Wallace v. Foxwell

• Decision Date: 04 October 1911
• Citation: 250 Ill. 616,95 N.E. 985
• Parties: WALLACE v. FOXWELL et al.
• Court: Illinois Supreme Court

250 Ill. 616

95 N.E. 985

WALLACE

v.FOXWELL et al.

Supreme Court of Illinois.

June 20, 1911.

Rehearing Denied Oct. 4, 1911.

Error to Superior Court, Cook County; George A. Dupuy, Judge.

Bill by James D. Wallace, as trustee, against Mabel H. Foxwell, the Second National Bank of St. Paul, and others. There was a decree, and the bank brings error. Affirmed.Rosenthal & Hamill (Charles H. Hamill and Nicholas R. Jones, of counsel), for plaintiff in error.

Paul Brown and William H. Gruver, for defendant in error Wallace.

Tenney, Coffeen, Harding & Sherman, for defendants in error Spaulding and others.

Wilkerson & Cassels, for minor defendants in error, and guardian ad litem.

Defendant in error, James D. Wallace, as trustee, filed a bill in the superior court of Cook county, at the November term, 1909, to construe the last will and testament of Samuel G. Spaulding, deceased. The bill alleged that Samuel G. Spaulding departed this life on or about the 5th day of September, 1893, leaving a last will and testament, as follows:

‘I, Samuel G. Spaulding, of the city of Chicago, in the county of Cook and State of Illinois, being of sound mind and memory, do make and declare this my last will and testament, hereby revoking all former wills by me made.

‘I will that all my just debts and funeral expenses be paid.

‘I give, devise and bequeath unto Clarence W. Marks and James D. Wallace, and to their successors in trust, all my estate, both real, personal and mixed, of whatever kind and wherever situate, to be held by them in trust for the uses and purposes hereinafter named and designated, in trust:

‘First-To enter upon any and all my real estate, to collect the rents and protfis and to have the entire management and control of the same; to reduce to possession, to receive and collect any and all bonds, notes, money, mortgages, stocks and other evidence of indebtedness due me, with the interest on the same; to convert the same into cash, at their discretion; to re-invest and re-sell the same in such manner as may seem best to them, but not to invest the same upon mere personal security or upon second mortgage security; to sell and convey, by good and sufficient deed, any and all my real estate; to re-invest and re-sell the proceeds of such sale, but not to invest the same upon mere personal security, but upon first mortgage security on real estate, or in stocks or bonds, or in real estate, as may seem bets to them.

‘Second-To pay over to my wife, Marcia, I. Spaulding, the entire net income of my estate during her lifetime.

‘Third-Upon the decease of my said wife, Marcia I. Spaulding, to pay over to my daughter, Mabel H. Foxwell, one-half of the net income of my estate during her lifetime, and upon the decease of my said daughter, Mabel H. Foxwell, to convey one-half of my estate to the right heirs of my said daughter.

‘Fourth-Upon the decease of my said wife, Marcia I. Spaulding, to pay over to my son, Howard H. Spaulding, and to his wife, Florence B. Spaulding, one-half of the net income of my estate in such proportions as they may see fit, paying more or less to the one or the other, as they may deem best, during the lifetime of my son, Howard H. Spaulding, and upon the decease of my said son, Howard H. Spaulding, to convey one-half of my estate to the right heirs of my son, Howard H. Spaulding.

‘Fifth-To convey to my son, Howard H. Spaulding, after the decease of my wife, Marcia I. Spaulding, one-half of my estate at such time as may seem best for them to do so.

‘I hereby appoint Clarence W. Marks and James D. Wallace executors of this my last will and testament, and request that no bond be required of them for the faithful performance of their duties as such executors.

‘In witness whereof I have hereunto set my hand this seventh day of August, A. D. 1893. Samuel G. Spaulding.’

The bill alleged that said will was admitted to probate and letters testamentary issued to complainant and Clarence W. Marks, as executors; that the said executors duly qualified and entered upon the discharge of their duties; that afterwards said Clarence W. Marks refused to act as trustee under said will, and on December 1, 1896, by decree of the circuit court of Cook county, Marcia I. Spaulding,the widow of testator, was appointed a cotrustee to act with the complainant, with full power and authority to carry cut the terms and provisions of said will, as successor to said Clarence W. Marks. The bill alleged that on December 11, 1896, complainant and Clarence W. Marks filed their final report and account as executors, which were duly approved and said executors discharged; that, upon the discharge of said executors, complainant and Marcia I. Spaulding took charge of the estate, and acted as trustees under said will until on or about the 26th day of March, 1909, when the said Marcia I. Spaulding died, since which time complainant has acted, and continues to act, as the sole surviving trustee under said will. The bill alleged that complainant has collected the rents under said trusteeship, has invested the same, and has accounted to and paid over the income to the said Marcia I. Spaulding during her lifetime, that since the death of said Marcia I. Spaulding complainant has accounted to Mabel H. Foxwell for one-half of the net income from said estate, and that he has elected to pay to Florence B. Spaulding the other half of the net income. The bill further alleged that on the 19th day of April, 1899, the said Howard H. Spaulding filed his petition in bankruptcy in the United States District Court for the Northern District of Illinois; that he was adjudged a bankrupt, and on July 26, 1899, was discharged as such; that in the schedule filed in the bankruptcy proceedings the provisions of the will of Samuel G. Spaulding, deceased, concerning the interest of said Howard H. Spaulding, were set out, followed by the statement, ‘Petitioner is advised that he has no interest in the trust estate or any part thereof.’ The bill alleged that the State Bank of Chicago was appointed trustee in bankruptcy, and filed a petition to sell all the right, title, and interest of said Howard H. Spaulding under and by virtue of said will, and that said sale was made and confirmed; that S. R. Flynn purchased the interest of Howard H. Spaulding under said will, and afterwards conveyedthe same to the Second National Bank of St. Paul. The bill further alleged that said Samuel G. Spaulding left surviving him his widow, Marcia I. Spaulding (now deceased), his son, Howard H. Spaulding, and his daughter, Mabel H. Foxwell, as his only heirs at law; that the said Mabel H. Foxwell is a widow and has one child, Frances Foxwell; that said Howard H. Spaulding and his wife, Florence B. Spaulding, have two children, Lester Carter Spaulding and Howard Henry Spaulding, Jr., both minors; that the said Marcia I. Spaulding died March 26, 1909; and that Howard H. Spaulding has been appointed executor of her estate. The bill alleged that the Second National Bank of St. Paul claims an interest in said estate, and prays that the will may be construed and the interests and rights of the various parties in and to said estate be determined and that said trustee be directed concerning his rights, powers, and duties in the premises.

The answer of Mabel H. and Frances Foxwell admits all the allegations of the bill, but denies that there is any necessity for construing the will, and denies that they should be charged with any costs and attorneys' fees.

The answer of the Second National Bank of St. Paul sets forth the proceedings in bankruptcy, the sale of the interest of Howard H. Spaulding in said estate, the purchase by S. R. Flynn, and the transfer of the same by Flynn to the Second National Bank of St. Paul. The answer neither admits nor denies that the complainant has elected to pay over to Florence B. Spaulding one-half the net income of the estate of Samuel G. Spaulding, deceased, since the death of Marcia I. Spaulding, but denies that he has the power to make such election under the provisions of the will. The answer sets up that by virtue of the fifth clause of said will, immediately upon the death of the testator, there vested in said Howard H. Spaulding an equitable estate in fee of one-half of all the residue of the real and personal estate of the said testator, subject only to the equitable life estate of Marcia I. Spaulding, and that anything in the fourth clause conflicting with that interpretation is void; that by virtue of the bankruptcy proceedings and sale and conveyance said bank now is the sole owner of all the right, title, and interest which passed to the said Howard H. Spaulding under and by virtue of said will. The answer of Howard H. Spaulding, individually and as executor of the last will and testament of Marcia I. Spaulding, and of Florence B. Spaulding, admits substantially all the allegations of the bill, but denies that it is necessary to construe the will, and further denies that the Second National Bank of St. Paul has any right, title, or interest in or to the estate of Samuel G. Spaulding, deceased, or any part thereof. A formal answer was filed by James H. Wilkerson, who was appointed guardian ad litem of Lester Carter Spaulding and Howard Henry Spaulding, Jr., minors.

A hearing was had upon the bill, answers, and replications, and a decree was entered July 14, 1910, finding that James D. Wallace is now, and has been for a long time past, the duly authorized and acting trustee under said will of Samuel G. Spaulding, deceased, and that he has full authority to execute the powers conferred by the will; that the title to the property held in trust for the benefit of Howard vested in the trustees; that the provision made for said Howard was intended by the testator as, and is in law, a spendthrift trust; that neither Howard nor plaintiff in error has, or ever had, any vested interest in the property in the hands of the trustee, and that no right or estate...