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Raser v. Johnson Et Al.

MARCH 20, 1956.

CHARLES RASER, RAYMOND RASER BY ESTHER RASER, HIS NEXT FRIEND, AND HOWARD GLATTHAAR, PLAINTIFFS-APPELLANTS,

v.

ORAL JOHNSON ET AL., A.W. WELLSTEIN, AS TRUSTEE, OGDEN H. CHAMBERLAIN, AS EXECUTOR OF WILL OF MARY M. URICK, DECEASED, AND LATHAM CASTLE, ATTORNEY GENERAL OF STATE OF ILLINOIS, DEFENDANTS-APPELLEES, AND MARGARET BELL, AND NEVA BENTLEY, PLAINTIFFS-APPELLEES.



Appeal from the Circuit Court of Henry county; the Hon. LEONARD E. TELLEEN, Judge, presiding. Judgment affirmed.

JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.

This is an appeal from a decree of the circuit court dismissing a complaint for want of equity on motions of defendants. Plaintiffs claim their suit was brought for the purpose of construing paragraph Seventh of the will of Mary M. Urick, deceased, providing as follows:

"SEVENTH: I give, devise and bequeath all the rest, residue and remainder of my estate to A.W. Wellstein, M.D., of Geneseo, Illinois, in trust, nevertheless, for the uses and purposes hereinafter specified. My said trustee shall invest said estate in income producing securities. He shall use the income thereof, and so much of the principal as in the judgment of my said trustee may from time to time be necessary, to pay for the hospitalization or medical supplies of worthy persons residing in the City of Geneseo, Illinois, who, in the judgment of my trustee, are unable to pay for the same. Should any of said trust estate be comprised of real estate, I authorize and empower my said trustee to hold the same, leasing it for periods not exceeding five years, on such terms as to my said trustee shall seem proper, and I further authorize and empower him to pay the taxes, insurance, necessary repairs and other expenses for maintaining said real estate, using the net income as hereinabove provided. I further authorize and empower him to sell said real estate, at public or private sale, at such price and such terms as to him shall seem proper, and to convey the same to the purchaser or purchasers, who shall not be required to look to the application of the purchase money. In case of the death, resignation or inability of said trustee to serve, then a successor trustee or trustees shall be appointed by a court of proper jurisdiction, and such successor trustee or trustees shall administer said trust in the same manner, and with the same rights and duties as those herein given to and prescribed for my said trustee."

The pleadings consisted of the complaint, with a copy of the will attached as an exhibit, and the motions to dismiss filed by the executor, the trustee and the Attorney General. In the motion filed by the executor and trustee, it was alleged that said paragraph "Seventh" was plain and unambiguous, its meaning was clear, and it needed no construction; and that same made a valid gift to charity. In his motion to dismiss, the Attorney General charged that plaintiffs did not allege facts sufficient to show that the trust created by paragraph Seventh of the will of Mary M. Urick was void because of indefiniteness or uncertainty in any particular. The motion further alleged that on the contrary the facts as alleged by the plaintiffs clearly showed that the trust was valid and enforceable; that plaintiffs did not allege facts sufficient to show that the trust was void under the rule against perpetuities; that plaintiffs did not allege facts sufficient to show that the trust was for purposes which the courts of this state did not recognize as charitable; and that plaintiffs did not allege facts sufficient to give them a right to the relief prayed for, or any part thereof. No evidence was heard.

[1-3] Plaintiffs-appellants are the heirs at law who will take the property if the trust is void. They allege that the trust is void as it violates the rule against perpetuities and is not a charitable trust. They further contend that there was such doubt and ambiguity in the provisions of the will that the court should have construed the will and should have allowed attorneys' fees to the plaintiffs even though their views on the construction of the will were not adopted by the court. Defendants' position is that said Seventh paragraph of the will creates a valid charitable trust and is not subject to the rule against perpetuities; that the language of said paragraph is unambiguous and does not require construction and the court properly refused attorneys' fees to plaintiffs-appellants. The first and primary issue in this case is therefore whether or not the trust created under clause Seventh of the will is a charitable trust. Plaintiffs specifically direct their attack to the following portion of said Seventh clause:

"He shall use the income thereof, and so much of the principal as in the judgment of my said trustee may from time to time be necessary, to pay for the hospitalization or medical supplies of worthy persons residing in the City of Geneseo, Illinois, who, in the judgment of my trustee, are unable to pay for the same."

A charity has repeatedly been defined by our Illinois Courts as:

". . . a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burthens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature."

Crerar v. Williams, 145 Ill. 625, 643 (1893) quoting from Jackson v. Phillips, 14 Allen 539, 556 (Mass. 1867). In determining whether or not a trust is charitable and valid the Illinois Courts have applied the basic rule that, ". . . Such gifts are looked upon with peculiar favor by the courts, which take special care to enforce them, and every presumption consistent with the language used will be indulged to sustain them. . . ." Franklin v. Hastings, 253 Ill. 46, 50 (1912). This rule and the definition of charity quoted above have been applied in Illinois cases holding trusts charitable and valid. Crerar v. Williams, supra; Franklin v. Hastings, supra; Skinner v. Northern Trust Co., 288 Ill. 229, 232; Morgan v. National Trust Bank of Charleston, 331 Ill. 182, 186; Stubblefield v. Peoples Bank of Bloomington, 406 Ill. 374, 384.

In Summers v. Chicago Title & Trust Co., 335 Ill. 564, the Illinois Supreme Court applied these principles to a trust for the purpose of making loans to "worthy students to enable them to pay their senior year's tuition." The court held the trust valid and charitable, saying at pp. 568-569:

"The questions involved in this case are almost identical with those in Morgan v. National Trust Bank, 331 Ill. 182, . . . . Appellants, however, contend that this case differs from the Morgan case in that in that case the money was to be loaned to indigent pupils while in the instant case it is to be loaned to worthy students. If the word `worthy' were the only description of the students to whom the loans were directed to be made by the testator's will there might be some force in appellants' contention. That is not the case. The loans are directed to be made to `worthy students about to enter the senior year in the respective courses of law and medicine . . . to enable them to pay their senior year's tuition.' The word `enable' is a compound of the prefix `en' and the adjective `able.' `En' is a prefix forming verbs from nouns or adjectives, `en' having the general sense of make. The adjective `able' may be defined as having sufficient power, means or resources of any kind to accomplish an object. The compound word `enable' is a verb meaning `to make able; to give (one) power, strength or competency sufficient for the purpose.' (Webster's New Int. Dict.) One cannot by any act enable a person to do a thing which prior to the act the person was able to do. The term `worthy students,' as used in the will, does not include all worthy students, but only such of them as without the loan would be unable to pay their senior year's tuition."

The objects of the testator's charity in the Summers case were, and in this case are, "worthy" persons who are unable, without the help of the gift, to provide for themselves.

Plaintiffs contend that the trustee is authorized to devote the trust to purposes other than charitable. In the Summers case, supra, the court held that where the language creating the trust expressed a general charitable intent the trustee was bound to apply the funds to recognized charitable purposes. Quoting from p. 569, the court said:

"It cannot be said or held that such students could use the loan for other than a charitable purpose, for it was to be loaned only for a purpose which was charitable and upon the approval of the dean of the law school or the dean of the medical school. The trustee was authorized to make the loan for the purpose specified in the will and for no other purpose. The provisions of the will were explicit ...


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