Appeal by defendants from the Circuit Court of Cook county;
the Hon. LEONARD C. REID, Judge, presiding. Heard in the second
division of this court for the first district at the October
term, 1950. Decree affirmed. Opinion filed October 17, 1950.
Rehearing denied November 1, 1950. Released for publication
November 2, 1950.
MR. PRESIDING JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 1, 1950
The Continental Illinois National Bank and Trust Company of Chicago, as executor and trustee, filed its complaint in the circuit court of Cook county, asking for construction of the will and codicil and of an inter vivos trust made by Daniel D. Van Degrift.
The principal issue involves the disposition of the residuary income derived from the inter vivos trust and the will, both the Art Institute of Chicago (hereinafter called Art Institute) and the Shriners Hospitals for Crippled Children, Chicago unit (hereinafter called Shriners), claiming to be the sole beneficiary of this residuary income. The third defendant, Homer D. Chatmon, makes claim to a gift of $100 per month. His claim rests on the same theory as that of Shriners. The chancellor having found for the Art Institute, Shriners and Chatmon have appealed.
On October 16, 1930, Daniel D. Van Degrift (hereinafter referred to as Dr. Van Degrift, that being the manner of his designation both in the briefs and abstract) created an inter vivos trust, naming the Continental Illinois National Bank and Trust Company of Chicago as trustee (hereinafter called trustee). He deposited securities with the trustee which at the time of trial were valued at $354,000. He died on May 31, 1946, leaving a will and codicil, by the terms of which he bequeathed his property valued at $165,000 to the trustee under the inter vivos trust to become part of the corpus of the trust.
By Article Third of the trust instrument, he reserved the income for life, made a number of gifts to the Art Institute for specific purposes, and then gave the Art Institute the income from the remainder for the purchase of works of art. He reserved the right to amend the trust instrument by a writing to be signed and acknowledged by him and delivered to the trustee. Pursuant to that right, he made nine amendments before his death in 1946.
In February 1931, he cancelled Article Third and substituted a new Article Third, which made gifts to certain friends, relatives and charities, including Shriners and Chatmon. However, he preserved the specific gifts and the gift of residuary income to the Art Institute, as set forth in the original instrument. In November 1931, he cancelled a subsection of Article Third, which gave $5,000 to Eleanor J. Shewell, and substituted a provision giving that amount to his niece, Mrs. Ethel Manley Long. Two other amendments, one adding to and one withdrawing property from the corpus, were made in November 1931.
On February 27, 1934, he cancelled Article Third as amended February 6, 1931 and November 11, 1931, and substituted a new Article Third, under the terms of which, after making gifts to various relatives and friends (including Chatmon, whose gift was increased from $50 to $100 per month for life), he gave the residuary income to Shriners. He ratified and confirmed the trust instrument as thus amended.
On February 19, 1936, he cancelled the amended Article Third and substituted a new article reinstating Art Institute as the beneficiary of the residuary income. The ratification clause approved and confirmed the trust instrument as theretofore from time to time amended.
On August 12, 1943, after referring in the preamble to the trust instrument, he cancelled subparagraph (2) of paragraph (b) of Article Third, which gave $5,000 to Thomas C. Van Degrift, and subparagraph (2) of paragraph (c) of Article Third, which gave $100 per month to Charles R. Van Degrift. He then ratified the agreement as dated October 16, 1930. No amendments were referred to.
On June 25, 1945, he made an amendment which constitutes the principal basis for the contention of appellants herein. This amendment starts with a preamble as follows:
"KNOW ALL MEN BY THESE PRESENTS, that I, Daniel D. Van Degrift . . . exercising the right and power reserved to me . . . by the trust instrument . . . dated October 16, 1930, as heretofore amended by amendments dated February 6, 1931, November 11, 1931, February 27, 1934, and August 12, 1943, do hereby amend said trust agreement in the following manner:"
Then, in specific words he cancelled paragraph (b) and subparagraphs (1) to (6) thereof, of Article Third as amended and substituted specific gifts to five relatives and friends. By a second paragraph, he gave Ethel Deacon Orr $200 per month, an increase from $100. By a third paragraph, he provided for the payment of taxes out of the principal of the estate. A ratification clause followed, in these words:
"As thus amended, I hereby ratify, approve and confirm said trust agreement dated October 16, 1930, as heretofore amended by amendments dated February 6, 1931, November 11, ...