Mullanny v. Nangle

• Decision Date: 24 October 1904
• Citation: 72 N.E. 385,212 Ill. 247
• Parties: MULLANNY v. NANGLE et al.
• Court: Illinois Supreme Court

212 Ill. 247

72 N.E. 385

MULLANNY

v.NANGLE et al. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Bill by Maria Mullanny against John Nangle and others. A judgment in favor of complainant was reversed in part by the Appellate Court, and complainant appeals. Affirmed.

Wilkin and Cartwright, JJ., dissenting.P. H. O'Donnell and William Dillon, for appellant.

James Smith, for appellees.

This was a bill in chancery filed by the appellant in the superior court of Cook county to obtain a construction of the will of Dominick Mullanny, deceased, and the three codicils attached thereto, and for the appointment of a trustee. The will bore date March 6, 1896. The testator died September 20, 1901, and the will and codicils were admitted to probate by the probate court of Cook county October 30, 1901. After the payment of debts and funeral expenses and specific bequests to the amount of $1,000, by the tenth paragraph of the will the testator nominated Thomas Brenan and James Healy as executors, and by the sixth paragraph he gave, devised, and bequeathed to his said executors, or the survivor of them, all the rest and residue of his estate, which consisted of personal and real estate, in trust, and provided that his said trustees should manage and control the same, but should not have the power to sell or incumber his real estate, except No. 1466 Indiana avenue, which they were given power to sell and convey. The will also provided the appellant, who was the widow of his deceased son, John J. Mullanny, should have the right to occupy a flat in one of his buildings free of rent, and be paid by his said trustees, out of his estate, $40 per month, which amount by one of the codicils was increased to $60 per month, during her life; also, after the payment of all charges and expenses connected with the management and control of the estate, including taxes, insurance, repairs, expenses of the trust, and trustees' fees, that the net income arising from said estate, or so much thereof as said trustees should deem proper, should be expended for the care, education, support, and maintenance of Margaret Mary Mullanny and Dominick Daniel Mullanny, who were the children of the appellant by the testator's deceased son, John J. Mullanny, and sole heirs at law of the testator, until the younger of said children should arrive at the age of 23 years, when, if living, the entire estate should vest in said grandchildren; that said Dominick Mullanny, on the 9th day of September, 1898, published the second codicil to his said will, which, in part, is as follows: ‘I hereby nominate and appoint my nephew, John Nangle, with Thomas Brenan, nominated and appointed in my said will, as and to be the executors of my said last will and testament and all codicils thereto, the appointment of James Healy, mentioned in my said last will and testament as executor thereof, being hereby revoked and set aside;’ that the said Thomas Brenan declined to qualify or act as executor, and also disclaimed said trusteeship and refused to act as trustee; that said James Healy also disclaimed said trusteeshipand refused to act as trustee; that John Nangle duly qualified as executor, and letters testamentary were issued to him; that, subsequently, said probate court appointed Edward F. Dunne administrator with the will annexed, under the provisions of section 38 of chapter 3 of Hurd's Revised Statutes of 1903, to act with said John Nangle.

The bill was amended and an answer was filed, and it was sought to have determined (1) whether James Healy was removed as trustee as well as executor by said codicil; (2) whether John Nangle was appointed trustee as well as executor by said codicil; (3) and in case it was determined that said James Healy was not removed as trustee by said codicil, to have Edward F. Dunne appointed as trustee in the place of Thomas Brenan to act with James Healy; or (4) in case it was determined that James Healy was removed as trustee, and John Nangle substituted in his place as trustee, to have Edward F. Dunne appointed as trustee in place of Thomas Brenan to act with John Nangle.

The case was heard upon the amended bill and answer, and the court decreed (1) that John Nangle, by said codicil, was substituted in the place of James Healy, both as executor and trustee, and that the estate vested in trust in John Nangle; (2) that it was the intention of the testator that there should be at all times two acting trustees of the estate, and Edward F. Dunne was appointed trustee in the place of Thomas Brenan to act with John Nangle; that thereafter Edward F. Dunne declined to act as trustee, and the court substituted in his place as trustee the appellant. To reverse this decree John Nangle sued out a writ of error from the appellate court for the First District, where errors and cross-errors were assigned by the respective parties. The appellate court affirmed the decree of the superior court in so far as it decreed that John Nangle was appointed executor and trustee in place of James Healy, and reversed the decree in so far as it decreed that it was the intention of the testator that there should be at all times two acting trustees, and held that John Nangle was yhe sole trustee of said estate, and that as there was no vacancy in the trusteeship, the superior court was powerless to appoint appellant a trustee to act with said John Nangle, and all costs were adjudged against the appellant, Maria Mullanny, and she has prosecuted an appeal to this court to review the judgment of the appellate court.

HAND, J. (after stating the facts).

The first question which presents itself for our consideration in this case is what effect, if any, did the revocation of the appointment of James Healy, and the appointment of John Nangle as executor in his stead, have upon the powers of James Healy as trustee? The will named James Healy as an...