APPEAL from the Circuit Court of Menard County; the Hon.
MAURICE E. BARNES, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
This appeal from the circuit court of Menard County involves the construction of the will of Laura F. Sayre, who died on June 7, 1941.
The testatrix, a widow, executed her will on March 10, 1938, at which time she was 86 years old. She had one son, Frank Sayre, age 58, who was married to Eliza Jane Sayre. Frank and Eliza also had one son, John Ray Sayre, age 37, who was the father of Ramona Sayre, age 13.
John Ray (the grandson) and Ramona's mother were divorced in 1928, and he married the petitioner, Ruth Sayre Peters, in 1935. No children had been born to them as of the time the will was executed.
The will, after customary provision for debts and funeral expenses, provided as follows:
"ITEM TWO I do hereby give, devise and bequeath to my daughter in law, Eliza Jane Sayre, as Trustee, and to her successor or successors in trust as hereinafter provided, all of my property of every kind and character, real, personal or mixed, wherever situated, for the following purposes:
(a) To take full and complete charge of my property and estate, rent and lease the real estate, pay taxes, insurance and upkeep on same, collect rents, sell grain, and collect all income from any of my property; and said Trustee and her successors to have full control of said income and its expenditure during the continuance of said trust.
(b) Except as hereinafter provided, to expend the income from such property for the benefit of my son, Frank Sayre, so long as he shall live; said Trustee and her successors in trust to have full control of such income and its expenditure.
(c) To expend the income from such property for the benefit of my daughter in law, Eliza Jane Sayre, provided she survives my said son, Frank Sayre.
(d) Except as hereinafter provided in Item "Four," the successors in trust as hereinafter provided, to expend the income from such property for the benefit of my grandson, John Ray Sayre, if my said grandson survives my son, Frank Sayre and my daughter in law, Eliza Jane Sayre.
(e) Except as hereinafter provided in Item "Four," said trustee shall expend the income from my property for the benefit of the child or children of my grandson, John Ray Sayre, who may be living at the time of his death, excepting Ramona Sayre, who is provided for in Item "Four" herein, after my said son, my said daughter in law and my said grandson shall have departed this life, and such income to be expended for each and all said children of John Ray Sayre, excepting Ramona Sayre, until such child or children shall have attained the age of twenty-one (21) years, and as each of such children of John Ray Sayre attains the age of twenty-one years, such trust property shall vest in such child and the heirs of his or her body in fee simple as to such child's proportionate share thereof, it being my intention that said child or children of John Ray Sayre shall take in equal shares, such trust property and to the heirs of his or her body, and such share or shares shall vest as each child attains the age of twenty-one years.
ITEM THREE (3) I hereby give, devise and bequeath all of the property which shall remain in the hands of my said Trustee or her successors in trust, to the child or children of John Ray Sayre, the real estate to vest them and the personal property to become their property and to the heirs of the body of each such person as such person attains the age of twenty-one years, subject only to the provisions herein involving the payment of income during their respective lives to my said son, daughter in law and my grandson, and subject to the provisions in Item "Four" herein.
ITEM FOUR (4) I direct that the Trustee of my estate and property shall pay the proceeds, after the payment of taxes, insurance and upkeep on the same, from the J.C. Davenport land in Cartwright Township, Sangamon County, Illinois, containing one hundred acres, more or less, beginning one year after this will is admitted to probate or beginning upon the closing of my estate by my executor in the event the settlement of my estate shall be delayed for any cause, to my great granddaughter, Ramona Sayre, and the said Trustee shall continue to pay same to her until she attains the age of twenty-one (21) years, and when she attains the age of twenty-one years, said real estate mentioned and described in this paragraph shall vest in her as her own property forever; should she the said Ramona Sayre die prior to the time she attains the age of twenty-one years, then such real estate and accumulations therefrom shall become a part of the trust fund or estate for the other children of John Ray Sayre.
ITEM FIVE (5) It is my will and I hereby direct that in the event my said daughter in law, Eliza Jane Sayre, shall depart this life prior to the termination of the trust herein provided, then in such event, I do hereby appoint John M. Craddock, of Springfield, Illinois, to be her successor in trust to carry out the provisions of this will. And in the event my daughter in law and said John M. Craddock shall fail to act or shall both die prior to the completion of said trust, then the sitting judge of the Circuit Court of Menard County, Illinois, shall appoint some proper person to act as such trustee.
ITEM SIX (6) It is my will that in case any child or children of John Ray Sayre shall depart this life, leaving no child or children surviving, prior to such child attaining the age of twenty-one years, then the interest of such deceased child or children shall go to the surviving brothers and sisters of such deceased child; provided however that this provision shall not apply to said Ramona Sayre, as provision has hereinbefore been made as to her death, and she shall not have her rights or interests enhanced by the death of any such child. In the event of the death of all said children of John Ray Sayre, as herein provided, prior to attaining the age of twenty-one years, leaving no child or children surviving, preventing the vesting of said property, then I give and devise all my real and personal estate to the Methodist Episcopal Sunset Home, at Quincy, Illinois, and the Cunningham Home at Urbana, Illinois, share and share alike in fee simple.
ITEM SEVEN (7) It is my will that said Trustee and successors shall be and they are empowered to sell, dispose of or mortgage any and all my property as said trustee shall deem best and shall account for the proceeds thereof as a part of the trust and for such purposes, I authorize and empower the acting trustee to make deed or other instrument as may be necessary, such sale or disposition shall be in the discretion, which I make absolute, of either my said Trustee or her successors to be designated as herein provided; and the proceeds of all such sales, ...