James J. West v. Fitz

• Court: Illinois Supreme Court
• Writing for the Court: MULKEY
• Citation: James J. West v. Fitz, 109 Ill. 425, 1884 WL 9808 (Ill. 1884)
• Decision Date: 26 March 1884
• Parties: JAMES J. WESTv.ANDREW FITZ.

109 Ill. 425

1884 WL 9808 (Ill.)

JAMES J. WEST

v.ANDREW FITZ.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

On the 25th of April, 1878, Stephen Hoyt, late of Salem, Essex county, Massachusetts, died testate, and on the 20th of the following month his will was duly proved and admitted to probate in the probate court of said Essex county. The will is as follows:

“I, Stephen Hoyt, of Salem, do make this my last will and testament, this first day of June, in the year 1876.

Item first.--I give and devise to my friend, Thomas H. Frothingham, of Salem, the messuage numbered 26 1/2 and 28 Harbor street, in Salem, and all my household stuff, books, pictures, furniture and plate, in trust, to pay the net rent and income from said real estate to my sister, Ruth H. Denrutt, for life, and to allow her to use said personal property during her life. At the death of my said sister, the estate held in trust under this item shall form a part of the residue of my estate.

Item second.--All the residue of my estate, real and personal, I give, devise and bequeath to said Frothingham, in trust, that he shall pay the net income thereof, from time to time, to Stephen Hoyt Sargent, of Belmont, New Hampshire, and Abbie Hoyt Sanborn, wife of Franklin T. Sanborn, of said Salem; and upon the death of either, the whole income shall be paid to the survivor until his or her death. At the death of the last survivor, the trustee for the time being shall pay to Franklin T. Sanborn, of Salem, the sum of $1000; and to Sarah E. Hoyt Jenks, of said Salem, Stephen Hoyt Harrington, (son of Eugene C. Harrington,) of St. Louis, Stephen Hoyt Hesse, (son of Herman T. Hesse,) of St. Louis, Joseph F. Tucker, of Chicago, and Bessie Hoyt Tucker, (daughter of Horace Tucker,) of Chicago, each the sum of $500. All the residue and remainder of the trust estate I give and devise, one-quarter part to the heirs at law of Stephen Hoyt Sargent, and one-quarter part each to my nephews and nieces, Moses Sargent, Jr., of Belmont, of the State of New Hampshire, Franklin S. Sargent, of said Belmont, and Mary Sargent Heywood, (wife of H. O. Heywood,) of Lake Village, New Hampshire.

Item third.--I request my executor and trustee to keep the property invested in such securities as savings banks are by the laws of Massachusetts authorized to invest in. I do not wish the real estate on Harbor and Park streets to be sold unless a pressing necessity arises therefor.

Item fourth.--I appoint Geo. Foster Flint, of said Salem, executor of this will.

Item fifth.--I declare that it is my intention by this will to dispose of any estate over which I have a power of disposition in any manner, especially the estate conveyed to said Flint, in trust, by deed recorded in Essex Registry of Deeds, book 940, leaf 254.

Item sixth.--I request that my said trustee and executor may be exempted from giving any surety or sureties on their probate bonds.

STEPHEN HOYT.”

This will, together with an exemplified copy of the record of its admission to probate, is duly recorded in the recorder's office of Cook county, this State.

At the time of Hoyt's death, in addition to the estate, real and personal, owned by him in Massachusetts, he was the owner in fee of the following real property in this State, namely, lots 5, 6, 7 and 8, in block 1, of Sutton's addition to Chicago, being the same property involved in this suit.

Upon Hoyt's death, Frothingham, the trustee under the will, declined to accept the trust, whereupon George F. Flint was, under the provisions of the statute of Massachusetts, appointed trustee in Frothingham's stead. Flint having subsequently died, Andrew Fitz, the appellee, was appointed in like manner, by the same court, trustee in Flint's stead. Fitz, after his appointment, to-wit, on June 1, 1883, proceeding upon the assumption he had power under the will, and his appointment as trustee, to sell and convey lands belonging to the estate, entered into the following contract with James J. West, the appellant, for the sale of the Chicago property:

“This contract and agreement, made and entered into this first day of June, A. D. 1883, by and between Andrew Fitz, trustee, of Salem, in the county of Essex, and commonwealth of Massachusetts, party of the first part, and James J. West, of Chicago, county of Cook, and State of Illinois, party of the second part:

Witnesseth, that the said party of the first part, in consideration of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, has this day sold, and hereby covenants and agrees for his successors and assigns to convey in fee simple, by a good and sufficient deed, as trustee, in the usual form, to the party of the second part, his heirs, executors, administrators or assigns, clear of any incumbrances, except such taxes and assessments as may become liens upon such land on and after the first day of May, A. D. 1883, all the following described lots, pieces or parcels of land, to-wit, lots 5, 6, 7 and 8, in block 1, of Sutton's addition to Chicago, being the subdivision of blocks 1, 2 and 3, of the assessor's addition of the east half of the south-east quarter of section 18, township 39 north, range 14 east, of the third principal meridian, situated in the county of Cook, and State of Illinois.

The said party of the second part, in consideration of these presents, and of one dollar in hand paid to him by the party of the first part, the receipt whereof is hereby acknowledged, hereby covenants and agrees, for himself, his heirs, executors, administrators or assigns, to pay said party of the first part, as purchase money of the above described land, the sum of $11,850, in the manner following, to-wit: one-third thereof in cash, upon the delivery of the deed above described, to him, one-third in one year after such first payment, and one-third in two years thereafter, the said last two payments to bear interest at six per cent from the date of the delivery of said deed, and to be secured by a mortgage or trust deed from the said James J. West, for the benefit and use of the said Andrew Fitz, trustee, party of the first part.

ANDREW FITZ, Trustee.

JAMES J. WEST.”

After entering into this contract, West, the appellant, becoming apprehensive that a deed from Fitz, as contemplated by the agreement, would not confer upon him a good title to the property, declined to carry out the contract. Thereupon Fitz filed in the circuit court of Cook county the present bill, setting up, in substance, among others, the foregoing facts, and asking that West be compelled to specifically perform the agreement, and averring a readiness and offer to perform it on his part. West filed a general demurrer to the bill, which was overruled by the court. Electing to stand by the demurrer, West declined to answer further, and thereupon the court entered a decree in conformity with the prayer of the bill, to reverse which West brings this appeal. Mr. E. B. ESHER, and Mr. WILLIAM RITCHIE, for the appellant:

The appellant “can not be compelled to take a doubtful title, which will expose him to the expense and hazard of litigation.” Hoyt v. Tuxbury, 70 Ill. 336.

Fitz, the new trustee, holds not by virtue of the will, but solely by virtue of his appointment by a foreign court. He does not, therefore, even hold the legal title to this land, for any purpose whatever. City Ins. Co. v. Commercial Bank, 68 Ill. 354; Williams v. Maus, 6 Watts, 278; Curtis v. Smith, 6 Blatchf. 549.

It has only been of late that foreign executors or administrators, with the will annexed, have been able to convey title to land in this State, and even then only “in pursuance of due power vested by will,”--not by decree of any foreign court. (Rev. Laws 1879, chap. 30, sec. 34.) But Fitz is neither executor nor administrator, and has not the powers or duties of such. Schouler on Executors, secs. 19, 173, 472, 485; 1 Perry on Trusts, secs. 71, 263, 281.

The terms of this devise do not vest any fee in the trustee, and courts are very averse to enlarging an estate in trustees. 1 Perry on Trusts, sec. 317; 2 Jarman on Wills, *292; Budden v. Harris, 2 D. & R. 36; Cooke v. Blake, 1 Exch. 220.

The direction to the trustee to pay certain pecuniary legacies after the death of Sargent, does not necessarily imply a power to sell the realty even at that time. 3 Jarman on Wills, (Rand. & Tal.) 424 n,i 459 in; 2 Perry on Trusts, sec. 570.

The trustees are to receive the gross rents, and after paying out of them the land tax, and any other charges on the estate, to hand over the net rents to the tenant for life. Parker v. Greenwood, 4 M. & W. 430.

These proper current expenses of the estate must be paid by the life tenant, even though the whole of the proceeds are thus expended. Latimer v. Moore, 4 McLean, 110; 2 Perry on Trusts, sec. 554; Revel v. Watkinson, 1 Ves. Sr. 93. The interests of the remainder-men can not be touched or affected for that purpose. Holcombe v. Holcombe, 27 N. J. Eq. 473; Holmes v. Tabor, 9 Allen, 246.

The objection that the taxes upon this land are consuming it, is no reason why the life tenant may demand its sale. The taxes are a charge upon the income upon the life tenant's interest, and not upon the corpus of the trust estate. He should pay all taxes out of his income. 2 Perry on Trusts, sec. 554; Cavins v. Chabert, 3 Edw. Ch. 312; Jones v. Dawson, 19 Ala. 679; Prettyman v. Walston, 34 Ill. 175.

Messrs. PECKHAM & BROWN, for the appellee:

When real estate is left to trustees, with or without words of inheritance, and under any conditions or limitations whatever, they take an estate exactly commensurate with the purposes of the trust. Kirkland v. Cox, 94 Ill. 400; White v. Glover, 59 Id. 459; Perry on Trusts, sec. 320; 2 Jarman on Wills, *307.

As to when the trustee will take an estate in fee, see 3 Id. chap. 33, p. 22; Howe v. Dartmouth, 7 Ves....