Appeal by plaintiffs from the Circuit Court of Cook county;
the Hon. JOHN PRYSTALSKI, Judge, presiding. Heard in the third
division of this court for the first district at the October
term, 1950. Affirmed. Opinion filed September 26, 1951. Rehearing
denied October 11, 1951. Released for publication November 15,
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 11, 1951
Plaintiffs filed their complaint to set aside a decree entered on January 12, 1948, in the circuit court of Cook county, and for the termination of a charitable trust created by the last will and testament of Emanuel Friend, deceased. Upon the hearing of a motion to dismiss the amended complaint, an order was entered dismissing it for want of equity, and entering judgment for costs against plaintiffs, from which order this appeal is taken.
The motion to dismiss set up as one of the grounds the decree of January 12, 1948, entered in the suit of the Northern Trust Company, as sole surviving trustee under the last will and testament of Emanuel Friend, deceased, v. Michael Reese Hospital of Chicago, the University of Chicago and George F. Barrett as Attorney General, and that said decree was res adjudicata and controlling against the claims made in the amended complaint. A copy of the decree was attached to said motion, and there was upon the hearing no denial of the entry of said decree. That suit was one to construe the will and for directions to the trustee.
The questions presented upon this appeal are: (1) Did the specific bequest in the 15th clause of the will referred to, creating the trust estate in question, lapse because of the failure to comply with the direction for performance within the period of 10 years following the death of the testator? (2) Does the language of the 15th clause impose a condition precedent not complied with, resulting in the lapse of said bequest? (3) Is the decree res adjudicata against the plaintiffs, since admittedly they were not parties to the suit in which the decree was entered?
It appears from the amended complaint that the testator died July 19, 1938, and the will in question, dated February 15, 1934, was admitted to probate on September 7, 1938. The pertinent provisions of clause 15 of said will, over which this controversy arises, are:
"FIFTEENTH: I GIVE, DEVISE and BEQUEATH all the rest, residue and remainder of my estate, of every kind, nature and description whatsoever, . . . which I may own or to which I may be entitled at the time of my death, to my said brother, SOLOMON B. FRIEND, and said THE NORTHERN TRUST COMPANY, as Trustees, upon the trusts and for the uses and purposes hereinafter limited and defined and subject to the powers, provisos and provisions hereinafter contained and expressed.
"(a) I DIRECT my said Trustees, within ten (10) years after the date of my death, to use all of said residuary estate and any and all additions thereto for the purpose of establishing and maintaining, in the City of Chicago, Illinois, a charitable home for convalescents, . . . . Until the establishment of said charitable home for convalescents, the income from said residuary estate and all additions thereto, shall be accumulated and added to and become a part of the principal of said residuary estate, all of which said residuary estate shall be used for the purpose of establishing and maintaining said charitable home for convalescents, all as hereinbefore provided.
"(b) Subject as herein expressly provided, I DIRECT my said Trustees to offer the control and management of said charitable home for convalescents to the MICHAEL REESE HOSPITAL OF CHICAGO, upon the express understanding that said charitable home for convalescents shall always be operated as a separate and distinct charitable institution within the City of Chicago, Illinois, having its own separate and distinct identity, and that said institution shall not at any time be merged or treated as an integral part of said MICHAEL REESE HOSPITAL OF CHICAGO. . . . In the event said MICHAEL REESE HOSPITAL OF CHICAGO shall not desire to control and manage said charitable home for convalescents upon such terms, then I direct my said Trustees to offer the control and management of said charitable home for convalescents upon like terms to the ALBERT MERRITT BILLINGS HOSPITAL now maintained by the University of Chicago. In the further event that the ALBERT MERRITT BILLINGS HOSPITAL shall not desire to control and manage said charitable home for convalescents, upon such terms, then I direct my said Trustees to offer the control and management of said charitable home for convalescents upon like terms to some other hospital of good repute and standing in the City of Chicago, Illinois, and in the further event my said Trustees shall not find a hospital of good repute and standing in the City of Chicago, Illinois, willing to accept the control and management of said charitable home for convalescents upon the terms hereinbefore set forth, then I direct my said Trustees to offer the control and management of said charitable home for convalescents upon like terms to some other charitable institution or charitable foundation of good repute and standing in the City of Chicago, Illinois.
"(c) I FURTHER DIRECT that said charitable home for convalescents shall be conducted and operated purely and exclusively, as a charity and for charitable purposes in the City of Chicago, Illinois, for the benefit of worthy and deserving poor persons, but leave the particular regulation of admission thereto to the managing institution, but it is my wish that the same shall not in any sense be a sectarian institution. . . .
"(d) My said Trustees shall, within ten (10) years after the date of my death, procure suitable ground at such location in the City of Chicago, as to them and the Board of Directors of the managing institution shall seem best, and said Trustees shall erect such building or buildings thereon as shall be approved by my said Trustees and the Board of Directors of the managing institution.
"(h) Further, anything hereinbefore expressly contained to the contrary notwithstanding, in the event that the control and management of said convalescent home shall not be undertaken and shall not be in any managing institution as hereinbefore set forth, (the term `managing institution' as herein used, referring to the hospital, institution or foundation undertaking the control and management of said convalescent home) then and in such event, any and all references herein contained in this, my Last Will and Testament, to such managing institution, or to a managing institution, may be disregarded to the same extent and in the same manner as if such references had not appeared in this, my Last Will and Testament." (Italics ours.)
There is no provision in the will for reverter, in the event of its nonexecution within 10 years. The will contained broad powers to the trustees with respect to the investment and reinvestment of the trust estate.
We shall first discuss the question raised by plaintiffs that the decree referred to is not res adjudicata. The authority for raising the question of res adjudicata by the motion to dismiss and the copy of the decree attached to said motion, where the same does not appear upon the face of the complaint, may be found in section 48 (e) of the Civil ...