Scofield v. Olcott

• Decision Date: 23 March 1887
• Citation: 120 Ill. 362,11 N.E. 351
• Parties: SCOFIELD and others v. OLCOTT and others.
• Court: Illinois Supreme Court

120 Ill. 362

11 N.E. 351

SCOFIELD and others

v.OLCOTT and others.

Supreme Court of Illinois.

March 23, 1887.

Appeal from superior court, Cook county.

Halden & Farson, for Scofield, appellant.

Franklin Denison and Thos. B. Marston, (N. A. Woodward, of counsel,) for Wright, appellant.

George Burry, for St. Lukes Hospital and others, appellants.

Rufus King, for appellees.

MAGRUDER, J.

George T. Abbey died testate on August 10, 1872, leaving a widow, Julia M. Abbey, and one child, a son, named William Abbey. The provisions of his will are as follows:

‘(1) I devise and bequeath to my beloved wife, and to Orville Olcott and William H. Ryder, whom I hereby make, constitute, and appoint executors of this my will, and trustees of my estate, all my real and personal property of every name and nature, except as hereinafter mentioned, to have and to hold the same for the uses and purposes, and upon the trusts, hereinafter particularly set forth.

‘(2) I give and bequeath to my beloved son, William, all my personal effects, except my money, notes, bonds, mortgages, and evidences of debt, and except my double-barrelled No. 12 shotgun.

‘(3) I order and direct my said executors, within three months from the date of my death, to convert into money sufficient of my property so to do and to pay to my said son, William, the sum of twelve thousand dollars cash.

‘(4) I give and bequeath to my friend _____ my No. 12 double-barrelled shotgun.

‘(5) I order and direct my said executors to hold the remainder of my property, both real and personal, for and during the life-time of my wife, or so long as she shall remain unmarried, and to pay the rents, issues, and profits of the same to her.

‘(6) Upon the marriage or death of my said wife, I order and direct the other of my said trustees and executors to sell and convert into money sufficient of the remainder of my property to pay the following bequests, and to pay the same within three months from the death of marriage of my said wife, to-wit: $5,000 to my sister Harriet Abbey; $5,000 to my sister Mary Ann Welch; $5,000 to Jeannette Carpenter; and, in case of the death of either of above-named legatees I order and direct my said trustees to pay the amounts named to the heirs of the body of such deceased legatees.

‘(7) I order and direct my said trustees to convey, assign, and deliver all the rest and residue of my estate to my said son, William, as soon as said legacies shall have been fully paid.

‘(8) In order to enable my said executors and trustees fully to carry into effect the objects of this my will, I hereby fully authorize them, and the survivors or survivor of them, to sell and convey, or to mortgage, or convey by trust-deed, such of my real estate as may be necessary, in their opinion, to provide the means for the payment of above legacies, and the settlement of my estate.’

William Abbey died intestate and unmarried on August 11, 1879, leaving as his only heir at law his mother, Mrs. Julia M. Abbey. Julia M. Abbey, who did not remarry, died testate on January 23, 1886; and by the terms of her will, after making bequests of money and personal property to various individuals, gave $3,000 to St. Lukes Hospital of Chicago, $3,000 to the Chicago Hospital for Women and Children, and $5,000 to the Graceland Cemetery Company of Chicago, for the purpose of keeping her cemetery lot in good order. She appointed Orville Olcott and Refus King her executors.

The appellant is a sister of George T. Abbey. The contention is between the heirs of George T. Abbey, who are his brothers and sisters, on the one side, and the executors and devisees under the will of Julia M. Abbey, on the other side. The property in dispute is the ‘rest and residue’ of the estate mentioned in the seventh clause of the will. The appellant claims that William Abbey, having died before the death of his mother, had no interest in the property in question which could descend to his heirs, and that, therefore, the said property fell back into the estate, as in case of intestacy, and went to the heirs of George T. Abbey. On the other hand, appellees claim that William Abbey owned, at the time of his death, an inheritable interest in such ‘rest and residue’ of the estate, and that such interest descended to his mother as his only heir at law, and passed by the terms of her will to the appellees.

The trustees under the will of George T. Abbey took title to two parcels of land. One of these was mortgaged to raise $12,000 to pay William. Afterwards they sold one parcel for $93,000, and out of the said proceeds paid the mortgage, and the legacies of $15,000, and certain expenses. There now remains of the $93,000 the sum of $60,000. They also hold the other parcel of land; and the title thereto is in controversy in this suit. The decree of the superior court of Cook county, from which this appeal is taken, directed the said trustees to pay the $60,000 to the executors of Julia M. Abbey, to be distributed according to the terms of her will, and to convey the parcel of land remaining unsold to the persons entitled thereto under the will of the said Julia.

The only question in the case is whether the residuary interest in the estate vested in William Abbey at the time of his father's death. If William's interest was a vested one, it passed to his mother when he died. A remainder is vested when there is an immediate right of present enjoyment, or a present fixed right of furure enjoyment.It gives a legal or equitable seizin. A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent, (4 Kent, Comm. 202;) and is thereafter invariably fixed to a determinate person, ( Bowling v. Dobyn, 5 Dana, 441.) It takes effect in interest and right immediately on the death of the testator, although it may not take effect; indeed, if it be a remainder, it cannot take effect, in possession and enjoyment, until the death of the devisee for life, or other determination of the particular estate. Brown v. Lawrence, 3 Cush. 397. In case of a vested remainder, a present interest passes to a certain and definite person, to be enjoyed in futuro. Doe v. Considine, 6 Wall. 474. Every remainderman may die without issue before the death of the tenant for life. It is the present capacity of taking effect, in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested. 4 Kent, Comm. 203. It is also vested when it is limited to a person in esse, and ascertained to take effect by words of express limitation on the determination of the preceding particular estate. Prest. Estates, 70.

Viewed in the light of the definitions here quoted, the interest of William Abbey was a vested one. The testator devised and bequeathed all his real and personal property (except that embraced in the second and fourth clauses) to his executors and trustees, ‘to have and to hold the same for the uses and purposes, and upon the trusts,’ mentioned in clauses 3, 5, 6, and 7. A will takes effect at the death of the testator. At the death of George T. Abbey, the legal title to all his property vested in the trustees for the uses and purpose above set forth. It so vested, at that time, for all such purposes, and for one as much as another. As soon as the testator died, the trustees at once took title to the residue named in clause 7, and at once and thereafter held it in trust to be conveyed, assigned, and delivered to William, when the proper time should come. It is true that his enjoyment of it was to be postponed until a future period. But their holding it in trust to be conveyed to him began immediately upon his father's death. They took their legal title at that time, and at the same time he took the equitable title. At his father's death there vested in him a present equitable right to have a conveyance from the trustees when his mother's life-estate should determine, subject to the payment of the legacies of $15,000. He then had ‘a present fixed right,’ although only an equitable one, of future enjoyment. This right vested, not in a person thereafter to be born, but in a person definite and ascertained, and then in being. The preceding estate was limited upon the death of Mrs. Abbey, an event which ‘ must happen.’

The same general principles which regulate the vesting of devises of real estate apply, to a considerable extent, to gifts of personalty. But in regard to the vesting of personal legacies, the payment of which is postponed to a period subsequent to the decease of the testator, the general rule is that, where there is no original gift, but only a direction to pay at a future time, the vesting will be postponed till after that time. 1 Jarm. Wills, (Bigelow's Ed.) 833-836, 839. If futurity is annexed to the substance of the gift, the vesting is suspended, but, if it appears to relate to the time of payment only, the legacy vests instanter. Id. There is a distinction between a gift of a legacy to a person to be paid him...