APPEAL from the Circuit Court of McLean County; the Hon.
ROSCOE C. SOUTH, Judge, presiding.
MR. JUSTICE CRAMPTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 18, 1950.
Plaintiffs-appellants, heirs-at-law and beneficiaries under the will of Thaddeus Stubblefield, sought partition of the lands of decedent and a construction of the will and three codicils thereto and asked the trust for alleged charitable purposes established thereunder be declared void. Upon hearing, the circuit court of McLean County held a charitable trust was created, and dismissed the amended complaint for want of equity.
The testator devised many acres of farm and timber lands to defendant-appellee bank, as trustee, to be held for the benefit of Funk's Grove Cemetery Association and a number of admitted charities under a complex and involved system of distribution of income. The heirs contend the trust is not a charitable one and is void as violative of the rule against perpetuities and the statute forbidding accumulations of income, asserting all of the property descends as intestate property. A freehold, therefore, is involved.
The testator died June 10, 1948, at the age of eighty-five years. The will and codicils were executed within the periods from December 13, 1944, to December 13, 1947, and were probated in McLean County. He left no surviving widow, children, brothers or sisters. The will and codicils of the testator created a single trust for designated various objects and purposes, as therein specified, with three provisions for the payment of income for life to certain grandnieces and grandnephews, the remainders to be held in perpetuity. The estate was valued and appraised at over half a million dollars.
One of the beneficiaries of the trust was Funk's Grove Cemetery Association, a corporation organized as a corporation for profit in 1891. In 1936 the articles of incorporation were amended to make its period of duration perpetual. One hundred shares of stock were outstanding in various amounts and held by about forty individuals.
Thaddeus Stubblefield, the testator, was a descendant of an old and large family. He had been the duly-elected president of the cemetery association for many years and his estate owned several shares of the capital stock. The corporation owned the cemetery plot consisting of approximately five acres on which is situated an old one-room frame chapel, built by popular subscription, and about twelve acres of adjoining land and timber on which is a caretaker's cottage. An adjoining tract of ninety acres was purchased in 1945 for $8750, which is partly in cultivation and partly devoted to reforestation. The cemetery is located one mile west of Funk's Grove, an unincorporated village near the center of Funk's Grove Township, three and one-half miles northeast of McLean and about sixteen miles southwest of Bloomington in McLean County, Illinois, on State Route No. 66. The population by the last census of this and adjoining townships is about 3900 persons.
The burial records of the cemetery for the past thirty years show a total of 160 burials, of which about one hundred were of the Funk and Stubblefield families. The number of burials each year varied. The rules and regulations of the association establish the lots were held for sale at various prices which guaranteed perpetual care, and were exempt from taxation. Less than one hundred scattered lots remain to be sold.
The chapel, situated among the old, primitive trees on the grounds, was owned by the association, and services were held there for funerals, an occasional wedding, infrequent summer services, and for the annual stockholders' meetings. It was affiliated with no church or religious group.
The cemetery itself is of historic significance, having frequently been mentioned in articles and books on the early development of Illinois. It consists of a stand of virgin timber, probably one of the few remaining in Illinois, and attracts visitors throughout the State. Its woodlands and flora contained therein are the subject of visitation of groups of students from high schools, colleges, and universities and by the public at large.
By the fourth clause of the will, the testator devised the residue of the estate, excepting only minor bequests of personalty, to the Peoples Bank of Bloomington, in perpetual trust with specific trust powers granted in the handling, management, and application of income, in perpetuity, without power of sale.
By the fifth clause, the trustee was directed to manage the property so as to keep the timber in primitive state, not permitting any cutting or destruction, and to fence against trespassers, and not to permit any road to be cut through or around the timber. The clause also directed the trustees of the cemetery association to erect a memorial or mausoleum upon a tract known as the "Bendfield," which was a tract of about twenty-five to thirty acres located three quarters of a mile from the cemetery proper, and directed the sale of adjoining cemetery lots by the trustees, the proceeds to be held for the same trust purposes as declared in other clauses of the will.
The seventh clause provides for the setting apart of the income from certain properties for the perpetual care and beautification of the cemetery and then for "such other religious and educational purposes as hereinafter provided;" to pay the annual income to the trustees or directors of the cemetery association to perpetually care for the cemetery; to build and maintain the chapel; to hire a minister or divinity student for periodic services at the church or chapel; to hire a custodian and assistants; to pay any taxes on nonproductive property deeded or held in trust; to pay for roads, walks and drives; to maintain custodian's quarters; to pay bond premiums of the finance officer of the association; to pay to the association a sufficient sum to build a memorial or mausoleum on the "Bendfield" tract; and to create a perpetual fund of $25,000 from fifty per cent of the income, as a permanent building fund for the building or rebuilding of the above.
The will then provides, when the reasonable needs as above outlined have been met, the trustee shall apply annual income from this property held in trust, or after-acquired property, to various objects in the order named; such as, church annuities, educational funds, and a student union building, all of which standing alone, it is conceded, would be charitable in nature. The seventh paragraph also provides that if and when there becomes a surplus in the trust from income, amounting to $150,000 to $200,000, then there ...