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Joslin v. Ashelford

FEBRUARY 23, 1961.

BESSIE I. JOSLIN, OTHERWISE KNOWN AS INEZ JOSLIN, APPELLANT,

v.

HERMAN W. ASHELFORD, INDIVIDUALLY AND AS TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF WILLIAM H. ASHELFORD, DECEASED, LOIS JOSLIN WOLFF, WILLIAM WOLFF, SANDRA KAY WOLFF AND BONNIE WOLFF, BEVERLY JOSLIN VOIGHT, AND ANY UNBORN CHILDREN OF LOIS JOSLIN WOLFF AND BEVERLY JOSLIN VOIGHT, APPELLEES.



Appeal from the Circuit Court of Ogle county; the Hon. LEON A. ZICK, Judge, presiding. Affirmed.

CROW, P.J.

Rehearing denied March 29, 1961.

William H. Ashelford, of Ogle County, died leaving a Will which reads, so far as now material, as follows:

"2. I will, devise and bequeath unto my beloved wife, Nancy S. Ashelford, the net income from all my property during her lifetime for her to use the same.

5. All the rest, residue and remainder of my said estate after the death of my said wife, Nancy S. Ashelford, I will, devise and bequeath to my said children, Walter J. Ashelford, Herman W. Ashelford, Alice P. Drake, Daisy M. Len, Gladys M. Ashelford, Bessie I. Joslin, in trust, Jessie D. Gillis, Berniece B. Ashelford and Florence G. Faulkner, each to share and share alike in said residue and that in the event of the death of any of the above children and they having no children of their own body surviving them, then their share is to be equally divided between their surviving brothers and sisters, including my adopted daughter, Shirley J. Ashelford. The share of Bessie I. Joslin which is hereby devised in trust, shall be taken by Herman W. Ashelford, as Trustee, and the said Herman W. Ashelford is to take said division of my estate, invest the same in securities to be approved by the Court, and to pay over unto the said Bessie I. Joslin, personally, such net income as derived from said funds. At the death of the said Bessie I. Joslin, the corpus of this trust shall be divided equally among the daughters of Bessie I. Joslin, namely, Lois Joslin and Beverly Joslin, share and share alike, and in the event of their or either of their deaths then to their children if any they have, and if not, then to the survivor. The said Herman W. Ashelford as hereby directed in this paragraph as Trustee of a part of my estate devised in trust and likewise in the foregoing paragraph, shall not be required to give any surety or sureties upon his official bond in so acting.

6. I hereby direct my Executor or Executors hereinafter mentioned to take charge of my entire estate immediately upon my death and if my wife should survive I direct that they manage said estate, collecting the income therefrom and after payment of all necessary expenses involved, to pay over the net income to my beloved wife, Nancy S. Ashelford, and that said payments shall be made quarterly, if possible, and a current accounting made each year.

7. After the death of my wife Nancy S. Ashelford, if she should survive me, or after my death if I should survive her and within a period of three (3) years, I hereby direct that my Executor or Executors hereinafter mentioned, shall sell all of my personal property and all of my real estate with the exception of that real estate which I have heretofore specifically devised. The said Executor or Executors shall have the full right and power and their signature or signatures as such Executor or Executors shall be sufficient to convey any and all of my property and he or they shall sell said property, both real and personal as above directed, as they deem advisable and at such valuation as they may consider as fair and he or they shall be the sole judge as to what consideration is reasonable.

8. Lastly, I hereby nominate and appoint my sons, Walter J. Ashelford and Herman W. Ashelford Executors of this my last will and testament, to act jointly or in case one or the other fails or refuses to act then the other to act as the sole Executor and I hereby direct that if either or both of my sons, Walter J. Ashelford and Herman W. Ashelford, qualify as Executors or Executor, that they or either of them be exempt from giving any surety or sureties on their official bond as Executor or Executors hereof.

The plaintiff Bessie I. Joslin, one of the parties referred to in paragraph 5 of the will of William H. Ashelford, deceased, and being one of his children, filed her second amended complaint to construe the will, against the defendants Herman W. Ashelford, individually and as trustee thereunder, Lois Joslin Wolff (a daughter of Bessie I. Joslin), William Wolff, Sandra Kay Wolff, and Bonnie Wolff (minor children of Lois Joslin Wolff), Beverly Joslin Voight (the other daughter of Bessie I. Joslin), and any unborn children of Lois Joslin Wolff and Beverly Joslin Voight.

The second amended complaint alleges, briefly, that the will of William H. Ashelford, deceased, was admitted to probate, and the executors Walter J. Ashelford and Herman W. Ashelford duly qualified; the decedent died leaving surviving his widow, Nancy S. Ashelford, and his children, Walter J., Herman W., Shirley J., and Gladys M. Ashelford, and Alice P. Drake, Daisy M. Len, Jessie D. Gillis, Berniece A. McMonigle, Florence D. Faulkner, and Bessie I. Joslin; Nancy S. Ashelford, the widow of the decedent, died October 26, 1954, and all the children of William H. Ashelford, deceased, survived Nancy S.; the defendant Lois Joslin is now Lois Joslin Wolff, and she has the living minor children William, Sandra, and Bonnie, also defendants, and the defendant Beverly Joslin is now Beverly Joslin Voight, and she has no children; paragraph 5 of the decedent's will reads as above indicated; the language of the will is so obscure and indeterminate that it does not establish a trust for the plaintiff and should be so construed that no trust is established; the estate of the decedent was probated, final report approved, and distribution made to all the beneficiaries indicated, and the share of the plaintiff was distributed by the executors to Herman W. Ashelford as trustee as provided in paragraph 5; the defendant Herman W. Ashelford is holding as though a trust were established the share of the plaintiff and refuses to deliver it to the plaintiff; paragraph 5 establishes the plaintiff shall receive an equal share in the remainder of the real estate of the decedent and the will should be so construed; the testator mistakenly assumed the plaintiff required protection, attempted to incorporate a trust for such purpose, and intended to change the will in that respect, but made no such change; by virtue of the testator's mistake and the indefinite language of paragraph 5 no trust was established for the plaintiff; the will created a testamentary trust of all the decedent's property in Walter J. and Herman W. Ashelford, as trustees, for Nancy S., the widow, and all the decedent's children named in paragraph 5, as beneficiaries; it was the duty of the trustees within 3 years after Nancy's decease to liquidate the corpus and distribute the proceeds among the beneficiaries; and the distributive share of the plaintiff did not and could not become a share in trust but became the absolute vested property of the plaintiff. The plaintiff prays for a construction of the will to mean all the decedent's children referred to in paragraph 5, including the plaintiff, take equally the residue after Nancy's decease; that paragraph 5 does not create a trust of the plaintiff's interest, or Herman W. as a trustee therefor; that the plaintiff takes an equal undivided 1/9th interest; and that Herman W. be directed to deliver to the plaintiff all properties held by him under the supposed trust in paragraph 5.

All of the defendants except Beverly Joslin Voight filed motions to dismiss, which were sustained, and, the plaintiff electing to stand on the second amended complaint, a final order dismissing it and that the plaintiff take nothing was entered. The plaintiff appeals therefrom.

The plaintiff's theory is that the second amended complaint states a cause of action; the decedent's will created two testamentary trusts; trust No. 1, created by implication of law, took effect on the testator's decease, Walter and Herman Ashelford were trustees, they being also the executors, the corpus was all the rest, residue, and remainder of the estate, Nancy, the widow, was the beneficiary, the trustees were to manage it, collect income, pay expenses, and pay the net income to Nancy, and it was to terminate and the corpus be liquidated within 3 years after Nancy's decease; trust No. 2, created by express statement in the will, was to be created after the death of Nancy, Herman Ashelford was the trustee, the corpus was a portion of the assets of trust No. 1, after the termination and liquidation of trust No. 1, the trustee of trust No. 2 was to invest its corpus and pay the net income to the plaintiff Bessie I. Joslin, beneficiary, and its duration was for Bessie's life; the trustee of trust No. 2 received no property, no res, no interest, no title until several years after the termination of trust No. 1; trust No. 2 is invalid because no property was delivered to the second trustee and no interest or estate passed to the second trustee at the time the trust was created; and the plaintiff's distributive share under the will passes to her rather than the trustee of trust No. 2.

The motions to dismiss, of course, admit alleged facts well pleaded, but do not admit alleged conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest: Triangle Sign Co. v. Randolph & State Property Inc. (1957) 16 Ill. App.2d 21, 147 N.E.2d 451.

[2-6] It is a cardinal rule of construction of wills that the intention of the testator shall be ascertained from all that is contained within the four corners of the will, from a consideration of the entire will, and when ascertained shall be given effect unless it contravenes some well established principle of law: Bennett v. Bennett (1905) 217 Ill. 434, 75 N.E. 339. The object of construction of a will is to ascertain the intention of the testator as expressed in the words of the will, and the presumption of law is that a testator intends to dispose of all his property: Hoffner v. Custer (1908) 237 Ill. 64, 86 N.E. 739. The law favors the vesting of estates rather than that they be held to be contingent; and when a will is susceptible of either of two constructions without doing violence to the intention of the testator as disclosed by the instrument, one of which constructions would render the instrument void and the other of which constructions would render it valid, that construction should be and will be adopted which will enforce the will as a valid instrument, and not that which would defeat its ...


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