Quinlan v. Wickman

• Decision Date: 20 February 1908
• Citation: 233 Ill. 39,84 N.E. 38
• Parties: QUINLAN et al. v. WICKMAN et al.
• Court: Illinois Supreme Court

233 Ill. 39

84 N.E. 38

QUINLAN et al.

v.WICKMAN et al.

Supreme Court of Illinois.

Feb. 20, 1908.

Error to Circuit Court, Cook County; Lockwood Honore, Judge.

Bill for partition by James H. Quinlan and another against Elizabeth Wickman and others. From a decree dismissing the bill for want of equity, plaintiffs bring error. Affirmed.F. C. Struckmeyer, for plaintiffs in error.

Vail & Pain, for defendants in error.

James H. Quinlan and Mary Quinlan, his wife, filed their bill in the circuit court of Cook county against Elizabeth Wickman, Raymond Wickman, Charles Quinlan, Henrietta Quinlan, and Michael Burke, and against Nellie M. Burke individually and as executrix and trustee under the last will and testament of Ellen Quinlan, deceased, in which they alleged that on November 19, 1899, Ellen Quinlan died, leaving James H. Quinlan, Charles Quinlan, Nellie M. Burke, and Elizabeth Wickman, her four children and only heirs at law. At the time of her death she was seised of certain real estate in Chicago, and left a will, the material parts of which are as follows:

‘I give, devise and bequeath to my daughter Nellie M. Burke all my estate, real, personal and mixed, for the uses and trusts and for the purposes hereinafter set forth, to wir:

‘(A) In trust to take possession of, manage and control the same, invest and reinvest any surplus trust money in her hands in good real estate securities; to collect the rents from my real estate and pay out such sums as may be needed for taxes, insurance of repairs, and at her discretion to sell any portion of my estate and execute and deliver to the purchaser a good and sufficient deed therefor, but the purchaser thereof shall not be required to see to the application of the purchase money. In case the improvements on my real estate are destroyed, wholly or in part, by fire or otherwise, I hereby authorize my said trustee to restore the same, and, if needed, to borrow money for that purpose and secure payment of the same by the real estate affected.

‘(B) In trust when my real estate, or any part thereof, is sold by my said trustee pursuant to the powers hereby vested in her, to pay my son Charles Quinlan, out of the proceeds of said sale, the sum of four thousand dollars ($4000).

‘(C) In trust out of any trust money in her hands to pay to my daughter Elizabeth Wickman any sum that the said Elizabeth Wickman may desire and my said trustee deem proper. It is my primary purpose by this will to provide for the welfare and happiness of my said daughter Elizabeth Wickman and her children, and I desire my said trustee to provide for her and them in a liberal manner, and make sale of my real estate and convert into money my personal estate whenever it is needful for that object. In case of the death of my said daughter Elizabeth Wickman in my lifetime or afterwards, then I desire my said trustee out of my estate to provide for the welfare and happiness of any child or children of the said Elizabeth Wickman that may survive her, in a liberal manner, and if there be but one of such children, to pay such child, on arriving at the age of thirty years, all trust moneys then in the hands of my said trustee, to be the absolute property of such child. If there be more than one of such children, my said trustee may expend such sums for their welfare as she may deem expedient until the youngest child shall arrive at the age of thirty years, which time all trust moneys then in the hands of my said trustee shall be divided among all of such children, share and share alike.

‘(D) In trust my said daughter Elizabeth Wickman should die without leaving any children, or in case the surviving child of my said daughter Elizabeth Wickman, or all of such children, if more than one, die before arriving at the age of thirty years, then I give, devise and bequeath all my trust estate to my said daughter Nellie M. Burke, or to her heirs in case of her death, as her or their absolute property and estate, discharged of all manner of trusts whatsoever.’

The bill further alleged that Elizabeth Wickman, at the time of the death of her mother, was a married woman between 30 and 35 years of age; that she is now an unmarried woman, and has one child, Raymond Wickman, a minor under the age of 21 years; that the will of Ellen Quinlan, in so far as it seeks to convey to Nellie M. Burke the property in trust, is void in law, and that the will, in the attempt to dispose of the property in trust, is violative of the law against perpetuities, and ineffectual as a devise or bequest of said property to Nellie M. Burke in trust; that upon the death of Ellen Quinlan her four children became seised in fee, as tenants in common, of the real estate in question, each being entitled to an undivided one-fourth thereof. The prayer of the bill is for a partition of the premises and for an accounting of the rents and profits and for the appointment of a receiver. An answer was filed, admitting the allegations of the bill, but claiming that the will was a valid testamentary disposition of the testatrix's property. Upon a hearing the court held that the will did not violate the rule against perpetuities or create an illegal trust, and dismissed the bill for want of equity. To reverse the decree, a writ of error has been sued out of this court.

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

The rule against perpetuities is thus stated: ‘No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within 21 years after some life in being at the creation of the interest.’ ‘No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.’ Gray on Perpetuities, § 201; Owsley v. Harrison, 190 Ill. 235, 60 N. E. 89;Lawrence v. Smith, 163 Ill. 149, 45 N E. 259;Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083. If provisions of a testamentary character are such that under them a violation of the rule against perpetuities may possibly happen, then the devise of interest dependent upon such provisions is void. Eldred v. Meek, 183 Ill. 26, 55 N. E. 536,75 Am. St. Rep. 86, and cases cited, supra.

The will in this case directs the payment by the trustee of all trust moneys in her hands to the child of Elizabeth Wickman that may survive her, on such child arriving at the age of 30 years. If there is more than one such surviving child, then the trustee is to divide the money equally among them on the youngest arriving at that age. Under...