Appeal by defendant from the Circuit Court of Alexander
county; the Hon. LOYD M. BRADLEY, Judge, presiding. Heard in this
court at the May term, 1950. Decree affirmed. Opinion filed June
15, 1950. Modified opinion filed and rehearing denied September
27, 1950. Released for publication November 2, 1950.
MR. JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
Modified opinion filed and rehearing denied September 27, 1950
Oscar T. Tamm died in 1913, a resident of Alexander county, Illinois, and his will was probated in said county the same year, by which there was created a trust, having the ultimate objective of constructing and maintaining good roads in Alexander county.
The will appointed three trustees, with provisions for successors, and changes occurred in the ensuing years. One of the original trustees was David S. Lansden who served as such trustee from 1913 until his death in 1944, and he appears to have been the active and directing officer of the trust. The trust was managed privately for some thirty years, without court supervision.
After the death of David S. Lansden, in 1944, three individuals, describing themselves as taxpayers of the county, petitioned the circuit court to fill vacancies in the trustees, which was done, and the acting trustees thereafter were Edward H. Conant, Alonzo Mathis and Edwin H. Bryden. They filed suit against the estate of David S. Lansden, praying for an accounting of the trust, and are designated herein as plaintiffs appellees. The nominal defendant appellant is Carolyn VdB. Lansden, executrix of the last will and testament of David S. Lansden, deceased. She died during the pendency of the suit and Robert L. Lansden was appointed administrator de bonis non with will annexed, and was substituted as defendant herein, without change in title of the case.
The attorney general of the State of Illinois was permitted by the court to intervene in the suit, on the ground a charitable trust was involved, and he is designated intervening petitioner appellee.
The litigation became somewhat involved and complicated. Considerable oral testimony was heard before a master in chancery, and there were more than 400 documents offered in evidence, besides the several account books of the trust with some 5000 entries made over a period of three decades. The abstract filed on this appeal consists of nearly 600 pages, of which 132 pages set forth the pleadings and orders, complaints, answers, counterclaims, motions, countermoves, objections, motions to strike objections, etc.
The chancellor heard and disposed of numerous objections to the report filed in behalf of the trustee, to the report of the master, and to rulings on evidence, etc., and on March 19, 1949, entered a final decree from which this appeal was taken. That decree found against the plaintiffs upon most of the issues, approved the fees charged by the various trustees, and allowed to the estate of David S. Lansden the sum of $12,000 for services rendered by him over a period of about 19 years, for which he had received no compensation.
The decree also found that, in two transactions handled by David S. Lansden as trustee, he had made improper and illegal investments, resulting in loss to the trust, which losses were surcharged against the defendant estate, with interest from their several dates at the rate of five per cent per annum. Due to the long period of time involved, the addition of interest more than doubled the amount of the original losses. The aggregate of the surcharges with accumulated interest, after allowing credit for the $12,000 fee, was the sum of $66,732.92 and the defendant estate was ordered to pay that amount in due course of administration. The defendant has perfected this appeal, and the plaintiffs cross appeal.
From the evidence, we find the following facts pertinent to the issues:
Oscar T. Tamm was a very active business man with extensive property holdings. When he died in 1913, he left very little in liquid assets, and the obligations against his estate aggregated about $100,000. But he owned a large amount of real estate, including numerous tracts of rural land, some of it having small value, being cut over timber land: but there were also many items of urban real estate of various kinds; and he was also engaged in several businesses. One of these was a general store in the Village of Tamms, hereafter further described.
David S. Lansden was executor of the Tamm will as well as a trustee. By virtue of their broad powers as trustees, he and his associates carried on the Tamm business affairs, cleared lands, had various parcels share cropped, ran the store, collected his assets, paid his debts, and gradually sold off the real estate. A book was kept in which were recorded the details of all the numerous sales, and no question has been raised as to their nature or the adequacy of prices. Receipts and disbursements were recorded in journals kept by the trust.
During the first years, while the debts were being paid, there was little available for road construction. In about six years, all the debts were paid. From 1919 on, the trust accumulated some funds, and more expenditures were made on roads, though the amount never reached large proportions. The orderly liquidation of assets undoubtedly made the trust possible; otherwise it would have had little or nothing to justify the present litigation.
The services of the trustees appear to have been diligent, essential, and valuable to the trust. So far as the services are concerned, the amounts deducted by the trustees as their compensation, appear reasonable. And, according to the evidence, the last allowance of $12,000 includes reimbursement for expenses in the management of the trust, as well as compensation for personal services, over an extended period of years.
The general store business, above mentioned, was incorporated in 1907 under the name of Tamms Mercantile Company. The original subscribers for shares were listed as Oscar T. Tamm, 97 shares, and one share each to Seth W. Morton, Lee B. Davis and David S. Lansden. The latter two (who later became trustees when Tamm died) were designated officers of the company. Apparently Mr. Davis later acquired some additional shares from Tamm, but it does not appear that Mr. Lansden ever owned more than one share, nor even that the one had ever been issued, or any dividends paid on it.
After Tamm's death, the trustees operated the store at a substantial profit to the trust for four or five years. Then a depression set in affecting rural areas severely, and in 1919 and 1920 business in rural areas was very bad. In addition to the general depression (which followed the inflationary period of World War I) the rapid extension of paved highways was highly detrimental to country stores. The Tamms company was several times in arrears on its rent to ...