APPEAL from the Circuit Court of Carroll County; the Hon. LEON
A. ZICK, Judge, presiding.
MR. JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
This is a suit in chancery to construe the eighth clause of the last will and testament of Amos Wolf, deceased. The complaint was filed in the circuit court of Carroll County by Kathryn E. Dyslin, as executrix of the last will and testament of Charles Dyslin, deceased. She also proceeded as next friend of Ireta, Charles W., and Janice Dyslin, minor children of Charles Dyslin. All of the living lineal descendants of Amos Wolf were made parties to the suit.
The cause was heard by the court on the complaint as amended, the answers thereto, counterclaims and replies of defendants and plaintiffs, and upon the proof and testimony taken in open court, after which the court found that the eighth clause of the will of Amos Wolf, deceased, created at the time of the death of the said Amos Wolf, a vested remainder in his said grandchildren who were living at the time of his death, to open, however, to admit all grandchildren subsequently born, and that said grandchildren took said vested remainder as a class per capita and not per stirpes; that the remainder of Charles Dyslin, deceased, passed by virtue of the provisions of his last will and testament to his widow, Katheryn E. Dyslin, in her individual right. There was a further construction of the will as to the language of the eighth clause, with reference to the trust and distribution of the profits to be made from time to time. The cause is here on appeal, a freehold being involved. A technical motion to dismiss the appeal taken with the case is denied.
The pleadings disclose that Amos Wolf died testate January 18, 1912, leaving him surviving five children, John E. Wolf, Franklin G. Wolf, Ada Dyslin, Ora M. Strickler, and Carrie Erisman. Also surviving the testator were three grandchildren, John Erisman, a son of Carrie, and Charles and Ralph Dyslin, sons of Ada. Thereafter, other grandchildren were born, Ruth Mosher, a daughter of John E. Wolf, George Wolf, son of John E., and David Wolf, son of Franklin G. Wolf.
Ada Dyslin, daughter of testator, died in 1926, leaving her surviving the appellant, Ralph Dyslin, and another son, Charles Dyslin. Franklin G. Wolf also died after testator's death, leaving him surviving a son, David Wolf. The testator's other three children are still living. On May 23, 1947, Charles Dyslin, one of the surviving sons of Ada Dyslin, died leaving a widow, Kathryn E. Dyslin, and three minor children, Ireta, Charles W. and Janice Dyslin, surviving. Charles Dyslin also left a will by which he devised all of his property to his wife, Kathryn E. Dyslin, and appointed her to be the executrix of the said will. At the time of the filing of the complaint a guardian ad litem was appointed for minor defendants, and a trustee was appointed for unborn lineal descendants of Amos Wolf. Both filed their answers committing the interest of their wards to the protection of the court.
The eighth clause of the will in question devises certain real estate in trust to testator's son, John E. Wolf, as trustee, to be leased by him or his successor, "in such manner and on such terms as said trustee, or his successor, shall deem for the best interests of the beneficiaries of said trust, for and during the lifetime of all my children, including said trustee, and until the death of the survivor of them; * * *." It is then provided that the premises shall be kept in a good state of repair and preservation and that, after deducting the costs of operating the trust, the net income shall be paid to the testator's children annually, in equal shares. This language then follows: "If any of my children shall have died before my death, or shall die after my death, leaving a child or children surviving, then it is my will that said trustee, or his successor, pay the said child or children, equally among them, the share the parent would have taken if living. Upon the death of the survivor of my children, it is my will that the said trust shall terminate and the said real estate go to my grandchildren, in equal shares, absolutely and forever." It is this last-quoted language on which the controversy here rests.
The errors assigned by appellant, Ralph Dyslin, are: (1) That the court below should have held that, upon the death of Charles Dyslin, the entire share of the trust income which Ada Dyslin would have received had she lived, became vested in Ralph Dyslin, as the surviving child of Ada Dyslin, deceased; (2) the court erred in holding that upon the death of Amos Wolf, deceased, the testator herein, a vested remainder in the real estate of the trust vested in those of his grandchildren living at his death and as a class, subject to be opened to admit after-born grandchildren, and that the share of Charles Dyslin, deceased, passed by his will to Kathryn E. Dyslin, his devisee; (3) the court erred in holding that the livestock, grain, machinery and other personalty remaining in the hands of the trustee at the termination of the trust, became vested in Amos Wolf's grandchildren living at his death, as a class, subject to open to admit after-born grandchildren.
There are two crucial questions presented: (1) Does the language of the eighth article of the will in question give the trust income only to the children and grandchildren of the testator, or was the gift to the lineal descendants of the testator per stirpes? (2) Does the will give a vested remainder in the real estate of the trust to the testator's grandchildren living at his death, as a class, subject to open to admit after-born grandchildren?
The first question for determination is as to the income of the trust and pertains primarily in the instant case to the rights therein arising upon the death of Charles Dyslin, deceased, upon his death after surviving his mother, Ada, who was a child of testator. The language of the will which must control this question is as follows: "If any of my children shall have died before my death, or shall die after my death, leaving a child or children surviving, then it is my will that said trustee, or his successor, pay the said child or children, equally among them, the share the parent would have taken if living." This language is so clear in regard to the testator's children and grandchildren that it seems impossible that any difference of opinion could arise as to its meaning. The gift of the income is plainly to the testator's children for the period of their lives, with provisions that upon their death before the trust terminates, their shares in the income are to be divided equally per capita, among their children who survive them. There can be no doubt that the gift to grandchildren of the testator, so far as trust income is concerned, is made contingent upon their surviving their parents. Therefore it could not be said that any grandchild who dies before his parents takes any interest in the trust income, and descendants of such predeceasing grandchildren are likewise excluded from the gift.
The decree below holds, in substance, that as to the income of the trust, the gift was to the lineal descendants of the testator's children generally. It seems obvious that this holding enlarges the gift to include descendants who are expressly excluded by the testator's express words. It is quite possible that a child of one of the testator's children might predecease its parent, leaving children who are "lineal descendants," but whose rights to participate in the income of the trust never matured in their parent. The express and plain contingency in the gift of the trust income, as it applies to the grandchildren of testator, is that they must have survived their parents. Such a gift leaves no room for a finding that the gift of income was to the descendants of testator's children generally. The decree below is erroneous in this regard. However, the factual situation here presents no such question.
The question, so far as the trust income is concerned, is whether the gift of trust income, which vested in Charles Dyslin, upon his survival of his mother, Ada, is such an interest as descends to his children or passes to his devisee. It is to be noted that the contingency of the gift to Charles Dyslin, deceased, was fully satisfied upon the death of Ada, his mother, and that there is nothing in the will which expresses any intention of the testator in regard to the disposition to be made of that part of the trust income which was paid to Charles Dyslin in his lifetime.
Appellant contends that the gift for which Charles Dyslin qualified by his survival of Ada, his mother, is governed by the holding of this court to the effect that the words "child or children" cannot be enlarged to include grandchildren. It is, of course, true that the rule in the abstract is that in construing wills the meaning of "child and children" is never extended to include grandchildren, unless there is some expression in the will showing that such extension of meaning was intended by the testator. (Watterson v. Thompson, 404 Ill. 515.) While there is no quarrel over the rule in its abstract form, it appears there is no basis for its application in this case.
Appellant cites the cases of Watterson v. Thompson, 404 Ill. 515, Bushman v. Fraser, 322 Ill. 579, Greenfield v. Lauritson, 306 Ill. 279, Hanes v. Central Illinois Utilities Co. 262 Ill. 86, Martin v. Modern Woodmen, 253 Ill. 400, and Arnold v. Alden, 173 Ill. 229. In each case cited we held that the meaning of "child" could not be held to include grandchildren, but also, in each case, the language was directed to the situation existing at the death of the first taker. Here, Charles Dyslin survived his mother, Ada, and came into enjoyment of the gift in strict accordance with the express terms of the will. We are of the opinion the cases cited have no proper application here.
The precise question here is what becomes of the income after the entire expressed plan of the testator has been fully complied with and the last taker dies before the trust terminates. The appellant urges that where a share of the income of a trust is given to two or more beneficiaries, and no provision is made in the will as to what shall be done with the part which one of the beneficiaries is to take in case of that beneficiary's death before the termination of the trust, the survivor takes the entire share under the doctrine of implied cross remainder. While this contention may be based on a ...