Appeal from the Circuit Court of Cook County, County
Department, Probate Division; the Hon. JAMES M. CORCORAN, Judge,
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
From a judgment denying her petition for distribution of $8,000 or more, which she alleges is intestate property from the estate of Jay Samuel Hartt, plaintiff appeals, contending that since decedent's will contained no provisions directing or authorizing the accumulation of unexpended or undistributed property and because his widow renounced her share, plaintiff, as sole remaining heir-at-law, is entitled to the intestate property.
On April 13, 1962, Jay Samuel Hartt died testate, leaving as his sole heirs-at-law his widow, Phyllis Ann Hartt, and his sister, plaintiff, Sylvia Mona Hartt. The will was admitted to probate on June 1, 1962, and the defendant, Harris Trust and Savings Bank, was appointed executor and cotrustee. Decedent's widow filed her renunciation of the will on November 28, 1962, and plaintiff filed her petition for distribution on August 13, 1964.
The defendant contends, as at trial, that the will does authorize accumulation of income not required or, in the trustee's discretion, permitted to be distributed, and that, therefore, the remaining sum of money should pass through the residuary clause of the will to Michigan State University, the named beneficiary thereof. *fn1
After other provisions not here relevant, the will of decedent created two trusts, the first of which, Trust "A," was for the benefit of his wife. All the income of Trust "A" was to be paid directly to the wife, and the Trustees were authorized to invade the principal if, in their discretion, it became necessary to provide adequately for the widow's continued comfort and needs. At her death, the trust was subject to her testamentary power of appointment. Failing a valid exercise of this power, the entire remaining principal was to be added to and become a part of Trust "B," subject to and administered as per the directions applicable to that trust. In case the wife predeceased the testator, or if Trust "B" had terminated, the principal was to pass through Paragraph 7 to Michigan State University, the named beneficiary. This appeal presents no question specifically applicable to Trust "A." The question concerns Trust "B" insofar as income not distributed thereunder has accumulated.
Testator created Trust "B" in Paragraph 6 of his will to provide annual payments to one Jane Dempsey and to plaintiff of:
". . . so much of the income and principal of Trust `B': as shall be necessary in the uncontrolled opinion of the Trustees . . . to provide for her comfortable support maintenance and welfare, . . . ." (Emphasis supplied.)
In subparagraph (c) of Paragraph 6, testator limited the amounts payable to plaintiff and Jane Dempsey:
"(c) Payments . . . shall not exceed . . . $7200 a year . . . taking into consideration all other income of which the Trustees have knowledge which is available to either of said persons. The Trustees are also authorized to pay, over and above the limitation . . . such additional amounts as may be required, in the uncontrolled discretion of the Trustees, . . . to pay unusual or extraordinary expenses. . . ."
Testator further provided:
"(d) If at any time Trust `A' shall have been exhausted in the support of my wife, . . . then my Trustees shall use so much of the income from and principal of Trust `B' (limited to $4,000 per year) as may be necessary . . . and . . . without endangering further payments to Jane Dempsey, or my sister, . . . under subparagraphs (a) and (b) above. . . ."
In Paragraph 7 (b), testator willed that:
". . . when the Trustees have discharged all obligations of Trust `A' and Trust `B', said Trustees shall pay over to Michigan State University . . . the remaining principal and income of Trust `B' and the principal of Trust `A' which has not otherwise been disposed of through the valid exercise of the power or appointment granted to my wife. . . ." (Emphasis supplied.)
Plaintiff argues that courts must consider the language used in a will when construing it in order to ascertain the intention of the testator; that a court cannot properly guess as to what the testator may have wished to provide where the language used does not permit accumulation of undistributed income; that such an authorization must be express where income exceeds the requirements of trust payments; that here the language not only does not authorize accumulation, but actually indicates that testator did not intend accumulation of income since he directed the Trustees to make payments of "income and principal"; ...