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First Nat. Bank of Chicago v. Elliott





APPEAL from the Circuit Court of Kankakee County; the Hon. JAMES V. BARTLEY, Judge, presiding.


Rehearing denied May 15, 1950.

A decree of the circuit court of Kankakee County construed the last will and testament of Alfred Fortin, deceased, to the extent that it created a charitable trust. From this decree, the collateral heirs-at-law prosecute a direct appeal, a freehold being necessarily involved.

Alfred Fortin, a widower, a resident of Kankakee County, died testate on January 26, 1937. His heirs-at-law are collateral kindred. Fortin's will was admitted to probate in the county court of Kankakee County. The will consists of three numbered sections. Of these, the first section directs payment of his debts, funeral expenses, costs of administration and succession and inheritance taxes. The second section consists of one paragraph, captioned, "Second," followed by thirteen lettered paragraphs (a) through (m). The numbered paragraph declares the "will and desire" of the testator that all of his net estate be ultimately dedicated to the founding, support and maintenance of an Orphans Home, as provided in the will, to be located in Kankakee County, where he was born and built the foundation of his estate. To the end that his will and desire be effectuated, Fortin gave, devised and bequeathed his entire estate to the First Union Trust and Savings Bank of Chicago in trust for the purpose previously expressed, subject to the provisions described in paragraphs (a) to (m), inclusive. The will directs the trustee to hold the entire estate as an accumulating trust for a period not to exceed twenty years from and after the date of the testator's death, so that it may grow and increase for the uses and purposes of the "charitable gift" provided for. Paragraphs (b) (c) (d) (e) and (f) contain directions relative to the management of the trust estate. Paragraph (g) provides that the Orphans Home, when established, shall be erected upon six lots owned by the testator in the village of Bradley, in Kankakee County, which Fortin had purchased for the site of the Orphans Home, or on some extension or annexation thereof. The building, it is stated, shall be in accordance with plans being prepared at the time the will was executed and shall contain at a prominent part in the front an inscription in stone, "Alfred Fortin Memorial Orphans Home." Paragraph (h) makes provision for the operation of the Orphans Home by and under the control of a corporation to be hereafter established under the laws of this State by citizens of the United States who are members of the Roman Catholic Order of Sisterhood, known as the Gray Nuns, having its Mother House in Montreal, Canada. The next paragraph, (i), provides that, at any time after ten years from the date of Fortin's death, and before the end of the twentieth year, if the Gray Nuns shall first notify the trustee of their intention to undertake the "charitable work" described, and if they shall thereafter organize the corporation and domicile a sufficient number of the members of their Order in Kankakee County and notify the trustee of their readiness to begin the erection of a suitable building for the Orphans Home on the site selected, in accordance with a plan and specifications which the testator had caused to be prepared and "in which I desire the same to be followed strictly," then the trustee shall advance such funds to the corporation as shall be necessary for the erection of the building, provided, however, that its cost shall not exceed $125,000. Paragraph (i) concludes by providing that if the Gray Nuns accept the provisions of the will and if the corporation is organized and receives the trust property, the corporation shall pay over to St. Joseph's Catholic Parish of Bradley, Illinois, $5000 twenty years after the testator's death.

Paragraph (j) of the second section provides that all the remainder of the property in the hands of the trustee, after paying for the building, shall continue under the management and control of the trustee for the full period of twenty years from the date of the testator's death, the income to be paid to the corporation organized for the purpose of carrying on the "charitable trust." Paragraph (k) provides that, at the end of the twenty-year period, the trustee shall convey and transfer to the corporation all of the trust property and its accumulations, provided that the Gray Nuns and/or the Sisters of Charity, "les Soeurs de la Charite," shall have complied with all the requirements and conditions named in the will and provided that the Orphans Home is then a going and operating concern for "charitable purposes" in perpetuity.

Paragraph (1) of the second section states that it is the testator's intention, and he so directs, that the Orphans Home, when established, shall be used for the care, boarding, lodging, maintenance and education of very young indigent orphan children, especially foundlings whose relatives are unable to properly care, board, lodge, maintain and educate them, and that he recommends to the Gray Nuns that they pursue a policy of finding good homes for the orphans with people who will take a parental care and interest in them, and that the children be legally adopted, if possible. The last paragraph (m) of the second section of the will provides that, in the event the Gray Nuns do not elect to execute and administer the "charitable trust" provided for in the will, or in the event that they do not qualify under its provisions, the testator has selected another religious Order of Catholic Sisterhood known as The Sisters of Charity, "les Soeurs de la Charite," which has several orphanages both in the Dominion of Canada and the United States, giving this Sisterhood all the right, power and authority to carry out the "charitable trust," and further carry out the provisions of the will instead of the Gray Nuns.

The short section denominated "Third" reads, "If the language used by me herein shall be ambiguous or susceptible of two or more constructions, it is my direction that said language be always construed in favor of and to give effect to the charitable trust by me herein created." Provision was made for the appointment of Eugene J. Lamarre, as executor, successor executors, a corporate trustee and a successor trustee, with the request that the executor be engaged as attorney by the trustee.

Immediately following the attestation clause appears an unwitnessed statement also revealing the intention of the testator. Fortin declared that, in creating the "charitable trust herein," for the benefit of orphans or foundlings, he desired to state that, for many years, he had studied the situation of institutions carrying on this charitable work, not only in this country but, also, in Canada, and that he had inspected scores of institutions and found that, in most cases, they were situated in a congested part, or parts, of large cities and were generally crowded to their highest capacity. He stated that it was his utmost desire in creating the "charitable trust herein" to elaborate upon this finding of fact by him, namely, that such institutions should be built more in the open, away from larger cities, so that the inhabitants of the rural communities would have possibly a greater opportunity to take these children by consent of such institutions for rearing as their own, and that, in placing such unfortunates, it is to a greater advantage to them, morally and physically, that such orphans or foundlings be placed in homes in rural territories.

A codicil to the will named the First National Bank of Chicago as trustee in lieu of its predecessor corporation, the First Union Trust and Savings Bank of Chicago.

The estate was administered in Kankakee County and distribution made to the trustee. The assets consist of personal property valued at approximately $210,000 and real estate of a value between $125,000 and $150,000.

Ten years after the date of Fortin's death, namely, on July 2, 1947, the Sisters of Charity (Gray Nuns) advised the trustee, in writing, that, after giving the matter very serious consideration, they regretted to say that their Community was not in a position to accept the trust estate and, on September 8, 1947, in another letter to the trustee, stated their decision was to be taken as final; that their Community was incorporated in 1915, the corporate name being, "The Sisters of Charity of the General Hospital of Montreal, commonly called `Grey Nuns,'" and that their board of directors, composed of five sisters, having full power over the Order, had voted to refuse the estate. The Sisters of Charity of Providence, designated in Fortin's will as the alternate to the Gray Nuns, on October 23, 1947, decided not to accept the trust.

Thereafter, at the suggestion of His Eminence, Archbishop Samuel Cardinal Stritch of the Roman Catholic Diocese of Chicago, the Order of Dominican Sisters, operating the Sacred Heart Academy, and having its Mother House in Springfield, Illinois, organized the Cardinal Stritch Home, a not-for-profit corporation, for the following purposes: "The care, operation and ownership of a welfare institution for children with particular attention to orphan and dependent children." This order of Roman Catholic nuns is an order of the Roman Catholic Sisterhood having a continuous history of more than four hundred years. The Department of Welfare of this State made a determination, conformably to the applicable statute, (Ill. Rev. Stat. 1949, chap. 23, par. 299(i),) prior to issuance of the certificate to the corporation that the incorporators of petitioner are reputable and responsible persons, that the proposed work is needed, and that the incorporation of the child welfare agency is desirable and for the public good. A corporate purpose of the Order is the education of young people, the care of sick in hospitals, and the care of welfare institutions for children. The not-for-profit corporation was formed with the purpose in mind of furthering the purposes of Alfred Fortin set forth in his will.

On July 29, 1948, the plaintiff, the First National Bank of Chicago, as trustee, filed its complaint in the circuit court of Kankakee County, seeking a construction of the will and codicil of Alfred Fortin, deceased, and a determination whether there has been a failure of the designated charity to perform in the manner as originally planned by the testator, and, if so, whether there is a general charitable intent warranting the use of the cy pres doctrine or what substitute plan would be best suited to carry out the intent and purpose of the testator. The complaint also alleged that certain heirs-at-law of Fortin contested his will; that thereafter, pursuant to a decree of the circuit court of Kankakee County, a settlement was made whereby the executor paid to the contesting heirs $25,000 in full of any and all claims they might otherwise have in and to the estate, and that each of the contestants signed and delivered to the executor a full and complete release of all interest in the estate. The Attorney General of the State, the State's Attorney of Kankakee County, the Gray Nuns, the Sisters of Charity, St. Joseph's Catholic Parish of Bradley, and the heirs-at-law of Alfred Fortin were made parties defendant.

The answer of St. Joseph's Catholic Parish averred the will reveals the testator's general intent that all of his net estate be dedicated to the founding, support and maintenance of an Orphans Home for dependent children to be located in Kankakee County; that the mode or manner of carrying out this general charitable intent has become impossible or impracticable, and that the Dominican Sisters are ready, willing and able to substitute for the Orders of Sisterhood named by the decedent. The answer asked that the court decree the Cardinal Stritch Home the proper substitute for the charities named in the will. The Attorney General answered that the trust estate should not fail but that, instead, the court should apply the cy pres doctrine and appoint some worthy charitable institution of the same general kind capable of and willing to carry into effect the provisions of the will. The State's Attorney's answer is to the same effect. Marie Paul Granger and forty-seven other collateral heirs admitted that there was an attempted contest of Alfred Fortin's will. They answered, further, that there is no ambiguity or problem of interpretation raised by the will, but that the "so-called `charitable trust'" which Fortin attempted to create, having completely failed by reason of its inherent impracticability, the court should order the trustee to convey the property to the heirs-at-law of the decedent. They specifically denied that the will authorized the cy pres application to charitable purposes of the estate or any portion thereof. These defendants, in their own behalf, and for all persons presently answering the description of heirs-at-law of ...

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