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Orme v. the Northern Trust Co.





APPEAL from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding.


Rehearing denied July 12, 1962.

Plaintiff Eugene Orme instituted proceedings in 1943 in the circuit court of Cook County to construe the will of Louisa G. Bigelow, which established a trust presently held by the defendant Northern Trust Company. The decree, rejecting plaintiff's interpretation of the instrument but authorizing that attorney fees be paid from the estate, was entered some 15 years later. It was substantially affirmed by the Appellate Court, and we have allowed and consolidated the diverse appeals of the alleged beneficiaries of the trust. This appeal also includes requests for relief under our Rule 32(4) filed by plaintiff, and by the Attorney General of the United States who vested the interests of certain German beneficiaries under the Trading With the Enemy Act. Tit. 50 App. U.S.C.A. 7(c).

The issues presented by this consolidated appeal include: whether a 1920 trial court decree barred plaintiff Orme's action under the doctrine of res judicata; whether the Rule in Shelley's case applied to the Bigelow will and created a fee simple interest in plaintiff's devisor; whether an adoptee of testatrix's grandchild is included within the designation "children or heirs" in the will; whether the interests of the enemy aliens were properly vested by the Attorney General; and the propriety of the amount and allocation of counsel fees.

From the voluminous record it appears that on May 26, 1873, Louisa G. Bigelow executed her will creating a trust for her three minor granddaughters, ages 8, 6 and 4, respectively. The will, which will be considered in greater detail hereinafter, essentially provided life estates for the granddaughters, and on the death of the last surviving granddaughter the trust estate was to be divided equally among the "children or heirs" of the granddaughters; 1/3 to the "child or children, heirs or heirs" of each of them. In case of the death of any of the granddaughters "without issue," the property was to go to the "issue, heir or heirs" of the other granddaughters, and if all three grandchildren died "without issue or heirs" then the property was to go to the testatrix's immediate heirs and legal representatives according to the laws of Illinois. The will, apparently drafted by an American lawyer, was executed in Switzerland where testatrix, a woman over 70, was then residing. She died there August 31, 1873, and the will was probated in Illinois.

The granddaughters, who each married and had children, are referred to herein as Josephine Caldwell, Louise de Haven, and Sarah von Campe. The oldest, Josephine, died in 1919, leaving five children. They instituted proceedings to determine their rights under the will to the income from the share enjoyed by Josephine during her lifetime, and as affected by certain conveyances executed by Josephine's son William. That action joined Louise and Sarah, and culminated in the "1920 decree," which defendants claim is dispositive of this litigation. The terms of that decree will therefore be examined when we consider the merits of that claim.

In 1941 the second granddaughter, Louise, died. It appears that she had married German Baron von Alten in 1896, and in 1913 had become estranged from him and from her two daughters. She returned to the United States as soon as possible after World War I, had her citizenship restored by Act of Congress in 1920, and obtained a Nevada divorce in 1921. In 1923 she adopted an adult heir, the defendant Raymond de Haven. From her correspondence with the trustee in 1940 she evidenced concern that her German children and the German children of her sister Sarah von Campe would obtain 2/3 of the American estate, contrary to the intention of her grandmother. She was assured by the trustee that the 1920 litigation did not dispose of her interest. She then executed a codicil in 1941 devising to plaintiff, Dr. Eugene Orme, all of her undivided 1/3 interest in any principal or income in her grandmother's estate.

After the trustee refused to recognize Orme's interest under that codicil, Orme then instituted this proceeding in 1943. His complaint urges that the Bigelow will be construed to give Louise a fee-simple interest by operation of the Rule in Shelley's case, or alternatively, that the will was not capable of construction, so that Mrs. Bigelow died intestate with respect to the equitable remainder in trust.

The litigation proceeded tortuously during the ensuing years, with multifarious motions to dismiss argued repetitively by the trustee and by the parties, and with amended pleadings, counterclaims and subsidiary litigation. Raymond de Haven filed a counterclaim to 1/3 of the de Haven share as the adopted heir of Louise; Josephine's children insisted by motions that the cause was barred by the 1920 decree; and in 1949 the Attorney General of the United States became a party by virtue of vesting the interests of Louise's German daughters (Adelheit von Hardenberg and Irmgard von Alten) under the Trading With the Enemy Act. The case was delayed several years by subsidiary litigation adjudicating the propriety of the vesting and the dismissal of the Germans from the case. Orme v. Northern Trust Co. 410 Ill. 354, cert. den. Von Hardenberg v. McGrath, 343 U.S. 921, 96 L.ed. 1334.

In 1951 the testatrix's third granddaughter, Sarah von Campe, died in Switzerland. She was survived by her daughter, defendant Alice Lohrer, and by two sons, Edwin and Otto von Campe. Although Sarah had in her lifetime favored plaintiff's claim, she had been persuaded by her attorney to join the trustee in opposing it. Allegedly as a consequence of this pending litigation, she devised her entire estate to her daughter, who irrevocably assigned 1/3 to her brother Edwin. The interest of Otto, an enemy alien, was vested by the Attorney General.

After pleading consolidations and fact stipulations, the cause was finally tried before a master during some 24 days in 1955. The master's report, filed in 1957, recommended that the Bigelow will be construed to give an equitable life estate to testatrix's three granddaughters with equitable remainders to their "issue," rather than to their heirs-at-law; and that since the Rule in Shelley's case would not apply, the wills of Louise de Haven and Sarah von Campe would not transfer interests in the Bigelow estate, and plaintiff's claim should be denied. The report further recommended that the decree should not affect the interests of those entitled to distribution of the share formerly held for Josephine, and that all parties be allowed attorney fees, which would be charged against the shares of Louise and Sarah.

Upon failure of the parties to agree on the amount of legal fees, hearings on this issue were held before the master, who issued a report recommending fees totaling $221,000. The master's recommendations with respect to the substantive rights of the parties and the allocation of legal fees were adopted by the circuit court in its decree of March 2, 1959. The matter of fees became the basis of the Attorney General's appeal to the Appellate Court, which affirmed the circuit court, except that it increased by some $3,000 the counsel fees allowed de Haven, to include services relating to the collateral attack on his adoption, and charged those fees solely against the de Haven share.

In adjudicating the diverse contentions of each of the parties on this consolidated appeal, we shall consider first whether this litigation is barred by the 1920 decree under the doctrine of res judicata. Since plaintiff's devisor, Louise de Haven, was joined in that earlier proceeding which involved a partial construction of the Bigelow will, plaintiff would ordinarily be bound under that doctrine by the issues ...

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