Appeal from the Circuit Court of Logan County; the Hon. FRANK
S. BEVAN, Judge, presiding. Reversed and remanded with
ROETH, PRESIDING JUSTICE.
Rehearing denied March 29, 1962.
Everett P. Jarvis, a resident of Peoria, departed this life on April 7, 1947. He left a last will and testament dated December 16, 1942, which was probated in Peoria County. By the first clause of his will he directed payment of all debts, etc., and that:
". . . subject thereto, my estate, real, personal and mixed, of whatsoever nature and wheresoever situate, which I may own or have the right to dispose of at the time of my decease, be disposed of as hereinafter directed."
By clause 2 he directed payment of all taxes as part of the expense of administration; by clause 3 he gave the executor power to compromise and settle all claims in favor of his estate and by clause 4 he gave certain personal property to his wife as her absolute property. The balance of the will is as follows:
"ITEM 5. All the rest, residue and remainder of my property and estate, I give, devise and bequeath to The Millikin Trust Company, a Corporation, of Decatur, Illinois, or to its corporate successor or successors, and my wife, Blanche G. Jarvis as co-trustee, IN TRUST NEVERTHELESS, for the uses and purposes herein set forth.
"During the period of trusteeship, said Trustees shall hold, manage, lease, care for, preserve and protect said trust estate and collect the income therefrom, all in accordance with their best judgment and discretion, except as such powers may be herein otherwise restricted; said Trustees are directed to pay, out of funds of the trust, all expenses of operation, maintenance and upkeep of the trust property, and from the trust income to build up a sufficient reserve for depreciation in order to maintain the corpus of the trust estate; and any leases that may be made by the Trustees may be for any term of years that said Trustees may think best, even if they extend beyond the period of the trust. Said Trustees may retain and continue as a portion of said trust estate any investments received by them from my estate, and also any business in which I may be interested at the time of my death, all except as herein otherwise provided, and they are hereby fully authorized to invest such part of the corpus of said trust estate as may from time to time be converted into cash in bonds of the United States of America, or of any State of said United States. Said Trustees are hereby given full power, except as herein otherwise restricted, to sell and convey any and all of said trust property and any reinvestments thereof, from time to time, for such prices and upon such terms as they shall see fit, either for the purpose of reinvestment or of carrying out any provision of this trust. No purchaser shall be obliged to see to the application of the purchase money. The Trustees may employ counsel and other agents in the discharge of their duties and determine and pay them reasonable compensation. The Trustees shall be entitled to receive as compensation for their services hereunder such amounts as from time to time during the continuance of the trust shall be the usual and customary charges of trustees in trusts of like nature, or as may be fixed or determined from time to time by the laws of the State of Illinois.
"ITEM 6. The entire net income from said trust estate shall be paid to my said wife, Blanche G. Jarvis, as long as she lives, in monthly payments. Should the net trust income in any year be insufficient to pay my said wife in that year a total of Twelve Thousand Dollars ($12,000.00) then said Trustees may sell any of the trust property my said wife may direct the Trustees to sell in order that the payments to her for that year may be brought up to the sum of Twelve Thousand Dollars ($12,000.00), and should the property so sold bring more than the amount necessary to make up the Twelve Thousand Dollars ($12,000.00) allowance to her for that particular year the surplus proceeds thereof shall be held by the Trustees to apply on future payments to her for years when the trust income fails to net Twelve Thousand Dollars ($12,000.00) available for payment of said yearly allowance. Such sales shall be public sales to the highest bidder except as hereinafter otherwise directed, and the property to be sold shall be selected in conformity with the directions hereinafter written.
"ITEM 7. In making sale of my oil properties of any and every kind and description, whether the same be then developed or not, or any of my interests in such properties, and in developing any of the same, and in the management, development, operation or sale of any and all properties, businesses or enterprises in which, at the time of my death, I am interested jointly or in common with my business associates, being my brother, Samuel D. Jarvis, and my friend, Albert M. Marcell, they shall be consulted by my Trustees and their advice be acted upon. Should they both be unavailable for consultation and advice as to any sale of such properties, or should they be unable to agree in giving advice as to such sale, then said Trustee shall advertise and make public sale or sales of such properties to the highest bidder. Should my said business associates desire to purchase any of my said oil properties or any of my interests in such properties, or any of my interests in any joint venture, enterprise, property or business in which I am associated or engaged with them, then they shall have the first right to purchase the same from my said Trustees at and upon such terms as may be agreed upon by them and my said Trustees at the time or times of sale. Should one only of my said business associates desire to make any such purchase and the other of them not desire to join therein then the one of them desiring to make such purchase may have the first right to do so.
"ITEM 8. All my interest in the automobile business in which I may be engaged or in which I may be interested at the time of my death shall be sold. Any partner I may have in such business at any one location (should my automobile business interests be in concerns located at different points) shall have the first chance to purchase my interest in the business at that location, such purchase to be at a price to be determined either by its book value according to the records being maintained by the business at that location or by its appraised value, whichever may be the higher. Should no partner decide to purchase then my said interest shall be sold according to the policy of the Chevrolet Motor Company.
"ITEM 9. In making sales of trust property by said Trustees under the powers herein given I desire that said Trustees first dispose of trust property other than my Illinois farm lands, as it is my wish that, if possible, such farm lands be kept free from invasion of principal until after the other trust estate has been exhausted.
"ITEM 10. In the event that any of my residuary estate has its situs in any state or jurisdiction in which the said The Millikin Trust Company lacks legal authority and power to act as one of my testamentary Trustees, then it is my will that such person as then may be the President of the said Trust Company or its corporate successor or successors shall be and act as co-trustee with my wife aforesaid in such state or jurisdiction as to any residuary trust estate therein. Such persons as may succeed said President as his successors in said corporate office shall in turn be and act as his successors in trust. All proceeds of the trust estate and net income of the trust estate coming into their hands shall by them be turned over to said Trust Company and my said wife as co-trustees and the same then be handled by the latter co-trustees as income and proceeds of the trust in their control. The certificate of the Secretary of the said The Millikin Trust Company, or of its corporate successor or successors, duly acknowledged by him and bearing the corporate seal of said Trust Company or of its corporate successor or successors, stating the name of such President and that he is such President, shall be sufficient evidence of such President's official status as such President.
"ITEM 11. Upon the death of my wife, Blanche G. Jarvis, the surviving Trustee shall pay the expenses of her funeral and decent burial, and final distribution of said trust estate then remaining, including lapsed legacies, if any, shall be made by said surviving Trustee and said trust terminate. Such distribution shall be in equal shares to my brother, Samuel D. Jarvis, and my two sisters, Madge J. Giddens and Moneta J. Kiick, or to the survivors of them should any of them be dead at that time leaving no issue then living. If any of them be then dead leaving issue living at the time of such distribution then such issue shall receive the share their deceased parent would have taken had he or she been then living, per stirpes and not per capita. In making such final distribution the surviving Trustee may, in its uncontrolled discretion, make distribution to all or any of the distributees in money or property of the trust estate, or partly in money and partly in property of the trust estate, and the judgment of the surviving Trustee as to the selection of such property to be distributed, and the valuation thereof, shall be binding and conclusive upon the distributees.
"ITEM 12. I do hereby appoint the said The Millikin Trust Company, a Corporation, of Decatur, Illinois, or its corporate successor or successors, to be the Executor of my will.
"ITEM 13. I hereby revoke any and all other wills and codicils heretofore made by me."
The testator had no children so that at the time of his death, his heirs consisted of his widow, Blanche Jarvis, and his brother and two sisters. The widow, at that time, was approximately 60 years of age. The brother and sisters surviving him were Samuel Jarvis, Moneta Kiick and Madge Giddens. Samuel Jarvis died after the testator, but before the institution of this litigation. He, Samuel Jarvis, left a son, Vernon D. Jarvis, who is one of the parties to this suit. Vernon Jarvis has five minor children, all of whom are parties to this suit. Moneta Kiick is also a party. The descendants of Moneta Kiick who are parties hereto are Jean K. Heft and Iona K. Seefeldt. Jean K. Heft has two children, Judy Heft and David Heft, both of whom are minors, and Iona Seefeldt also has two children, James and Anita Seefeldt, both of whom are minors and are represented herein by a guardian ad litem. Madge Giddens, who is a party, has no children.
It is apparent from the foregoing provisions of the will of Everett P. Jarvis, that said will was carefully and skillfully drafted and that it is clear, unequivocal and unambiguous. It is likewise apparent that the testator had a twofold purpose in mind (1) to make adequate provision for his wife as long as she ...