Appeal by defendants from the Superior Court of Cook county;
the Hon. JOSEPH A. GRABER, Judge, presiding. Heard in the third
division of this court for the first district at the December
term, 1950. Reversed. Opinion filed June 18, 1952. Released for
publication July 17, 1952.
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Plaintiff, one of the income beneficiaries, brought this action to construe the last will and testament of Lambert Tree, deceased. Plaintiff also is a co-trustee under said will. All parties in interest were made parties to the complaint, answers were filed, and upon a final hearing the court entered a decree which found:
"The amount now available to the plaintiff from the income of said trust is entirely insufficient to maintain him according to his position in life and entirely insufficient to carry out the intention expressed by Lambert Tree as to the purpose of the trust he created in paragraph Twentieth of his will.
"It was Lambert Tree's intention and purpose in creating the trust provided for in paragraph Twentieth of his will, that said trust fund should be used to carry out his aforesaid intention and purpose, and contemplated that if necessary the principal of said funds should be used to carry out said purpose and intention. It is necessary that $600,000 of principal be used to carry out said purpose and intention, and if the Court does not direct that such principal be used for that purpose, this Court would be frustrating the general and overriding intention and purpose of the testator."
The decree directed the trustees to forthwith pay plaintiff, out of the corpus of the estate, $600,000, from which decree defendant bank, as co-trustee of said will, appeals.
The pertinent provisions of the will in the consideration of the contentions here considered are as follows:
"EIGHTEENTH: I give and bequeath to my son, Arthur M. Tree, Howard G. Grey, at present my agent, and the Merchants Loan & Trust Company Bank of Chicago, or to such of them as shall qualify and accept the trust hereby created, and to the survivors and survivor of them and their successors in trust, the sum of fifty thousand dollars ($50,000.00) in money or securities owned by me at the time of my decease, (whichever my executors may deem most convenient for my estate, and if in securities the same to be selected by my executors), in trust for the use and benefit of my grand-son, Arthur Ronald Lambert Field Tree. The said trustees shall keep the said sum invested and the net income therefrom, or such portion thereof as my trustees in the exercise of a sound discretion may deem necessary or proper, shall be applied for the use of or paid to my said grand-son, and when he shall attain the age of thirty (30) years the principal sum of said bequest and the unexpended or accumulated income therefrom, if any, shall be paid over to my said grand-son for his own use. If my said grand-son shall die before reaching the age of thirty (30) years the said trust fund shall upon his death go to and belong to his widow, if he shall leave one him surviving: otherwise the same shall revert to and form a part of my residuary estate. It is my earnest hope that his father will see to it that my said grand-son is educated in the United States, of which he is a citizen and where his pecuniary interests will be chiefly located, and where his forbears for many generations have lived and died, in order that he may have instilled into him in his youth an affection and veneration for the institutions of his country, and be able intelligently to perform his share of the duties and burdens of American citizenship, of which it can not be gainsaid, there are many.
"TWENTIETH: I do hereby give, devise and bequeath unto the said Arthur M. Tree, Howard G. Grey and the Merchants Loan & Trust Company Bank of Chicago, or to such of them as shall qualify and accept the trust hereby created, and to the survivors and survivor of them and their successors in trust, all the rest, residue and remainder of my estate, real, personal and mixed, of every name and nature and wherever situated, of which I shall die seized and possessed, or to which I may in any way be entitled to at the time of my death, remaining after the payment of my just debts and the expenses of administration, together with such legacies and bequests as are herein before made, except the unaccrued payments on the annuities given by this Will, which from and after the settlement of my estate in the Probate Court shall be paid to the annuitants by my said trustees out of the income of my estate in their hands, subject to the payment of which annuities said estate so vested in said trustees shall be held in trust for the following purposes:
"To pay to my said son Arthur for his use and benefit the net income of said trust estate (subject to the reservation hereinafter in this Will mentioned) until my said grand-son Arthur Ronald shall arrive at the age of thirty (30) years, and if that event happens and the said Arthur Ronald is at the time a man of temperate habits and good moral character, then and thereafter to pay to him, the said Arthur Ronald, one-quarter of the net income of said trust estate, and to my son Arthur the remaining three-quarters of the net income of the said trust estate, for and during the term of his natural life.
"Upon the death of my son Arthur the net income derived from said trust estate shall be paid to the said Ronald and any other child or children born in lawful wedlock of my said son, Arthur, and the survivors of them, from time to time, during the continuance of the trust, in equal shares; provided, however, that in the event of the death of any of my said son's children, born in lawful wedlock as aforesaid, during the continuance of the trust hereby created, leaving issue surviving, such issue shall receive the same share of the income of said trust estate which such deceased child would have been entitled to receive if living; and provided, further, that while any beneficiary entitled to share in said income shall be under the age of thirty (30) years the said trustees shall, out of his or her share of said net income, make a suitable allowance for the support, maintenance and education of such beneficiary, taking into consideration his or her rank and condition in life; and the residue of his or her share of said net income shall be retained and kept invested by said trustees until such beneficiary shall arrive at the age of thirty (30) years, at which age any accumulation of his or her share of said net income shall be paid over and delivered to such a beneficiary.
"The trust hereby created shall continue until the death of my son Arthur and of the children of my said son Arthur born in lawful wedlock; provided, however, that in any event the trust hereby created shall cease and determine at the expiration of twenty-one (21) years after the death of the last survivor of my said son and his children born in lawful wedlock prior to my decease.
"Upon the termination of the trust hereby created one-half of the trust estate then remaining in the hands of my said trustees shall go to and be distributed between the lawful issue of my said son Arthur, per stirpes, in the same shares and interests in which they would inherit property owned by him if he had died intestate under the laws of the State of Illinois: and in the event that no lawful issue of my said son Arthur, born in lawful wedlock, shall then survive, then one equal half of the said trust estate shall go to my heirs at law. The other equal one-half of said trust estate I give and bequeath to St. Luke's Hospital of the City of Chicago, in the State of Illinois, . . .
"The disposition above provided of the principal and income of said trust estate is subject always to the provision hereinbefore made that all the annuitants hereinbefore provided for shall in any event be first paid out of the income of the said trust estate, and a sufficient amount of the said trust estate shall be retained by said trustees to discharge and pay the said annuities so long as said annuitants, or either of them, shall survive.
"Neither my said son Arthur, nor either of his children, or any of their issue, shall have power to anticipate, assign, transfer or otherwise dispose of the whole or any part of the income payable to him or them, or either of them, under the terms and provisions of this article of my will, it being my intention hereby to provide for the comfortable support and maintenance of my said son and his children, and their issue, during the life of the trust hereby created, in the manner and to the extent hereinbefore ...