Appeal from the Circuit Court of Marion County; the Hon.
DANIEL H. DAILEY, Judge, presiding. Affirmed.
Rehearing denied June 22, 1966.
The circuit court on motion dismissed Count II of plaintiff's complaint to construe the will of Albert H. Sebastian, filed by certain heirs at law. Count II is based on the theory that certain provisions of the will violate the rule against perpetuities and the statute restricting accumulations.
The principal dispute concerns the meaning of the last paragraph of the first item of the will. The first item of the will reads as follows:
"FIRST: I direct the payment of all my just debts, the expenses of my last illness and of my funeral, and that said debts be paid as promptly as possible after my decease, and I further provide and direct the payment out of the assets of my estate of all taxes which may be due or a lien at the time of my death and during the course of administration of my estate including not only general taxes, but also income and estate taxes both federal and state which may be found, levied or assessed against my estate and the beneficiaries thereof under the provisions of this will, and I further direct that all letters now held by the St. Louis Union Trust Company (hereinafter appointed one of my Trustees) from me to be delivered to various persons after my death shall be so delivered regardless of the dates of said letters as if they were written today and referred to this last will and testament.
"I have erected on my burial lots in Peaceful Valley Cemetery at Odin, Illinois, a mausoleum to which I have transferred and in which I have placed the remains of my deceased wife and of my deceased daughter and all necessary inscriptions have been made on said mausoleum except the date of my death, and I further provide that when my death occurs my remains shall be placed in my said mausoleum beside those of my deceased wife and daughter, and that thereupon after my death the date of my death shall be carved thereon in letters and figures in perfect workmanship to harmonize with the rest of said inscriptions.
"I further direct and provide that there shall be no distribution under any of the provisions of this will until all of the directions contained in this paragraph have been fully complied with."
It is the contention of appellants that the direction that the St. Louis Union Trust Company deliver the letters is a condition precedent to vesting, and since by the last paragraph of the first item no distribution was to be made until all the directions were complied with, and since there are the bare possibilities that the letters might not be delivered within the lives in being and 21 years, or might never be delivered, the rule against perpetuities is violated. Appellees contend that this provides for a postponement of possession or enjoyment rather than a condition precedent, in which case there would be no delay in vesting and the rule would be inapplicable.
In construing a will, the court should ascertain the intention of the testator taking into account all the provisions of the will. Papa v. Papa, 377 Ill. 316, 36 N.E.2d 717.
"That wills must be sustained, and the intention of the testator given effect by the courts, whenever it can be done without violating established rules of law, or some public policy, is a saying so often repeated it has become trite; but, nevertheless, it expresses a rule applicable to the construction of every will, when its validity, or any part of it, is called in question." Crerar, et al., v. Williams, et al., 145 Ill. 625, 34 N.E. 467.
The first item of the will contained directions for: payment of just debts, expenses of last illness and funeral and all taxes; delivery of the letters; placement of testator's remains in his mausoleum in a particular cemetery; and for an appropriate inscription on the mausoleum. The item must, of course, be read as a whole, and with and in light of the other provisions of the will. Testator has treated the provision for delivery of the letters as being in the same category as each of the other three duties of the executors prescribed in the first item. It is therefore only reasonable to conclude that he intended the delivery of the letters to be made in the same period as that normally taken for the payment of debts and for the performance of the other duties, within the normal period of administration.
It is also to be noted that, with the exception of the fifth item, which relates to testator's home, the will draws no distinction whatever between real and personal property. By the seventh item, the entire residue is given, devised and bequeathed to the trustees. There is no indication anywhere in the will that residual personal property was to be treated differently than the residual real property. In the seventh item, testator provides:
"All the land which I own in fee at the time of my death . . . may be sold by my trustees either immediately or later, whenever they see fit, . . ."
The express authorization of immediate sale indicates that the testator intended the trustees to take title to ...