Appeal from the Circuit Court of Whiteside county; the Hon.
ROBERT L. BRACKEN, Judge, presiding. Decree affirmed.
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Nellie Havens Martin was the wife of John W. Martin, and David L. Martin was the brother of John W. Martin. On May 25, 1922, Nellie Havens Martin, John W. Martin and David L. Martin entered into a written agreement which recited that the several parties had mutually agreed to devote the major part of their respective estates to the establishment and maintenance of a charitable institution to be known as The Martin Home for Old Folks, and that in order to properly establish and maintain the same, it was necessary that practically all the combined estates of the parties should be devoted to that purpose. This agreement then concluded: "Now, therefore, each of said parties in consideration of the others having this date made and executed their wills devising and bequeathing a major part of their respective estates to the purpose hereinbefore specified, agrees that he will devote the major part of his entire estate for the purpose of establishing and maintaining a charitable institution to be known as The Martin Home for Old Folks, according to the terms and provisions of his will this day executed, a copy of which is hereto attached. And the said David L. Martin and John W. Martin and Nellie Havens Martin mutually agree that each will devise, transfer or convey to said The Martin Home for Old Folks all of his right, title and interest in and to the following described tract (here follows a description of a plot of ground in the City of Sterling) to the end that said The Martin Home for Old Folks may be established and maintained on said tract as provided by the terms of the respective wills, copies of which are hereto attached and made a part hereof."
In accordance with this agreement, the parties thereto, on the same day, made their several wills. Clauses three and four of the will of Nellie Havens Martin are as follows:
"Third: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, and whereever situated, to David L. Martin and John W. Martin, of said city of Sterling, and to the survivor of them (and to their successor in trust), in trust for the following uses and purposes. Said trustees shall pay to my husband, John W. Martin, all of the income arising from or accruing from my estate so long as he shall live. Within twenty-five years from the date of the death of said John W. Martin if he survives me, or within twenty-five years from the date of my death if I survive said John W. Martin, said David L. Martin, trustee, (or his successor in trust) shall convey and transfer all of my estate so left in trust as aforesaid to an institution established either under the provisions of the will of said John W. Martin or under the provisions of the will of said David L. Martin, the principal object of which shall be to provide a home for old folks, or, in the event that such an institution has not been thus established, to an institution to be established under the provisions of this my will, such institution to be known and designated as The Martin Home for Old Folks.
"Until such time as my estate is conveyed to said institution as aforesaid, said trustees shall manage my estate, and, after the death of said John W. Martin, shall add the income to the principal of said trust fund until conveyed and transferred to said home. Said trustees shall have power to sell, convey and transfer any part of my estate, by deed, contract, or other instrument of conveyance.
"Upon the death of said John W. Martin and David L. Martin, or in the event that for any reason both cease to act as such trustees, then, in such case, I nominate and appoint Carl E. Sheldon, of Sterling, Illinois, as successor in trust, with the same powers, duties and responsibilities. I hereby direct that neither David L. Martin, John W. Martin, nor Carl E. Sheldon shall be required to give any bond as such trustee.
"Fourth. In the event that within twenty-five years from the date of the death of said John W. Martin there has not been established, either under the provisions of the will of said John W. Martin or under the provisions of the will of said David L. Martin, an institution, the principal object of which shall be to provide a home for old folks, then, in such case, I hereby nominate and appoint David L. Martin, Carl E. Sheldon, Frank J. Bowman, William H. Stanley, Ezra Mathew, Judson T. Williams, Charles D. Gleason, John M. Dillon, Paul W. Dillon, and Olive Craddock, or the survivors of them who are residents of the State of Illinois, trustees to incorporate under the laws of the State of Illinois a charitable institution to be known as The Martin Home for Old Folks. Said above named persons shall constitute the trustees of said home when incorporated and shall secure or provide a suitable building for the purpose of such a home.
"It is my will that said trustees admit to said home and care for, free of charge, any person who shall have attained the age of fifty-five years and who shall have been continuously, for ten or more years prior to the time of applying for admission to said home, a resident of Whiteside County, Illinois, and who, by reason of misfortune, illness, or other causes, is unable to provide for and support himself. In the event that there are more applicants for admission to the home than it can properly and adequately provide for, said trustees shall admit the qualified applicants in the order of their applications. In the event that there is room in the home, said trustees may admit other worthy applicants who are not residents of Whiteside County, Illinois.
"In the event that the number of trustees, after incorporation, is at any time less than seven, the remaining trustees shall select an additional trustee or additional trustees to the end that said The Martin Home for Old Folks shall be managed by a board of trustees seven in number. The trustees shall be residents of the state of Illinois and shall serve as such trustees without compensation.
"Said trustees shall have the management and control of the trust estate conveyed and transferred to said home by the trustee of my estate as hereinbefore provided, and shall have power to sell and convey any part of said trust estate and to invest and reinvest the same, and shall manage said trust estate according to their best judgment and for the best interest of The Martin Home for Old Folks."
The wills of David L. Martin and John W. Martin were in many respects similar to the will of Nellie Havens Martin. Each will provided for the establishment of The Martin Home for Old Folks and expressed the opinion of the testator that the building itself, equipped, should cost not less than three hundred thousand dollars ($300,000.00), but the trustees were admonished not to use for the construction and equipment of a building a larger amount than the remainder of the estates of John W. Martin, David L. Martin and Nellie Havens Martin will adequately maintain. Each will set forth the same requirements for admission into the home as were set forth in the will of Nellie Havens Martin.
On August 19, 1924, Nellie Havens Martin died and her will so made on May 25, 1922, was, on March 23, 1925, duly admitted to probate and on August 10, 1925, The Martin Home for Old Folks was duly incorporated under the laws of this state as a nonprofit corporation and as stated in its articles of incorporation, the object of such corporation was to provide a home for old folks.
On November 23, 1926, John W. Martin died and his will made on May 25, 1922, was duly admitted to probate on December 20, 1926. David L. Martin died on May 10, 1930, and his will, dated May 25, 1922, was on June 30, 1930, duly admitted to probate. The title to the plot of ground described in their wills and in the agreement of May 25, 1922, was in John W. Martin and David L. Martin. Their estates were both insolvent, and on November 9, 1938, the circuit court of Whiteside county, in a proceeding to which The Martin Home for Old Folks was a party defendant, entered a decree finding that the proposed old folks home was to be built upon this plot of ground and that the purpose of the trust for which said plot of ground was reserved has completely failed and that said home could not be established. This decree directed the trustees and executors of the estates of John W. Martin and David L. Martin to sell said land free of any right, title, or interest therein of The Martin Home for Old Folks and with the proceeds derived therefrom to pay the claims against the estates of John W. Martin and David L. Martin. Pursuant to this decree, the plot of ground was sold and the proceeds disbursed as directed.
The will of Nellie Havens Martin appointed David L. Martin and John W. Martin trustees of her estate and Carl E. Sheldon, successor trustee. Her will provided for the transfer by him of her estate to The Martin Home for Old Folks, and, in pursuance of these provisions of her will, Carl E. Sheldon, trustee, sold her land and the proceeds of the sale, ...