the real estate of which Patrick Dee died seised passed to his children in equal parts, and that Hanorah Dee and each of the children was entitled to a one-twelfth part of the land purchased by Hanorah Dee, with the rents and profits, and that each of the children was entitled to a one-eleventh part of the land purchased with the proceeds arising from the sale of the personal property-and sets out the interests inherited by Hanorah Dee and the surviving children of Patrick Dee from the deceased children, and the interest inherited by the husband of the deceased daughter, and prays that the deeds to the 230 acres of land and the lot in Bloomington may be set saide, and the rights and equities of the parties declared in those lands; that an account of the rents and profits may be had; that partition may be had of all the lands mentioned in the bill in accordance with the rights of the parties as therein stated, and for general relief.

Certain of the children who were made defendants appeared and demurred to the bill, and stated special reasons: First, because complainant is not entitled to partition until the death or marriage of Hanorah Dee; second, that while Hanorah Dee is trustee the funds are to be accumulated until her death or remarriage. Hanorah Dee also demurred, setting up specially the following grounds of demurrer: First, no partition can be had until the death of Hanorah Dee; second, the will does not make Hanorah Dee a trustee; third, the rents and profits belong to Hanorah Dee in her own right; fourth, complainant has no interest in the real estate purchased by Hanorah Dee.

Thereupon complainant obtained leave to amend the bill and to file a supplemental bill. By the amended bill it is stated that the mortgage on the land owned by Patrick Dee at the time of his death has been fully paid; that Hanorah Dee, from the rents and profits of said land, purchased 80 acres of land for William Dee, which was conveyed to him, but that the third clause of the will is void for repugnancy and uncertainty, and that said William Dee acquired no right to the 80 acres of land; that the price of that land and the amount paid in satisfying the mortgage are less than $10,000, and that the income received by Hanorah Dee from the lands left by Patrick Dee amounted to $65,000 over and above the sums expended in purchasing the 80 acres and paying the mortgage debt; that each of the 11 children received by the fourth clause of the will the same estate as they would receive under the laws of descent, and that the fourth clause of the will was void; that all of the children have reached their majority; that Hanorah Dee and all the children of Patrick Dee lived on his said land at the time of his said death, but that none of them now live on any of such land; that Hanorah Dee resides in Bloomington, Ill., and the children have become separated; that the active duties imposed on Hanorah Dee as trustee have ceased; that each of the beneficiaries is capable of attending to his own affairs, and the trust is now void. The supplemental bill states that Hanorah Dee, since the beginning of this suit, repudiated the trust and claims the rents in her own right, and prays that she be required to account, and be removed as trustee.

The demurrers were extended to the amended and supplemental bills, and sustained by the court. The complainant appeals to this court. In so far as we have found it necessary to consider them, his contentions are, first, that a trust was created by the second clause of the will, with the wife and children as equal beneficiaries, each taking the one-twelfth part of the income; second, the third clause gave William Dee no right to have the funds used to purchase 80 acres of land, because the second clause made a complete disposition of such funds, and because the third clause is void for uncertainty. William Dee could not acquire any interest in the 80 acres owned by Patrick Dee at the time of his death, specifically described in the will, because his title thereto depended upon a void condition precedent, which was impossible of performance, and because the third clause is repugnant to the fourth clause; third, the fourth clause gives a vested estate in remainder, entitling appellant to partition, or, if not, it is void, because it gives the same estate as the laws of descent give, and the children take as heirs, and not as purchasers, holding by the better and worthier title, and appellant is entitled to partition on that theory.

Cardinal rules for the interpretation of a will are that the intention of the testator, as indicated by the words he has used, shall be ascertained and effectuated, if that can be done, and that the instrument shall be read from the four corners thereof, that each and every clause, sentence, and word may be given meaning and effect, if it be possible so to do. Authorities cited by appellant show that the devise of the property to Hanorah Dee, to her use, for the benefit of another or others, specifying them, is the proper formula for the creation of a trust for the benefit of such other or others. The difficulty about the application of this doctrine in the present case is found in the fact that the term here used is ‘for the benefit of my family.’ Did the testator by that expression mean to require an equal division of the rents and profits among his wife and all his children, giving one-twelfth to each? If so, a trust was created. If, on the other hand, it was the mere expression of the purpose or motive which moved him in making this devise, no trust exists. As has been frequently said, in construing a will the court derives but little assistance in determining the meaning to be given the various terms and expressions used therein from the examination of adjudged cases. No two wills are precisely alike, and the conditions which surround one testator differ so widely from those which surround another that the conclusion reached in one instance is rarely of great service as a guide in another. We have been favored with elaborate briefs in this case, and have examined the various authorities to which we have been referred. We cannot here enter upon a detailed discussion of the numerous cases upon which the respective parties rely. So far as the question of the existence of a trust is concerned, we regard Allen v. McFarland, 150 Ill. 455, 37 N. E. 1006, and Bryan v. Howland, 98 Ill. 625, as approaching the present case more nearly than any other to which our attention has been called. In Allen v. McFarland, supra, the language...