Johnson v. Preston

• Decision Date: 18 April 1907
• Citation: 80 N.E. 1001,226 Ill. 447
• Parties: JOHNSON et al. v. PRESTON et al.
• Court: Illinois Supreme Court

226 Ill. 447

80 N.E. 1001

JOHNSON et al.

v.PRESTON et al.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Circuit Court, Lee County; O. E. Heard, Judge.

Bill by James A. Johnson and others against Charles F. Preston and others. From a decree for defendants, complainants appeal. Affirmed.E. E. Wingert and A. H. Switzer, for appellants.

A. C. Bardwell, for appellees.

The heirs at law of Jane Platt filed a bill in the Lee county circuit court to have clauses 5 and 6 1/2 of the will of Jane Platt declared void, and for a partition of the real estate devised by said clauses. Jane Platt died testate March 1, 1904, leaving complainants and James J. Platt her heirs at law. Said Jane Platt left a will consisting of 11 clauses and a codicil of 1 clause. The first clause directs the payment of funeral expenses and all just debts out of the first money that may come into the hands of the executor thereinafter named. The second clause bequeaths to John R. and George H. Platt a chest of cabinet tools, to be enjoyed jointly or individually, as the legatees may elect. By the third James J. Platt is given the household goods of the testatrix to have and to hold and to enjoy during his natural life, and at his death to be divided equally between the five sons of said James J. Platt namely, John R., George H., Frank J., Robert C., and Harold S. Platt. In the fourth the testatrix gives some directions respecting the care of certain cemetery lots.

The fifth clause is as follows: ‘Fifth-I give and devise to my executor hereinafter named, in trust for the purposes and for the time hereinafter mentioned, my farm of 120 acres in Willow creek township, Lee county, Illinois, described as follows, to wit: The east half of the south-east quarter and the south-east quarter of the north-east quarter of section thirty-five (35), in township thirty-eight (38), north, range two (2), east of the third principal meridian. To have and to hold for the space of twenty-five years from and after the date of the probate of this will, in trust, nevertheless, for the use, benefit and enjoyment of John R. Platt and George H. Platt, with no power of sale, conveyance or alienation of said land during said twenty-five years by said trustee or the beneficiaries in said trust, or either or any of them, except that said beneficiaries may convey, one to the other, after both become of lawful age, if they wish. After the expiration of said twenty-five years then the above described land to go and to vest in the said John R. Platt and George H. Platt, or their heirs, absolutely, or in the event that one of them has conveyed his interest to the other, then absolutely to the one to whom the other conveyed his interest, or his heirs. It being understood that both share equally in the use, benefit and enjoyment of said property during the period of said trust and equally in said property after said trust is ended, in case there has been no conveyance from one to the other. And that it is my wish that they may live upon and work upon said farm and make it their home, preserve and keep it in good shape and not allow it to be neglected and run down. The said trustee shall annually, out of the proceeds of said farm, pay to Mary J. Atkinson the sum of one hundred (100) dollars, payable twenty-five (25) dollars each quarter, for the space of the full twenty-five years of the said trust, unless said Mary J. Atkinson marries or dies, in which event, or either of them, said annuity is to be discontinued. And after the expiration of the period of said trust, if Mary J. Atkinson is then living and unmarried, said annuity of $100 is to be to her as before, out of said land, until her death or marriage. And said annuity is hereby made a charge on said land, to be paid out of said land or the avails thereof.’

The sixth clause devises to James J. Platt a life estate in certain real estate with remainder in fee to the five sons mentioned in the third clause.

The next clause is in the following language: ‘Six and one-half-I give and devise to my executor hereinafter named, in trust, for the purposes and for the time hereinafter mentioned, my store property in the village of Paw Paw, Lee county, Illinois, described as follows, to-wit: Commencing nine and one-half feet west of the north-east corner of lot two (2) in block two (2), in S. P. Detamore's subdivision of lot three (3) in block two (2), in the village of Paw Paw, Lee county, Illinois, as surveyed and platted by William McMahan, county surveyor of Lee county, Illinois; running thence south forty (40) feet; thence west six (6) inches; thence south to the south line of said lot two (2); thence west to a point nine (9) feet east of the south-west corner of said lot two (2); thence north to the north line of said lot two (2); thence east to the place of beginning. Also an undivided half interest in and to twenty (2) feet of the brick wall to the height of twenty-three (23) feet from the bottom of the foundation wall, the said wall commencing at the south-east corner of the one-story addition to I. B. Berry's three-story and basement brick building, situated east nineteen (19) feet of lot three (3) and west nine (9) of lot two (2), in S. P. Detamore's subdivision of lot three (3) in block two (2), original town of Paw Paw Grove, now Paw Paw. Said wall, as above mentioned, is the wall running north, together with the right to the use of the ground on which the said undivided half of said wall stands, as long as said walls and buildings remain as they now are, the last above being a party wall right given to me by written conveyance as above from I. B. Berry, dated December 24, 1897. To have and to hold for the space of twenty-five years from and after the date of the probate of this will, in trust, nevertheless, for the use, benefit and enjoyment of Frank J. Platt, Robert C. Platt and Harold S. Platt, with no power of sale, conveyance or alienation of said land or property, or any part thereof, during said twenty-five (25) years by said trustee or the beneficiaries of said trust, or either of them, except that said beneficiaries may convey one to the other after they become of lawful age, if they wish. After the expiration of the said twenty-five years, then the above described land and property to go to and vest in the said Frank J. Platt, Robert C. Platt and Harold S. Platt, or their heirs, absolutely, or in the event that one of them has conveyed his interest to the other, then absolutely to the one to whom the other has conveyed his interest, or his heirs. It being understood that all share equally in the use, benefit and enjoyment of said property during the period of said trust and equally in said property after said trust is ended, in case there has been no conveyance from one to the other. The said trustee shall, out of the proceeds of said property, pay to James J. Platt the sum of two dollars and fifty cents per week ($2.50), payable weekly, for the space of the full twenty-five years of said trust, unless said James J. Platt dies, in which event said payment is to be discontinued; and after the expiration of said trust, if James J. Platt is then living, said payment of two dollars and fifty cents per week is to be paid to him as before, out of the proceeds of said land and property, until his death. And said payments are hereby made a charge on said land and property, to be paid out of said land and property or the avails thereof.’

The seventh clause reads as follows: ‘Seventh-The said trustee is hereby authorized and directed by me to see that the taxes are paid in due season on all of said properties, that they be kept insured and that they be kept in good repair and improvement, to the end that such properties may be kept in good shape and will produce as much revenue as possible. And in event of the death, removal or inability to act of said trustee, then in that case I authorize and direct the county court of Lee county, Illinois, to appoint some suitable and discreet person in his place.’

Passing over the eighth clause, which is not important to a correct understanding of the questions involved, the ninth clause is as follows: ‘Ninth-It is my orders and direction that no part of my property above described shall go to the mother of said John R. Platt, George H. Platt, Frank J. Platt, Robert C. Platt and Harold S. Platt in any way, shape or manner, but shall be held strictly for the parties above mentioned and their heirs, excluding their said mother, and a failure to observe these directions will invalidate this will and render it null and void.’

The last clause nominates Charles F. Preston as executor, and the codicil reduces the yearly annuity of Mary J. Atkinson, given by clause 5, from $100 per annum to $25 per annum.

The foregoing will and codicil were duly admitted to probate by the county court of Lee county on the 30th day of March, 1904, and the executor named accepted the trust, qualified, received letters testamentary and entered upon the discharge of his duties. The heirs at law of the testatrix by the bill challenge the validity of clauses 5 and 6 1/2 of said will as being in violation of the rule against perpetuities and an illegal limitation upon the power of alienation, and pray for a partition of the real estate described in said clauses, as intestate property. The executor and James J. Platt and his five sons were made defendants, all of whom joined in a demurrer to the bill, which was sustained and the bill dismissed for want of equity. Complainants below appeal to this court, and assign error upon the order sustaining the demurrer and decree dismissing the bill.

VICKERS, J. (after stating the facts).

First. Appellants contend that clauses 5 and 6 1/2 are void because they violate the rule against perpetuities. In our consideration of this question we will first consider it with reference to the estate or interest devised to the executor.The sections of the will in...