Green v. Grant

• Decision Date: 31 October 1892
• Citation: 32 N.E. 369,143 Ill. 61
• Parties: GREEN et al. v. GRANT et al.
• Court: Illinois Supreme Court

143 Ill. 61

32 N.E. 369

GREEN et al.

v.GRANT et al.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from circuit court, Cook county; M. F. TULEY, Judge.

Bill by Edward H. R. Green and Hetty S. A. H. Green against R. Suydam Grant and others. The bill was dismissed for want of equity, and complainants appeal. Affirmed.

Walker & Eddy, for appellants, cited, in support of the proposition that the interest of the trustees of the Robinson estate in the piece of realty known as ‘section 21’ was an estate for the life of Mrs. Green: 3 Redf. Wills, 617; 2 Jarm. Wills, 305; Ward v. Amory, 1 Curt. 419; Coulter v. Robertson, 24 Miss. 278; Norton v. Norton, 2 Sandf. 296; Lewin, Trusts, (6th Eng. Ed.) 189; Young v. Bradley, 101 U. S. 782; Norton v. Norton, 2 Sandf. 296; Williman v. Holmes, 4 Rich. Eq. 475;Smith v. Metcalf, 1 Head, 64;Ellis v. Fisher, 3 Sneed, 231;Farrow v. Farrow, 12 S. C. 168. Thus, where the testator's real estate was devised to trustees, their survivors or survivor, and their or his heirs, etc., to secure a life annuity, (which was to be paid out of the annual income,) and then in trust for the testator's children, until they should attain 21, ‘and then unto and among them, share and share alike, as tenants in common and not as joint tenants,’ and the will contained clauses empowering the trustees to grant leases of the estates, and, if they should think it advisable, to sell any part thereof, at any time after his (the testator's) decease, it was held, notwithstanding this expression, that the estate of the trustees was confined to the minority of the children, being so restricted by the express devise to them. Doe v. Harris, 2 Dowl. & R. 36. See, also, Goodtitle v. Whitby, 1 Burrows, 228; Edwards v. Symons, 6 Taunt. 212; Ackland v. Lutley, 1 Perry & D. 639, 9 Adol. & E. 879; Tucker v. Johnson, 16 Sim. 341; Plenty v. West, 6 C. B. 201; Doe v. Cafe, 7 Exch. 675; Baker v. White, L. R. 20 Eq. 176; 2 Jarm. Wills, 292. And where an estate is limited to trustees for preserving contingent remainders, although it may not be in terms confined to the life of the person taking the immediately preceding estate of freehold, yet it will be restricted in construction if the will disclose to other purpose which requires that the trustee should take a larger estate. 2 Jarm. Wills, 317; Doe v. Hicks, 7 Term R. 433; Haddelsey v. Adams, 22 Bea v. 266; Smith v. Dunwoody, 19 Ga. 237; Heardson v. Williamson, 1 Keen, 33; Payne v. Sale, 2 Dev. & B. Eq. 455. The sixth clause of the will, which gave to the trustees ‘power to lease any of the real estate,’ etc., ‘and likewise power to sell and convey any of such real estate,’ did not so enlarge the estate of the trustees as to make it an estate in fee, but simply conferred upon the trustees certain powers of disposition which may be executed without any legal title. Burke v. Valentine, 52 Barb. 412; Reeve v. Attorney General, 2 Atk. 223; Hilton v. Kenworthy, 3 East, 553; Bateman v. Bateman, 1 Atk. 421; Fowle v. Green, 1 Ch. Cas. 262; Lancaster v. Thornton, 2 Burrows, 1027; Yates v. Compton, 2 P. Wms. 308; Fay v. Fay, 1 Cush. 94; Shelton v. Homer, 5 Metc. (Mass.) 462; Peter v. Beverly, 10 Pet. 532,1 How. 134; Deering v. Adams, 37 Me. 264; Jackson v. Schauber, 7 Cow. 187, 2 Wend. 12; Burr v. Sim, 1 Whart. 266;Guyer v. Maynard, 6 Gill & J. 420;Dabney v. Manning, 3 Ohio, 321;Jameson v. Smith, 4 Bibb, 307;Hope v. Johnson, 2 Yerg. 123; 1 Perry, Trusts, 411; Mandlebaum v. McDonell, 29 Mich. 78.

Smith & Harlan, Lyman & Jackson, and C. H. Kelsey, for appellees.

WILKIN, J.

To the May term, 1891, of the circuit court of Cook county, appellants filed their bill, in the nature of a bill of review, against appellees, to set aside a decree, and sale in pursuance thereof of section 21, township 39 N., range 13 E., Cook county, Ill., the decree having been rendered on the bill of William H. Peters, receiver of the Norfolk National Bank, of Virginia, against the administrator and heirs at law of Robert W. Hyman, deceased, and Henry A. Barling, Edward D. Mandell, and Edward H. Green, trustees under the last will and testament of Edward Mott Robinson, deceased, together with Hetty H. R. Green, daughter of said Robinson, and others, filed in said circuit court of Cook county, August 24, 1887. The record of that cause has been twice before us. See Barling v. Peters, 131 Ill. 78, 21 N. E. Rep. 809; Id., 134 Ill. 606, 25 N. E. Rep. 765. The present bill sets out at length the various steps in that proceeding, but they will sufficiently appear, for the purposes of this decision, by reference to the above-cited cases.

The following facts are pertinent to the present inquiry: On the 14th of June, 1865, Edward Mott Robinson died, leaving a last will and testament, which was afterwards duly probated. He left surviving him an unmarried daughter, Hetty Howland Robinson, to whom he willed certain real estate in the city of San Francisco, and a large money legacy. He also gave certain other specific legacies, and then made the following residuary bequest: ‘ Fifth. All the rest, residue, and remainder of my estate, both real and personal, remaining after the payment of my debts, after satisfying the bequests and dispositions herebefore contained, I give, devise, and bequeath unto Henry A. Barling and Abner H. Davis, of the city of New York, and Edward D. Mandell, of New Bedford, in the state of Massachusetts, as trustees, to be holden by them, and the survivors and survivor of them, upon the trusts following: that is to say, as to the real estate, to collect and receive the rents, issues, and profits thereof, and, as to the personal estate, to invest and keep invested the same, with power to call in and change the investments from time to time; such investments and reinvestments to be in such securities and property, and in such manner, as such trustees shall deem safe and prudent; and to continue so to hold the same in trust during the life of my said daughter, Hetty Howland Robinson, and to apply the net rents, issues, profits, interest, and income arising from the property embraced in such trust to the sole and separate use of my said daughter, Hetty Howland Robinson, during her life, separate and apart from any husband she may marry, and free from the debts, control, or interference of any such husband; such application to be of such income only from time to time as it shall accrue and be received, and not to be subject to any previous disposition or incumbrance by way of anticipation, and, upon the death of my said daughter, Hetty Howland Robinson, to convey, transfer, and deliver over the capital of such trust estate, real and personal, as the same shall then exist, to the issue of my said daughter, Hetty Howland Robinson, if any issue she shall leave her surviving, in such shares and proportions as my said daughter, Hetty Howland Robinson, shall appoint by her last will and testament, and, if she shall make no direction or appointment, then to such issue in equal shares, per stirpes, and not per capita; and in case my said daughter, Hetty Howland Robinson, shall leave no issue her surviving, then upon her death to convey, transfer, and deliver over the capital of such trust estate, real and personal, as the same shall then exist, excepting four hundred thousand dollars thereof hereinafter disposed of, in such event, to such person or persons, and for such estate, as my said daughter, Hetty Howland Robinson, shall, by her last will and testament, direct or appoint, and in default of such direction or appointment, or so far as the same may not extend or be effectual, then to the person or persons who by the present laws of the state of New York would have taken the same as heirs at law and next of kin of my said daughter, Hetty Howland Robinson, if she had died seised and possessed thereof intestate; and as to the said above reserved four hundred thousand dollars of such trust estate, I give and bequeath the same, at the termination of the said trust, upon such contingency of my said daughter dying without leaving issue, in manner following: that is to say, I give and bequeath one hundred thousand dollars thereof to my brother William A. Robinson, of Providence, Rhode Island, if he be then living, and, if he be not living, then to the issue then living of said William A. Robinson, in equal shares, per stirpes, and not per capita; and one hundred thousand dollars thereof to my sister Annie A. Chase, of Salem, Massachusetts, if she be then living, and, if she be not then living, then to the issue then living of said Annie A. Chase, in equal shares, per stirpes, and not per capita; and one hundred thousand dollars thereof to my brother Attmore Robinson, of South Kingston, Rhode Island, if he be then living, and, if he be not then living, then to the issue then living of said Attmore Robinson in equal shares, per stirpes, and not per capita; and the remaining one hundred thousand dollars thereof to my brother Sylvester C. Robinson, of Salem, Massachusetts, if he be then living, and, if he be then not living, then to the issue then living of said Sylvester C. Robinson, in equal shares, per stirpes, and not per capita. Sixth. I give to the trustees of the trust above created, and to the survivors and survivor of them, power to lease any of the real estate embraced in such trust for any lawful term or terms, and likewise power to sell and convey any of such real estate. And I will and direct that, as to such part of my estate as at the time of my death shall be invested in ships or interest in ships, it shall be at the option of said trustees, and likewise of my executors, in their discretion, when to sell the same, and they may continue to hold and run any such ship or ships, for the benefit and at the risk and charge of my estate, for such time as to them may seem fit.’ In 1866, the daughter, Hetty Howland, married Edward H. Green, and of that marriage the complainants in this bill were...