Dickson v. New York Biscuit Co.

• Decision Date: 24 October 1904
• Citation: 211 Ill. 468,71 N.E. 1058
• Parties: DICKSON et al. v. NEW YORK BISCUIT CO. et al.
• Court: Illinois Supreme Court

211 Ill. 468

71 N.E. 1058

DICKSON et al.

v.NEW YORK BISCUIT CO. et al.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, Cook County; F. A. Smith, Judge.

Suit by Alice M. Dickson and another against the New York Biscuit Company and others. Decree for defendants, and complainants appeal. Affirmed.Bulkley, Gray & More, for appellants.

Pence & Carpenter, for appellees.

This is a bill filed in the circuit court of Cook county on June 12, 1902, by the appellants, children of Marietta C. Strong, deceased, and grandchildren of Philo Carpenter, praying that a certain deed executed by Theodore F. Bliss and Phineas L. Hanscom, as trustees under the will of Philo Carpenter, deceased, on September 18, 1890, and recorded October 27, 1890, to William Coffeen; and a deed dated September 18, 1890, and two deeds, dated respectively September 20, 1890, and November 5, 1890, by the same trustees to said Coffeen; and a deed dated and recorded on October 28, 1890, executed by William Coffeen to the New York Biscuit Company; and a mortgage deed dated March 1, 1891, and recorded on April 25, 1891, executed by the New York Biscuit Company to the Central Trust Company, a New York corporation, as trustee, to secure the New York Biscuit Company's 1,500 bonds of even date with the said mortgage for $1,000 each, payable on March 1, 1911, with interest at 6 per cent., etc.; and a deed dated January 29, 1898, and recorded November 20, 1902, executed by the New York Biscuit Company to one Robert F. Hall, subject to said mortgage or deed of trust; and a deed dated February 3, 1898, and recorded November 20, 1902, executed by said Hall to the National Biscuit Company, a New Jersey corporation-all conveying eight lots, to wit, lots from 22 to [211 Ill. 470]29, inclusive, in the resubdivision of block 41 in Carpenter's addition to Chicago-be decreed to be void for want of authority in said Bliss and Hanscom, as trustees under said will, to execute the same, and be set aside as clouds upon the title of the appellants, and that the latter be decreed to be vested with the title to said lots; or that the defendant the New York Biscuit Company or the defendant the National Biscuit Company be decreed to hold the legal title of said lots in trust for appellants under the trust created by the will of Philo Carpenter, and be compelled to convey the same to the appellants by good and sufficient deed free of all liens and incumbrances; and that defendants be decreed to surrender possession of said lots to the appellants.

The bill was answered by the New York Biscuit Company, William Coffeen, the Central Trust Company, and the National Biscuit Company, and to such answer replication was filed. The bill was amended, and the unknown holders of the 1,500 bonds above referred to were made defendants. Default was entered against the unknown owners and holders of said bonds. Upon final hearing the circuit court rendered a decree dismissing the bill and various amendments thereto and the supplements thereto for want of equity, at the cost of complainants below, the appellants here. The present appeal is prosecuted from the decree of dismissal so entered by the circuit court.

The facts, so far as it is necessary to state them in order to understand the questions involved, are substantially as follows:

On April 22, 1881, Philo Carpenter made his last will, the material portions of which, after providing for the payment of debts and funeral expenses, are as follows:

‘Second-(1) I give and bequeath all my personal estate of whatever kind or character and wherever the same may be situated, of which I may die possessed or be entitled to, one-third to Theodore F. Bliss and Phineas L. Hanscom, in trust, as hereinafter provided, also one-third to my daughter,Anna A. Cheney, her heirs and assigns forever, and one-third to my daughter, Sarah G. Hildreth, her heirs and assigns forever.

‘(2) And I hereby give full power to my said daughters Anna A. Cheney and Sarah G. Hildreth, and hereby direct them to take possession of all my personal estate as soon as I have departed this life, and divide the same into three equal parts or portions, and they may if they deem it necessary, sell or dispose of the whole or any portion of said personal property at private or public sale for the purpose of making such division, each one of my said daughters Anna A. Cheney and Sarah G. Hildreth taking a third and turning the remaining one-third into the hands of said Theodore F. Bliss and Phineas L. Hanscom, either in kind or in money. The same to be divided in such shares by my said daughters within the space of one year next ensuing after my death. And in the case of the death of either of my said daughters before such division, the survivor shall have full power to act and make such division.

‘(3) I give and devise all my real estate of which I may die seized or possessed of whatever kind or nature and wherever the same may be situated to my daughters Anna A. Cheney and Sarah G. Hildreth, their heirs and assigns, but in trust nevertheless for the following purposes. I hereby empower and direct that my said daughters, Anna A. Cheney and Sarah G. Hildreth, as such trustees, divide all my said real estate into four equal parts or portions within the space of one year next ensuing after my death, and for the purpose of making such division, I give said trustees full power if they see fit to plat and divide said real estate or any portion thereof into lots, acknowledge and record the same. And in case of the death of either of my said daughters before such division, the survivor shall have full power to act and make such division.

‘(4) I hereby direct that my said daughters shall convey one-quarter of said real estate so divided to the said Theodore F. Bliss and Phineas L. Hanscom, their heirs and assigns,in trust nevertheless, for the children of my deceased daughter Marietta C. Strong, their respective heirs and assigns, to be divided between said children share and share alike. Should either of said children of my said daughter Marietta C. Strong, die before receiving her share and portion, under this will, without leaving issue, I direct that the share or portion of such child be given to the surviving child, her heirs and assigns.

‘(5) I desire and direct that the said children of Marietta C. Strong have the devises and bequests for and to them respectively as soon after my decease as may be consistent with the best interests of my estate. And I direct that the said Theodore F. Bliss and Phineas L. Hanscom, as such trustees, make such division and distribution accordingly, provided that each child must be of the age of twenty years before receiving her portion. In making distribution of my said estate I authorize said trustees, either before or after they, the said children, shall arrive at the age of twenty years and until final division and distribution, to make advances from time to time to said children in such manner and to such extent as they shall deem wise and prudent.

‘(6) And I hereby provide that said trustees have and exercise all requisite authority and power, including that of alienation, necessary or convenient for the management of the said estate, and the division and distribution thereof as herein contemplated. The conditions of the above trust to apply to the personal property devised to said trustees. And in case of the death or refusal to act of either of said trustees, then the remaining one shall execute such trust, and in case of the death or refusal to act of both of said trustees, then my daughters Anna A. Cheney and Sarah G. Hildreth or the survivor of them shall have full power to name and appoint a trustee in their stead, such appointment to be in writing.

‘(7) I give, devise and bequeath one-quarter of all my real estate so divided, to my daughter, Anna A. Cheney, her heirs and assigns forever.

‘(8) I give, devise and bequeath one-quarter of all my real estate so divided, to my daughter, Sarah G. Hildreth, her heirs and assigns forever.

‘(9) I direct that the remaining one-fourth part or quarter of my said real estate, shall be used in aid of or for the support of educational, religious and charitable institutions or objects, and in aid of and for the benefit of relations or friends of my family or any or either of said objects.

‘(10) This trust to be executed by my said daughters from time to time and in whatever manner they shall see fit, using whatever part or parts of said remaining onequarter for whatever purpose or purposes above mentioned they shall in their own judgment and discretion see fit and deem best, bearing in mind by own well known preference.

‘(11) And I hereby provide that my said daughters Anna A. Cheney and Sarah G. Hildreth, have and exercise all requisite authority and power, including that of alienation, necessary or convenient for the management of my said estate, and the division and distribution thereof as herein contemplated. That in case of sale of any of the real estate by said trustees the purchaser shall not be required to see that the purchase money is appropriated by said trustees or trustee as provided in this will.

‘(12) And in case of the death of either of my said daughters before the disposition of all or any part of said remaining one-quarter hereby vested in them, then the survivor shall be vested with the title of such remaining part, and is hereby fully empowered to dispose of the same and execute this trust. And in case of the death of both of my said daughters before the entire disposition of the said remaining one-quarter so set aside, then any remaining portion undisposed of shall be divided into three equal parts one of said three parts or portions to be vested in the heirs of my daughter, Anna A. Choney, one of said parts or portions to be vested in the heirs of my daughter, Sarah G. Hildreth, and the remaining one-third part to be vested in the heirs of my daughter, ...