Martin v. Mccune

• Decision Date: 03 December 1925
• Docket Number: No. 16823.,16823.
• Citation: 149 N.E. 489,318 Ill. 585
• Parties: MARTIN et al. v. McCUNE et al.
• Court: Illinois Supreme Court

318 Ill. 585

149 N.E. 489

MARTIN et al.

v.McCUNE et al.

No. 16823.

Supreme Court of Illinois.

Oct. 28, 1925.

Rehearing Denied with Modification Dec. 3, 1925.

Proceeding between Robert W. Martin and others and James B. McCune and others relative to the distribution of the estate of George W. McCune, deceased, wherein William S. Welch, as trustee in bankruptcy of Lester A. McCune, beneficiary under the will in question, filed an intervening petition, praying that the trust estate be sold and bankrupt's share be turned over to him as trustee in bankruptcy. From an order granting intervener's petition, Robert W. Martin and others appeal.

Order modified and affirmed.Appeal from Circuit Court, Will County; Frederick A. Hill, judge.

Snapp, Heise & Snapp, and J. Walter Martin, all of Joliet, for appellants.

Lagger & Blatt, of Joliet, for appellee.

THOMPSON, J.

George W. McCune died testate November 11, 1915, leaving surviving eight children and that child of a deceased daughter as his heirs. By his will he named Robert W. Martin trustee, with power to manage his property, collect the income, and distribute it among the testator's heirs, and in his discretion to sell the property and divide the proceeds. The will was duly admitted to probate, and Martin filed his bill in the circuit court of Will county, setting forth the will in full, stating the names of the heirs, and requesting the court to appoint him trustee. The decree he requested was entered and the trustee filed an inventory of the estate. The trustee has continued to administer the trust estate under the will until the present time and has made distribution of the net income from time to time. January 30, 1922, Lester A. McCune, one of the legatees under the will, was adjudged a bankrupt, and William S. Welch, appellee, was appointed trustee of his estate. July 26, 1922, appellee filed an intervening petition in the chancery proceeding, asking the court to enter its order declaring that an undivided one-ninth interest of the trust estate held by Martin is vested in Lester A. McCune, and that he, as trustee in bankruptcy, has succeeded to all the right, title, and interest of McCune in the trust estate, and that the trustee be directed to sell and dispose of the trust estate and pay over to him, as trustee in bankruptcy, one-ninth of the net proceeds. Trustee Martin and all of the legatees under the will of George W. McCune answered the petition of appellee, denying that the interest of Lester A. McCune in his father's estate became vested in him at the time of the death of his father, and denying that such interest is now vested in the trustee in bankruptcy. February 19, 1925, an order was entered granting the prayer of the petition. This appeal followed.

The first question presented for consideration is whether the interest of Lester A. McCune vested in him at the time of testator's death. This question involves a construction of the sixth clause of the will, the pertinent provisions of which read as follows:

‘Sixth-I give, devise, and bequeath all of my real estate * * * to Robert W. Martin, * * * to be held in trust by him until my daughter, Marguerite McCune becomes eighteen years of age, or until her death, in case she should die prior to becoming eighteen years of age (which said time I hereby designate as the time for distribution of the proceeds arising from the sale of said lands devised in trust to said Robert W. Martin), and said real estate shall be held in trust by him after such time until he has disposed of it as hereinafter directed in this, my will, all of which real estate shall be held by him for the following uses and purposes, to wit: (a) He shall, during the time of the trust herein created, take possession of all of my real estate, manage and rent the same; shall collect all rents, issues and profits therefrom; shall make all necessary repairs and pay all taxes, assessments or legal impositions levied or assessed thereon. * * * (b) The remainder of the net income, if any, derived from my said real estate shall be divided annually, the first division to be made one year after my death, by said trustee into nine equal shares, and I give and bequeath one of said shares to each of my following named children, to wit: * * * Lester A. McCune. * * * (c) Upon Marguerite McCune becoming eighteen years of age, or upon her death, in case she should die prior to becoming eighteen years of age, I hereby order and direct my said trustee to sell as soon thereafter as practicable all of the real estate devised to him, either at publicor private sale, upon such terms as he shall think best, * * * and I order and direct said trustee to divide the proceeds from the sale of my said real estate into nine equal shares, and I give and bequeath one of said shares to each of my following named children, to wit: * * * Lester A. McCune. * * * (d) In the event of any of my said children * * * dying prior to the time fixed herein for the distribution of the net income or the proceeds arising from the sale of my said real estate devised in trust as aforesaid, leaving issue him or her surviving, then in such case the issue of the one or ones dying shall take and receive the share or portion of the proceeds under this, the sixth clause of my will, which the parent would have been entitled to if living. But in the event of any of my said children * * * dying prior to the time fixed herein for distribution of the net income or the proceeds arising from the sale of my said real estate devised in trust as aforesaid, without leaving him or her issue surviving, then in such case the share or portion of the proceeds which such deceased child * * * would have been entitled to if living, under this, the sixth clause of this, my will, shall be divided share and share alike among the remainder of my said children, * * * Lester A. McCune, * * * who are living at the time herein fixed for distribution of the proceeds arising from the sale of said real estate devised in trust to said Robert W. Martin.’

[7] The daughter, Marguerite McCune, became 18 years of age July 3, 1914, 16 months before the death of the testator. Therefore, under the terms of the will, the time for the distribution of the proceeds arising from the sale of the lands devised in trust to Martin had arrived, and it was the duty of the trustee to proceed within a reasonable time to exercise the power vested in him. Vierieg v. Krehmke, 293 Ill. 265, 127 N....