Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Boldenweck v. City Nat. Bank & Trust Co.

OPINION FILED JUNE 13, 1951

LEO BOLDENWECK AND SPENCER R. KEARE, EXECUTORS OF WILL OF BLANCHE C. HAUGAN, DECEASED, APPELLANTS AND CROSS-APPELLEES,

v.

CITY NATIONAL BANK AND TRUST COMPANY OF CHICAGO AND WALTER J. COX, TRUSTEES UNDER WILL OF HENRY A. HAUGAN ET AL., APPELLEES AND CROSS-APPELLEES. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS EXECUTOR OF WILL OF JULIA H. GROSVENOR, DECEASED, ET AL., APPELLEES AND CROSS-APPELLANTS.



Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. E.J. SCHNACKENBERG, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1950. Decree (as modified) affirmed. Opinion filed June 13, 1951. Released for publication July 30, 1951.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

On October 22, 1928, Henry A. Haugan of Chicago, Illinois, made his last will and testament. He died November 30, 1928, leaving him surviving his widow Blanche Caroline Haugan, his son Henry Alexander Haugan, his sister Julia H. Grosvenor, and his three brothers, Charles M., John Richard and Oscar H. Haugan. The will was admitted to probate in the probate court of Cook county on January 21, 1929, and letters testamentary were issued. Distribution was made by the executors to the trustees of the trust established by the will. Charles M. Haugan died November 11, 1934, leaving him surviving his widow Carolyn B. Haugan, and his children, Charles M. Haugan, Jacqueline H. Konysky, Patricia H. Rust, Nancy H. Rich, Dorothea H. Skonberg and Carolyn H. Cushman, all of whom survive. John Richard Haugan died December 1, 1941, leaving him surviving his widow Grace Kleist Haugan, and his children, Laura Marie Haugan and John Richard Haugan, all of whom survive. Oscar Haugan died October 6, 1943, leaving him surviving his widow Clara J. Haugan, and his children, Jevne Haugan, Richard O. Haugan and Helen H. Clement, all of whom survive. The testator's sister, Julia Haugan Grosvenor, died May 1, 1949, leaving her surviving her children, Laura G. Millikan, Josephine G. Gonsolus, Jane McNurlen and Julia G. Goodnight, all of whom survive. The American National Bank and Trust Company of Chicago was appointed and qualified as executor of her last will and testament. Henry Alexander Haugan, testator's only child, died February 1, 1939, without wife or descendants. His mother and the widow of testator, Blanche Caroline Haugan, died May 21, 1948. Leo Boldenweck and Spencer R. Keare, executors of the will of Blanche C. Haugan, deceased, filed their amended complaint in equity in the circuit court of Cook county for the purpose of enforcing their alleged claim to the corpus of the estate of Henry A. Haugan, deceased, and for the construction of his will, against the trustees of the will of Henry A. Haugan, deceased, and the children of the deceased's sister and brothers of testator, other interested persons and the widows of the three brothers. Among the assets of Blanche C. Haugan, widow of testator, is her distributive share or shares, if any, in the trust estate or estates created in and by the last will of Henry A. Haugan, deceased. A decree was entered determining that under the proper construction of Henry A. Haugan's will the property remaining in trust upon the death of his widow on May 21, 1948, vested on that date in those persons who would have been the testator's heirs at law had he died immediately after his wife. Plaintiffs, appealing, contend that the construction placed on the will of Henry A. Haugan is erroneous and that the decree should have been entered in their favor. Defendants, who also filed a counterclaim, ask that the decree be modified so as to eliminate any provision for allowing plaintiffs "reasonable attorneys' fees and expenses payable from the estate," and that as modified the decree be affirmed.

The following language from the third and fourth articles of the will of Henry A. Haugan, deceased, are relevant to the contentions in the instant case:

"Third: After the payment of my just debts and the bequest provided for in the preceding paragraph, I give, devise and bequeath the entire residue and remainder of my property, of whatsoever kind and wheresoever situated, whether real, personal or mixed, to my trustees hereinafter named, upon the following trust:

"(b) My said trustees shall divide the entire trust estate into (2) parts. One of said parts shall be equal to two-thirds (2/3) of the value of the entire trust estate and shall be known as Trust Number One, which said Trust Number One is created primarily for the use and benefit of my wife, Blanche Caroline Haugan. The remaining part of said trust estate, equal to one third (1/3) of the value of the entire trust estate, shall be known as Trust Number Two, and is created primarily for the use and benefit of my son, Henry Alexander Haugan. My said wife shall be paid the entire net income from Trust Number One every three (3) months dating from the date of my death, so long as she shall live. She shall also be paid the entire net income from Trust Number Two until my said son shall arrive at the age of twenty-five (25) years, if he has not arrived at said age prior to my death, and my said wife shall devote the said net income to the support and use of herself and to the support, use and care of my said son.

"(c) Upon the death of my said wife, Blanche Caroline Haugan, the entire net income from said Trust Number One shall be paid to my said son, Henry Alexander Haugan, if he shall survive my said wife, until he attains the age of thirty (30) years, at which time one-third (1/3) of the principal of said Trust Number One shall be paid and delivered over to him in absolute ownership, and the net income of the remaining two-thirds (2/3) of the said Trust Number One shall be paid to him during the remaining years of his life. But if at the time of the death of my said wife my said son shall not have attained the age of thirty (30) years, then said one-third of the principal of said Trust Number One shall be delivered to my said son when he shall attain said age. Should my said son not have attained the age of twenty-five (25) years at the time of the death of my said wife, my said trustees, dating from the date of my death or from the date of my wife's death, as the case may be, shall pay to my said son from the net income of said trust estate or trust estates, the sum of Five Hundred ($500.00) per month, until he shall attain the age of twenty-five (25) years. Upon the death of my said son leaving lawful descendants him surviving, the entire income of said Trust Number One then in the hands of my said trustees shall be paid for a period of twenty-one (21) years from the date of the death of my said son, or in case my said wife shall survive him then for a period of twenty-one (21) years from the date of her death, to his lawful descendants per stirpes for a period of of twenty-one (21) years, at the end of which time the entire trust estate with all accumulated income shall vest in and be distributed to said lawful descendants of my said son on a per stirpes and not per capita basis. Should he leave no lawful descendants or should all of his lawful descendants (if any) die before the expiration of said twenty-one (21) years, then and in either such event the said trust estate shall vest in and be paid and delivered over to my then living heirs at law.

"(d) My said son, Henry Alexander Haugan, when he attains the age of twenty-five (25) years, as aforesaid, shall be paid the entire net income from Trust Number Two until he attains the age of thirty (30) years, at which time there shall be paid and delivered over to him in absolute ownership one third (1/3) of the principal and any accumulated net income on hand in said Trust Number Two, after which time and during the remaining years of his life he shall be paid the entire net income from the remainder of said trust. Should my said son, Henry Alexander Haugan, depart this life before me or after me leaving lawful descendants him surviving, then and in either such event the entire net income of said Trust Number Two shall be paid to such lawful descendants per stirpes and not per capita, for a period of twenty-one (21) years from the date of the death of my said son, or from the date of my death in case he predeceases me, at the end of which time said entire trust estate with all accumulations thereon shall vest in his then living lawful descendants, and distribution shall be made to said respective lawful descendants of my said son on a per stirpes and not a per capita basis. Should he leave no lawful descendants him surviving but leave a widow surviving him, then the entire net income from said Trust Number Two shall be paid to his surviving wife so long as she shall live and at her death the remainder of said Trust Number Two shall vest in and I give, devise and bequeath the same to my then living heirs at law, division and distribution in all such cases to be per stirpes and not per capita. Upon the death of the wife of my said son or upon my said son's death, if he shall have left no lawful descendants him surviving, then the entire net income from said Trust Number Two shall be paid to my said wife, Blanche Caroline Haugan so long as she shall live. Upon the death of the survivor of the wife of my said son and of my wife, Blanche Caroline Haugan, as the case may be, then the remainder of said Trust Number Two shall vest in my then living heirs at law as aforesaid. In the event of the death of my said son leaving neither a widow nor lawful descendants him surviving, then from and after the date of his death, in the event my said wife, Blanche Caroline Haugan, shall survive him she shall be paid the entire net income from said Trust Number Two so long as she shall live and at her death, or in case she has predeceased my said son then at his death, the entire balance, both principal and income, remaining in the hands of my said Trustees from said Trust Number Two shall vest in and I give, devise and bequeath the same to my then living heirs at law. Division and distribution in all such cases shall be per stirpes and not per capita. Heirship for the purposes of this, my Last Will and Testament, shall in every instance be determined by the Statutes of Descent of the State of Illinois as in force at the time of my death.

"Fourth: Should the wife of my said son not have been a person in being at the time of my death, then the net income hereinabove provided to be paid to the wife of my said son from said Trust Number Two shall only be paid to her for a period of twenty-one (21) years from and after the date of my death, at the end of which time, if she be then living, one-third (1/3) of the corpus of said Trust Number Two then in the hands of the Trustees shall be paid and delivered to her in absolute ownership if she shall not have remarried and the net income on said trust estate shall thenceforth be paid out and distributed to my said wife, Blanche Caroline Haugan, if she shall then be living, for the remainder of her life, and at her death or should she not be living, then at the expiration of said Twenty-one (21) years the balance of said Trust Number Two shall vest in and be distributed to my then living heirs at law per stirpes."

Plaintiffs maintain that any contingent remainders limited to the "then living heirs at law" of the testator, to take effect upon the death of the testator's widow, Blanche Caroline Haugan, failed because no members of that class existed at the time provided, and that as a result a reversionary interest, after the life estates of the son and widow, was in Blanche Caroline Haugan at the time of her death. Plaintiffs say that in construing the phrase "then living heirs at law," the word "heirs" by itself connotes those persons ascertained at testator's death, designated by law to succeed to decedent's estate; that the words "then living" are words of survivorship and the entire phrase "then living heirs at law" mean those members of the class who are the heirs at testator's death and who survive to the time of vesting; and that the heirs of testator at his death were Blanche Caroline Haugan and the son, Henry Alexander Haugan, and that when the son died intestate his only heir was his mother, Blanche Caroline Haugan, who thereupon became vested with the whole reversion. Plaintiffs insist that under the will and as a result of a sequence of events after testator's death, the gift over in remainder insofar as it is to be construed as a gift to testator's heirs to take effect at the death of Blanche Caroline Haugan, must be held to be a gift to those then surviving of the testator's heirs determined as a class at the date of his death, and there being no such members of the class living at the death of the widow, the remainder failed to take effect, leaving a reversion in the testator's heirs which passed under the will of the widow, Blanche C. Haugan.

Defendants assert that the testator, by Article Third (b), (c) and (d) and Fourth, clearly intended under the contingencies which occurred to vest the remainder interests under both trusts in his heirs at law as a class to be determined and whose members were to be identified, at the termination of the prior life estates.

[1-3] The purpose of construing a will is to ascertain the intention of the testator expressed in a will. It is a cardinal rule to be followed in the construction of wills that the intention of the testator shall be ascertained and given effect, if that can be done without violating some rule of law or public policy, and, if possible, all the language used by the testator must be given effect. The entire will must be considered and the testator's intention ascertained from a consideration of all the language used in whatever portion of the will the language may be found. Glaser v. Chicago Title & Trust Co., 393 Ill. 447. No technical rule of construction should be permitted to interfere with ascertaining testator's real intention. The law does not limit the testator to a single sentence in expressing his intention in regard to the disposition of his estate or any part of it. Bender v. Bender, 292 Ill. 358. Examining the will in the light of the circumstances existing at the time it was drawn, we note that the testator had a wife, and only son, a sister and three brothers. We are of the opinion that the testator took into account his own kin and the possibility that at his wife's death and the death of his son without descendants, his estate would pass in accordance with the remainders set forth in his will. When he followed a detailed testamentary plan, specifically providing for his wife, son, son's wife and son's descendants, and then on the termination or failure of those specific limitations, made a limitation over to "my then living heirs at law," he thereby referred to the defendants, the only persons in existence of his own blood at the termination or failure of the prior interests.

In the testamentary plans, Trusts Numbers One and Two are basically similar, the main difference being that the income from Trust Number One was to go to his wife, and that from Trust Number Two to his son during their respective lifetimes. In addition, the disposition of the remainder of Trust Number Two was complicated by the desire of the testator to provide for the surviving wife of Henry Alexander Haugan, should he have one, a contingency which did not occur. In a general way the testator intended that the income from Trust Number One should go to the son if he should survive his mother, and after they had both died the income should go to his descendants for a period of 21 years, dating from the date of his death, if she should survive him, or from his death if he should survive her, and at the end of the period the remainder was to vest in those descendants. The disposition of the remainder interests in the event the son should have no descendants, which actually occurred, is what is in dispute in this case.

Under Trust Number One the testator provided in Article Third (b) of his will that his wife should have the income therefrom during her lifetime. Article Third (c) disposes of the remainder interest in Trust Number One after the termination of the life estate given to the wife. It commences with the language "Upon the death of my said wife, Caroline Blanche Haugan," and provides that the income after her death shall be paid to the son "if he shall survive my said wife" until he attains the age of 30 years, when one-third of the corpus of that trust was to be given to him just as he was to receive one-third of the corpus of Trust Number Two. The instrument provides that the income shall be paid to the son's lawful descendants for a period of 21 years, dating from the date of his death, or, in the event Blanche C. Haugan should survive him, then dating from the date of her death, with the corpus vesting in the descendants at the end of that time. The next sentence answers the question what is to happen should Henry Alexander Haugan die without descendants, or should the descendants die within the 21-year period. It reads: "Should he leave no lawful descendants or should all of his lawful descendants (if any) die before the expiration of said twenty-one (21) years, then and in either such events the said trust estate shall vest in and be paid and delivered over to my then living heirs at law." Since the son died without descendants, the conditions for the vesting of the remainder of Trust Number One in the testator's "then living heirs at law" had occurred. In determining the persons eligible to receive the remainder, two problems are presented: (a) when, in point of time, did the remainder vest, and (b) in whom did the remainder vest when it did vest? It will be observed that the sentence in Article Third (c) of the will contains two "thens." The first appears in the phrase "then and in either such events" and the second in the phrase "in my then living heirs at law." The first "then" does not aid in solving the problem as to when the remainder vested because it is not used as an adverb of time, but as a conjunction used as a word of reasoning. Himmel v. Himmel, 294 Ill. 557; People v. Camp, 286 Ill. 511.

The second "then" is found in the following context: "shall vest in and be paid and delivered to my then living heirs at law." The import of these words is that the vesting, paying and delivering and the determination of the class of "then living heirs at law" shall take place at the same time. The word "then" as used in the will is an adverb of time and refers to the events immediately preceding the word, namely, the vesting, paying and delivering. It contemplates the formation of a class at the time of the vesting, paying and delivering of the trust, composed of the persons who would be the testator's heirs at law at that time. The reference by the testator to the statutes of descent "as in force at the time of my death" shows that he intended that the remainder should go to a class of heirs determined at a time other than the date of his death. If "heirs" were used to mean "right heirs" then the statutes in force at the time of his death would be determinative as a matter of law, and such a reference would be unnecessary. He contemplated that the class of heirs would be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.