Appeal from the Circuit Court of Knox county; the Hon. BURTON
A. ROETH, Judge, presiding. Decree reversed in part and affirmed
This is an appeal by the Attorney General of the State of Illinois from two orders of the Circuit Court of Knox County, Illinois, entered on October 18, 1960, allowing attorney fees and expenses to counsel for Galesburg Cottage Hospital and Knox College, charitable corporations, each of which corporations unsuccessfully sought distribution of trust properties or funds under the cy pres doctrine in this case. These fees and expenses were taxed as part of the cost of this proceeding and ordered paid out of the trust property subject to administration.
On March 17, 1955, the plaintiffs filed a complaint in the Circuit Court of Knox County to construe the Will of Pluma E. Hinckley, deceased, and for other relief. The complaint alleged, inter alia, that by Paragraph Eleven of her Will the decedent expressed her "intention and desire to establish a home for worthy women who need a home" and, therefore, devised and bequeathed to her trustees and their successors certain real estate described in the Will to be used for that purpose.
The complaint further alleged that it was impractical and inexpedient that said real estate be applied to the particular purpose of establishing a home for worthy women who need a home or that any funds be applied for the purpose of maintaining such a home thereon.
Plaintiffs sought relief as follows: (1) For the appointment of receiver to manage and control the real estate in question; (2) To determine the rights and interests of the several parties to the action; and (3) To construe the last Will of Pluma E. Hinckley, deceased, by finding it impossible, impractical and inexpedient that said real estate be applied for the purpose of establishing a home for worthy women in accordance with the Eleventh Paragraph of the Will, and further finding that it would be useless to establish and maintain the home for worthy women contemplated by the decedent in her last Will, and further finding that for these reasons the trust attempted to be established under the last Will of said decedent failed and that there were no other similar charities or homes situated in or near the City of Galesburg, Knox County, Illinois, for which the trust might be used, and further praying that the trust be declared to be intestate property and distributed to the heirs at law of said decedent.
Plaintiffs in the alternative prayed that three trustees be appointed and the court give them directions with reference to establishing and maintaining a home for worthy women under the provisions of the Eleventh Clause of the last Will of Pluma E. Hinckley, deceased. Plaintiffs also prayed that the cost of the proceedings, including reasonable attorney fees for the plaintiffs, be ordered paid out of the principal of the property, subject to the terms of the Will of Pluma E. Hinckley, deceased.
The original defendants to the suit were Latham Castle, then the Attorney General of the State of Illinois, the Kirksville College of Osteopathy and Surgery, the Glenwood School for Boys, Knox College, certain individuals and unknown owners. None of the original defendants to this action claimed any interest with respect to the devise of real estate for a home for worthy women with the exception of Knox College, an educational institution situated in Galesburg, Illinois, which claimed the real estate or proceeds of sale by way of a counter-claim based upon the application of the doctrine of cy pres, or in the alternative, as a legatee of the interest of Ada Hinckley Chapman, one of the heirs of Pluma E. Hinckley, deceased.
The Galesburg Cottage Hospital, an Illinois not-for-profit corporation, situated in Galesburg, Illinois, filed in the trial court a Petition for Leave to intervene. The petition was granted, Galesburg Cottage Hospital was thereby made a party defendant and by their intervening petition prayed that the real estate in question or the proceeds thereof be awarded to it for a home for worthy women under the doctrine of cy pres. The "Illinois P.E.O. Home," an Illinois not-for-profit corporation, was also made a party defendant.
By a decree not appealed from or questioned in any way in this appeal, the trial court awarded proceeds of a sale of the decedent's real estate devised for a home for worthy women to the Illinois P.E.O. Home, an Illinois not-for-profit corporation.
The orders appealed from allowed the sum of $2,400.00 as fees and $25.00 as expenses to the attorneys for the Galesburg Cottage Hospital and $1,955.00 as fees and $20.00 as expenses to the attorneys for Knox College notwithstanding that neither of these parties instituted the suit nor prevailed therein.
It is the contention of the Attorney General, as Ex-officio Representative of the State of Illinois in all charitable trust matters, that the trial court erred in allowing attorney fees to counsel for the two charitable corporations who unsuccessfully sought the trust properties or funds under the cy pres doctrine.
It is the position of the appellee, Galesburg Cottage Hospital, that it had an interest in the trust property as a charitable institution with purposes similar to those set forth in the Eleventh Paragraph of the Will of decedent sufficient to permit it to seek the trust property under the doctrine of cy pres, and that it is entitled to have its attorney fees allowed and ordered paid out of the trust property even though it did not prevail in the litigation and was not awarded the trust fund or any part thereof.
In support of this contention the appellee, Galesburg Cottage Hospital relies strongly upon the decisions of our reviewing courts in the following cases: Woman's Union Missionary Society of America v. Mead, 131 Ill. 338, 23 N.E. 603; Dean v. Northern Trust Company, 266 Ill. 205, 107 N.E. 186; Hitchcock v. Board of Home Missions of Presbyterian Church, 259 Ill. 288, 102 N.E. 741; Ingraham v. Ingraham, 169 Ill. 432, 48 N.E. 561; Barnhart v. Barnhart, 415 Ill. 303, 114 N.E.2d 378, and Dailey v. Dailey, 224 Ill. App. 17.
We have examined these cases with considerable care and we do not believe that they are decisive of the proposition contended for, by appellee Galesburg Cottage Hospital. These cases involved wills where the language used in the wills was so ambiguous as to justify an application to the courts for their proper construction to determine the intent of the testator. While the case at bar is designated as a complaint to construe the Will of Pluma E. Hinckley, deceased, it is not in fact a complaint for the ...