Hoopeston Pub. Library v. Eaton

• Decision Date: 05 June 1918
• Docket Number: No. 11955.,11955.
• Citation: 283 Ill. 449,119 N.E. 647
• Parties: HOOPESTON PUBLIC LIBRARY et al. v. EATON et al.
• Court: Illinois Supreme Court

283 Ill. 449

119 N.E. 647

HOOPESTON PUBLIC LIBRARY et al.

v.EATON et al.

No. 11955.

Supreme Court of Illinois.

April 17, 1918.

Rehearing Denied June 5, 1918.

Appeal from Circuit Court, Vermilion County; A. A. Partlow, Judge.

Bill by the Hoopeston Public Library and others against Edward D. Eaton and others for the appointment of a trustee to sell lands, and to carry out the provisions of a will, and bill for leave to intervene by the Attorney General with cross-bill by Fred H. Ayres. From the decree complainant, cross-complainant, and the Attorney General appeal. Affirmed.

Walter T. Gunn, of Danville, and Jay Briggs and Charles F. Dyer, both of Hoopeston, for appellant Hoopeston Public Library.

Charles A. Allen, of Hoopeston, and L. T. Allen, of Danville, for appellant Ayres.

Edward J. Brundage, of Chicago, and Floyd E. Britton, of Springfield (Buel H. Snyder, of Danville, of counsel), for appellant Atterney General.

Montgomery, Hart & Smith, of Chicago, for appellee Beloit College.

David Fales, of Chicago, for appellee Congregational Board of Ministerial Relief.

David

Fales, of Chicago, and Charles Troup, of Danville, for appellees American Board of Foreign Missions, American Missionary Ass'n, and Congregational Home Missionary Soc.

FARMER, J.

Appellant the Hoopeston Public Library of Hoopeston, Ill, filed its bill in chancery in the circuit court of Vermilion county praying for the appointment of a trustee to sell lands of which Dana sherrill died seised, for the purpose of carrying out the terms and provisions of the will of said Sherrill, who died testate in Grundy county, Ill., February 1, 1912. Sherrill left a widow surviving him. He owned a considerable amount of real estate in Grundy, Kendall, Iroquois, and Vermilion counties. By his will he gave to his widow, after the payment of debts, all his personal property and also the income from all his real estate. He gave to a brother and two sisters a farm of 237 acres in Kendall county, to be divided among them equally after the death of his wife. The will directed that after the death of testator's wife the remainder of his estate should be sold and $30,000 paid to the trustees of Beloit College, of Beloit, Wis., to be used for the purpose of assisting needy and worthy yound men in obtaining an education, $500 to the Hoopeston Public Library, and $500 to the endowment fund of the Congregational Board of Ministerial Relief. The remainder of the fund, after paying said bequests, the will directed should be equally divided among the American Board of Commissioners for Foreign Missions, the American Missionary Association, and the Congregational Home Missionary Society, all of which the will denominated as missionary corporations of the Congregational Church. The widow was named as executrix, but failed to qualify, and I. V. Cryder, the husband of one of the testator's sisters, was appointed administrator with the will annexed by the probate court of Grundy county, and he administered the estate and was discharged by that court. On April 13, 1917, the widow of testator died and seven days later this bill was filed.

The will contained no provision authorizing any person to carry out the terms and provisions of the will by selling the property and distributing the proceeds. The three residuary legatees above named were, among others, made defendants to the bill, and filed a joint answer admitting no person was appointed or authorized by the will to sell the property and carry out the terms of the will. The answer averred that said residuary legatees took a vested interest in the residuary estate, subject to the payment of the special bequests to the trustees of Beloit College, the Hoopeston Public Library, and the endowment fund of the Congregational Board of Ministerial Relief. The trustees of Beloit College filed an answer admitting the necessity for the appointment of a trustee to carry out the provisions of the will, to sell the real estate, and distribute the proceeds as directed in the will.

Fred H. Ayres, a brother of the widow of testator, who was not made a party to the bill of complaint, asked and was granted leave to file a cross-bill, which he filed. The cross-bill alleged cross-complainant, from 1885 to 1905, was residing and engaged in farming in Iroquois county in close proximity to the land in that county of Dana Sherrill, who was a minister of the Congregational Church during those years; that Sherrill engaged cross-complainant to care for and look after his lands; that cross-complainant did so, looked after the crops and the marketing of the same, paid the taxes, made improvements on the land, ‘and performed labor and services for which he never received any compensation.’ The cross-bill alleged Sherrill agreed to will cross-complainaint 80 acres of land described, in consideration of the services rendered by cross-complainant. The cross-bill prayed that said 80 acres of land be decreed to be the property of cross-complainant.

Afterwards the three residuary legatees, the American Board of Commissioners for Foreign Missions, the American Missionary Association, and the Congregational Home Missionary Society, filed a petition in the case, alleging they were the residuary legatees under the will of Dana Sherrill, deceased, under which they took for their corporate purposes the residuum of testator's estate, subject to the charge of the legacies to the trustees of Beloit College, the Hoopeston Public Library, and the Congregational Board of Ministerial Relief; that petitioners had agreed with all the legatees except the Hoopeston Public Library that in order to save expenses of litigation petitioners would pay said legacies, with interest from date of death of the widow at 5 per cent. per annum, out of the proceeds of the sale of the land when the petitioners should sell it, which they agreed to do within a reasonable time. The petition alleges a tender to complainant of $500, with interest at 5 per cent. from the date of the death of the widow of testator and costs accrued up to the time of the tender, which sum the petitioners brought into court and offered to pay and turn over to complainant and prayed that the bill be dismissed. The board of trustees of Beloit College filed their consent and request that the suit be dismissed, and the Congregational Board of Ministerial Relief did likewise. Subsequently the Attorney General filed a petition for leave to intervene, and later a petition for leave to be made a party defendant and to file an answer.

The court sustained a demurrer to the cross-bill of Fred H. Ayres and dismissed the same for want of equity, and also denied the motions of the Attorney General, allowed the motion of the residuary legatees, and entered a decree dismissing the complainant's bill without costs and ‘without prejudice to the right of the board of trustees of Beloit College and the Congregational Board of Ministerial Relief to bring any appropriate action to recover their said respective legacies...