Kolb v. Landes

• Decision Date: 05 April 1917
• Docket Number: No. 11017.,11017.
• Citation: 277 Ill. 440,115 N.E. 539
• Parties: KOLB v. LANDES et al.
• Court: Illinois Supreme Court

277 Ill. 440

115 N.E. 539

KOLB

v.LANDES et al.

No. 11017.

Supreme Court of Illinois.

Feb. 21, 1917.

Rehearing Denied April 5, 1917.

Appeal from Circuit Court, Wabash County; J. C. Eagleton Judge.

Bill by Peter J. Kolb, administrator de bonis non with the will annexed of Silas Z. Landes, deceased, against Bertie A. Landes and others. Decree dismissing the bill, and complainant appeals. Decree affirmed.Fred B. Merrills, of Belleville, for appellant.

E. B. Green, of Mt. Carmel, and Thomas H. Creighton, of Fairfield, for appellees.

COOKE, J.

Silas Z. Landes died testate in Wabash county May 23, 1910. His son, Bernard S. Landes, was named as executor, accepted the trust, qualified and acted as such executor until July 4, 1914, when he resigned, and appellant, Peter J. Kolb, was appointed administrator de bonis non with the will annexed. On October 5, 1914, appellant filed his bill in the circuit court of Wabash county for a construction of the will and the appointment of a trustee. Upon a hearing the bill was dismissed for want of equity. This appeal followed.

The right of the administrator to file a bill to construe the will is questioned. An administrator with the will annexed, under which the executor is required to convert land into money and make distribution, is so connected with the trust that he may apply to a court of equity for a construction of the will and the appointment of a trustee to sell and to carry out the provisions of the will which do not strictly devolve upon him as such administrator. Wenner v. Thornton, 98 Ill. 156;Stoff v. McGinn, 178 Ill. 46, 52 N. E. 1048;Penn v. Fogler, 182 Ill. 76, 55 N. E. 192;Frackelton v. Masters, 249 Ill. 30, 94 N. E. 124. The residuary clause of the will was contained in the codicil, and was in part as follows:

‘I hereby direct that the remainder of my estate not otherwise provided for and that does not pass by this will shall be converted into money by my executor, and that such money, less the costs of administration, shall be equally divided between my said son, B. S. Landes, and my said daughter, Pauline S. L. Eichhorn, share and share alike.’

The bill alleges that the testator died seised of real estate not otherwise provided for in his will, and which falls into the residuary estate, and prays for the appointment of a trustee to carry out the provisions of the residuary clause. Appellant had the right to file his bill to have the will construed for the purpose of determining whether there was any real estate to be disposed of under the residuary clause, and, if so, for the appointment of a trustee to carry out that provision of the will.

The only trust imposed upon the executor by the will, and which is involved in this litigation, is that imposed in that part of the residuary clause above set out. It is the contention of appellant: (1) That paragraph 7 of the will leaves a reversion in the testator which is not disposed of by that paragraph, and which falls into the residuary estate; (2) that by paragraphs 7 to 10, inclusive, the fee of the real estate was not devised, but remains in the heir at law, and therefore falls into the residuary estate; (3) that paragraphs 7 to 11, inclusive, violate the rule against perpetuities, and are void, and that the real estate therein attempted to be devised falls into the residuary estate; and (4) that paragraphs 7 to 11, inclusive, of the will are void because they violate the act restraining trusts and directions for accumulations in deeds and wills. Laws of 1907, p. 1. Other questions are raised which will be noted, but which, in the view we have taken as to the contentions set out, it will not be necessary to determine.

The testator left surviving him his widow, to whom he had recently been married, his two children, Bernard S. Landes and Pauline S. L. Eichhorn, and a grandson, Silas B. Eichhorn. He left personal estate of the value of between $45,000 and $50,000 and real estate of the value of $81,000. The income from all the real estate and from the greater portion of the personal property was devised in trust, in various portions, to his son, daughter, and grandson, respectively, during the period of their natural lives, and in each instance for a period of 21 years thereafter to various other persons, with remainders in some instances to the children of Bernard S. Landes should he die leaving issue, and in other instances to the brothers and sisters of the testator then living or to the children of such brothers and sisters who might then be deceased. The will is a very lengthy and involved instrument, but paragraph 7 will serve to illustrate practically all the points raised. That paragraph is as follows:

‘To commence fifteen months after my death, during which fifteen months all rents arising from the real estate in this paragraph mentioned shall be taker by my executor as part of my estate, and said rents to arise thereafter shall be taken by the trustees hereinafter named in trust for my grandson, Silas B. Eichhorn, for and during his natural life, if he survive me, and after his death to his legitimate child or children, if any should survive him, for the additional period of twenty one years, all the coal, coal oil, gas and other valuable minerals that may be found in or under the land hereinafter in this paragraph described, and all the net rents, income and profits that said land can be made to produce by prudent cultivation, subject to such improvements as may be by the trustees hereinafter named from time to time deemed advisable, and the necessary repairs and taxes, to wit: The land referred to being my farm in section 31, T. 1, S., R. 12, west, and in fractional section 6, T. 2, S., R. 12, W., and in section 36, T. 1, S., R. 13, west, and in section 1, T. 2, S., R. 13, W., being all the land I own there in a contiguous body and altogether containing between 400 and 500 acres, in Wabash county, Illinois, extending from the Wabash river north, provided his mother, if living, shall receive for him through said trustees all such net income until he arrives at the age of sixteen years, and shall apply as much thereof as shall seem to her proper for his support in manner becoming his condition, and after he arrives at the age of sixteen the possession of said income shall be retained by said trustees, who shall after paying taxes, repairs and for improvements, use said income to the extent that may be necessary for his (S. B. Eichhorn's) support in sickness and in health, and for his education in a Catholic institution for the education of young men, (where the danger from fire to the students is least,) Notre Dame University, Indiana, preferred, if all the conditions seem suitable to the trustees and my grandson. If he does not attend a Catholic school no part of any income provided for him in this will shall be used for his education, because of the danger of being taught in many of the other denominational and state institutions of higher learning, doctrines which tend to destroy the Christian religion and are therefore against the best interest of the boy and our country. In addition to his necessary expenses a reasonable additional sum should be furnished him (if used prudently by him) for extras. If he should die without legitimate child or children surviving, then the net income from said real estate shall for twenty-one years after his death be equally divided between my son, B. S. Landes, and his sister, and all to the survivor of them, to the end of said twenty-one years after his death, at the end of which time the remainder in fee of said farm lands shall vest in my brothers and sisters then living and in the children of those of my brothers and sisters then deceased, the children taking the share of their parents, respectively, would have taken if living, share and share alike.’

It is first contended that the gift over to the brothers and sisters in paragraph 7 is a substitutionary devise, to take effect only in the event of the death of Silas during the lifetime of the testator without legitimate child or children surviving him; that, the condition upon which the devise to the brothers and sisters should take effect having failed, and there being no devise in fee over to the child or children of Silas should he die leaving a child or children surviving him, the remainder in the real estate described in paragraph 7, after the termination of the life estate given to Silas and 21 years thereafter, falls into the residuary estate, and is to be disposed of under the provisions of the residuary clause. In support of this contention it is urged that the provision, ‘if he [Silas] should die without legitimate child or children surviving,’ then the ultimate remainder in fee to the brothers and sisters of the testator, refers to the death of Silas before fore the death of the testator, and in this connection the case of Kohtz v. Eldred, 208 Ill. 60, 69 N. E. 900, is cited. The rule of construction applied in the Kohtz Case that, ‘where there is a devise or bequest simpliciter to...