Appeal from the Circuit Court of Knox county; the Hon. RILEY
E. STEVENS, Judge, presiding. Reversed and remanded with
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
This appeal involves a suit brought by the present trustees of a trust created by the Thirtieth clause of the last will and testament of Mary Davis McKnight, deceased.
The plaintiff trustees filed a complaint in the Circuit Court of Knox county seeking a construction of the last will and testament of Mary Davis McKnight, and particularly a construction of the Thirtieth clause thereof, and a determination whether any part of that trust should be applied cy pres. The complaint alleged the death of the testatrix on September 23, 1913, the probate of her will, and the closing of her estate on December 31, 1945. It set forth Clause Thirtieth of the decedent's will which provides:
"Thirtieth. To Charles M. Swank, W.A. Armstrong and Miss Ellen Davis, as trustees, and to their successors in trust, the sum of one hundred and fifty thousand dollars, to have and to hold the same in trust to build and endow in the City of Galesburg, Illinois, a home for orphan children, to be called The McKnight Industrial Home, to be controlled and managed by them and their successors in trust. In case of the death or refusal or failure of any of said persons so named as trustees to act, or in case of a vacancy by death, or otherwise occurring at any time in said board of trustees, the remaining trustees shall have the right to appoint trustees to fill such vacancies from time to time as the same may occur."
The complaint alleged that $150,000 had been turned over to the trustees named in the will; that the Circuit Court of Knox county had assumed jurisdiction of the trust in 1924; that pursuant to the will the trustees had established a home in Galesburg, Illinois, and operated it to care for orphan girls, known as The McKnight Industrial Home, and that the same is still being maintained and operated. The trustees alleged that the word "orphan" as used in the will was construed to include children only one of whose parents is deceased and that the home has been and is ready to care for and furnish food, clothing and shelter for any orphan children who might require such care. The plaintiff trustees further alleged that the home has cared for as many as eighteen orphan children and until recent years trust income was substantially consumed in caring for such children; that recently, however, "more prosperous economic conditions and social legislation of State and Federal Governments has (sic) resulted in a substantial decrease in the need for the expenditure of funds or the use of the facilities being administered by the Trustees and occupancy of the home has been reduced to three children." The complaint averred that, accordingly, trust income was not being fully expended and was accruing each year, and, due to the social and economical conditions described, in the opinion of the plaintiffs it was no longer practical to maintain The McKnight Industrial Home. Plaintiffs in their pleading suggested that better use of the trust fund might be made by providing scholarships for orphan children for higher education above the high school level, possibly at Knox College in Galesburg. In any event, the trustees prayed for a construction of the will as it applied to their duties and a direction from the Chancellor as to the proper administration of the trust in the future.
The Attorney General of Illinois was made a party defendant and answered the complaint. The answer of the Attorney General admitted the allegations of fact in the complaint, as well as the averment that the will manifested a general charitable purpose on the part of the testatrix, but the answer avoided any expression of opinion as to whether or not it was practicable or desirable to continue The McKnight Industrial Home or whether the cy pres doctrine should be applied in this case.
Certain heirs of the testatrix, allegedly representative of their class, were made parties defendant and also answered the complaint. However, these heirs, Ellen Davis and Katharine Davis, denied that the will disclosed any general charitable intent or purpose or that any need existed for the construction of the will and further denied that the court had any power to administer the funds cy pres. The answer of the heirs alleged that the Thirtieth clause of testatrix's will showed a charitable intent for only a specific and particular purpose and not a general charitable intent in favor of orphan children; that the trust had failed; that if the court should find the trust had failed, the trust property should be distributed to testatrix's heirs-at-law; that if the court should find that the trust had not failed, the court should direct that the trustees continue to maintain the orphan home.
Since the defendant heir, Ellen Davis, was under a disability, a guardian ad litem was appointed to represent her.
Subsequently, the plaintiffs filed a motion for severance of issue. The Chancellor granted plaintiffs' motion and ordered that the issue of whether the facts in this case and the law applicable thereto would justify the trial court exercising its cy pres power with respect to all or part of the charitable trust was to be first determined by the Chancellor in advance of any reference of the cause to the Master in Chancery of the Circuit Court. Thereafter, a hearing was had before the Chancellor on the issue severed. Testimony was offered and written exhibits submitted by the plaintiffs. The defendants offered no evidence at the hearing. Following the filing of briefs, the trial judge entered an order which provided in pertinent part:
"It is Therefore Ordered, Adjudged, Decreed and Declared by the Court that the true and proper construction, interpretation, intent, meaning, and effect of the Will of the said Mary Davis McKnight, deceased, is that the gift appearing in the thirtieth clause of said Will by which $150,000.00 was given to certain named Trustees to build and endow in the City of Galesburg, Illinois a home for orphan children to be called `The McKnight Industrial Home' was specific and particular and for the limited purpose only of building and endowing such a home and for no other purpose; that under the terms of said Will there is no power or authority in this Court to direct any application of said funds cy pres as specifically prayed for in the petition filed by the Trustees.
"It is Further Ordered, Adjudged and Decreed that the complaint of the plaintiffs herein be dismissed for want of equity and that the same is hereby dismissed for want of equity."
This appeal was perfected from that order by the plaintiff trustees.
While it is true that evidence was heard concerning the history, function and need of the orphanage, the issue made by the parties and decided by the Chancellor was the legal question whether under a proper construction of the Thirtieth clause of the last will and testament of the testatrix, the Chancellor had the power to direct an application of the trust cy pres. This is the sole issue before us for review.
Otherwise stated, the issue now on appeal is whether the Chancellor erred in holding that the will of Mary Davis McKnight, deceased, manifested a limited charitable intent to benefit only the specific orphan home named in her will, to be established as directed therein, rather than a general charitable intent to benefit orphans and that, therefore, the court was powerless to apply the doctrine of cy pres here. This is the only question decided by the Chancellor in the order appealed from, and our review is thus necessarily confined to this narrow question. Since the issue on appeal is ...