Appeal by defendant from the Superior Court of Cook county;
the Hon. RUDOLPH F. DESORT, Judge, presiding. Heard in the first
division of this court for the first district. Decree affirmed.
Opinion filed June 8, 1954. Released for publication June 29,
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
The Northern Trust Company, cosuccessor-trustee under the last will and testament of Lucy Storrs Ingals, deceased, brought suit in equity to construe the will of Lucy Storrs Ingals, deceased, and particularly to determine whether defendant Lenna B. Harvey is entitled to share in the income and principal of a trust created under that will. The chancellor entered a decree adverse to that defendant, from which she took a direct appeal to the Supreme Court of Illinois. The cause was transferred here for decision, the court holding that there was no freehold involved.
Lucy Storrs Ingals died testate April 24, 1930. The first paragraph of her will provides for payment of her debts. The second, third and fourth paragraphs provide specific legacies. The fifth, sixth, seventh and eighth paragraphs, around which this controversy centers, provide as follows:
"Fifth: I give, devise and bequeath to my daughter, Mary Ingals House, and Frederick A. Brown, in Trust, the property known as 69-71 West Lake Street, Chicago, Illinois, to manage and hold the same until the death of the last survivor of my children, Francis E. Ingals, Melissa Rachel Ingals Fisher, Mary Ingals House and E. Fletcher Ingals, and to pay the net income thereof to my children in equal shares so long as they shall live.
"In case any of my said four children should die intestate and without issue, the surviving children shall receive said income, but in case any of my children should die leaving issue or testate the parent's share of said income shall be paid to said issue, or as provided by the will of said deceased child. Upon the death of my last surviving child, I direct that the heirs at law of said children shall receive absolutely said Lake Street property, if not sold prior to that time, per stirpes and not per capita, provided that any of my said children may by will direct the disposition of the share that would otherwise have gone to his or her heirs.
"In the event that the said Lake Street property shall be sold as hereinafter provided, then the proceeds therefrom shall be invested in interest bearing securities and held by my said Trustees in the same manner and under the same trusts as the said Lake Street property was held by said Trustees, and the net income therefrom shall be paid and distributed and the corpus distributed, as the income from the corpus of said Lake Street property was held, paid and to be distributed.
"During the period of the trusteeship, leases may be made to extend even beyond the period of the trust.
"Sixth: In the event that my trustees shall deem it wise to sell said Lake Street property, authority is hereby given them so to do, and the purchaser shall not be required to look after the application of the purchase money. Without limiting the power hereby given to my said trustees, it is my desire that the property shall not be sold unless there is great danger of it being injured by circumstances or events that cannot now be foreseen.
"Seventh: I give, devise and bequeath all the rest, residue and remainder of my estate, of every kind, nature or description, and wheresoever situated, unto my daughter, Mary Ingals House, and Frederick A. Brown, In Trust, for the following purposes: They shall, upon the settlement of my estate, divide said property into four (4) equal parts and shall at once deliver to Francis E. Ingals his share, to Melissa Rachel Ingals Fisher, her share, but the shares of Mary Ingals House and of E. Fletcher Ingals shall not be paid to either of them until she or he arrives at the age of thirty-five (35) years, and until such time Mary Ingals House and E. Fletcher Ingals shall receive the net income from her or his share only. My said trustees are hereby given authority to dispose of any and all of said property before it is divided or the share set off to Mary Ingals House and E. Fletcher Ingals after it is divided, and invest the proceeds thereof in interest-bearing securities. Any purchaser of any property under either trust shall not be required to look after the application of the purchase money.
"Eighth: In the event that any of my said four children shall die intestate and without issue, the number of parts into which any income, or my residuary estate is to be divided shall be correspondingly reduced. But in the event that any of my said children shall die testate or leaving issue, that child's share shall go to his or her issue or as provided in the will of said child."
Frederick A. Brown, one of the trustees, died in October 1939, and the Northern Trust Company became cosuccessor trustee. Thereafter the real property, constituting the corpus of the trust, was sold. Subsequent to the sale one of the four children of the testatrix, Francis E. Ingals, died testate, a resident of Connecticut. The pertinent portions of his will are as follows:
I direct my Executor hereinafter named to pay all my just debts and ...