Appeal from the Circuit Court of Douglas county; the Hon.
GROVER W. WATSON, Judge, presiding. Reversed and remanded with
PRESIDING JUSTICE REYNOLDS DELIVERED THE OPINION OF THE COURT.
This suit arises out of a dispute over a trust provision of the will of Annette Ellars Williamson, who died on April 19, 1945, a resident of California. Her will was originally admitted to probate in California and because at the time of her death she was the owner of approximately 355 acres of farm land in Douglas county, Illinois, her will was admitted to probate in Douglas county, on November 20, 1945 and letters testamentary were issued by the County Court of Douglas county to Ola R. Fleming, named trustee in the will.
The farm in Illinois was disposed of by the fourth item of her will in the following language:
"(i) My farm in Douglas County, Illinois, consisting of 355 acres more or less, and more particularly described as: (Here follows Legal Description) unto my nephew Ola R. Fleming, in trust, however, for the following uses and purposes: To hold said farm property in trust and to operate same until such time as in the sole judgment and discretion of my said trustee, it can be sold to the best advantage of my estate. During all the time that my said farm property shall be so held, the net income, after deduction of all necessary expenses, including taxes and reasonable fees to my said trustee, shall be divided into sixteen (16) equal parts, and paid in equal installments as received, to the following persons and institutions:
"To William Campbell, Allen Campbell, Frank Campbell, Glen Campbell and Grace McMullen, children of my deceased brother, Joseph Campbell, each one share, or a total of five shares thereof.
"To Fred Campbell, Jeretta Campbell Nohren, Dora Campbell Nohren and Pearle Campbell, children of my deceased brother, Harvey Campbell, each one share, or a total of four shares thereof.
"To Joseph Stephen Campbell, Leonard Campbell, Harry William Campbell, Frances Campbell McElvine and Nettie May Campbell, children of my deceased brother Stephen Fleming Campbell, each one share, or a total of five shares thereof.
"To Alta Welcome, Nettie Welcome and Percy Welcome, share and share alike, the one share that would have been given to their mother, Susan Campbell Welcome, were she living.
"To the Young Women's Christian Association of Long Beach, California, and the Young Mens' Christian Association, of Long Beach, California, one share thereof, to be divided equally between them, this completing the total of sixteen shares.
"Upon the sale of my said farm property, as hereinbefore provided, it is my will that one-sixteenth (1/16) of the proceeds thereof shall be divided equally between the Young Men's Christian Association and the Young Women's Christian Association, both of Long Beach, California. The net income from the remaining fifteen (15) shares shall continue to be distributed by my said trustee to the beneficiaries named hereinbefore in this section (1), during the term of their natural lives, and upon the death of any beneficiary the proportion of the principal of the share of said beneficiary shall thereupon be paid in equal shares to the Atherton Court, a corporation, 700 Irving St., Alhambra, California, and Berkeley Baptist Divinity School, an Educational Institution, until the death of the last surviving beneficiary, whereupon this trust shall ipso facto terminate and the trustee be discharged."
Item Six of the will provided as follows:
"Any inheritance taxes assessed against any gift, devise or bequest herein shall be paid out of my Illinois farm."
Ola R. Fleming, named as trustee by the will, died on December 21, 1945, without having assumed the duties of trustee under the will. Allen Campbell was thereupon appointed as administrator with the will annexed of the estate of the decedent. Mr. Campbell acted as such trustee and managed the farm until the filing of this suit and the appointment of W.R. Kimball as "Interim Trustee" by the Circuit Court of Douglas County, Illinois, on October 23, 1950. Kimball acted as such trustee until his death on October 24, 1953, and the Central National Bank of Mattoon, Illinois was appointed Successor Interim Trustee, and that bank is still acting in such capacity.
Of the life beneficiaries named in the will, Grace McMullen died October 6, 1941, prior to the date of the death of the testatrix; Pearle Campbell died on October 2, 1945; Glen Campbell died on April 19, 1946; Fred Campbell died on October 22, 1949; Frank Campbell died on February 21, 1950, and Alta ...