Mason v. Bloomington Library Ass'n

• Decision Date: 04 February 1909
• Citation: Mason v. Bloomington Library Ass'n, 237 Ill. 442, 86 N.E. 1044 (Ill. 1909)
• Parties: MASON v. BLOOMINGTON LIBRARY ASS'N et al.
• Court: Illinois Supreme Court

237 Ill. 442

86 N.E. 1044

MASON

v.BLOOMINGTON LIBRARY ASS'N et al.

Supreme Court of Illinois.

Dec. 15, 1908.

Rehearing Denied Feb. 4, 1909.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Bill in chancery by Nelson P. Perry, and another, executors of Emily T. Perry, deceased, for the construction of her will.Pending suit, Nelson P. Perry died, and by leave of court the surviving executor filed an amended bill joining Samuel B. Mason, executor of Nelson P. Perry, deceased, and others, parties.From a decree of the Appellate Court reversing a decree of the circuit court and remanding the cause with directions, Samuel B. Mason, executor of Nelson P. Perry, deceased, appeals.Reversed and remanded.Barry & Morrisey, for appellant.

Louis Fitz Henry, for appellees.

This was a bill in chancery filed by Nelson P. Perry and Thomas C. Kerrick, executors of the last will and testament of Emily T. Perry, deceased, in the circuit court of McLean county, to obtain a construction of the will of Emily T. Perry.Pending the litigation the files were destroyed by fire, and Nelson P. Perry died.By leave of court the surviving executor restored the files and amended his bill, making new parties.Samuel B. Mason, executor of the last will and testament of Nelson P. Perry, deceased, the Bloomington Library Association, and the city of Bloomington filed answers; each claiming the fund in controversy.A trial was had before the chancellor, and a decree entered, from which the executor of the last will and testament of Nelson P. Perry, deceased, prosecuted an appeal to the Appellate Court for the Third District, where the decree of the circuit court was reversed, and the cause was remanded, with directions, and the executor of the last will and testament of Nelson P. Perry, deceased, has prosecuted a further appeal to this court.

The provisions of the will necessary to be considered in disposing of the questions involved read as follows:

‘(1) I direct, first, that all my lawful debts and funeral expenses shall be paid, and that the sum of $500 shall be placed in the hands of a proper person as trustee(John H. Russell, of Middletown, Connecticut, being hereby empowered to name and appoint such trustee), from which said sum of $500 there shall be expended so much as such trustee shall consider necessary and proper for a monument at my burial place, and the residue of such sum of $500 shall by such trustee be put and kept at interest, and such interest shall be annually expended in the care of the family burial lot where I shall be buried.’

‘(7) I give, devise and bequeath in trust to Jonathan H. Cheney, of Bloomington, as trustee, $6000 upon the following trusts, viz.: The said trustee shall keep and put said sum at interest upon good security during the lifetime of my husband, Nelson P. Perry, and shall collect the interest therefrom, and pay the same as collected to my said husband during the lifetime of my said husband, for his support; and no part of said fund, either principal or interest, shall ever be subject to or liable for the claim or claims of any creditor or creditors of my said husband in the hands of said trustee or otherwise, and said trustee shall never, in anywise, be answerable to any creditor of my said husband for or on account of any of said fund, either principal or interest.’

‘(9) The residue of my estate, including therein the $6000 hereinbefore devised in trust to Jonathan H. Cheney, after said trust shall have terminated by the death of my said husband, I give, devise and bequeath to said Jonathan H. Cheney and Chalmers C. Marquis, trustees, in trust for the following uses and purposes, viz.: To establish, in connection with the Bloomington Library Association, an art studio or art gallery and studio, meaning thereby a suitable place wherein works of art will be collected, kept, preserved or exhibited for the advancement of education in art, the conduct, management and supervision of which art gallery and studio shall be in charge of the officers of the Bloomington Library Association.The said art gallery or studio shall be named the ‘Russell Art Annex,’ or some suitable name or appellation of which the name Russell shall be a part, in commemoration of my mother, Rachel P. Russell.The said trustees may, in their discretion, turn over to said library association the whole or a part of the principal sum of said fund for the use aforesaid, or may put and keep the whole, or a part thereof, at interest upon good security, collect the interest thereof and pay the same as collected to said Bloomington Library Association for the use as aforesaid.'

The decree found: That there was in the hands of the surviving executor the sum of $4,972.56; that out of said fund there should be set saide $406 in accordance with the first paragraph of said will, the sum of $94 having been expended by the executors for a monument for the testatrix, and, after deducting said $406 and paying the costs of suit, the balance of said fund should be turned over to trustees for the benefit of the Bloomington Library Association, for the purpose of carrying out the provisions of the ninth paragraph of the will.The decree then appointed Samuel B. Masontrustee to receive the $406 under the first paragraph of the will, and J. H. Burnham and H. H. Greentrustees to receive the balance of the fund under the provisions of the ninth paragraph of the will.The Appellate Court agreed with the construction placed upon paragraph 1 of the will by the circuit court, but held that under the ninth paragraph of the will the doctrine of cy pres should be applied, and that the fund disposed of by that paragraph of the will should be held by trustees for the purpose of establishing, in connection with the Withers Public Library, an art studio or art gallery and studio, wherein works of art might be collected, kept, and preserved or exhibited, for the advancement of education in art.

HAND, J.(after stating the facts as above).

It is first contended that the first paragraph of the will creates a perpetuity and is void, and that the court erred in appointing a trustee and in directing that the amount remaining of the $500 mentioned in that paragraph, after the purchase of a monument, should be turned over to a trustee to be kept at interest; the interest to be expended in the care of the family burial lot where the testatrix should be buried.The law is well settled in this country that a perpetual trust cannot be created to take care of a private burial lot, unless the creation of such trust is authorized by statute.6 Cyc. 918;5 Am. & Eng. Ency. of Law (2d Ed.) 933;Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305;Coit v. Comstock, 51 Conn. 352, 50 Am. Rep. 29;Johnson v. Holifield, 79 Ala. 423, 58 Am. Rep. 596;Hopkins v. Grimshaw, 165 U. S. 342, 17 Sup. Ct. 401, 41 L. Ed. 739.In this state the Legislature has provided (Hurd'sRev. St. 1905, c. 21, §§ 22-28) that trusts may be created for such purpose in the hands of the poards of directors provided for by ‘An act to provide for the proper care and management of county cemetery grounds'; but there is no statute in this state which provides for the creation of such a fund in the hands of a private trustee.A trust created under a statute authorizing a trust to be created in perpetuity for the purpose of caring for and keeping in repair a cemetery, burial lot, or monument is characterized by the court in Morse v. Inhabitants of Natick, 176 Mass. 510, 57 N. E. 996, as a ‘statutory trust,’ in contradistinction to a charitable trust.The cases of Green v. Hogan, 153 Mass. 462, 27 N. E. 413, andJones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401, are not therefore in point.In Bates v. Bates, supra, the court said an examination of the authorities (and many cases are cited)‘will show that it has been repeatedly held that a bequest to provide a fund for the permanent care of a private tomb or burial place could not be treated as a public charity, and thus made perpetual, and that such bequest would be void.’It was also pointed out in that case that there was in force in that state a statute similar to the statute in this state hereinbefore...