APPEAL from the Third Division of the Appellate Court for the
First District; heard in that court on appeal from the Circuit
Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge,
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 17, 1952.
This is an appeal from a decree of the circuit court of Cook County construing a trust under a will and refusing to terminate the same. The Appellate Court concurred in the conclusion of the trial court that the trust should not be terminated and also construed the trust but arrived at a substantially different construction.
Elizabeth Wood, hereinafter referred to as appellant, is one of the testatrix's three children and a beneficiary under the trust. Augustus Wood is another child and beneficiary who is a defendant and who has joined with appellant in seeking a termination of the trust. The Continental Illinois National Bank and Trust Company is the trustee and appellee. Also parties defendant are R. Jo Thorpe, former wife of Ellery Lovejoy Wood, a deceased child of testatrix and a former beneficiary under the trust, and William Byford-Brown, a son of Ellery.
Augusta R. Papke, the testatrix, died in 1928 leaving three children surviving her, the appellant, Augustus and Ellery. By her will she provided for her mother during life and then set up a trust for the benefit of her three children in varying degrees of participation. The three children received income from the trust, which was valued at about $30,000, for fourteen years.
In 1942 Ellery died leaving his former wife from whom he had been divorced and two children, one of whom is a party to this suit. These three were named as legatees and devisees in Ellery's will. After Ellery's death the trustee divided Ellery's share of the income equally between appellant and Augustus.
The trust which gives rise to this suit is established in article 3 of Augusta Papke's will and reads as follows, except for language which we consider unnecessary to our decision in this cause:
"Paragraph 1. * * * I give, devise and bequeath all said rest, residue and remainder of my estate to * * * Trustee, in trust, to collect and pay over the net income thereof to my three children, Ellery Lovejoy Wood, Elizabeth MacLean and Augustus Rawson Wood, during their life times, (in the proportions hereinafter designated in Paragraph 2 hereof) * * *
"Paragraph 2. In providing for my three children, (after the death of my mother as aforesaid), I give, devise and bequeath my estate in trust for them, in the following proportions:
Ellery Lovejoy Wood one-tenth; Elizabeth MacLean four-tenths; Augustus Rawson Wood five-tenths.
"I made this differentiation or division because my son, Ellery, is not only indebted to me but because he has proved himself unworthy. My other two said children are also indebted to me, and my daughter to a greater amount than my son, Augustus.
"Paragraph 3. In the event of the death of * * * Ellery, prior to the death of both or either of my other two said children, his portion of said trust estate shall be equally divided between them, or all given to the survivor, as the case may be, and become part of the corpus of his, her or their portions; and in the event of the death, without issue then living, of my daughter Elizabeth, or of my son, Augustus, before the death of my son, Ellery, the share of the one so dying is hereby directed to be given to the other, and shall become a part of the corpus of the others trust estate. In case, however, that either said Elizabeth or said Augustus shall die leaving issue, his or her share is hereby directed to be given to such issue.
"Paragraph 4. In case of the death, without issue, of both my daughter, Elizabeth, and my son, Augustus, prior to the death of my son Ellery, I direct that their shares of said trust estate shall be divided equally among, and paid and transferred to my son, Ellery, and my said brothers William and Lorin, or to the survivor of either of them, share, and share alike."
The chancellor's decree held that the time of termination of the trust was the death of the last survivor of the three children; that appellant and Augustus were not entitled to a present termination of the trust; and that the trust should continue to the death of the last survivor of Elizabeth and Augustus. The chancellor construed the trust as creating a life estate in the net income of the trust estate in the three children, in the proportions set forth, with Ellery's share to be divided between the surviving two if he predeceased them; that upon the death of the survivor of Elizabeth and Augustus the principal should be paid to their issue if any then survive them; that there was an intestacy of that part of the net income to which the first dying, as between Elizabeth and Augustus, would have been entitled had he or she lived until the termination of the trust on the death of the other; that upon the termination of the trust, if either Elizabeth or Augustus should die without leaving issue, there was an intestacy of that part of the corpus proportionate to the amount of the income ...