Tincher v. Arnold

• Citation: 147 F. 665
• Decision Date: 11 August 1906
• Docket Number: 1,210.
• Parties: TINCHER v. ARNOLD et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

147 F. 665

TINCHER v. ARNOLD et al.

No. 1,210.

United States Court of Appeals, Seventh Circuit.

August 11, 1906

E. A Otis and J. Warren Pease, for appellant.

Edwin Burritt Smith and McClellan Kay, for appellees.

Before GROSSCUP and BAKER, Circuit Judges, and SANBORN, District judge.

SANBORN District Judge.

Action to construe a will to determine the validity of a trust clause therein, to have such clause held void, determine that complainant as sole heir at law of the testator is entitled to the amount of the trust funds in the hands of the trustees, and that they be required to account for the same and turn them over to complainant. The court below held that the trust was valid, as creating a good charitable use, and dismissed the bill for want of equity. Complainant also moved the court to allow her the amount paid for attorney's fees, on the ground that her solicitors had rendered valuable and important services to the value of $1,500, and that the terms of the will are ambiguous, indefinite, and uncertain and application to the court was necessary to obtain a construction thereof; that at the time of filing of the bill in this cause the trustees under the will had themselves prepared a bill to be filed in the Circuit Court of Watseka county, Ill., asking a construction of the will. This petition was denied by the court, on the ground that complainant in this case was suing in her own right, and not for the benefit of the trust estate. Complainant has appealed from the decree dismissing the bill, and from the order of decree denying her petition for attorney's fees.

Complainant is the daughter and sole heir at law of the testator, LeGrand L. Wells, deceased. On September 24, 1883, said Wells made his will, and by the fifth clause thereof attempted to create a trust, as follows: After giving his daughter, the complainant, a life estate in a farm in Iroquois county Ill., remainder to the heirs of her body share and share alike, and a legacy of $1,000 and certain personal property and $1,000 each to her children as they should arrive at the age of 21 years, the will contains a residuary devise to his trustees for the purpose of carrying out the full terms of the will, and then proceeds as follows:

'I further direct that my trustees and their successors manage my estate until it has accumulated a fund of at least thirty thousand dollars after setting aside a sufficient sum to pay all specific legacies, debts etc, which shall form a fund known as the Wells Fund, and shall be used in the following manner, to wit: If the city of Watseka will donate a suitable lot for such purpose within thirty days after being notified by said trustees, said trustees shall cause a building to be erected on said lot for the purpose of educating boys who reside in the state of Illinois between the ages of 12 and 18 years, and who are unable to educate themselves, which shall cost not exceeding five thousand dollars, and the balance of my estate in the hands of my said trustees after the payment for said building, shall be kept at interest and the net income, except ten dollars per year set apart for the purpose of keeping my family burial lot in repairs, shall be used for the purpose of paying teachers employed in said school. And I further direct my said trustees that in case the city of Watseka refuses or neglects for thirty days after being notified by the trustees that they are ready to carry out this provision in said Will as to said school, then they shall pay the whole sum set apart for this purpose over to the finance committee or the trustees of Onarga Seminary, located at Onarga, Illinois, the net income of which shall be used to carry on said Seminary and shall be known as the Wells Fund.'

The specific legacies were paid by his executors, but the estate has never been settled in the county court of Iroquois county, nor the executors discharged. The executors and trustees continued to manage and invest the residuary estate until about the year 1890, when the trust fund amounted to $30,000. Soon after a lot of land in Watseka was conveyed by the owners thereof to the trustees as a site for the erection of the school building pursuant to the terms of the will, but there was no donation of the lot by the city which it is alleged in the bill did not have any power or authority to purchase the lot or make any donation thereof. The will was admitted to probate May 7, 1884. The original bill was filed May 14, 1903, and the amended bill July 21, 1903.

The bill further set up that about the year 1898 the trustees erected on the lot so conveyed to them a building to be occupied as a school for the purpose of educating boys of the class mentioned in the fifth clause of the will, expending therein $5,000, and although the building was so erected and completed in 1898 no steps had been taken by the city, or any one, to put in operation a school for the purpose mentioned; that before any school can be put in operation in the building it is absolutely necessary and indispensable to furnish the necessary fixtures, furniture, apparatus, libraries, fuel and janitor's services; that the school building must be properly cared for and suitable persons employed and paid to keep the building, fixtures and appurtenances in reasonable condition and repair; that the building should be insured, and the taxes and assessments thereon paid, all of which would require the annual expenditure of a large sum of money over and above the salary of teachers employed therein, and that the city has no power or authority to discharge or perform these indispensable duties for the operation of a school of the character mentioned, and the trustees are absolutely without power to pay these expenses; with the result that no one is authorized or able to give the building any care or attention whatever, and that it has remained vacant and unoccupied ever since its construction.

Its windows and doors have been boarded up and the same is becoming in a ruinous condition from lack of care and attention, no arrangements having been made or contemplated by any of the defendants, or otherwise, to maintain any school or carry into practical execution the provisions of the will; that the net income of the trust will not exceed $1,000 to $1,250 a year, and that sum is wholly insufficient and inadequate to pay the salaries of teachers in said school even if the other expenses mentioned were otherwise provided for, and the carrying on of such a school will require annually the expenditure of many times the amount of such net income; that pursuant to the mandate of the Constitution of Illinois there was at the time of the death of whereby all boys of the ages mentioned in the will could and can be educated without charge, and there are no boys in Illinois who are unable to educate themselves, and no class of persons to which the fifth clause of the will applies. The city has no power to levy any tax to support or maintain such a school, and the trust provision of the will is uncertain, illegal, indefinite and incapable of being carried into execution.

It is further alleged in the bill that the defendant Grand Prairie Seminary (successor to Onarga Seminary), is a school conducted for profit, is not a charity under the laws of Illinois, and the trust provision of the will is void as against said Grand Prairie Seminary, if otherwise valid, because it creates a perpetuity; and that it is impossible to ascertain and determine what school or seminary should receive the benefit of the trust in case no site for the erection of the building had been supplied by the city of Watseka.

It is further averred that the Grand Prairie Seminary, claiming to be the school referred to in the will, filed a bill in the circuit court of Iroquois county, claiming the legacy in its own behalf, and that neither the complainant nor the city of Watseka was a party to that bill or concluded by the same in any way. That suit proceeded to final hearing and decision in the Supreme Court of Illinois, wherein it was finally determined that Grand Prairie Seminary was not entitled to said fund. A final decree was made in that suit in the circuit court, June 30, 1896, declaring the trust illegal and void, and a final decision sustaining the trust was made by the Supreme Court of Illinois on February 14, 1898. 171 Ill. 444, 49 N.E. 516. Grand Prairie Seminary answered the bill in this case. The trustees, the city of Watseka and the Attorney General demurred to the bill for want of equity, and also on the ground of gross laches and estoppel by election. The court sustained the demurrers, and entered a decree dismissing the original and amended bills for want of equity, reserving the question of costs on the pending motion. An order or decree was afterwards entered, denying the motion, and appeals taken from both decrees.

As tending to explain the delay in filing the bill, complainant stated in the amended bill that about a year and a half after the death of her father she removed to Nebraska. She was advised by the executors to believe that several years would elapse before the residuary fund in their hands as trustees would amount to $30,000, and that there was no necessity for her to assert any claim thereto, because the trust estate was required to remain in their custody. She was in limited circumstances, and unable to pay the expenses of instituting the proceedings to obtain a construction of the will, and, having entire confidence in the integrity, honesty, and responsibility of the trustees, she was induced to delay proceedings. In 1895 she first ascertained that steps were being taken by the Grand Prairie Seminary to obtain a construction of the will, and during the pendency of that suit, and for a...