Emery v. Emery

• Decision Date: 20 April 1927
• Docket Number: No. 16565.,16565.
• Citation: 325 Ill. 212,156 N.E. 364
• Parties: EMERY et al. v. EMERY et al.
• Court: Illinois Supreme Court

325 Ill. 212

156 N.E. 364

EMERY et al.

v.EMERY et al.

No. 16565.

Supreme Court of Illinois.

April 20, 1927.

Error to Circuit Court, Du Page County; Mazzini Slusser, Judge.

Proceedings by W. H. Emery, Jr., and another, as trustees under the will of Mary A. Emery, deceased, for the construction of her will, and for instructions in regard to their duties, in which Mary Allen Emery, Munson A. Emery, and others were defendants. Munson A. Emery and others, children of one of the beneficiaries named in will, bring error to review the decree construing the will and instructing the trustees.

Reversed and remanded, with directions.

Heard, J., dissenting.John W. Seedle, of Chicago, for plaintiffs in error.

William Sherman Carson, of Chicago, for defendants in error W. H. Emery, Jr., et al.

Charles W. Hadley, of Wheaton, and Charles S. Williston, of Chicago, for defendant in error Mary Allen Emery.

DUNN, J.

W. H. Emery, Jr., and Albert I. Ullmann, as surviving trustees under the will of Mary A. Emery, deceased, filed a bill in the circuit court of Du Page county praying the court to construe the will of the testatrix and to instruct the trustees in regard to their duties. Answers having been filed, the cause was heard and the court entered a decree construing the will and instructing the trustees, to review which the children of John T. Emery, who was one of the beneficiaries named in the will, have sued out a writ of error.

Mary A. Emery executed her will on December 14, 1905, and died on May 12, 1918, leaving John T. Emery, Ida Adelia Ullmann, W. H. Emery, Jr., and Grace Emery, her children, her only heirs. Her will was admitted to probate, and by it she devised and be queathed all her property, real and personal, amounting to more than $200,000, to John T. Emery, W. H. Emery, Jr., and Albert I. Ullmann, trustees, for the uses and purposes specified in the will. They were directed to pay all her debts, and, if her daughter Grace should be unmarried at the time of the testatrix's death, to convey to her by warranty deed the homestead property in the village of Elmhurst, and to convey to her by proper bill of sale all household furniture located in the house. As soon as convenient, without detriment to the estate, the trustees were directed to divide all the personal property into four equal parts, and pay one of such parts to each of her four children who might survive the testatrix. The will, after providing for the authority of the trustees in the management of the estate, continued:

‘I direct that one equal one-quarter portion of the proceeds, incomes and profits from the real estate as aforesaid shall semiannually on the days specified be paid over to each of my said four children, John T. Emery, Ida Adelia Ullmann, W. H. Emery, Jr., and Grace Emery, who may survive me, or to their heirs, or to such persons as such surviving children shall appoint by will. If any of my children shall have died before me and do not leave any surviving children, who are alive at my death, then the one-quarter equal share of my property which would have been paid to him if he had survived, shall be added to and divided equally among the other one-quarter parts. * * *

‘I hereby direct that on the first day of January, A. D. 1925, my trustees shall deed the real estate which they by that time may not have sold, to the persons who under this will at that time would be entitled to the proceeds of the sale of the real estate at the then semiannual accounting; provided, however, that if at such time there be living any of the surviving children of any of my deceased children, my trustees shall continue to discharge their trust as to such children until the youngest of such children who were living at the time of my decease shall have arrived at the age of twenty-one years, when my trustees shall then pay over, share and share alike, to each of my grandchildren then living, who may be the children of any of my children, who were deceased at the time of my death, an equal portion of the personal and real property so held in trust for them and all accumulations of all such personal and real property as shall have been held in trust for them. Any posthumous children of any of my deceased children who may be living at the date of the final distribution of the trust estate so created for the children of my deceased children shall share equally with their brothers and sisters under this provision. * * *’

John T. Emery, W. H. Emery, Jr., and Albert I. Ullmann were nominated executors of the will. They accepted the trust, administered the estate, and their final report as executors was approved by the county court, upon which all the assets of the estate remaining in the hands of the executors, except such as were specifically devised, were delivered to the complainants and John T. Emery as trustees under the provisions of the will, and the executors were discharged. Thereafter the trustees managed the trust estate in accordance with the terms of the will until December 25, 1921, when John T. Emery died, leaving his widow, Mary Allen Emery, surviving, and his children, Munson A. Emery, John T. Emery, Jr., William Harrison Emery, Howard P. Emery, and Robert B. Emery, his only heirs. His will, executed on May 3, 1920, was admitted to probate, and, except the formal commencement and conclusion, the direction to pay debts and the nomination of his wife as executrix was in the following words:

‘I give, devise and bequeath all the rest and residue of my estate, wheresoever the same may be situated, and of all kind, nature and description, and including real, personal and mixed, to my wife, Mary Allen Emery, and request that she make provision for the education and care of my five sons, Munson A. Emery, John T. Emery, Jr., William Harrison Emery, Howard P. Emery and Robert B. Emery, and as they are all minors and I have full faith and confidence in my wife I make no especial bequest for the five sons above named.’

The personal property of the estate of Mary A. Emery was disposed of by the executors in accordance with the provisions of her will. No question arises about it. The payment of income and proceeds of the real estate was made to the four children, as directed by the will, during the life of John T. Emery. Since his death, the complainants, as surviving trustees, have continued to manage and control the estate, and have made distribution of the income and receipts, three-fourths to Ida Adelia Ullmann, W. H. Emery, Jr., and Grace Emery, and one-fourth to Mary Allen Emery, the widow of John T. Emery, and the sole devisee under his will. The bill was filed on December 31, 1924, the day before that appointed by the will for the final distribution under her will. The one-fourth of the income and proceeds and one-fourth of the lands which have not been sold by the trustees constitute the subject-matter of this suit.

The two wills were introduced in evidence on the hearing, and no other evidence was offered. The only questions upon which the complainants asked instruction were: (1) Was the will of John T. Emery an exercise of the power of appointment conferred by the will of Mary A. Emery? (2) Did the language of the will of Mary A. Emery in the directions as to the final distribution of the trust estate on January 1, 1925, to ‘the surviving children of any of my deceased children,’ refer only to the children of any of her children who were deceased at the time of her death?

The respective contentions of the parties are as follows:

(1) On behalf of Mary Allen Emery, executrix of the will of John T. Emery, it is contended that the trustees under the will of Mary A. Emery took only a passive or naked trust so far as her surviving children were concerned, and the legal title vested at once on her death in her surviving children by virtue of the statute of uses (Smith-Hurd Rev. St. 1925, c. 30, § 3); that John T. Emery thus became vested with an undivided one-fourth interest in all her property, and had power to dispose of that interest by will without reference to the power in the will of Mary A. Emery, but subject to the rights of his creditors; that he did not intend to exercise the power given him by the will of Mary A. Emery, but did devise the property directly as his own property and not by appointment; and that it is subject to the debts of John T. Emery.

(2) There is a controversy between the plaintiffs in error, the children of John T. Emery, on the one hand, and their mother, Mary Allen Emery, his widow, on the other, the latter claiming that by his will John T. Emery exercised the power of appointment given him by the will of Mary A. Emery, and by virtue of such appointment Mary Allen Emery is now entitled to a conveyance of an undivided fourth of the lands still unsold; that the words ‘the surviving children of any of my deceased children’ in the proviso in the sentence of the will directing the conveyance of the unsold real estate on January 1, 1925, refer to the surviving children of any of the testatrix's children who were deceased at the time of her death, while the plaintiffs in error claim that there was no exercise of John T. Emery's power of appointment; that the ‘surviving’ children referred to are surviving children of any of the testatrix's children who were deceased on January 1, 1925; that the trustees were required to convey one-fourth interest in all unsold real estate on January 1, 1925, and to pay over one-fourth of all the proceeds, income, and profits subsequent to the death of John T. Emery to his heirs, who were his widow, Mary Allen Emery, and his five sons, the plaintiffs in error.

(3) The trustees contend that the decree of the circuit court was right in all respects; that the words ‘the surviving children of any of my deceased children,’ in the will of Mary A. Emery, meant only the children of any of her children who were deceased at the time of her death; that the power of appointment was exercised...