Einbecker v. Einbecker

• Decision Date: 13 June 1896
• Citation: 44 N.E. 426,162 Ill. 267
• Parties: EINBECKER et al. v. EINBECKER.
• Court: Illinois Supreme Court

162 Ill. 267

44 N.E. 426

EINBECKER et al.

v.EINBECKER.

Supreme Court of Illinois.

June 13, 1896.

Appeal from appellate court, First district.

Bill by Anna Einbecker against William Einbecker and others. From a judgment of the appellate court (62 Ill. App. 611) affirming a judgment for plaintiff, defendants appeal. Reversed.Lackner & Butz, for appellants.

Richard Prendergast and J. E. Deakin, for appellee.

This is a bill to compel the trustees under the will of George Einbecker, deceased, to pay the annuity thereon provided. The will is as follows:

‘First. I give and bequeath to my son William Einbecker the saloon known as ‘No. 2622 Wentworth Avenue’ in the city of Chicago, and all the stock in trade and other goods and chattels thereto belonging. Second. I give and bequeath to my son George Einbecker the saloon on the corner of 37th street and Wentworth avenue in the city of Chicago, and all the stock in trade and other personal property thereto belonging. Third. I give and bequeath to my son Heinrich Einbecker the saloon known as ‘No. 4120 State Street’ in the city of Chicago, and all the stock in trade and other personal property thereto belonging. Fourth. I hereby nominate and appoint my said three sons William Einbecker, George Einbecker, and Heinrich Einbecker, to be the trustees under this, my last will and testament, and I do hereby give and bequeath to my said trustees all my real and personal estate of whatever name and description, except the three saloons above described, to have and to hold the same to them and their successors, in trust, for the following uses and purposes, that is to say: (a) In trust to manage my estate, collect the rents and other incomes arising therefrom, make leases of my real estate for such term as they may deem best, and to invest and reinvest all moneys coming to their hands as such trustees in good interest-bearing securities. (b) In trust, further, to pay to my wife, Anna Einbecker, out of the moneys so arising from my estate, the sum of one hundred dollars ($100) per month during her natural life; but so long as my youngest child, Cecelia, remains with her mother, my said wife shall receive the sum of one hundred and twenty-five dollars ($125) per month, instead of one hundred dollars ($100) per month as hereinbefore stated. When my estate is divided between my children, as hereinafter stated, my said trustees shall retain in their possession a sufficient capital, consisting either of real estate or securities, to insure, from the income arising from the same, the prompt payment of the monthly allowance so made to my wife as aforesaid. (c) In trust, to divide and partition my said estate, so soon as my youngest child, Cecelia, arrives at the age of eighteen years, and no sooner, between all of my children, share and share alike, the descendants of a deceased child to take the parent's share. But, should my said youngest child die before she reaches the age of 18 years, then the division and partition of my estate as hereinbefore directed shall be made in the year nineteen hundred (1900). (d) Upon the death of my wife, the property and securities retained by my trustees for the purpose of insuring the payment of the allowance to her as above stated shall also be partitioned and divided between all my children, in the manner and at the time above set forth. Fifth. I further direct that my said wife shall have the right to occupy the homestead, being that part of the property known as ‘Number 4120 South Street,’ in the city of Chicago, now occupied by us, free of rent or other charge, during her natural life. Sixth. I hereby give to my said trustees full power to sell and convey any and all of my real estate, on such terms and for such price as they may deem best, and, upon the death of any one of said trustees, the duties to be performed and the powers to be exercised by them jointly shall be performed and exercised by the survivors or survivor as the case may be; and in case of the death of all three of said trustees, a successor shall be appointed by the circuit court of Cook county. Seventh. I hereby nominate and appoint my said three sons to be the executors of this, my last will and testament, and direct that they be not required to give such bond.'

The decree of the circuit court of Cook county, entered October 2, 1895, finds: That George Einbecker died July 24, 1892, leaving said will. That he left, him surviving, Anna Einbecker, his widow, and his nine children, to wit: William Einbecker, George Einbecker, Heinrich Einbecker, John Einbecker, Charles Einbecker, Mary Einbecker, Benjamin Einbecker, Katherine Einbecker, and Cecelia Einbecker, his only heirs at law. That the net income arising from the estate has not hitherto been sufficient to pay said widow the whole of said monthly allowance of $125. That said Cecelia Einbecker is still a minor, and is living with her mother, Anna Einbecker. That all the rest of said children are of full age. That a portion of the real estate left by said deceased has been sold by the executors since his death, and that said executors have in their hands certain proceeds of such sales sufficient to make up to said widow the unpaid portion of said $125 per month. That, since the death of said deceased, there has been paid to said Anna Einbecker, on account of said monthly allowance of $125, the sum of $3,150 in all, and that there is now due her the sum of $1,350 under the provisions of said will, in order to make up to her the full monthly allowance at the rate of $125 per month since the death of said deceased. And the decree orders that the complainants, as trustees, do forthwith pay to said Anna Einbecker, on demand, $1,350; that, in case the net rents of the remaining trust estate shall at any time be insufficient to pay said monthly allowance in full to said widow, then they shall make good any deficiency out of the corpus of the trust estate. The decree also finds that the executors of said will have made their final report in the probate court of Cook county, showing that all personal assets of said estate have been collected, and all claims and demands legally established against the same in said court have been fully paid, and that the executors, out of their own means, have advanced a sum of $3,691.20 for the purpose of settling said estate; that on December 6, 1894, said report of said executors was approved by said probate court, and it was ordered that said estate be declared settled, and said executors discharged, as soon as the said sum of $3,691.20 should be repaid to them, and they should go into said probate court and release the same. The decree further orders that the complainants, who are executors, have leave to retain, out of moneys in their possession belonging to the estate of said George Einbecker, deceased, the sum of $3,691.20 so found to be due them by said probate court; that at any time hereafter the said Anna Einbecker, in case her monthly allowance is not paid to her regularly in full, may make application to this court for an order on said trustees to pay the same; and that she is entitled to have any deficiency therein made good out of the estate of said George Einbecker, deceased, whether the same is income or corpus.

An appeal was prayed to the appellate court from the foregoing decree. A stipulation was entered into between the counsel for the respective parties, the material portion of which is as follows: ‘It is further stipulated and agreed that, in the decree of said circuit court entered in the above-entitled cause on October 2, 1895, all the findings of facts are true, except the finding that there is due to the defendant, Anna Einbecker, the sum of $1,350; and that the only question in dispute in this cause, between the complainants and the defendant, Anna Einbecker, is whether the defendant, Anna Einbecker, is entitled to be paid, out of the estate of said George Einbecker, deceased, by the terms of his will, the full sum of $125 per month, even if a portion thereof must be taken from the corpus of the estate, or whether, the income being less than $125 per month, she must be confined in her allowance to the income as it is and leave the corpus untouched.’ This stipulation, together with an attached copy of the will and letters testamentary, was certified by the clerk of the circuit court to the appellate court, and, with the decree of the circuit court, filed in the appellate court in lieu of a full record under section 74 of the practice act. The appellate court has affirmed the decree of the circuit court, and the present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, C. J. (after stating the facts).

Since the death of the testator, George Einbecker, the income from his estate has proved to be insufficient to pay his widow, Anna Einbecker, the appellee herein, the sum of $125 per month, directed by the will to be paid to her so long as her youngest child, Cecelia, remained with her; and the question in this case is whether, there being a deficiency in the income, the corpus of the estate may be resorted to to make up the deficiency. Is the appellee entitled by the terms of the will to be paid out of the estate the full sum of $125 per month, even if a portion thereof must be taken from the corpus of the estate? Or, the income of the estate being less than $125 per month, must she be confined in her allowance to the income as it is, and leave the corpus untouched? It is often difficult to determine whether an annuity is to be paid out of the capital of an estate, or only out of the income of the estate. But the question must be decided, as a general thing, by so construing the language of the testator's will as to ascertain his intention; and, when the intention is ascertained, it must be carried into effect. Each case will depend largely upon the meaning of the words used by the testator in his will. Baker v. Baker, 6 H. L. Cas. 616. In ...