Kellett v. Shepard

• Decision Date: 31 October 1891
• Citation: 139 Ill. 433,28 N.E. 751
• Parties: KELLETT v. SHEPARD et al.
• Court: Illinois Supreme Court

139 Ill. 433

28 N.E. 751

KELLETT

v.SHEPARD et al.

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from superior court, Cook county; KIRK HAWES, Judge.

Bill by George D. Shepard and others against Louisa Kellett and others, for the construction of a will and distribution. Decree in part as prayed. Louisa Kellett appeals. G. D. Shepard and others assign cross-errors. Reversed.

E. A. Otis and C. B. Wood, for appellant.

Jones & Hacker, for appellees.

MAGRUDER, C. J.

Nelson Stillman died testate on August 31, 1871, in Galena, Jo Daviess county, and his will and the codicils thereto were admitted to probate in the county court of that county on September 18, 1871. The will is dated January 27, 1859. The first codicil bears date October 4, 1862, and the second, August 9, 1867. The testator left surviving him his widow, Louisa Stillman, and two children, Charles P. Stillman and Mary Louisa Stillman, and no other children or descendants of children. The widow subsequently married Thomas P. Kellett, and is the appellant herein. The son, Charles P. Stillman, died intestate on March 10, 1883, and left no children or descendants of children. He was twice married. His first wife obtained a divorce from him for his fault, and married a man named Eldredge, and is now known as Fannie Turner Eldredge. His second wife, named Louisa or Lucy, survived him, and is now his widow. The daughter, Mary Louisa Stillman, married a man named George Pride, from whom she was divorced for his fault some time before February, 1887, and thereupon resumed her maiden name. She died testate on December 4, [139 Ill. 437]1888, leaving, her surviving, no husband nor child nor children, nor any descendants of child or children. Appellant, the widow of the testator, renounced the provisions of the will, and elected to take her dower in the realty and her share of the personalty, as allowed by law, and has long ago settled with the trustees under the will in relation thereto. The will gives and bequeaths the whole estate to three trustees, to have and to hold the same to themselves, their heirs and assigns, forever, upon certain uses and trusts. The widow is to have the homestead and the income of one-third of the net residue of the estate during her life, and so long as she remains unmarried. One-tenth of the residue or remainder is given to three charitable societies. The will then proceeds as follows: ‘ Fourthly. All the residue and remainder of my estate, real and personal, at the time of my decease, after deducting all lawful expenses of settlement and management, to be disposed of as follows, to-wit: The one-half of the same, being one-half of the residue to be so set apart, invested, secured, and conveyed and managed, so as to produce and furnish a revenue or annual income which I direct to be paid in quarterly or half-yearly payments to my daughter, Mary Louisa, and for her sole and separate use during her natural life, and the principal of said portion so set off to be so conveyed that after her death it shall descend and go in reversion to her child or children should she have any; but, in case she died having no issue, in such case to go to and descend in reversion to my heirs at law. And all the residue or remainder of my net estate, real and personal, not otherwise provided for my said wife and daughter, and for said charitable purposes before named, the principal of the same to go to and revert to and be paid over to my son Charles Phelps when he shall have attained to the age of thirty years; and also all of the residue of the net income or yearly profits, after the above provisions are satisfied, is to go to and be paid over to him in half-yearly payments, to be for his use and support, until he receives his portion at the age of thirty years.’ The testator wills and bequeaths to his son the reversion of the homestead on the death or marriage of the widow, and directs that the property set apart ‘for a revenue or income for the support of my said wife shall, after her death, descend in reversion to my heirs at law.’ The will provides for an appraisement of the real and personal property by the executors at the testator's death, as a basis for settling the bequests to the said societies. It gives the trustees and executors power to sell any of the real estate, except the homestead, and invest the proceeds, or ‘lease the same, as they may deem best for the interest of the family.’ It gives them power to invest the moneys of the estate, and the discretion to decide at what time ‘to set apart and make separate provision of property for the income to be paid to my said daughter and wife,’ and also the discretion, if they deem best, to keep the estate together until the son reaches the age of 30. Each provision of property is to be subject to its own portion of all lawful charges against it, such as for taxes, insurance, etc. The trustees are appointed ‘guardians of the persons and estate of my children, or any of them, during their minority.’ The testator then proceeds to say: ‘Should I at my decease have other children living than the two provided for, * * * my children in such case, instead of the provisions made for my daughter, Mary Louisa, and my son, Charles Phelps, shall all receive the residue of my estate, share and share alike.’ After appointing the trustees to be executors, he closes his will as follows: ‘In recapitulation, my intentions and purposes in this will are: First, to provide a home for my said wife, and after her decease or marriage the homestead to revert to my son, Charles Phelps; also to provide an income for the support and maintenance of my said wife during her life or widowhood, and after her decease the principal set apart for said provisions to descend in reversion to my heirs; second, to give one-tenth of the residue of my estate to the three charitable societies named, each to receive one-third of said one-tenth, third, to provide that one-half of the residue or remainder of my estate be set off for an income to my daughter, Mary Louisa, during her life, and the principal to revert to her children, should she have any; fourth, to provide that the residue of my estate go to my son, Charles Phelps, when he arrives at the age of thirty years, and the net residue of the income or profits until he attains that age.’

The first codicil provides that, of the one-tenth given to the charitable societies, only $500 shall be given to each of them, and all of the one-tenth over $1,500, if anything, shall be invested in bonds, and the interest paid yearly or half-yearly to the testator's six sisters in certain proportions during their lives, the portion of each upon her death to go to his son, Charles P.; ‘and, after the decease of all of the above-named sisters, the principal so provided shall descend and go to my said son, Charles Phelps, and to his heirs.’ It also provides that the executors may, at the written request of the widow, if they shall think it for the interest of the family, sell the homestead and invest the proceeds for the widow, so long as she remains unmarried, ‘and, after her marriage or decease, the principal so provided for said income shall go to and descend to my son, Charles Phelps Stillman.’ The second codicil merely provides for the mode of paying the widow dower in real estate unsold, and in its proceeds, if sold, in case of her remarriage, and for the payment of the income in the one-tenth that had belonged to one of the sisters, that had died, to two of the living sisters. The debts of the testator were all paid. The dower of the widow was apportioned to her in the personal property. On June 25, 1882, the son, Charles P. Stillman, attained the age of 30 years, and the trustees paid and turned over to him all his share of the real and personal property or the estate, under the will, and made a full settlement with him, and took his receipts therefor. One of the three trustees resigned in July, 1877, and another died in October, 1882. In a proceeding thereafter begun by the remaining trustee in the circuit court of Cook county against Mary L. Stillman, the daughter, and the appellant and her husband, and the trustee who had resigned, and the heirs of the deceased trustee, a decree was entered on February 28, 1887, finding that the real and personal property then remaining, and vested in said trustees or their heirs, was as follows: The premises Nos. 198, 200, and 202 North Clark street, in Chicago, subject to a yearly dower of $392 payable to appellant; the undivided half of the premises No. 166 South Clark street, in Chicago, subject to the dower therein of appellant; a lot on East Fifty-Seventh street, in New York city, which had been conveyed by one Hamilton on June 3, 1881, to Mary L. Stillman; money amounting to $1,693.75,-and that said property and money was then held by said trustees in trust for said daughter, Mary L. Stillman, during her life, and after her death upon further trusts. The said decree appointed John G. Kendig trustee in place of the former trustees, whose accounts were settled and approved, and directed that said money and property be paid and conveyed to said new trustee to hold for the benefit of Mary L. Stillman (subject to said dower rights) upon the same trusts and subject to the provisions of said will. The directions of the decree were subsequently carried out. It is admitted herein by both parties, both in the pleadings and upon argument, that the premises in New York city above mentioned were obtained by said trustees from Mary L. Stillman in her life-time in returp for moneys belonging to the estate, which were advanced to her at her request, ‘and that said premises are, in law, personal rather than real property, belonging to said estate.’

The only interest which is in controversy in this suit is that which was set apart the will for the use of Mary L. Stillman during her life. That interest consists of the money and the Chicago and New...