APPEAL from the Circuit Court of De Kalb County; the Hon.
CASSIUS POUST, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 24, 1953.
Plaintiff, Ione G. Tucker, instituted a partition proceeding in which she sought to have an alleged trust, set forth in the will of Lewis Hendrickson, declared void for uncertainty; to have the cloud on the title, created by the alleged trust, removed; to have the rights and title of the parties to certain real property of the decedent, Lewis Hendrickson, determined; and to have a sale of the property ordered and the proceeds distributed in accordance with the respective interests of the parties. The circuit court of De Kalb County granted plaintiff the relief prayed for, and held that plaintiff and defendant Lester Hendrickson were each entitled to an undivided half interest in the real property of the decedent, Lewis Hendrickson, in accordance with the laws of descent and distribution.
The sole inquiry on this appeal prosecuted by defendants is whether a valid trust was created by the terms and provisions of the will of Lewis Hendrickson.
Lewis Hendrickson made his will on March 10, 1917, at which time he owned a 220-acre farm in De Kalb County. He died 10 weeks later, on May 23, 1917, and left surviving a widow, Matilda T. Hendrickson, a son, Lester Hendrickson, and two daughters, Ione G. Tucker and Blanche Hendrickson. The will of Lewis Hendrickson was probated, and on September 2, 1919, the executor was discharged and the estate closed.
The widow took possession of the farm upon the death of the testator, and retained possession until 1935, when she executed a quitclaim deed to Ione G. Tucker and Lester Hendrickson, who both went into possession of the premises which they still retain. The widow died on April 15, 1951, with plaintiff, Ione G. Tucker, and defendant Lester Hendrickson as her only surviving heirs, inasmuch as her other daughter, Blanche Hendrickson, had died on January 26, 1920. On August 25, 1951, plaintiff filed suit for partition of the farm, alleging that the trust set forth in the second paragraph of the will of Lewis Hendrickson was void for uncertainty and created a cloud on the title of the farm, which the court should properly remove.
The will of Lewis Hendrickson, in which the alleged trust is set forth, consists of three main paragraphs. The first directs the payment of just debts and funeral expenses of the deceased; the second devises all of the testator's property, real and personal, to Ralph A. Countryman, in trust, for certain persons and with certain directions and provisions which will be hereinafter analyzed; and the third appoints Ralph A. Countryman as executor of the will. There is no residuary clause in the will.
The controverted second paragraph of the will is composed of three subparagraphs. The first of these subparagraphs gives all of the testator's property, real and personal, to Ralph A. Countryman, in trust, and directs him to lease all of the real estate for a reasonable rent, and to pay the net income therefrom, after deducting certain expenses, together with the net income from the testator's personal estate, to the testator's wife, Matilda, for life, such provision to be in lieu of dower and widow's award.
This first subparagraph further provides that, upon the death of the testator's wife, the trustee is to convey to Ione Hendrickson Tucker, Blanche Hendrickson, and Lester Hendrickson in equal portions, share and share alike, all of the personal property held by the trustee. The trustee is also directed in this subparagraph to lease certain lands described therein, amounting to some 80 acres, and to pay the net income therefrom to testator's son, Lester, for life.
The second subparagraph of this second main paragraph of the will provides that the trustee lease certain lands described therein and pay the net income therefrom to the testator's daughters, Ione Hendrickson Tucker and Blanche Hendrickson, for life. Inasmuch as the legal description creates, according to plaintiff's contention, certain ambiguities and uncertainties in the trust res, it shall be set out herein: "the West Half (W 1/2) of the Northeast Quarter (NE 1/4) of the Northeast Quarter (NE 1/4) and part of the Northwest Quarter (NW 1/4) of Section Thirty Three."
The property as described includes a tract of 20 acres and another tract of possibly 20 acres, assuming it refers to the "part" of the area which the testator owned, as defendants suggest. However, neither this subparagraph, nor any other provision in the will refers to, or gives the trustee any directions concerning, the disposition of the net income or of the fee of the remaining 100 acres of the farm, to which the trustee had legal title. The legal description of the omitted premises involves: "The West Half (W 1/2) of the Northeast Quarter (NE 1/4) and the East Half (E 1/2) of the Northeast Quarter (NE 1/4) of the Northeast Quarter (NE 1/4) of Section 33, Township 40 North, Range 3, East of the 3rd Principal Meridian, De Kalb County, Illinois."
The third subparagraph of this second main paragraph of the will purports to dispose of the income and the fee under numerous contingencies. It directs that "if either of my said children shall die without issue, then that portion or share of said net income from my said real estate * * * shall be paid to the survivor or survivors of my said children." There is no disposition, however, of the fee if the testator's children die without issue surviving them. On the other hand, if either of said children die with issue surviving, "the trustee * * * shall convey to the child or children of my deceased child the fee simple in the real estate from which my said child shall have been receiving the net income." It is further provided in this third subparagraph that if said testator's child shall have been receiving an "undivided share or portion of the net income" from testator's real estate then the child or children of such deceased child of the testator shall receive an undivided interest in fee in testator's real estate "as tenant in common with my said trustee." This subparagraph further specifies that "said interest as tenant in common with such trustee shall bear the same proportion to the whole of said real estate as the portion of the income which my deceased child shall have been receiving shall bear to the total income from my said real estate."
The third and last main paragraph of the will appoints Ralph Countryman as trustee and executor of the will. The defendant trustee, however, at no time took or had possession of the premises, nor leased it, nor performed any trust duties from the date of the testator's death in 1917 to the present time.
The circuit court held the trust to be void because of the vagueness, ambiguities and omissions in the second paragraph of the will, whereby it was not possible to determine the testator's intent with reference to the trust. Hence, the court found that Lewis Hendrickson died intestate as to all his real property, to which Lester Hendrickson and Ione G. Tucker were each entitled to an undivided half interest. The court thereupon ordered partition of the premises, or a sale, if the property was ...