Fenton v. Hall

• Citation: 85 N.E. 936,235 Ill. 552
• Court: Supreme Court of Illinois
• Decision Date: 26 October 1908
• Parties: FENTON et al. v. HALL et al.

235 Ill. 552

85 N.E. 936

FENTON et al.

v.HALL et al.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Circuit Court, Menard County; Guy R. Williams, Judge.

Bill by Louie A. Fenton and others against Julian H. Hall and others. From the decree, complainants appeal. Reversed and remanded, with directions.

Frank E. Blane and H. R. Hall, for appellants.

John M. Smoot, guardian ad litem, for appellees.

CARTWRIGHT, C. J.

John Tice died at his home in Petersburg, Menard county, on November 22, 1904, leaving a last will and testament, which was admitted to probate on January 22, 1905. He left no widow, child, descendant, father, or mother, and his heirs at law were his brother, Anderson W. Tice; his sister, Amanda J. Bryan, one of the appellants; four children of his deceased sister, Mary A. Walters; and Louie A. Fenton, the other appellant, the only child of a deceased brother, James C. Tice. The will bears date July 2, 1904, and its first provision is as follows: ‘It is my will that my executor, hereinafter named, will reduce and convert into cash all my personal property, both real and personal. He may sell same at public or private sale, without enabling order of court, at times and upon such terms as in his judgment he may deem best for my estate, such sales to be for best prices obtainable and subject to the approval of the probate court. He will complete all collections and sales and distributions within five years from date of his letters testamentary (moneys in trust not included.) When deemed best he may extend time within said five year period to my debtors on their notes, collecting and accunting for all interest and endavoring to keep all money at interest till finally paid out. All the proceeds of my estate, including cash on hand and what may be realized as above and from all other sources, shall be divided, paid out and distributed as follows and as promptly as he may find practicable.’ This was followed by the first clause, which provided that just debts and funeral expenses and costs of administration should be paid out of the general fund. By the section, seventh, eighth, ninth, and tenth clauses he gave various legacies to the nephews and nieces of his deceased wife, and devised a life estate in town lots in Petersburg to one of the nieces, and made bequests for various charitable and religious purposes. By the eleventh clause he directed that his executor should hold his bank stock and receive the dividends until it should be sold, and, at some time before the term of five years mentioned in the introduction should elapse, should sell the same and add the proceedsto the general fund. By the third clause he gave to his brother, Anderson W. Tice, to be held in trust for him during his life by the executor, $6,000, less any debt said brother might own him, the principal sum to be held in trust by the executor, after the brother's death, for the brother's wife, Susan C. Tice, during her life, with the right of the survivor of the two to bequeath the same by will, and, if the survivor should die intestate, the principal was to go to the heirs of their joint bodies. By the fifth clause he gave to the children of his deceased sister, Mary A. Walters, $6,000. The fourth, sixth and twelfth clauses, which are directly involved in this suit, are as follows:

‘Fourth. To my sister, Amanda J. Bryan, I give and bequeath to be held in trust for her during her natural life by my executor, the sum of six thousand dollars ($6,000), and at her death the same to go in fee simple to the heirs of her body, if any be living.’

‘Sixth. To Louie A. Fenton, daughter of my deceased brother, James C. Tice, I give and bequeath, to be held in trust for her during her natural life by my executor, the sum of four thousand dollars ($4,000), less any debt she may owe me, which debt shall be deducted from said $4,000, and at her death the principal sum will go in fee to the heirs of her body.’

‘Twelfth. It is my will that all the balance of my estate remaining after the payments hereinbefore directed, and after the payment and setting apart for investment of the particular legacies hereinbefore made, be and the same is hereby given and bequeathed on terms and conditions as follows: Six twenty-seconds (6-22) part thereof given and added to the six thousand dollars ($6,000) hereinbefore given my brother, Anderson, and wife and children; six twenty-seconds (6-22) part likewise given and added to the six thousand dollars ($6,000) given my sister, Amanda J. Bryan, and children; and six twenty-seconds (6-22) part likewise given and added to the six thousand dollars ($6,000) given to the children of my deceased sister, Mary A. Walters; and four twenty-seconds (4-22) part likewise given and added to the four thousand dollars ($4,000) given herein to Louie A. Fenton and her children. All said additions are bequeathed under exactly same conditions and qualifications as particularly and respectively attached to each of said four foregoing bequests. These shall be added to the above general balance for final distribution and become a part thereof, the sum of any legacies or bequests herein that may lapse by reason of death or revert to my estate, or belong to or remain in my estate from any source or cause, and same be distributed accordingly as directed in said foregoing bequests.’

Julian H. Hall, one of the appellees, was appointed the executor of the will and also trustee to carry out the trusts created thereby. The executor was directed to report all funds held in trust to the probate court of Menard county as to amounts and dates, and to loan the same on good real estate security in said county, farm lands preferred, and to collect the interest and pay it over annually to the legatees at fixed dates. He was authorized to loan the funds en masse, and apportion the interest to each legatee in accordance with the intention of the will.

The estate amounted to about $82,000, and consisted of a homestead and town lots in Petersburg, 35 acres of farm land, 100 shares of bank stock of the market value of $25,000, notes secured by real estate mortgages $34,615, other notes $7,764, cash in bank $6,608, an interest-bearing certificate of purchase $1,600, and some other assets. On May 10, 1907, the executor had collected and converted into money assets amounting to $43,506.96, and had received interest and income from real estate and dividends on bank stock to the amount of $6,500. He had converted into money all of the property except the 100 shares of bank stock, the farm land and notes and accounts amounting to about $10,000, and had paid all debts, claims against the estate, accrued costs of administration, and all the legacies except the $6,000 to Anderson W. Tice, $6,000 to the appellant Amanda J. Bryan, $4,000 to the...