Randolph v. Wilkinson

• Decision Date: 23 October 1920
• Docket Number: No. 13129.,13129.
• Citation: 294 Ill. 508,128 N.E. 525
• Parties: RANDOLPH et al. v. WILKINSON et al.
• Court: Illinois Supreme Court

294 Ill. 508

128 N.E. 525

RANDOLPH et al.

v.WILKINSON et al.

No. 13129.

Supreme Court of Illinois.

Oct. 23, 1920.

Action by Moses W. Randolph and others against Emma Grace Wilkinson and others. From the judgment rendered, certain of the defendants appeal.

Reversed and remanded, with directions.

Cartwright, C.J., dissenting.Appeal from Circuit Court, De Witt County; George A. Sentel, judge.

John F. Pearl and Rayburn H. Wilson, both of Clinton, guardians ad litem, for appellants.

Herrick & Herrick, of Farmer City, for appellees.

DUNCAN, J.

Jehu H. Randolph, a resident of De Witt county, died testate September 19, 1900, seized in fee simple of about 1,195 acres of farm land situated in said county. He left surviving him his widow, Margaret J. Randolph, and four children. Mary Alice Sumners, Emma Grace Wilkinson, Charles C. Randolph, and Moses W. Randolph, also Edna Robbins (now intermarried with Robert W. Herrick), his granddaughter, as his only heirs at law, all of whom are married. Edna Robbins Herrick has three living children, all minors. Moses W. Randolph has one living child, Mildred R. Dennis, who has two minor children living. Mary Alice Sumners, has two living children-Ivern Sumners Parker, who has one living minor child, and Roscoe R. Sumners, who has living four minor children. Emma Grace Wilkinson has one living child, Claude Dean McDonald, who has no living issue. Charles C. Randolph has one living child, who has no living issue. The widow of the testator, Margaret J. Randolph, died May 27, 1905. The annuity of $1 per acre created by the testator's will in her favor was fully paid to her before her death by the heirs of the testator. The will of the testator, dated July 29, 1899, was duly probated November 10, 1900, by the probate court of said county, and the material clauses thereof, following the provision for the payment of all debts and funeral expenses, are in these words and figures, to wit:

‘Second-I give, devise and bequeath to my beloved wife, Margaret J. Randolph, in lieu of dower and all other statutory right in my estate, all my personal property of every kind and nature whatsoever, notes, accounts, choses in action, money and all my stock farming utensils, etc., etc., the same to be her sole and separate property, but out of the same she is to, and must, pay all my debts and expenses named and included in item first. I also give, devise unto my beloved wife, Margaret J. Randolph, the use and occupation of lots 1 and 4, in block 5, in the original town or village of Kenney, during her natural life. I also give, devise and bequeath to my beloved wife the further sum of one dollar per acre per year for each and every acre of land named and devised in this will, which sum is made a lien on each tract of land herein devised or of which I may die seized, and my heirs and devisees hereafter are each instructed to pay to her, on request, such sum of one dollar per acre per year or such part of the same as she may demand. The several sums so devised to my said wife are to be in lieu of dower and all other statutory rights.

‘Third-All my real estate of which I may die seized, including the lots aforesaid, subject to the life estate of my said wife as aforesaid, I give, devise and bequeath to my children and grandchildren, Mary Alice Randolph, intermarried with A. R. Sumners; Charles C. Randolph; Emma Grace Randolph, intermarried with J. F. Wilkinson; Moses W. Randolph, and my granddaughter Edna Robbins, sole surviving child of my deceased daughter, Lura J. Randolph, intermarried with F. S. Robbins, the same to be had and held by them subject to the said payment of one dollar per year to my wife during her natural life and in trust for my said heirs and the survivors of them during their natural lives and for twenty years after the death of my last child or grandchild now living, without power to sell, convey or in any way incumber the same or any part hereof, and they are strictly enjoined to keep said realty, and every part thereof, in a good state of repair and cultivation and enjoy the same in severally or jointly, as they may see fit, during the time and on the terms aforesaid. And the end of the twenty years, after the death of my last surviving child or grandchild now living. And at the termination of said twenty years I give, devise all said real estate of which I may die seized to the descendants of my children and grandchildren above named, each to have the share falling by law to its ancestor properly divided amongst his or her children or their descendants, per stirpes and not per capita, but no child, grandchild or their descendants is to have the right or power to sell, mortgage or in any manner incumber the said realty, or any part thereof, at any time before the expiration of said twenty years, after which the same can be divided and sold as the owners thereof may see fit.

‘Fourth-I do hereby nominate, constitute and appoint my sons, C. C. Randolph and Moses W. Randolph, and my son-in-law Alfred R. Sumners, to be the executors of this my last will and testament, hoping and urging them, and each of them, to see that all its provisions are fully and fairly executed and carried out.’

November 26, 1918, all the heirs at law of the testator, with their respective consorts, joined in a deed to Ralph Parker, thereby conveying their undivided one-fifth interest in and to all said real estate. The grantors also, on November 29, 1918, joined in another deed to Parker conveying an undivided one-fifth interest to said real estate; the deed reciting that it is the intention of the grantors therein to convey the fee-simple title to all the interest or estate of the grantors in the reversion in fee in and to said real estate to the grantee, his heirs and assigns, and that it is their intention that the particular estate in said real estate theretofore conveyed to the grantee and the reversion in fee should merge, and that by virtue thereof any and all contingent interests, of any kind or character, in and to said real estate in any of the many descendants of the grantor or their children, or in any person, should be cut off and destroyed. On April 8, 1919, Parker, being then a bachelor, executed a deed to Moses W. Randolph, thereby conveying the undivided one-fifth interest in said land vested in him. Thereafter, April 9, 1919, Moses W. Randolph and Minerva D. Randolph, his wife, filed their bill in the circuit court of said county for partition of all said real estate and for the construction of the will of the testator, based on the foregoing facts. They made the other heirs of the testator and their consorts and their children and grandchildren parties defendant. A guardian ad litem was appointed for all the minor defendants, who filed answers to the bill. Adult defendants, except those defaulted, filed answers, and replications were filed to all said answers.

On the hearing the court found from the foregoing facts that by virtue of the conveyances and the will Moses W. Randolph was seized in fee simple of an undivided one-fifth interest in said premises, and that the contingent remainders as to the undivided one-fifth interest were destroyed by merger, as the fee and the particular estate supporting the contingent remainders were united in the same person. The court further found that Charles C. Randolph, Emma Grace Wilkinson, Mary Alice Sumners, and Edna R. Herrick are each seized of an undivided one-fifth interest in said premises, ‘subject to the contingencies of the contingent remainders being cut off in the event of conveyances being made by them, respectively, for that purpose, but that until such conveyance is made by them’ they are merely seized of a life estate in said premises; that there was an attempt to create a trust in the will, but that it failed because indefinite, vague, and uncertain, and for want of sufficient words to ascertain the object in creating the trust; that the provisions of the will do not violate the rule against perpetuities, and that ‘the rule in Shelley's Case operated under the will, * * * in that he created a particular interest with the remainder to the heirs of the tenants of the particular estate.’ Partition was decreed and ordered to be made in accordance with said finding, and commissioners were appointed, with directions to make such partition. The guardian ad litem for the minors, Margaret Elizabeth Dennis, Helen Ruth Dennis, James Robbins Herrick, Martin Randolph Herrick, Josephine Herrick, Mason Sumners Parker, William Kenneth Sumners, Margaret Alice Sumners, and Theresa May Sumners, prosecutes this appeal.

The first vital question presented for our decision in this case is whether or not the testator by his last will and testament disposed of his real estate by testamentary trust. A consideration of the entire will and all of its provisions leads us to the conclusion that there was no such testamentary trust created. There is no trust created in favor of the widow and the will does not purport to do so. She was required to pay all of his just debts, including funeral expenses and expenses of his last illness, out of the personal property bequeathed to her. The legacy of $1 per acre in her favor is made a lien on each tract of land devised, and the testator's heirs and devisees are instructed to pay this sum to her on request, or such part of the same as she may demand of them. The several devises and legacies to her are to be in lieu of dower and all other statutory rights.

The devise in the third clause of the will to his four children and grandchild therein named is to be held by them subject to the charge of $1 per acre to his widow and in trust for said four children and grandchild, and the survivors of them, during their natural lives and for 20 years after the death of the last child or grandchild aforesaid, without power to sell, convey, or in any way incumber the same or any part thereof. They are thereby made trust...