Dingman v. Beall

• Decision Date: 22 December 1904
• Citation: 213 Ill. 238,72 N.E. 729
• Parties: DINGMAN et al. v. BEALL et al.
• Court: Illinois Supreme Court

213 Ill. 238

72 N.E. 729

DINGMAN et al.

v.BEALL et al.

Supreme Court of Illinois.

Dec. 22, 1904.

Error to Circuit Court, Macon County; Solon Philbrick, Judge.

Suit by Richard R. Dingman and others against Hillary Beall and others. From a decree dismissing the bill, plaintiffs bring error. Reversed.

C. C. Le Forgee, I. A. Buckingham, and Jack & Deck, for plaintiffs in error.

Nelson & Whitley, Mills Bros., and Redmon & Hogan, for defendants in error.

RICKS, C. J.

This is a bill filed in the circuit court of Macon county by a portion of the heirs of James Dingman, deceased, to set aside a certain sale, made by the executor or trustee appointed by the will of James Dingman, of certain real estate under the terms of the will.

James Dingman died testate on August 14, 1900, and at the time of his death left surviving him his widow, 6 children, and 25 grandchildren, all of whom are parties to this suit, either as complainants or defendants. It appears from the evidence that at the time of his death he was the owner of about 1,000 acres of land. The will was dated June 16, 1897, and three codicils were afterwards made, one dated June 16, 1898, the second dated September 1, 1899, and the third November 23, 1899. By his will all of the real estate except about 320 acres was disposed of among his heirs. This 320 acres not specifically devised was placed in trust under the following conditions:

‘Seventeenth-To the executor of this my will, hereinafter nominated, and to his properly appointed successor and successors in trust, I give and devise in fee simple all the lands not herein specifically devised of which I may die seized and possessed, in trust, nevertheless, for the uses and purposes hereinafter declared and set forth, and none other; and I hereby give and bequeath to said executor and his successors in trust all of my personal estate of every description not hereinbefore specifically bequeathed, in trust, nevertheless, for the uses and purposes hereinafter declared and set forth, and none other.

‘Eighteenth-As soon after the probate of this will my said executor or his successor in trust shall in his discretion, from time to time, in parcels or as a whole at one time, sell the land devised in item 17 of this will upon best terms and for best price reasonably attainable, but not for less than one-third of purchase price to be paid in hand and the remainder on credit not exceeding five years, to be secured by note of purchaser and first mortgage on premises, with interest at six per cent per annum, payable annually, the whole to become due and payable upon default in payment of any interest. Such sale may be either public or private, in the discretion of said executor. Said executor is hereby fully empowered to make conveyance of said lands by deed or deeds, and may in his discretion postpone sale and lease said lands for a term not exceeding one year.

‘Nineteenth-The funds, principal and interest, from sale of lands, and rents, if any, and personalty, shall constitute a common fund, which said executor shall keep at the best attainable rate of lawful interest, upon real estate first mortgage or invested in bonds of the cities and counties of the State of Illinois or of said State or the United States of America, however always selecting loan or investment at best rate of lawful interest on best available security. Said executor shall collect said interest annually, and upon collection annually divide said interest into eight parts, should my said wife at such time be in life, and pay one equal part to each my said wife and my said sons and daughters.’

On September 13, 1900, William J. Lawton

was by the county court of Macon county duly appointed executor of said will, and qualified as such, and executed a bond in the sum of $12,000, as executor, conditioned for the faithful performance of his duties as such. No other bond was ever given by Lawton in connection with the estate. It appears that on the 28th day of March, 1901, the said William J. Lawton, after giving 30 days' notice, sold the land devised to him in trust, at public auction, to Hillary Beall and John F. Beall, who are also made defendants to this suit, they being the highest bidders, for the sum of $7,400.

Three amendments to the bill were filed, the first one on February 19, 1903, and a second on October 27, 1903. A third amendment was made on December 11, 1903. The second amendment was demurred to, and the demurrer sustained. The cause was tried in January, 1904, and near the close of complainants' testimony they again asked leave to amend their bill, which was refused by the court. At the close of complainants' evidence the defendants demurred to the same. The court sustained the demurrer, and rendered a decree dismissing complainants' bill, and this writ of error is prosecuted from said decree dismissing the bill.

Numerous errors are alleged, part only of which have been argued by the respective parties.

The first alleged error argued by plaintiffs in error is that Lawton sold the land, under the provisions of the will, as executor, and, not having given a bond for the faithful performance of the sale, the same was void; and that even if the sale was made as trustee, unless an additional bond was given the sale was void, and therefore the demurrer should have been overruled.

We are of the opinion that this sale was made, as it should have been, by the trustee. While it is a question, sometimes, where the trustee is also the executor, when the title ceases to be in the executor as such, and title as trustee begins, yet where there is a separate and distinct part of the estate set apart in trust, as was done in this case, we see no good reason why the trustee could not act in the dual capacity of executor and trustee, holding the personalty as executor, and the real estate devised to the trustee, and the proceeds of the sale of the same, in the capacity of trustee, the same as if two separate and distinct persons had been appointed. At common law, executors, as executors, had no estate in or power over the real estate of their testator, and, if an executor has any power, right, or interest in respect to the real estate, it must be by virtue of some statute or of the provisions of the will itself. Gammon v. Gammon, 153 Ill. 41, 38 N. E. 890. And, while the word ‘executor’ is used in the clauses of the will where directions are made for the sale of the property, the directions, as given, were for the purpose of disposing of a trust estate separate from any other part of the estate, the fee being willed to Lawton in trust, and it was his duty, as trustee, to take charge of the same upon the death of the testator and carry out the trust imposed upon him, independently of his duties as executor, and the acts of the trustee need not be void simply because another title is given him...