Wagner v. Wagner

• Decision Date: 16 February 1910
• Parties: WAGNER v. WAGNER et al.
• Court: Illinois Supreme Court

244 Ill. 101

91 N.E. 66

WAGNER

v.WAGNER et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Rock Island County; W. H. Gest, Judge.

Suit by George Wagner against Robert A. Wagner and others to construe a will. From a judgment of the Appellate Court affirming a decree for defendants, complainant appeals. Affirmed.J. T. Kenworthy and S. R. Kenworthy, for appellant.

Connelly & Connelly and Searle & Marshall, for appellees.

This was a bill filed by appellant for the construction of the will, and first codicil thereto, of his father, George Wagner, deceased.

George Wagner died testate January 10, 1907, leaving three adult sons, Robert A. Wagner, Ernst Wagner, and appellant George Wagner, as his only heirs at law. He left no widow surviving him. His will bears date June 3, 1901. The first paragraph directed the executors and trustees named in the will to take possession, as soon after the testator's death as possible, of all his estate, real, personal, and mixed. The second paragraph appoints his son Robert A. Wagner and friend Bernard D. Connelly executors and exempts them from liability to give bond. Said second paragraph devises and bequeaths to the executors all the testator's estate, real, personal, and mixed, in trust for the uses and purposes in said will mentioned. Said second paragraph directs that after the payment of the testator's debts and bequests made in the will, the executors and trustees invest, and keep invested, the residue of his personal estate in good securities, and keep rented the real estate to the best advantage, and out of the income therefrom pay the taxes, insurance, repairs, and other legitimate demands against the estate. The third paragraph recites that the testator had made liberal advancements to his sons George and Ernst, and for the purpose of equalizing the advancements he gave to his son Robert A. Wagner 62 shares of stock in the People's National Bank of Rock Island, and $5,000 in cash, and directed that if Robert died before the testator's death, his (Robert's) wife should receive said bank stock and $5,000. By the fourth paragraph he gave the two children of his son George Wagner each the sum of $2,500, which was to be deducted from his said son George's share of his father's estate. By the fifth paragraph he authorized the executors and trustees to mortgage, pledge, or sell the whole or any part of the real or personal estate upon such terms and in such manner as they should see fit, and to execute notes, mortgages, and deeds, and use the proceeds of such sales or mortgages, in their discretion, for the improvement of any other part of the testator's estate. The sixth paragraph provided that all stocks, bonds, and securities belonging to the testator at the time of his death should form a part of the trust created by his will, and the executors and trustees were authorized to sell and dispose of the same, and were exempted from any liability from loss or depreciation in the value of the securities, and the executors and trustees were authorized to make investments and reinvestments of the trust fund in securities or real and personal property. The seventh paragraph authorized the executors and trustees to compromise any debts owing by the testator or to his estate, and to give time for the payment of debts due the estate, with or without security. The eighth paragraph confers authority upon the executors and trustees to construe the will if any question of its construction should arise. The ninth paragraph fixes the compensation the executors and trustees are entitled to. The tenth paragraph is as follows: ‘When the time for the closing up and final distribution of my estate arrives, it is my wish that all real, personal, and mixed property, of every kind, remaining under the control and in the possession of my said executors and trustees shall be distributed among my said legal heirs in accordance with the laws of the state of Illinois relating to descent.’ The eleventh paragraph provides that if both of the executors and trustees named should decline to qualify, or should die or resign, the circuit court of Rock Island county should appoint two suitable and reliable persons as successors in trust, and when appointed and qualified they should have all the powers and authority conferred by the testator upon the trustees and executors named in the will.

The first codicil is as follows:

‘I, George Wagner, widower, of the city of Rock Island, in the county of Rock Island, in the state of Illinois, being of sound mind and memory, do make, publish and declare this the first codicil to my last will and testament, bearing date June 3, 1901.

‘Whereas, since the making of my said last will I have converted the most of my estate into personalty; and whereas, many years of my life have been given to the upbuilding of the brewing industry in the city of Rock Island, and the fruits of my long business career are largely represented by shares of capital stock of the Rock Island Brewing Company now in my name; and whereas, it is my earnest wish and desire that as far as possible my personal estate and holdings in said Rock Island Brewing Company may be kept intact by my sons after my death:

‘Now, therefore, I do hereby give, devise and bequeath unto Robert A. Wagner and Bernard D. Connelly, executors and trustees named in my said last will, one-third of my holdings in said Rock Island Brewing Company's stock in trust for the benefit of my son Ernst Wagner; and I also give, devise and bequeath unto said Robert A. Wagner and Bernard D. Connelly, executors and trustees named in my said will, one-third of my holdings in said Rock Island Brewing Company's stock in trust for the benefit of my son George Wagner, first deducting, however, from the stock so to be held for the benefit of said George Wagner, such portion of $5,000 as may be necessary to carry out the bequests under the fourth paragraph of my said last will. I direct my said trustees to pay to said Ernst Wagner the net income that may be derived from said Rock Island Brewing Company's stock so held for his benefit, at such times and in such amounts as said trustees, in their discretion, shall deem proper; and I direct that my said trustees shall pay to said George Wagner the net income that may be derived from said Rock Island Brewing Company's stock so held for his benefit, at such times and in such amounts as said trustees, in their discretion, shall deem proper.

‘If at any time, for the proper support and maintenance of either of my said sons Ernst Wagner or George Wagner, or for any other purpose deemed expedient by my said trustees, it shall be advisable to pay unto said Ernst Wagner or said George Wagner any sums greater than the annual net income derived from said stock so held for their benefit, then I direct my said trustees to so pay such sums unto said Ernst Wagner and said George Wagner, and in order to raise additional sums I direct and empower my said trustees, in their discretion, to mortgage, pledge or sell any portion of my said stock so held by them in trust for their benefit; and I direct my said trustees to so pay such sums unto Ernst Wagner and said George Wagner, and in order to raise such additional sums I direct and empower my said trustees, in their discretion, to mortgage, pledge or sell any portion of said stock so held by them in trust.

‘I desire my trustees to so administer the trusts herein created so that in their dealings with my said sons Ernst Wagner and George Wagner they shall, as nearly as possible, deal and treat with them as I would myself were I living, keeping in mind, however, my expressed desire to have the Wagner interests remain identified with the Rock Island Brewing Company, as far as practicable. The trusts hereby created shall terminate in the discretion of the trustees or their successors.

‘I give, devise and bequeath the remaining one-third of my holdings in the stock of the Rock Island Brewing Company to my said son Robert A. Wagner, to be his forever. In all other respects I hereby ratify and confirm my said last will and testament.’

The second codicil is not involved. The will and codicil were duly admitted to probate and the executors and trustees therein named qualified and took upon themselves the administration of the estate and trusts.

The bill prays that the will and first codicil be construed to have vested the title to the real estate of the testator immediately upon his death, subject only to be divested if found necessary to be sold by the executors and trustees, and partition of the real estate is prayed. As to the stock in the brewing company the prayer of the bill is that the codicil be construed to vest in the two sons of the testator, George and Ernst Wagner, two-thirds of the Rock Island Brewing Company stock, less the legacy to the children of George Wagner to be paid out of his interest in said stock, and that the court order and decree the executors to turn over and deliver to complainant in the bill, George Wagner, his interest in said stock.

Ernst Wagner was made a defendant to the bill, and was defaulted. A guardian ad litem was appointed for the children of George Wagner, the complainant in the bill, and answered for them. Robert A. Wagner and Bernard D. Connelly, as executors and trustees, and Robert A. Wagner in his own right, demurred to the bill. The decree recites that it was stipulated between the parties that the demurrer should apply to and be, respectively, sustained or overruled as to the several parts of the bill in the same manner and to the same extent as if specially directed to said several and distinct parts. The court overruled the demurrer to so much of the bill as sought partition of the real estate, or distribution of the personal estate, to be distributed in accordance with the directions of the tenth paragraph of the will, and held that...