Appeal from the Superior Court of Cook county; the Hon. GEORGE
M. FISHER, Judge, presiding. Order affirmed in part and reversed
in part, and cause remanded with directions.
JUDGE ROBSON DELIVERED THE OPINION OF THE COURT.
This is an action filed by plaintiff, Spencer H. Logan, trustee of an inter vivos trust, in the nature of an interpleader for construction of the last will and testament of Stuart Logan, deceased. The issue presented to the trial court was whether Stuart Logan by his will exercised a power of appointment over his interest in an inter vivos trust. The trial court held that there was a conflict between Articles Fourth and Thirteenth of the will, and it resolved this conflict by holding that the decedent exercised his power of appointment and that the interest appointed passed under the residuary clause of the decedent's will. Defendants Phoebe Logan and Shirley Schoeller, children of the deceased, prosecute this appeal from the decree of the trial court.
Two questions are presented for our decision on this appeal. The first is the construction of the will, the second whether the attorneys' fees allowed by the trial court to the respective parties were excessive.
The facts relevant to the first point are that on December 29, 1939, a declaration of trust known as the Logan Real Estate Trust, was entered into by Spencer H. Logan, Waldo H. Logan and Stuart Logan, as beneficiaries, and Stuart Logan as Trustee. Article Third of the Trust Agreement provides in part as follows:
". . . in case of the death of any beneficiary hereunder during the existence of this trust, his right and interest hereunder shall, except as herein otherwise specifically provided, pass as he may direct or appoint in his Last Will and Testament; and, in default of any such appointment, then the right and interest of any beneficiary hereunder shall pass to the children of such deceased beneficiary, share and share alike, . . ."
Stuart Logan died testate on October 27, 1952. He left surviving him as his only heirs his three children, Shirley Schoeller, Phoebe Logan and Loraine Felton. His last will and testament and codicils two and three thereto were duly admitted to probate by the Probate Court of Cook County on December 8, 1952. In codicil three he bequeathed and made gifts to certain beneficiaries, some of the appellees here, of a specific percentage of his net distributable estate. Their interest will be increased slightly if we determine that the power of appointment was exercised and passed under the residuary clause. Whether the children take as intestate heirs or under the Logan Real Estate Trust free of the testamentary trust does not involve any relatively substantial amount.
Article Fourth of Stuart Logan's last will and testament provides as follows:
"Fourth: I direct my executors to divide the entire rest, residue and remainder of my estate, of all kinds and character whatsoever and wherever situated, belonging to me at the time of my death or in which I have any interest, including all lapsed legacies, but expressly excluding any property over which I may now or hereafter have a power of appointment, into three equal portions which, for the purposes of identification, I now designate as the Shirley Schoeller portion, the Phoebe Logan portion and the Loraine Felton portion. Provided, however, that the said Loraine Felton portion shall include as a part thereof all of the capital stock of, and all other interest of whatever kind and character I own and have in and to the Coca-Cola Bottling Company of Salt Lake City, Utah, and the Coca-Cola Bottling Company of Provo, Utah."
Articles Fifth and Sixth of said will give, devise and bequeath the three portions referred to in Article Fourth to trustees for the beneficiaries therein designated.
Article Thirteenth of said will is as follows:
"Thirteenth: In the event the trustees or executors should desire to sell my interest as beneficiary under the Logan Real Estate Trust created December 29, 1939, the principal asset of which trust is the real estate known as 1150 Lake Shore Drive, Chicago, Illinois, I direct that they shall give to my brother, Spencer H. Logan, of Great Barrington, Massachusetts, a reasonable opportunity to purchase the same if he be willing to pay therefor an amount at least equal to the highest bid offered therefor by any bona fide prospective purchaser. I request that prior to any sale of such beneficial interest, said executors or trustees consult with my brother, Spencer H. Logan, as to the propriety of such sale and the proposed price to be obtained. But this request is in no way in derogation of any of the powers of my executors or trustees to sell said beneficial interest."
On January 12, 1953, subsequent to the death of Stuart Logan, the trust property, i.e., 1150 Lake Shore Drive, Chicago, Illinois, was sold by plaintiff Spencer H. Logan, as trustee.
All parties agree that Stuart Logan's estate is valued at approximately $600,000, excluding the value of his interest in the Real Estate Trust which is presently valued at approximately $65,000.
At least three possible interpretations of Stuart Logan's will were presented to the trial ...