APPEAL from the Circuit Court of Moultrie County; the Hon.
RODNEY A. SCOTT, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decree of the circuit court of Moultrie County sustaining the validity of a testamentary trust. The appeal is taken to this court as a considerable portion of the trust consists of real estate and a freehold is involved.
The facts are not in dispute. The trust in question is set forth in the will of Melville M. Zinkler, who died on January 1, 1959, a resident of Moultrie County. The will was admitted to probate on February 11, 1959. Zinkler's only heir was a daughter, Mildred R. Cazel.
In said will Ervin L. Jurgens was named executor and trustee. He refused to act as executor, and Mildred R. Cazel was appointed administrator with will annexed. Mildred R. Cazel, as an individual and as such administrator, and Ervin L. Jurgens, trustee, are plaintiff-appellants.
The defendants are the children of Mildred R. Cazel in being and also those who may be born in the future. These children, together with their mother, who is 46 years of age, are beneficiaries under the trust in question.
The trust estate consists of 160 acres of land in Moultrie County, a residence in St. Petersburg, Florida, a Ford car, $8400 in bank and savings and loan deposits, $2500 in insurance proceeds, $10,000 in stock and about $25,000 in grain and other personal property. The administration of the estate is still pending and the administrator has possession of all of the assets.
The provisions in reference to the trust are found in the paragraph designated as "Second" in the will. In substance it is provided therein that after the payment of debts and funeral expenses, all of the estate, including real, personal and mixed of every nature and description, is given to E.L. Jurgens and his successors and assigns in trust. It there directs that it shall be the duty of the trustee to conserve all of the assets of the estate, keep the personal property invested in good and sufficient investments; also as to real estate the trustee is to pay all taxes and keep all necessary and proper repairs on said premises for the period of the trust, pay over annually or semi-annually the net rental of said premises to the testator's daughter, Mildred Cazel, for and during her natural life. It is also provided that the daughter may occupy or use said premises for herself, provided she pays the taxes thereon and keeps up the repairs.
The trustee is also given the power to lease the premises for mining and mineral purposes, and also is directed as to disposition of income from mining and mineral activities in reference to the allocation of the income and principal of the trust.
In the will we also find the following paragraph in reference to the trust: "If in the sole discretion of said trustee there shall at any time be insufficient income available from all sources fully to provide for the support, comfort, education and general welfare of any beneficiary to or for whom all or any part of the income hereunder is payable, the trustee in his sole discretion may distribute to or for the benefit of said beneficiary such portions of the trust estate of said trust as in his judgment shall be necessary or proper for such purposes."
It is further provided in the will that the provisions made in said will shall not be subject to any claims, legal or equitable, against said daughter, by her husband.
It is further provided that the daughter or any child born of her should have no authority or power to mortgage, sell or otherwise encumber the premises during the life of the trust and, further, that the daughter should have no power to make any contract concerning said real estate, other than to lease the same for a period not exceeding one year and the real estate or income therefrom should not be liable for debts of the daughter or of any child born of her.
Finally we find the following paragraph in reference to the termination of the trust: "After the death of Mildred Cazell, this trust shall remain in force and effect until the youngest child born of Mildred Cazell shall reach the age of 21 years, after which time this trust shall terminate and the trustee shall turn over the principal of said trust fund and all earnings of accumulation then remaining in the hands of my said trustee or his successors in trust, to said child or children, share and share alike in equal shares with the issue of any deceased child to take the share of their deceased parent."
Originally the complaint filed in this cause was for the purpose "to declare the validity or invalidity of the alleged trust, and to declare the property to be testate or intestate property, and to make such other orders as may be necessary in the due and proper administration of the estate." Also embraced in the prayer was an alternative in which the court was requested to construe the will and give directions to the trustee as to his power, duties and obligations thereunder and also to direct the administrator as to her duties and obligations with reference to the existence of the testamentary trust. However, by amendment all elements of the prayer of the complaint were stricken, except that praying that the testamentary trust be adjudged invalid. As a result all that this court has before it is the determination of the validity of the trust alleged to be set out in the will.
The first contention of the appellants concerning the alleged trust in question here is that it is void because it is uncertain, incomplete and ambiguous. In support of this they say, first, that the trust instrument provides that the net rentals from the real estate are made payable to the testator's daughter Mildred Cazel during her natural life, but no provision is made for the distribution of the income from personal property to the daughter during her lifetime. There is no contention that the income from the personal property will not be finally disposed of and distribution of the same made before the termination of the trust. No authority for this position is made by appellants except the case of Tucker v. Countryman, 414 Ill. 215. An examination of this case, which will be more fully discussed in reference to some of the other points made by appellants, discloses that the same does not tend to prove the position of the appellants. Suffice it to say that in that case there was a complete failure of the creator of ...