Harris v. Ferguy

• Decision Date: 17 February 1904
• Citation: 69 N.E. 844,207 Ill. 534
• Parties: HARRIS v. FERGUY et al.
• Court: Illinois Supreme Court

207 Ill. 534

69 N.E. 844

HARRIS

v.FERGUY et al.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Action by Walter F. Ferguy and others against Squire Rush Harris. From a judgment for plaintiffs, defendant appeals. Reversed.

Kerr & Kerr, for appellant.

George F. Mulligan (William Dillon, of counsel), for appellees.

RICKS, J.

February 5, 1903, appellees filed their bill in the circuit court of Cook county against appellant, praying for his removal as trustee, and for the appointment of a successor, and an accounting by said appellant as such trustee. The bill alleged that appellant was trustee under the will of appellees' mother, and, as such trustee, was possessed of certain real estate in the city of Chicago and in Waukegan, in which appellees had the beneficial use, and that appellant refused to account to them, or to pay them the proceeds of such property, or any part thereof, and was converting the same to his own use; that appellant had not given a sufficient bond, and that he had threatened to sell the trust property under the supposed power given him by the will; and that appellant was irresponsible. Appellant answered the bill, admitting that he was trustee and possessed of the properties mentioned in the bill, but denying the allegations of the bill as to his refusal or failure to account to appellees, and alleged, on the contrary, that he had paid them the monthly rents, or such portion thereof as was in excess of the taxes, insurance, and repairs, and in his answer rendered an account. The cause was heard, as far as we can tell from the record, before the court; but there is no certificate of evidence, and no question of fact raised. The court construed the will, and held that, by its terms and provisions, appellees had a vested estate in fee simple in the real estate held by said trustee, and the appellees were the owners thereof in equal shares in common, and that the supposed trust created by the will in favor of appellant, and under which he assumed to act, was in the nature of a naked trust, to continue which would be to needlessly and without reason separate the legal from the beneficial or equitable interest in such real estate, and required the trustee to account, and ordered his removal, and enjoined him from disposing of any of the real estate under the provisions of the will. From this order, appellant appeals, and insists that the court erred in holding that the will created in him only a naked trust, and in requiring him to convey said real estate to the appellees, and in not holding that the trust was valid, and to continue for the space of five years from the probate of the will.

From allegations of the bill and the decree, it appears that Mary Ferguy, the mother of appellees, died testate December 25, 1900, and that her will was filed and admittedto probate in the probate court of Cook county January 2, 1901, and that the appellant accepted the duties and office of executor and trustee under the will; that appellees are the sole heirs at law and next of kin of the said Mary Ferguy, the testatrix. The will contained six general clauses. The first clause provided for the payment of debts and funeral expenses; the second provided for the payment of a certain sum for masses; the third provided for a monument for the testatrix and her husband; and the remaining portions of the will are as follows:

‘Fourth. I order and direct my executor, as soon after my death as he thinks it advisable, to sell my real estate which I own in Waukegan, Lake county, Illinois, and Chicago, Illinois; also all other property, wheresoever found, which I may die possessed of, and to reinvest the same as in his judgment may seem best for my estate, and to convey by a good and sufficient deed of conveyance any property, both real and personal, for the purpose of carrying out my requests.

‘Fifth. I give and devise to each of my children, Mary Ferguy and Walter F. Ferguy and Loretta Ferguy and William F. Ferguy, the remainder of my estate to share alike equally, each to have one-quarter, but should any child die without leaving issue or living children, that child's share shall revert to my remaining living children and to be divided equally, for it is my will and desire that should any of my children get married and leave no living children, the child so married, husband or wife, as the case may be, shall not be paid any portion of my estate, as I only desire my own children to get the benefit of my estate.

‘Sixth. I hereby give, devise and bequeath unto Squire Rush Harris, of Chicago, as trustee, both all of my real estate and personal property wheresoever found, in trust for and upon the following trust purposes and conditions, to wit:

‘(1) To hold, manage, control, lease, care for and invest, and reinvest from time to time, said trust property for and during a period of five years from the time of my demise.

‘(2) To pay the net income from said trust property after two years, at the end of each quarter year, over to my own living children only, to share alike equal, and after having first...