APPEAL from the Superior Court of Cook County; the Hon. FRANK
M. PADDEN, Judge, presiding.
MR. JUSTICE CRAMPTON DELIVERED THE OPINION OF THE COURT:
The Attorney General of the United States, as successor to the Alien Property Custodian, appeals from a decree of the superior court of Cook County, granting partition to the plaintiff and finding a fee-simple title to two thirds of the property in question to be in Peter Schlosser and William H. Frawley, Jr., as trustees under the will of Francis X. Orthen, deceased. A rather peculiar and unusual set of circumstances is presented, and a freehold is involved.
Father Orthen, the deceased, a Catholic priest, had for many years been the pastor of Sacred Heart Parish of Eau Claire, Wisconsin. He executed his will on May 9, 1943, and died June 14, 1943. His will was admitted to probate July 27, 1943, and later ancillary proceedings were instituted in Cook County and an administrator with the will annexed was appointed. The sole question presented involved the legal effect of several provisions of the will with respect to a lone parcel of real estate situated in Rogers Park in the city of Chicago, described as lot 10 in block 27, Rogers Park, commonly known as Nos. 1626-1630 Lunt Avenue, Chicago, which is improved by a three-story brick apartment building containing twenty apartments and which is subject to the lien of a trust deed to the Chicago Title and Trust Company, as trustee, to secure indebtedness concerning which there is no issue here.
The will gave one third of the property to the plaintiff-appellee, Monica Monarski, a faithful and kind friend and housekeeper, of Eau Claire. Her right to partition is not controverted nor is the lien of the trust deed denied. The testator, after providing for a number of charitable bequests, in clause 6 bequeathed $1000 to the widow of a deceased brother, a German national, "subject only to the provision for payment hereinafter provided." Clause 7 gave, devised, and bequeathed to Peter Schlosser and William H. Frawley, Jr., as trustees, (and who will hereafter be referred to as "the trustees,") $25,000 to establish and build a high school for the parish, the balance of the necessary funds to be raised by the parish within five years after the date of the testator's death, in default of which the trustees were directed to expend the sum and income therefrom for the interest and benefit of the parish as directed by the Bishop.
Under the eighth clause all the rest, residue and remainder, real and personal, wheresoever situated, was given, devised, and bequeathed: (a) one-third to Monica Monarski, aforesaid, a United States citizen; (b) one-third to "my loving sister, Marion Greb, her heirs and assigns forever" of Germany; and (c) one-third to "my loving brother, William Orthen, his heirs and assigns forever" also of Germany.
Clause 9 provided: "In the event that the bequests to Minnie Orthen, [sixth clause,] Marion Orthen Greb, and William Orthen cannot be paid to them personally or to their surviving children, personally, after my death, than [sic] I direct that said bequests be held for them for a period of three years after the Armistice of War II, [sic] by the executor or trustees named in Paragraph Seven (7) hereof, and if the said persons or their children are not located or able to be paid said bequests personally, then their share or shares shall be paid to said trustees above named and used for the purposes set forth in Paragraph Seven (7) hereof."
The pleadings, so far as material here, show: Marion Greb and William Orthen are persons within a designated alien country, and an answer was filed on their behalf; the answer of the trustees asserts the devisees and their children are enemy aliens and the bequests cannot be paid to them personally and that as trustees they are seized of and entitled to an undivided two-thirds part of the real estate involved; The Alien Property Custodian, by vesting order No. 5160, executed July 24, 1945, filed September 10, 1945, determined that the devisees, and the children of both, are nationals of Germany, and purportedly vested "all right, title, interest and claim of any kind or character whatsoever," which any of these persons has in respect to the property, in the custodian under the provisions of the Trading With the Enemy Act; an amendment to the complaint filed March 17, 1947, made the Hon. Tom C. Clark, then Attorney General of the United States, as successor to the Alien Property Custodian (Executive Order No. 9788, October 15, 1946, 11 F.R. 11981,) a coplaintiff; disclaimer by Hon. Tom C. Clark, as such successor, disclaiming any interest in the property in suit, was then filed and an order entered June 24, 1947, granting leave to the Attorney General to withdraw as coplaintiff; whereupon, by supplemental counterclaim, the trustees suggested the death of Marion Greb, leaving her surviving a husband and four children; and subsequently upon the petition of the Attorney General an order was entered thereon granting leave to appear as coplaintiff, without prejudice to proceedings theretofore had.
The cause was referred to a master in chancery and testimony and proof taken. The Attorney General introduced no evidence. The master in a lengthy report found for the plaintiff and that the trustees were entitled to two-thirds interest in the premises, to the exclusion of the Attorney General as successor to the Alien Property Custodian, and subject only to the lien of the trust deed, an assignment of rents to secure the aforesaid indebtedness, costs of administration and possible inheritance taxes. The Attorney General objected to many of the findings, whereupon the objections were overruled and made exceptions to the master's report. After an order substituting the present Attorney General, the chancellor entered a decree overruling the exceptions to the report and supporting the lengthy findings of the master, most of which, or all, were incorporated in the decree which ordered partition and appointed commissioners.
The sole controversy, then, is between the trustees and the Attorney General as to the two-thirds interest in the property. All agree the plaintiff is entitled to her one third and to partition and that the trust deed is a valid subsisting lien. All are in accord that the brother and sister, and their children, respectively, cannot and could not take title under the devise by reason of their being enemy aliens. However, the Attorney General maintains that clause 9 of the will, above quoted, violates the rule against perpetuities and renders invalid the alternative disposition to the trustees, for the reason the alternate gift claimed by the trustees was conditioned upon events which would not necessarily take place within lives in being and twenty-one years of the date of the testator's death, and the will cannot be rewritten by the courts so as to make the alternative gift vest upon a condition other than that expressed by the testator.
Appellees, on the other hand, contend that a proper construction of the will requires that if an invalid perpetuity is attached to the primary devise in clause 9 of the will it must be confined to the primary devise alone, and that the alternate devise to the trustees, for charitable purposes, is valid and should be sustained. They also argue clause 9 is valid.
The master and chancellor found and concluded the cessation of hostilities by the surrender of the German army on May 7, 1945, and the surrender of the Japanese army on September 1, 1945, constituted the armistice within the meaning of that term as used by the testator in his will. These findings were objected to in the report but the Attorney General does not here contest those findings but contends rather that a gift conditional upon the future occurrence of these events was invalid ab initio as a matter of law, and that if by any possibility the estate will not vest within the time required by the rule, the devise is void.
The decree also follows the master's report in finding that the testator "selected as the date of the conditional limitation, an event (the armistice) then certain to all sane persons to occur well within, and prior to any possible expiration of, the period limited by the Rule against perpetuities." To this finding the Attorney General takes violent exception and much space in the briefs is devoted to a discussion of the possibility or lack of possibility of a thirty-year or even an hundred-year war. Of course, the rule is applied as of the time the estate is created and not in the light of what subsequently occurs, and if there is any possibility of a violation of the rule against perpetuities, then a devise of interests dependent upon such provisions is void. Kent says that the possibility that the limitation at its creation, may exceed, in point of time, the authorized time, is fatal to it (4 Kent Com. 283,) for, as already stated, the future interest must vest within the time prescribed by the rule; otherwise it will be held to be void. 4 Horner-Probate Practice and Estates, sec. 2382.
In cases construing wills the intention of the testator has recently been referred to and designated as the lodestar of construction. (McClothin v. McElvain, ante, p. 142.) In Papa v. Papa, 377 Ill. 316, the rule was fathered thusly: "The fundamental rule in construing wills is to ascertain the intention of the testator from a consideration of the whole will, and such intention must be given final effect if not in conflict with an established rule of law or of public policy. [Citing cases.] The whole scope of the will must be considered and every provision given due weight to ascertain the plan of the testator in the light of the facts and circumstances surrounding him, his family and property at the time the will was made. [Citing cases.] The intention must be gathered from the language of the entire will and considered as a whole, and not by extracting therefrom certain language without regard to its relation to the balance of the will. [Citation.] A technical construction of words and phrases will not be carried to the extent of defeating the obvious general intention of the testator, and this intention will be given effect even though the language may not be clear or technically correct. [Citing cases.]"
While the language quoted in this will does not have all the clarity desired, we think the intention is clearly expressed therein that under the exigencies of a war and realizing the difficulties of payment or distribution to the natural objects of his bounty, who were residents and nationals of a country with which we were then at war, the testator, using the only means at his command to devise property under such circumstances, provided that, if his worldly goods could not reach the hands of those he loved, or for fear the same might fall into or pass through the hands of foreign officials or others who might be unfriendly to the desires he sought to accomplish, he then wished to have his property go to the church, in which he had spent so many years of his life, and to his trustees, to augment the fund already given by the provisions of clause 7 and for the objects and purposes therein expressed. This was his purpose in phrasing an alternative "bequest." When the intention of the testator is ascertained, then the law with respect to perpetuities is ...