Starr v. Willoughby

• Decision Date: 20 December 1905
• Citation: 218 Ill. 485,75 N.E. 1029
• Parties: STARR v. WILLOUGHBY et al.
• Court: Illinois Supreme Court

218 Ill. 485

75 N.E. 1029

STARR

v.WILLOUGHBY et al.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Circuit Court, St. Clair County; R. D. W. Holder, Judge.

Bill by James A. Willoughby and others against Charles A. Starr and others. From the decree rendered, defendant Charles A. Starr appeals. Affirmed.

Keefe & Sullivan, for appellant.

R. W. Ropiequet (James M. Dill, guardian ad litem), for appellees.

HAND, J.

William E. Willoughby died testate on the 18th day of July, 1897, leaving, him surviving, James A. Willoughby, William H. Willoughby, Mary J. Willoughby, and Ida May Willoughby as his children and sole heirs at law. By the first paragraph of his will he devised certain lands to his wife, Jane Willoughby, during her natural life; by the second paragraph he devised certain other lands to James A. Willoughby and his children, and the remaining paragraphs of the will read as follows:

‘Third-As soon as practicable after my decease I direct that all other real estate owned by me not mentioned in the first and second clauses of this will be sold by my executors hereinafter named, and the proceeds thereof, together with the proceeds of any personal property that I may have, and any money, right and credit to me belonging, disposed of as follows: First, a sum not to exceed $1500 to be invested in the purchase of a residence in Lebanon, Illinois, for the use of my wife, Jane Willoughby, so long as she lives and remains my widow; second, the balance to be divided among such of my children as may be living at that time, and surviving descendants of children, in case any of my children may have died leaving children or descendants of children then surviving and living at that time, the descendants of children to take per stirpes; but in the distribution under this clause I charge my son William H. Willoughby with $5546, he to get nothing under this clause except in the excess after the three other shares have reached the sum with which I herein charge him.

‘Forth-During the continuance of the estate of my wife, Jane Willoughby, in the lands described in the first clause of this will and in the house directed to be purchased for her in the third clause of this will, I direct that she pay the taxes thereon and repairs on said house.

‘Fifth-On the re-marriage or death of my wife, Jane Willoughby, the lands described in the first clause of this will and the house directed in the third clause of this will to be purchased for her use so long as she lives and remains my widow, shall be sold by my executor hereinafter named and the proceeds thereof distributed in the manner provided for the distribution under the third clause of this will, and in this distribution my said son William H. Willoughby will be charged with any deficiency of said $5546 that his share of said distribution under the third clause of this will fails to meet.

‘Sixth and lastly-I hereby nominate and appoint my son James A. Willoughby and my daughter Ida May Willoughby, my only children residing in this county, executor and executrix of this my last will and testament, directing that they shall not be required to give bond, revoking any former wills by me made and ratifying and confirming this and none other to be my last will and testament.’

James A. Willoughby and Ida May Willoughby qualified as executor and executrix and subsequently Ida May Willoughby intermarried with Charles A. Starr, by whom she had two children, Ida Mary and Ora Adelia, who were minors, and who were represented in this litigation by James M. Dill, their guardian ad litem. Ida May Starr died testate on September 20, 1904, leaving, her surviving, her husband, Charles A. Starr, and said children, Ida Mary and Ora Adelia. By her will she devised to her husband, Charles A. Starr, her entire estate. At the date of the death of Ida May Starr, the lands of William E. Willoughby mentioned in paragraph 3 of his will remained unsold, and the question having been raised as to the power of James A. Willoughby to sell and convey said lands as surviving executor, and as to whom the proceeds arising from a sale of the lands should go in case of a sale by the executor, James A. Willoughby, personally, and as executor of William E. Willoughby, deceased, William H. Willoughby and Mary J. Keith, formerly Mary J. Willoughby, filed a bill in chancery in the circuit court of St. Clair county for the construction of the will of William E. Willoughby, deceased, and to obtain a sale of the premises mentioned in paragraph 3 of the will. All of the parties in interest other than the complainants were made parties defendant. Answers and replications were filed, and the court entered a decree directing James A. Willoughby, as sole surviving executor, to sell said premises, and decreed that Charles A. Starr took no interest in the proceeds of said sale under the will of his deceased wife, Ida May Starr, but decreed that the interest represented by Ida May Starr in her father's estate, and which would have gone to her had she survived the date of sale of said premises and the distribution of the proceeds of such sale, be paid to said Ida Mary and Ora Adelia, her children, and Charles A. Starr has prosecuted an appeal to this court to reverse said decree.

Three principal contentions are made in this case as grounds of reversal:

First. It is contended that under the will of William E. Willoughby, deceased, Ida May Starr took a vested interest in the premises, or the proceeds arising from a sale thereof, mentioned in paragraph 3 of said will, and that said interest passed to Charles A. Starr as her sole devisee. This contention involves a consideration of paragraphs 3 and 5 of the will of William E. Willoughby, deceased. We think it clear from the language used in these paragraphs that the testator intended his executors should hold said lands in trust for the benefit of his children until said lands should be converted into money by the executors by a sale, and that he intended that neither of his children should take any interest in said lands prior to a sale. Such being the manifest intention of the testator, and the lands not having been sold prior to the death of Ida May Starr, she had no interest in said lands at the date of her death, and hence her husband, Charles A. Starr, took no interest therein through her will, but the interest in said lands represented by Ida May Starr, upon the sale of the premises under the will of William E. Willoughby, deceased, will pass to the children of Ida May Starr, deceased. The first clause of paragraph 3 provides, as soon as paracticable after the death of William E. Willoughby, the real estate in question shall be sold by his executors, and the proceeds thereof disposed of in the following manner: The sum of $1,500 was to be invested in a home for Mrs. Jane Willoughby, and the balance was to be divided among such of his children ‘as may be living at that time, and surviving descendants of children, in case any of my children may have died leaving children or descendants of children then surviving and living at that time.’ It is clear the words ‘living at that time’ refer to the time of sale, and not to the time of the death of the testator. While it is true that the law favors the vesting of estates, still where it is clear, from a reading of the entire will, that the testator intended to postpone the vesting of an estate until the period of distribution has arrived, that intention will be carried out. Johnson v. Askey, 190 Ill. 58, 60 N. E. 76. In People v. Jennings, 44 Ill. 488, the testator provided his real estate should be sold by his executor as soon after his heath as convenient, and the proceeds thereof, after the payment of his debts, funeral expenses, etc., should be equally divided among his four children, and in case of the death of a child, the child or children of the deceased child should take the share of the...