McCartney v. Jacobs

• Decision Date: 18 June 1919
• Docket Number: No. 12301.,12301.
• Citation: 123 N.E. 557,288 Ill. 568
• Parties: McCARTNEY et al. v. JACOBS et al.
• Court: Illinois Supreme Court

288 Ill. 568

123 N.E. 557

McCARTNEY et al.

v.JACOBS et al.

No. 12301.

Supreme Court of Illinois.

June 18, 1919.

Appeal from Circuit Court, Marshall County; Clyde E. Stone, Judge.

Suit by Andrew J. McCartney and others against Henry E. Jacobs, executor, and others. From decree granting only part of relief asked, complainants appeal, defendants assigning cross-errors. Affirmed.

Elmer J. Slough, of Peoria, for appellants.

Clarence W. Heyl, of Peoria, for appellees.

FARMER, J.

Appellants, heirs at law of Isabelle McCartney, filed their bill in the circuit court of Marshall county to construe her will.

Isabelle McCartney, who was never married, died testate February 8, 1917. She was 68 years old at the time of her death, and left surviving as her only heirs five brothers, one of whom, George W. McCartney, was insane and had been for several years. He had been in the hospital for insane at Bartonville some time, but his sister, the testatrix, caused him to be removed from that place to the Lake Geneva Sanitarium, in Wisconsin. In addition to the property individually owned by the testatrix, she and her insane brother each owned the undivided one-half of 240 acres of farm land as tenants in common. At the time of her death she was conservator for her insane brother. The will is paragraphed into nine items. Item 1 simply directs the payment of the testatrix's debts and funeral expenses. The clauses of the will sought to be construed are items 2, 3, and 4. Item 2 directs the payment by the executor of $200 to the United Presbyterian Cemetery Association, or the proper authority having charge and management of the United Presbyterian Cemetery in the town of La Prairie, Marshall county, Ill., to be held in trust and placed at interest perpetually, the interest only to be used each year for taking care of the John D. McCartney burial lot in said cemetery. Said item 2 further directs the executor to procure markers for the burial lots of testatrix and her brother George at a cost of not less than $75 for each marker. Item 3 directed that ‘the real estate held in common by myself and my said brother, George W. McCartney’ (describing the 240 acres), be rented from year to year and the rents received therefrom applied to the expense of keeping George in the Lake Geneva Sanitarium the remainder of his life. Said item further directed that testatrix's said brother should be kept at said sanitarium and should not be sent to or placed in any other institution; that after paying out of the rents of the 240 acres the maintenance of George, if there was any remainder it should be applied to the payment of taxes and the general upkeep and improvement of the land. In case the rents were insufficient to pay the expense of keeping and maintaining the insane brother, then the will directed that additional funds necessary be procured by loan ‘upon any of the real estate aforesaid,’ and if any conservator was appointed to succeed testatrix, she expressed the wish that said conservator be authorized by the court to procure a loan on the interest of George to make up any deficiency. If that could not be done, then the will directed that the trustee thereafter named should borrow what was necessary on the interest of the testatrix in the 240 acres of land, and Henry E. Jacobs was in the same clause named as trustee for the purpose of looking after and caring for George, and to ‘conserve the rentals aforesaid so far as my interest or control therein may appertain, and to apply the rents for the maintenance of my brother George W. McCartney, pay the taxes and improvements, if need be, secure the amount for any deficiency of fund necessary to meet those items by loan against my interest in the real estate in this item of this my will above described.’ Item 4 directed the executor to sell, within one year after testatrix's death, a 40-acre tract of land described, which was her sole property. Preference was given testatrix's brother Andrew to buy said land within six months, if he desired, for the price of $200 per acre. In case he should not buy it within that period the executor was directed to sell it at private sale for the best price obtainable. The money derived from the sale, after the debts and funeral expenses and bequests were paid, was directed to be distributed equally among the heirs of testatrix. The executor was given full power and authority to execute necessary deed to convey to the purchaser title in fee simple. Andrew J. McCartney did not exercise his option to buy the land, and the executor sold it for $210 per acre.

The bill charges that the $200 bequest in item 2 to the cemetery association, which was unincorporated, in trust, the interest to be used in taking care of the burial lot of John D. McCartney, who was the father of testatrix, was in violation of the rule against perpetuities; that the provision in said item for markers for the graves of testatrix and her brother George, at a cost of not less than $75 each, is uncertain and indefinite, and leaves it to the discretion or whim of the executor to unnecessarily spend and dissipate the money of the estate; also it is alleged said...