APPEAL from the Circuit Court of Wabash County; the Hon.
CASWELL J. CREBS, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decree of the circuit court of Wabash County construing certain trust provisions of the will of Walter S. Booth, deceased, and directing that the trustee turn over the remainder of certain assets of a trust fund to the board of education of Community Unit School District No. 4 in White and Hamilton Counties. Appellants here are the heirs of Walter S. Booth who claimed that the trust had failed and that they were entitled to the corpus. Appellees are the community unit school district, the members of the board of education of that district, the township school treasurer, and the Attorney General of the State of Illinois, who filed an answer and cross petition after being given leave to intervene.
By his will, dated January 4, 1933, testator, Walter S. Booth, after making certain specific bequests in the first six clauses, gave the residue in trust, the income from the residue to be distributed to his sister, Stella Booth Krug, for her life and on her death the income in equal parts to be distributed to his half-sisters, Ruth A. Wilson and Mamie S. Darnell, the survivor to receive the entire income for her life with provisions for the use of principal for the care of the life beneficiaries in case the income did not meet their needs. The trust provisions for the benefit of the sister and half-sisters are found in the seventh, eighth, ninth and tenth clauses of the will. The eleventh and twelfth clauses are as follows:
"Eleventh. When the bequests mentioned in the above paragraphs Seven (7), Eight (8), Nine (9) and Ten (10) shall have terminated through the death of my said sister, Stella (Booth) Krug, and my said half-sisters, Ruth A. Wilson and Mamie S. Darnell, it is my will that the residue of my estate be given to the Board of Education of the Public Schools of the Village of Enfield, White County, Illinois, known as District Number Thirteen (13) for the erection and equipment of a building in said Village of Enfield, for the use of said public schools; provided, however, that the said Board of Education shall contribute an equal amount toward such building and equipment. The said Board of Education must meet the above conditions in a reasonable length of time.
"Twelfth: When all the terms of the above paragraphs shall have been met, the residue of my estate shall be used for the improvement and upkeep of the Public Schools of the Village of Enfield, White County, Illinois, known as District Number Thirteen (13)."
The testator died on August 12, 1933, and his will was probated in the county court of Wabash County on October 23, 1933. The two trustees named in the will duly qualified, and upon the death of one of those named, the trust was administered by the survivor. Stella Booth Krug died on February 10, 1950; Ruth A. Wilson died on December 23, 1951, and Mamie S. Darnell, the last of the life beneficiaries, died on February 24, 1952. The dispute here has arisen because, on July 1, 1949, School District No. 13 ceased to exist, the territory formerly comprising that district having become a part of a larger district, Community Unit District No. 4.
The proceeding in the circuit court was commenced by T.H. Daly, successor trustee under the trust created by the will. His petition, filed on May 22, 1952, recited that the beneficiaries who were to receive the income for life had died; that he had on hand personal assets in excess of $183,300 and real estate worth about $20,000 and sought instructions from the court as to his duties in relation to funds on hand. Defendants to the petition were the heirs of Walter S. Booth, deceased, the seven persons who constituted the board of education of School District No. 13 at the time of its dissolution in 1949, Community Unit District No. 4, its board of education and the township school treasurer. The seven persons who had constituted the board of education of School District No. 13 filed a disclaimer, alleging that the district went out of corporate existence on July 1, 1949; that upon its dissolution all the powers, rights and duties of its board of education ceased and by operation of law became vested in the board of education of Community Unit District No. 4; that they were but individuals with no interest in the matters mentioned in the petition. The disclaimer was allowed and the suit dismissed as to them. Appellant heirs answered the petition, admitting its allegations and praying that they be given the corpus of the trust. Appellees filed an answer admitting the allegations of the petition and also filed a counterclaim which alleged that School District No. 13 was dissolved by operation of law because of its inclusion in the territory of Unit District No. 4; that all authority, powers and duties were now vested in the latter district and its board of education; that the duties in regard to the grade school at Enfield have not changed; that the new district has made Enfield an attendance center; that the grade-school building at Enfield is being used by pupils from the same territory; that grade-school facilities have not been mixed with high-school facilities; that the unit district is in a position to carry out the trust in the manner indicated in the will and is the only entity capable of so doing. The counterclaim further alleges that the board of the unit district has determined that a new building is necessary for Enfield grade school; that it desires to use the remainder for that purpose; that it can meet the condition named in the will and that, as the successor district, it is vested with title to the fund. It requests the trust fund either as of right as the successor district or cy pres. The trustee answered the counterclaim, stating that the controversy was between other parties; that he stood neutral and awaited the decision of the court. The Booth heirs by their answer denied that the Unit District succeeded to the right of District No. 13, claimed the corpus for themselves and asked that the counterclaim be dismissed.
The cause was tried upon the original petition, the answers thereto, the counterclaim and the answers to the counterclaim. The court, by its decree, applying the cy pres doctrine, granted the personal property in the trust for the purposes mentioned in the eleventh clause, i.e., to erect a grade-school building in the village of Enfield, upon compliance with the conditions for matching the amount as set forth in that clause. The decree further provides that the real estate be given to the unit district for the upkeep of the grade-school building as provided in the twelfth clause. The chancellor found and decreed that the heirs had no interest in the trust.
The material facts are not in dispute. Walter S. Booth had been a school man for most of his life. He had taught in the grade schools in Enfield, Carmi and Mt. Carmel, serving as superintendent of the city schools in Mt. Carmel for a number of years. At the time of his death he held the office of assistant to the Superintendent of Public Instruction at Springfield. When Booth executed his will and when he died School District No. 13 was a grade-school district with territory embracing the village of Enfield and a small area surrounding. The school building was an ancient brick structure, since condemned, though still in use. It is conceded that a new grade-school building is badly needed. On October 30, 1948, a petition was filed for the creation of Community Unit District No. 4. The proposed territory of this district included about seventy sections of land in White County and twenty-two sections of land in Hamilton County. It included the territory of District No. 13 which consisted of only a little over a section of land. The municipalities affected were Enfield and Springerton, the former lying in the south part of the proposed district and the latter five miles to the north. An election upon the proposition to establish the new district was held and the proposition was carried. Thereafter a board of education for the new district was elected and qualified. The change of supervision became effective on July 1, 1949.
Since Community Unit District No. 4 was established, it has operated grade schools at Enfield and Springerton and a high school at Enfield. This high school is conducted in a building on the east side of town, separate and apart from the grade-school building. The grade school is conducted in the same building which stood at the time testator made his will. Of the 250 students now attending the grade school at Enfield about 150 are from the village itself. Mindful of the provisions of the Booth will, the board of Unit District No. 4 adopted a resolution stating that they considered themselves beneficiaries of the trust fund and were ready, able and willing to meet the conditions set forth in the eleventh clause of the will. An election was called upon the proposition to build a new grade school on the site of the old building, and it carried by a large majority. A bond issue referendum for the issuance of $345,000 in bonds, of which $200,000 was for the building at Enfield, was submitted to the voters and carried. The bonds have been sold and the money is in the hands of the township school treasurer. An architect has been employed, and his preliminary report indicates that a modern building, properly equipped to meet the needs of the attendance unit at Enfield would cost a minimum of $350,000. The ability of Unit District No. 4 to carry out the conditions of the trust is not questioned.
Before considering the specific questions raised upon this appeal it might be well to refer to a prior decision of this court construing the trust provisions of the same will. Three years after the death of the testator his heirs who were not remembered in his will filed suit in the circuit court of Wabash County seeking to have both the private and charitable trusts declared invalid. The principal grounds on which the trust provisions were then attacked were: (1) that the trust provisions of the seventh through the twelfth clauses of the will were invalid and void for uncertainty of subject matter; (2) that the provisions were invalid as creating a mixed private and charitable trust; (3) that there was a discrepancy between clauses eleven and twelve, each purporting to dispose of the entire residue; (4) that the seventh through the twelfth clauses of the will violated the rule against perpetuities, and (5) that the trust provisions violated the law against accumulations of income. The trial court decided all contentions against the contesting parties and upon appeal this court affirmed that decree. Booth v. Krug, 368 Ill. 487.
The principal contentions involved in this appeal are: (1) that the trust provisions cannot be fulfilled because District No. 13 named in the will is no longer in existence and therefore the trust must fail, and (2) that the trust provisions are void under the rule against perpetuities. The reasoning under the second objection is that the condition imposed by the eleventh clause of the will is a condition precedent, making the gift contingent; that since the condition would not necessarily be met within 21 years and 9 months after the death of the last life beneficiary, the gift does not vest within the time prescribed by the rule. A logical development of this opinion dictates that we consider the second objection at the outset.
In the earlier case above referred to the trial court found that the condition mentioned in the eleventh clause was a condition precedent; that such condition should be complied with within a reasonable time after the death of the testator, but that under the circumstances provided for in the will such reasonable time should not be held to have elapsed until the ending of the estates for life makes the fund available, and sufficient time thereafter for the offer, on the part of the trustees, determination of the extent of the condition, and a reasonable opportunity on the part of the school district to gather its resources to meet such condition. The court further found that the private portion of the trust ceased and determined at the end of lives in being and that the charitable portion was not affected by the rule against perpetuities. While our former opinion affirmed the decision of the trial court in all respects, including its interpretation of the condition imposed in clause eleven, we did not discuss specifically its ruling on the objection under the rule against perpetuities but discussed only the contention that the trust violated the rule against accumulation of income. We deem it advisable, therefore, to deal specifically with that objection here since counsel have again advanced that argument.
It should be observed at the outset that the entire argument of counsel for appellants on this point is based upon the proposition that the gift provided for in clauses eleven and twelve of the will is contingent and not vested. Indeed, there could be no question otherwise, because the rule against perpetuities applies only to contingent future interests and not to vested interests. The rule is applicable only to the beginning of the interest and is not involved in the postponement of its enjoyment. (Harrison v. Kamp, 395 Ill. 11.) It is conceded that the intended gift is charitable in nature but counsel argue that though the Statute of Elizabeth in regard to charitable uses (43 Eliz. 4) is in force in this State, and though, because of its operation, that part of the rule against perpetuities which prohibits restraints on alienation does not apply to charitable trusts, that part of the rule which deals with the vesting of an estate does apply to charities; that gifts to charity, before they become vested, are subject to the rule against perpetuities. That this may be questioned as a general proposition is indicated by the language found in some of the decisions of this court. Thus, in Crerar v. Williams, 145 Ill. 625, where the contention was made that a charitable gift was in violation of the rule against perpetuities we said (at page 645): "The argument on this point is somewhat extended, but the controversy between counsel for the respective parties arises rather from the different constructions placed upon the will than from conflicting views of the law. It is insisted on behalf of appellants, that while it is generally said by text writers and courts, that the law against perpetuities does not apply to conveyances, or bequests to charity, all that is meant by that language, is: `that after property once ...