APPEAL from the Circuit Court of Cook County; the Hon. E.J.
SCHNACKENBERG, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 21, 1953.
Appellant, Stella LaZelle Barnhart, individually and as administratrix of the estate of Arthur M. Barnhart, Jr., deceased, appeals from a decree of the circuit court of Cook County entered in a cause wherein Stella LaZelle Barnhart and Livy L. LaZelle, as trustees under the last will and testament of Arthur M. Barnhart, Sr., deceased, and Hiram P. Barnhart, Jr., et al., were defendants and Gracia M.F. Barnhart et al. were plaintiffs. Cross appeals have been filed by the original plaintiffs challenging the correctness of certain rulings of the trial court. Hiram P. Barnhart, Jr., et al. have also filed cross appeals. Morgan L. Fitch, who was named by the decree of the circuit court a successor trustee under the last will and testament of Arthur M. Barnhart, Sr., appears as appellee and has filed a brief and argument in his own behalf.
By their original complaint filed in the circuit court of Cook County on August 13, 1936, plaintiffs, who are descendants of full brothers and sisters of Arthur M. Barnhart, Sr., sought an accounting from Stella LaZelle Barnhart and Livy L. LaZelle as trustees under the will. The complaint also sought removal of the trustees, damages for alleged acts of wrongful investment, waste and mismanagement and the assessment of costs and expenses against the trust estate. The complaint asks that the court find and determine that the plaintiffs are the heirs-at-law of the testator and that they or their descendants are or will be the only persons entitled to share in the distribution of the corpus of the trust. Hiram P. Barnhart, Jr., et al., who are descendants of brothers of the half blood of Arthur M. Barnhart, Sr., were made defendants and as to them the relief sought was that the court find and decree that they had no interest and would have no interest in the corpus of the trust provided for in said will.
After several motions to dismiss had been decided adversely to the defendant trustees, the cause was finally before the court on the second amended and supplemental complaint as amended. On June 24, 1942, upon motion of the defendant-trustees and of Stella LaZelle Barnhart, individually and as administratrix of the estate of Arthur M. Barnhart, Jr., deceased, over the objection of plaintiffs, the cause was referred to a master for the limited purpose of determining whether the plaintiffs and other collateral relatives had any interest in the trust estate, the nature and extent of such interest, if any, and whether or not attorneys' fees and costs should be allowed to the various parties and assessed and paid out of the trust estate. The term of the master to whom the cause was referred expired while the proceedings were pending before him, but the cause was rereferred to him as special commissioner on July 17, 1944. The special commissioner's report filed on May 10, 1951, found that the will was ambiguous and required construction; that Stella LaZelle Barnhart either as heir-at-law of the testator, Arthur M. Barnhart, Sr., or as heir-at-law of her son, Arthur M. Barnhart, Jr., was entitled to the entire corpus of the trust estate; that the plaintiffs and other collateral relatives had no interest in the trust and that all parties were entitled to an allowance of attorneys' fees and costs to be taxed and paid out of the estate. All parties filed objections to the report of the commissioner. After these objections had been heard they were allowed to stand as exceptions. The exceptions were then heard by the trial court which, in an opinion filed October 24, 1951, decreed that it was the intention of the testator, manifest from the terms and provisions of the will, that the corpus of the trust estate be distributed to the persons constituting his heirs-at-law as of the date of the death of his widow, Stella LaZelle Barnhart; that the widow had no interest in the corpus of the trust and that none of the parties was entitled to an allowance of attorneys' fees and costs from the trust. After further testimony was heard the court decided the proportions in which the parties would ultimately share in the corpus of the trust, according to descendants of collateral relatives of the half blood the same status as those of the full blood. The court held in its opinion that those interested would be entitled to an accounting only if they could substantiate the charges of waste and mismanagement alleged in the complaint. It was further decided that a vacancy existed among the trustees under the provisions of the will. The formal decree signed on March 21, 1952, implementing the opinion, appointed Morgan L. Fitch as successor trustee. The decree ordered that one tenth of the costs be taxed against plaintiffs and nine tenths of the costs be taxed against Stella LaZelle Barnhart individually. By the same decree the cause was referred to a master for the purpose of taking testimony on all issues raised by the pleadings and not passed upon and disposed of by the entry of the decree. This decree of March 21, 1952, is the decree from which the appeal and cross appeals have been perfected.
Counsel for appellees and cross appellants, Gracia M.F. Barnhart, et al., and Hiram P. Barnhart, Jr., et al., contend that the decree of March 21, 1952, is not a final and appealable order since it does not dispose of all of the issues in the case and that this court is, therefore, without jurisdiction to entertain the appeal. This raises a question which must be decided before considering any of the other matters urged. It must be remembered that the decree in question determined the ultimate rights of the opposing claimants to the corpus of the trust. While the complaint seeks an accounting and the decree does not dispose of that issue, it seems clear that before plaintiffs could avail themselves of that remedy, they must first establish their interest in the trust estate. Whether or not plaintiffs had such an interest was a separable issue. The defense urged against the complaint from the outset by motion and otherwise was that the plaintiffs had no right to an accounting because they had no interest in the fund. The reference to the master was for the limited purpose of resolving this preliminary question and the decree makes final disposition of it. Thus all rights of the plaintiffs in this case may be regarded as dependent upon the ultimate question resolved by the decree. We have held that a decree is "final" within the meaning of that term as used in section 77 of the Civil Practice Act (Ill. Rev. Stat. 1947, chap. 110, par. 201,) if it finally disposes of the rights of the parties either upon the entire controversy or upon some definite and separate branch thereof. (Altschuler v. Altschuler, 399 Ill. 559; Brauer Machine and Supply Co. v. Parkhill Truck Co. 383 Ill. 569.) A decree is final if it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by the decree. (Moore v. Moyle, 405 Ill. 555.) The decree of the circuit court settles and determines the ultimate rights of the parties to the corpus of the trust and is, therefore, upon the above authority a final and appealable order. The remedy by way of an accounting is a mere incident which flows from a right established by the decree. We, therefore, hold that this court has jurisdiction to entertain this appeal.
A consideration of the interesting problem of will construction raised by this appeal demands an examination not only of the provisions of the will of the testator itself but of the circumstances surrounding the testator at the time of its execution. Certain events occurring after the probate of the will are also worthy of mention though not controlling. We shall begin, therefore, by stating those facts adduced at the hearing which we deem to be material to a determination of the issues.
Arthur M. Barnhart, Sr., a man of considerable wealth, who had for many years been engaged in the type foundry business in the city of Chicago with certain of his brothers and nephews, executed his will on July 20, 1911. At the time the will was executed the testator was 67 years of age. His first wife, by whom he had had no children, had died. His second wife, Stella LaZelle Barnhart, then aged 35 years, was living with testator, as was Arthur M. Barnhart, Jr., a son of the second marriage, aged 9 1/2 years. Another child of the second marriage had died in 1904 at the age of 6 months. Testator's father, Peter Barnhart, had been married twice. Children were born to both marriages and testator was a child of the second marriage. At the time the will was made testator's parents and all of his half brothers and sisters were dead. Many of their descendants were living but it appears that testator was not in contact with them, and their whereabouts for the most part were unknown to him. Of testator's full brothers and sisters, five of nine were living at the time he made his will, as were six full nephews and nieces. It appears that testator was on friendly terms with all his relatives of the full blood. This is especially evidenced by his benefactions. On the very day that he made his will he transferred $400,000 worth of securities in trust for his relatives, $100,000 for his surviving brothers and sisters of the full blood, except his brother, Alson E. Barnhart, who, like testator, was a man of considerable means; $75,000 for Maurice W. Barnhart, a nephew; $75,000 for Royal B. Hovey, a nephew; $75,000 for E. Warren Conable, a nephew; $50,000 for Frenella I. Barnhart, a niece; $25,000 for W. Earle Barnhart, a nephew. On the same day that he created the trusts and made his will he transferred $200,000 worth of securities by way of gift to his wife and a like amount to his son, Arthur M. Barnhart, Jr.
Arthur M. Barnhart, Sr., died on May 13, 1913, leaving him surviving his widow, his son and collateral relatives. His will was admitted to probate in Cook County on July 18, 1913. By the will he gave his entire estate to trustees to be held, managed and invested as directed. Named as trustees were the widow and two of testator's nephews. Another nephew was named in the event of the incapacity, death or designation of any of the others. The son of the testator was also designated to become a trustee upon reaching 21 years of age. The probate proceedings show that the estate consisting of both real estate and personal property was estimated at $1,341,000. The petition filed named certain of the collateral relatives and designates them as having an interest as "contingent devisees" and "contingent legatees." Following the probate of the will the nephews named as trustees and successor trustee resigned. The widow continued to act as trustee and later her mother, N. Florence LaZelle, and her brother, Livy L. LaZelle, were appointed successor-trustees to act with her. Meanwhile inheritance taxes had been assessed and paid on the assumption that the widow had a life interest only. A tax was assessed against the interests of the collateral relatives as "possible contingent heirs." In a later proceeding brought by the widow in the superior court of Cook County, the court approved the action of the trustees in paying inheritance taxes, found that there was among the assets of the estate a claim against Stella LaZelle Barnhart for $17,573.28 for inheritance tax paid on her behalf and that the sum of $15,357.13 paid as inheritance tax for the possible contingent heirs "is a claim against said contingent heirs should they further become entitled to any part of said estate."
On December 10, 1922, Arthur M. Barnhart, Jr., attained his majority and became a fourth trustee under the will. On December 11, 1934, N. Florence LaZelle died but no successor-trustee was appointed. On April 7, 1936, Arthur M. Barnhart, Jr., died. Since his death Stella LaZelle Barnhart and Livy L. LaZelle have acted as sole trustees. Arthur M. Barnhart, Jr., died intestate and a bachelor. His mother qualified as administratrix of his estate and still maintains that capacity. She filed an inventory in the estate of her deceased son which does not list as an asset any interest in the trust estate of Arthur M. Barnhart, Sr.
The will of Arthur M. Barnhart, Sr., contains four clauses. The dispositive provisions of the will are found entirely in the second clause. The first clause directs the payment of debts and funeral expenses. The third clause directs that the son, Arthur M. Barnhart, Jr., shall become one of the trustees on attaining 21 years of age and provides for the succession of Royal B. Hovey, a nephew, to the office of trustee upon certain contingencies. The third clause also deals with the number of trustees deemed "sufficient." The fourth clause appoints the wife as guardian of the son and names the executors. The crucial provisions of the second clause are as follows:
"Second: I give, devise and bequeath all the rest and remainder of my property of all kinds, whatsoever, real, personal and mixed, and wherever situated, unto my dear wife, Stella LaZelle Barnhart, and my nephews, Maurice W. Barnhart and E. Warren Conable, as Trustees, and in trust for and upon the following terms, trusts and conditions, to-wit: * * *
"(d) If my said son, Arthur M. Barnhart, shall survive my said wife, Stella LaZelle Barnhart, then immediately upon the death of my said wife, three-quarters (3/4) of all of the trust estate and property then remaining in the hands of the Trustees hereunder shall be turned over and go to my said son in absolute ownership, and the other one-quarter (1/4) of said trust estate shall remain in trust hereunder during the life of my said son and until his death, and the income therefrom shall be paid over to him in quarter-yearly installments during his life and at his death all the remainder of the trust property shall be turned over and go, in absolute ownership, to the issue of his body, if such issue there be in life surviving him, and if there be no such issue surviving him, then to my heirs at law under the Statutes of Descent of the State of Illinois; and if my said son shall not survive my said wife, Stella LaZelle Barnhart, then at her death all of the trust property remaining in the hands of the Trustees hereunder shall be turned over and go, in absolute ownership, to the issue of my said son, taking per stirpes, if there be such issue in life, and if not, then to my heirs at law under the Statutes of Descent of the State of Illinois. All payments under this will provided to be made to ...