APPEAL from the Circuit Court of Logan County; the Hon.
WILLIAM C. RADLIFF, Judge, presiding.
Rehearing denied September 27, 1962.
This is an appeal from orders of the circuit court of Logan County dismissing, with prejudice, plaintiffs' fourth amended complaint, as amended, which sought an adjudication that Felicite Oglesby Cenci Bolognetti had, by her position in previous litigation, forfeited all interest under the will of her mother, Emma Gillett Oglesby, and that such interest had passed to the plaintiffs. The complaint also sought to impress a constructive trust in favor of plaintiffs on certain rents and profits allegedly in the hands of Springfield Marine Bank, as trustee under a trust created by Felicite, and also sought to remove as clouds on plaintiffs' title certain deeds purportedly executed by Felicite in the exercise of powers of appointment conferred by the will of her mother. A freehold is involved.
This case is an aftermath of earlier litigation which was twice before this court (Oglesby v. Springfield Marine Bank, 385 Ill. 414; Oglesby v. Springfield Marine Bank, 395 Ill. 37) and an understanding of the questions presented by this appeal requires a brief summary of the facts and issues involved in the earlier litigation. We believe that the issues may be better understood if the facts, concerning which there is no dispute, are presented in a primarily chronological order.
On April 3, 1922, Emma Gillett Oglesby conveyed, by separate warranty deeds, two tracts of land of approximately 800 acres each to her son, John, and her daughter, Felicite, respectively. Although these deeds were not recorded until after the death of the grantor, they were delivered contemporaneously with their execution, and the grantees went into immediate possession of their respective tracts. At the time of the execution of these deeds, there was an oral understanding, subsequently reduced to writing on April 22, 1925, between grantor and grantees. By that agreement, John and Felicite agreed that each would, by his separate will, devise the lands described in his deed to the survivor for life with remainder in fee simple to some descendant of John D. Gillett, the father of Emma Gillett Oglesby. John and Felicite also agreed that the survivor, after the death of the other, would convey or devise all interest in said lands to some descendant of John D. Gillett. Felicite's husband executed an instrument attached to this agreement, by which he ratified the agreement and disclaimed all interest as husband, surviving spouse or heir-at-law in the lands described in the deed to his wife.
Emma Gillett Oglesby died November 25, 1928, leaving no husband surviving and leaving, as her only heirs at law, Hiram G. Keays, a son by her first marriage, and John G. Oglesby, Jasper E. Oglesby, and Felicite, children by her second marriage. Her will, dated January 27, 1924, was admitted to probate on December 21, 1928, by the county court of Logan County. The will was extremely complex and provided for many contingencies, most of which did not occur. The following summary covers only those portions of the will necessary to an understanding of the issues and, insofar as possible, expresses such provisions in terms of those contingencies which did, in fact, occur.
Items V and VI of the will deal with the same two 800-acre tracts which the testatrix had previously conveyed by the 1922 deeds. By item V she devised some 800 acres to her son, John G. Oglesby for life and, after his death leaving no descendant surviving, an undivided one-half to Felicite for her life and, subject to said life estate in Felicite, the entire remainder to the trust created under item VIII of her will. She also empowered John G. Oglesby to appoint the remainder after the termination of the trust to any of the members of a designated class.
Item VI contained substantially similar provisions with respect to the 800-acre tract previously conveyed to Felicite. This tract was devised to Felicite for life and, after her death leaving no descendant surviving and in case her brother John predeceased her leaving no descendant surviving him, the remainder to the trustee and trust created by item VIII. Item VI also gave Felicite a power of appointment from among a designated class with respect to the remainder after the termination of the trust, with a gift over in case of failure to exercise the power.
By item VIII of the will the testator created a trust. During all times pertinent to the present and former litigation, the income beneficiaries of this trust have been the plaintiffs, Richard James Oglesby and John Lewis Oglesby, who are sons of Jasper E. Oglesby and grandsons of Emma Gillett Oglesby. The trust terminates on the expiration of 15 years after the death of the survivor of said beneficiaries and thereupon the trustee is required to distribute the trust estate, except for that portion disposed of under items V and VI to the descendants of Richard James Oglesby and John Lewis Oglesby, with provision made in case there are no such descendants.
The residuary clause, contained in item XII of the will, gives one-third of the residue to John G. Oglesby, one-third to Felicite, and one-third to Richard James Oglesby and John Lewis Oglesby, the descendants of each to take the share the deceased parent would have taken, or, if there be no descendant of John G. Oglesby or of Felicite, to Richard James Oglesby and John Lewis Oglesby.
Item XIII, upon which the present suit is founded, reads as follows:
"In the event that either or any of my heirs, devisees, or if any of the beneficiaries named in this my Last Will and Testament at any time or in any manner, either directly or indirectly, in any court or by any proceeding, commence, begin, institute, carry on, aid or assist in any contest or proceeding charging the invalidity of this Will or any clause, portion or provisions thereof, then in that event such heirs, child, devisees or legatees so doing, shall each and every of them immediately and instantly lose and forfeit any and all interest to them given under and by virtue of this Will and they and each of them shall be forever barred from any interest, right or benefit in my estate, either as heir or heir at law, or other such interest as is herein given, devised, bequeathed or provided for and all the estate, title, interest or benefit of such devisee or devisees, legatee and legatees, heir at law or child, shall become a part of the Residuary Estate devised in Item XII of this Will and be distributed to the devisees therein named who shall not have commenced, begun, instituted, carried on, aided or assisted in commencing, beginning, instituting or carrying on any such contest or proceeding to contest or invalidate this, my Last Will and Testament, or any part thereof."
John G. Oglesby, son of Emma Gillett Oglesby and brother of Felicite, died May 25, 1938, leaving no descendants surviving. By his will, he devised 230 acres of the 800-acre tract described in the deed to him of April 3, 1922, and also described in item V of his mother's will, to Felicite in fee simple, and the remaining 570 acres to his widow for life and, after her death, the remainder to Felicite, as trustee, to pay the income to four children of Jasper E. Oglesby in unequal proportions, with said trust terminating when one of said children attains the age of 50 years, whereupon the trustee is to sell the corpus and distribute the proceeds thereof to said four children.
On February 27, 1940, Richard James Oglesby and John Lewis Oglesby filed their complaint in the former action, alleging that, having accepted the benefits of the will of their mother, Emma Gillett Oglesby, John G. Oglesby and Felicite had elected to take under that will and thereby renounced their title under the deeds of April 3, 1922. On May 28, 1943, the circuit court of Logan County entered a decree in favor of plaintiffs. On appeal, that decree was reversed by this court and the cause remanded for want of necessary parties. (Oglesby v. Springfield Marine Bank, 385 Ill. 414.) Thereafter, additional parties were added in the circuit court and, on January 17, 1946, the circuit court entered a final decree in favor of the plaintiffs. On appeal, this court affirmed that decree, holding, in substance, that John G. ...