Smith v. Thomas

• Citation: 147 N.E. 788,317 Ill. 150
• Decision Date: 03 June 1925
• Docket Number: No. 16007.,16007.
• Parties: SMITH et al. v. THOMAS et al.
• Court: Illinois Supreme Court

317 Ill. 150

147 N.E. 788

SMITH et al.

v.THOMAS et al.

No. 16007.

Supreme Court of Illinois.

April 24, 1925.

Rehearing Denied June 3, 1925.

In the matter of the estate of Daniel C. Stover, deceased. Bill by John F. Smith and others, trustees, against May S. Thomas and others. From decree construing will, defendants appeal.

Affirmed.

Appeal from Circuit Court, Stephenson County; Harry Edwards, judge.

Hall, Baker & Hall, of Madison, Wis., Fisher, North, Linscott & Gibboney, of Rockford, and Charles H. Green and Robert B. Mitchell, both of Freeport, for appellants.

Oscar R. Zipf, of Freeport, for appellees.

THOMPSON, J.

May 7, 1906, Daniel C. Stover, of the city of Freeport, made and published his will, consisting of 12 paragraphs, by which he disposed of an estate of the value of $600,000. The accumulations, 20 per cent. of which are derived from real estate and 80 per cent. from personal property, amount to about $35,000 a year. The estate has trebled in value since the death of the testator. After he had executed his will his wife died and he added a codicil June 19, 1907. The testator died January 17, 1908, leaving him surviving May Winger Thomas and Porter S. Stover, his children. The daughter has two children, Clare Harris and Stover Winger, both of whom are married and have children. The son has two children, Gladys Lyon and Margaret Stover, the former of whom has one son. All of testator's grandchildren were born before he drafted his will. Porter has an adopted son, Raymond, who was born September 28, 1906, and was adopted October 19, 1912. A dispute having arisen with respect to the construction to be given certain provisions of the will, a bill was filed in the circuit court of Stephenson county by the trustees against the children, grandchildren, and great-grandchildren of the testator and the adopted son of Porter Stover. The following are the pertinent provisions of the will:

‘4. All the rest, residue and remainder of my property and estate, real, personal and mixed, of every name, nature and description, I give, devise and bequeath to my executors and trustees hereinafter named, and to their successors as hereinafter provided, in trust, to keep the same together and manage the same and to accumulate the income thereof as far as possible consistently with the provisions of this will, for and during the lives of my wife, Mary C. Stover, my daughter, May S. Winger, and my son, Porter S. Stover, and the life of the survivor or survivors of them, and for and during the term of twenty-one years after the death of the last survivor of them, and then to divide the same and the accumulations thereof, between the heirs of my daughter, May S. Winger, and the heirs of my son, Porter S. Stover, equally, except that in such division they shall equalize as between said heirs the sums which shall have been charged against said May S. Winger and said Porter S. Stover, under the terms of ths will, so that the heirs of either shall receive the benefit of the economy of their parents. In such division, children shall represent, their parents per stirpes. * * *

‘My said executors and trustees shall also pay over to my daughter, May S. Winger, and my son, Porter S. Stover, for living expenses, the sum of twenty-five hundred dollars per annum, each, payable quarterly, provided that my said executors and trustees may, in their discretion, in cases of emergencies, occasionally increase such amount to either or both of my said children to an amount not exceeding in any one year to either of them, one-third of the net annual income from my personal estate, or after the death of their mother, Mary C. Stover, not exceeding one-half the net annual income from my personal estate. The sums so paid by my said executors and trustees to my said children shall be charged against the respective shares in the final distribution of my estate represented by my said children, so that the heirs of each of them shall reap the benefit of any economies practiced by their parents. In case of the death of either or both of said children, my said executors and trustees are authorized to pay not exceeding the sum of twelve hundred and fifty dollars to or for the support of the children of my said child, to be distributed as in the judgment of my executors and trustees may be advisable, and a like sum of twelve hundred and fifty dollars to each surviving husband or wife of my said children as long as they may remain unmarried, but in case they or either of them shall marry again, then the payment of said sum of twelve hundred and fifty dollars to the one or ones so remarrying shall cease.

‘5. My said executors and trustees shall also pay to or for the use of each grandchild of mine between the ages of twelve and twenty-five years, a sum not exceeding one thousand dollars annually, to be applied exclusively to their education and to be charged against the shares in my estate represented by their respective parents. And as to each such grandchild, should the full sum of one thousand dollars not be required for educational purposes in any one year or years, the surplus or any requisite part thereof may be called for at a later year or years, without interest, if needed for educational purposes, or if not so needed shall remain a part of my estate to the credit of the respective shares thereof represented by their respective parents.

‘6. It is my will that no beneficiary hereunder be allowed to acquire any right or title to the whole or any part of his legacy or annuity hereunder except through the regular payment by my said executors and trustees, for which he or she or his or her guardian shall give a receipt, nor shall any beneficiary hereunder have any right or power to draw upon, assign or otherwise to anticipate or to mortgageor otherwise encumber in advance any installment or installments of income or principal; nor to give orders in advance upon the trustee or trustees for any installment or installments of income, nor shall the same in any way become liable at law for any of the indebtedness of any one of said beneficiaries, nor shall said executors and trustees by liable as garnishees of such beneficiary or beneficiaries in any court of law, nor shall such beneficiaries or either or any of them acquire any interest in may said estate or in any sum or sums of money coming from my said estate until the same shall be actually paid over by my said executors and trustees to such beneficiary or beneficiaries. * * *

‘8. * * * And I hereby give to my said executors and trustees and their successors in trust so appointed, full power to sell any and all my real and personal property, in their discretion, and to execute any and all necessary or convenient deed or deeds of conveyance or assignment of my said property or any part or parts thereof, which said deed or deeds of conveyance or assignment when so executed by my said executors and trustees or their said successors, shall be as good and effectual to pass the title to the property therein described and conveyed as if the same had been executed by me in my lifetime. * * *

‘11. It is my desire that my said executors and trustees, as they receive money from the sale of real estate or from other sources, which is not needed for the payment of legacies or the expenses of administration, shall invest the same and keep it invested in good, safe income producing securities, farm loans being preferred under present conditions, but in this respect, as in others, my trustees are to use their best judgment, keeping in view that my desire is to create and preserve for my grandchildren and their heirs an estate having a steady permanent income.’

The children of the testator contended in the circuit court, and as appellants in this court contend, that under the rule in Shelley's Case they are the owners in fee of all the real estate of which the testator died...