Appeal by plaintiffs from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the October term, 1949. Reversed and remanded with
directions. Opinion filed May 4, 1950. Released for publication
May 23, 1950.
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
By this appeal, American Bible Society and John Early, as executor of the estate of Hattie L. Herrick, deceased, seek a reversal of an order of the circuit court of Winnebago county which directed said executor to pay to Albert B. Chase, executor of the estate of Mary A. Herrick, 20 per cent of the net balance of the estate of said Hattie L. Herrick. The cause is submitted to this court for decision as an agreed case under Section 48 of the Rules of Practice and Procedure of the Supreme Court. (Ill. Rev. Stat. 1949, ch. 110, par. 259.48 [Jones Ill. Stats. Ann. 105.48].)
On June 25, 1945, Hattie L. Herrick, seventy-seven years of age and a resident of Rockford, Illinois, executed her will, naming certain cousins, friends and charitable institutions as legatees. On November 4, 1946, she died leaving an uncle, Walter E. Davis, her sole heir-at-law. Her will was duly admitted to probate and letters testamentary were issued to John Early on December 19, 1946. After directing the payment of her debts and disposition of her household goods and personal effects, the third clause of her will provided:
"The balance of my estate, of every kind, nature and description, including real estate, I direct shall be sold and reduced to cash, and after paying any debts or claims against my estate, taxes and costs of administration, including executors and any attorney's fees, I give as follows:
"(a) Twenty (20%) per cent of the net cash on hand for the purchase of an annuity for life in the American Bible Society, Park Avenue and 57th Street, New York City, for my cousin Mary A. Herrick, 512 LaGrange Street, South Haven, Michigan. In the event she predeceases me, I give said twenty (20%) per cent outright to said Bible Society."
Said legatee, Mary A. Herrick, was a resident of Van Buren county, Michigan, and, at the age of ninety years, died testate on August 27, 1947. Appellee, Albert B. Chase, was appointed executor of her estate on October 30, 1947. On April 6, 1949, John Early, as executor of the estate of Hattie L. Herrick, filed his report in the probate court of Winnebago county, showing total receipts of $39,243.62 with disbursements amounting to $4,857.03, leaving a balance on hand for distribution of $34,136.59. The report prayed for an order of the probate court directing the executor to pay 20 per cent of said sum of $34,136.59 to American Bible Society. Albert B. Chase, executor of the estate of Mary A. Herrick, filed objections to this report in which he alleged that John Early, as executor, had not purchased the annuity which was directed to be purchased under the will of Hattie L. Herrick, deceased, and consequently Mary A. Herrick, during her lifetime, had never received any payment under the provisions of said will; that immediately upon the death of Hattie L. Herrick, 20 per cent of her net estate became vested in Mary A. Herrick; that such vested estate is in fact a legacy of a definite sum of money and, as executor of the estate of Mary A. Herrick, he is entitled to receive that amount.
Upon a hearing, the probate court overruled the objections of Albert B. Chase, executor, and ordered John Early, as executor of the estate of Hattie L. Herrick, to pay to Albert B. Chase, executor of the estate of Mary A. Herrick, an annuity based upon her life expectancy and the length of time that she survived the said Hattie L. Herrick, and directed the balance of said 20 per cent of the net estate of Hattie L. Herrick, deceased, to be paid to American Bible Society. An appeal from that order to the circuit court of Winnebago county resulted in an order directing the executor of the Hattie L. Herrick estate to pay to the executor of the Mary A. Herrick estate, the full 20 per cent of the net balance of the estate as shown by the report of the executor.
The order of the circuit court found that Hattie L. Herrick, by the provisions of her will, made an outright bequest of 20 per cent of the net cash balance of her estate to Mary A. Herrick for the purchase of an annuity; that this 20 per cent of the net balance of the estate vested in Mary A. Herrick upon the death of Hattie L. Herrick; that Mary A. Herrick had a right to elect, prior to the time of the purchase of the annuity, whether she would accept the annuity or take the corpus of the fund bequeathed to purchase the annuity and that upon her death this right of election passed to her personal representative. Consistent with these findings, the trial court refused to approve the final report of the executor of Hattie L. Herrick, deceased, and, as stated, directed the executor of her estate to pay to the executor of the Mary A. Herrick estate 20 per cent of the net balance of the Hattie L. Herrick estate.
Counsel for appellants insist that the will of Hattie L. Herrick did not make any outright bequest to Mary A. Herrick which vested 20 per cent of her net estate in Mary A. Herrick; that, as appears from the provisions of her will and the evidence disclosing her relationship with the American Bible Society, it was clearly her intention to give to the Society 20 per cent of her net estate subject to the obligation of that Society to pay to Mary A. Herrick, in accordance with the practice of that Society, an annuity as long as Mary A. Herrick should live; that Mary A. Herrick was only entitled to receive such annuity and had no election to take the corpus of the fund nor did the right of such election vest in the personal representative of Mary A. Herrick.
In order to sustain the judgment of the circuit court, counsel for appellee insists that there is no uncertainty or ambiguity in the will of Hattie L. Herrick and that by its provisions an absolute, unqualified, outright bequest of 20 per cent of the net balance of her estate was made to Mary A. Herrick for the purpose of purchasing an annuity, which the executor of her will was directed to do; that this bequest immediately became vested in Mary A. Herrick upon the death of Hattie L. Herrick and that she, the legatee, had the right to elect, prior to the time of the purchase of the annuity, to take the corpus of the fund so bequeathed, in lieu of the annuity payments, and since Mary A. Herrick died on August 27, 1947, before the annuity was purchased, the right to make this election passed to her personal representative.
American Bible Society was founded in 1816 and incorporated in 1841 by a Special Act of the Legislature of the State of New York, as a nonprofit organization, for the purpose of publishing and promoting a general and wider circulation of the Holy Scriptures without note or comment. The outstanding character of its varied and comprehensive service is well known and universally recognized. It derives its entire income from gifts, donations and contributions made by interested persons. It issues an annuity agreement in any amount from $100 upwards certifying that a named person, desiring to promote the objects of the Society, has contributed and paid to the Society a named sum of money for the general purposes and uses of the Society and that in consideration thereof, the Society obligates itself and its successors to pay to a named person an annual sum in annual or semiannual payments on certain designated days during the term of the natural life of a named person. The record discloses that the testator made contributions to the Society of small sums of money during the years 1933, 1934, 1935, 1936, and 1937. In her several letters to the Society, she characterized the work it was doing as "urgent," "valuable," "greatly needed" and "world wide." On November 27, 1937, she wrote the Society that she was interested in its work and was considering investing $100 in an annuity and asked for its booklet entitled, "A Gift That Lives." The Society promptly complied with this request and, referring to this booklet, wrote her on November 29, 1937: "You will find outlined in this booklet a suitable method of befriending the Bible and at the same time assuring a dependable income for yourself. We have prepared this booklet in question and answer form so that interested friends may become acquainted with every detail of our annuity plan. Your gift of $100.00 or more on the annuity basis would go toward the essential work of making the Bible more widely and more easily available, a service indispensable to the great missionary task of the Christian Church. The second thing which I hope you will observe is that there is no red tape connected with securing annuity agreements. All you need to do is to fill in the information requested on the enclosed application blank and send it with a check or draft for the amount you wish to give."
On January 21, 1938, Miss Herrick again wrote the Society: "Owing to very busy days, I have delayed writing you regarding the annuity agreement with the Bible Society. I have one sister three years' younger than I. Each of us considers the other in deciding upon investments. We are the only living members of our family. Will you kindly send us the survivorship rates and any other information you have on that form of annuity investments. I think I wish to put a little money into this form of investment and hope, upon receiving your reply to this letter, to complete the matter quite promptly." On February 4, 1938, the Society wrote to her: "The Society is grateful to you for the gift of $100.00 which you have made on the annuity basis. We are happy to have your name on our list of annuitants and to welcome you into this friendly group of Bible-lovers scattered over all parts of the Globe. In accordance with your application, we have prepared the enclosed annuity agreement No. 8831 which will pay you $6.20 a year with payment due on February 4th." Miss Herrick acknowledged the receipt of this annuity agreement and on February 10, 1938, wrote the Society: "I have received my membership certificate in the American Bible Society and am happy to have a very small part in the work you are doing. In compliance with your request will state that I am a member of the Second Congregational Church, Rockford, Illinois."
In 1938, 1939 and in 1940, Miss Herrick made further contributions to the Society, and on December 2, 1940, wrote the Society to retain her $6.20 annuity which would become due the following February 6th. In February 1942, she returned her annuity check of $6.20 to the Society and in November of that year made another contribution to the Society of $25 and on February 26, 1943, sent the Society $200, stating she desired another annuity. On March 2, 1943, the Society wrote her: "Thank you for your kind letter with generous gift in the amount of $200.00 on the annuity basis. It is a pleasure to enclose annuity agreement No. 12261 for $200.00 which will pay you $12.40 per year with payment due, as before, on February 4th." Subsequently, Miss Herrick sent the Society a further sum of $1,000 and received from it a third annuity agreement and from time to time sent the Society further gifts ranging in amount from $6.20 to $25.
The annuity applications she signed were addressed to the American Bible Society, stated the amount of the annuity agreement applied for, the date of the birth of the annuitant, the name of the person to whom the annuity payments were to be made and the name of the person who gave the annuity. The annuity agreements executed by the Society and which she received from the Society obligated the Society to pay her an annual payment, during her lifetime, of 6.2 per cent upon the several amounts received from her. Each agreement contained this clause: "And the American Bible Society hereby certifies that Hattie Louise Herrick desiring to promote the objects of the Society and in consideration of the execution ...