Appeal from the Circuit Court of Knox County; the Hon. GALE A.
MATHERS, Judge, presiding. Affirmed.
This is an appeal from an order of the Circuit Court of Knox County, Illinois, construing the last will and testament of Clarissa N. Hinckley, deceased.
Clarissa N. Hinckley died January 15, 1928, leaving a will dated September 18, 1914, with codicil thereto dated February 9, 1922.
The applicable portions of the codicil to Clarissa N. Hinckley's will, after devising a fractional eighty acres of land to Ada Hinckley Chapman for life, then to Pluma E. Hinckley for life, and at the death of the survivor to be sold and the proceeds divided, provided:
"One-half thereof shall be divided, share and share alike, between the daughters of my sister, Dency Woods, namely: Emeline Woods Crumb, Mary Woods Hodgeson, Lola W. Woods and Calista Woods Barstow. The remaining one-half shall go to the Pluma Hinckley Home as provided for in Paragraph D hereof.
"(c) I give, devise and bequeath to my said daughter, Pluma E. Hinckley, the rest and residue of my estate, both real and personal, for and during the period of her natural life and if, at her death, shall be survived by my daughter, Ada Hinckley Chapman, then it is my will that the said Ada Hinckley Chapman shall have a life estate in said rest and residue of my estate. Upon the death of the survivor of my two said daughters, then said rest and residue of my estate shall be converted into cash and divided in the same manner as in that event provided for in paragraph B and D hereof.
"(d) If upon the death of the survivor of my daughters, Ada Hinckley Chapman and Pluma E. Hinckley, the said Pluma E. Hinckley shall have established during her lifetime a home for worthy women in the City of Galesburg, Illinois, known as the `Pluma Hinckley Home' or shall have provided for the establishment of such a home by her Last Will and Testament, then the bequests which in Paragraphs B and C hereof I have made to the Pluma Hinckley Home shall be understood to mean the same institution or home which shall have been so established or provided for by said Pluma E. Hinckley; and my said bequests to said Home shall be paid to the persons who shall have been duly named or appointed as trustees or directors of said Home or institution, subject to the same conditions which the said Pluma E. Hinckley shall have prescribed in establishing or providing for the establishment of said Home. The administrator or executor or the personal representative of the survivor of my two said daughters is hereby directed to pay said bequests to such trustees or directors. If upon the death of the survivor of my said daughters no such Home for worthy women shall have been established or provided for by the Will of Pluma E. Hinckley, then it is my will that the bequests I have made to the Pluma Hinckley Home in Paragraphs B and C hereof be cancelled and annulled and in that event I give, devise and bequeath to my nieces mentioned in Paragraph B hereof all the property described in Paragraphs B and C of this codicil, said property to be divided between my said nieces in the same manner set forth in Paragraph B hereof."
Reference to the last will and testament of Pluma E. Hinckley and the orders of the Circuit Court of Knox County in construing that will are necessary for a better understanding of the court's decree in the instant case.
Pluma E. Hinckley died leaving a will dated April 4, 1916, which was admitted to probate on February 14, 1929 by the Probate Court of Knox County. Among other things the will provided,
"ELEVENTH: It is my intention and desire to establish a Home for worthy women who need a home, and I therefore will, devise and bequeath to the trustees hereinafter named, and their successors in trust, the following described real estate: Beginning at a point where the center of the highway on the West side of the Southwest Quarter of Section One (1), Township Eleven (11) North, Range One (1) East of the Fourth Principal Meridian in Knox County, Illinois, is intersected by the North line of the right of way of the Chicago, Burlington & Quincy Railroad, as it crosses said quarter, running thence North to a point Four (4) Rods North of the house on said premises, known as the C.A. Hinckley residence, thence due east to the North line of the right of way of the Chicago, Burlington & Quincy Railroad in a Southwesterly direction to the place of beginning; supposed to contain twelve to fifteen acres. This piece of land, with the buildings thereon, I will and bequeath to said trustees for the purpose of establishing a home as above stated; the buildings and necessary equipment to be kept and maintained for that purpose only. I will, devise and bequeath the rest, residue and remainder of my estate to said trustees, after the administration of my estate by my executor, for the purpose of maintaining said home, and I hereby authorize and empower the said trustees to sell any of my real estate, except the portion set apart in my will for said home, if, in their judgment, it is to the interest of the trust herein established, and I direct that they shall loan the proceeds and the money in their hands coming to them from my estate on real estate mortgage securities only, and to use the income alone for the support and maintenance of the said home. The said home shall be known as the `Pluma Hinckley Home.' I direct that said home shall be managed and controlled by three trustees, one of whom shall be a woman. In my will I have named three trustees to act in that capacity, and I hereby provide that in case they should either or any of them fail or refuse to accept said trust, and in case of their death, resignation or a vacancy from any other cause, that the Judge of the Circuit Court of Knox County, Illinois, shall appoint said trustees and their successors. I shall not in my will attempt to prescribe rules or regulations to said Trustees to determine the persons who shall be admitted and the terms and conditions upon which they shall be admitted to said home, and the matter of the discipline and regulation and the charge that shall be made to those who are able to contribute in whole or in part for their care. I also wish that no worthy woman shall be denied admittance, if the trustees can provide for her care, even though she may not have any means to help pay her way. I empower the said trustees to change, alter or rebuild the buildings on said premises. I feel that the location for said home is desirable and convenient, and it is my wish that the home be and remain where I have located it, but in the event of anything occurring making it impossible to maintain said home at that point, or in case said land is required or taken for railroad or any other public purpose, then I direct that said trustees shall and may establish and maintain the said home in the city of or near Galesburg, Illinois, at such place as they may choose. I direct that said trustees shall give bond to be approved by the Circuit Court of Knox County, Illinois, for the faithful performance of their duties and safe keeping of the funds entrusted to them, and I know that the said Court or the Judge thereof, will in the selection of Trustees aim to choose persons who are competent and who will be willing to give their services, or at least make a minimum charge for such services in the conducting of this trust. I am desirous that the portion of my estate bequeathed for this purpose shall be used to the best advantage for women who may need assistance, and I do not want any construction placed upon my will that will hamper or prevent the best use that can be made of the funds left by me for this purpose. I also direct that should the trustees have offers of money or property from other persons for the benefit of this charitable work, they shall be authorized to receive the same and use it as directed by the donors of said money or property, and they may solicit funds, providing only that it shall be for the general purpose of this trust." (Emphasis supplied.)
The Circuit Court of Knox County in Chancery Cause No. 15995 construing the will of Pluma E. Hinckley entered the following three orders each of which is in full force and effect.
On September 14, 1956, that court found and ordered that it is impractical, inexpedient and impossible to apply the real estate left by Pluma E. Hinckley, or the proceeds of the sale thereof for the specific charitable purpose, in the particular way, and for the purpose of establishing a home for worthy women who need a home either on said real estate or in or near the City of Galesburg, Illinois, as set forth in paragraph Eleventh of the will. It was further found and ordered that the specific charitable trust provided for in the same paragraph was incapable of being carried out in its original form.
On July 1, 1958, that court found and ordered that the will showed a general charitable intent, the intent was to provide for worthy women who were in need of a home, her intent was much broader than the specific home, she did not want any construction placed upon the will that would hamper or prevent the best use of her property and money for this purpose, and that the cy pres ...