Appeal from the Circuit Court of Madison County, Third
Judicial Circuit; the Hon. FRED P. SCHUMAN, Judge, presiding.
Rehearing denied September 23, 1969.
This action was brought to construe the language which created the residuary trust under the Will of Frank P. Hearne, deceased. The action was brought by the St. Louis Union Trust Company as executor of the Will of William G. Hearne, deceased. William G. Hearne, deceased, was a son of the testator whose will created the trust. The parties defendant are James G. Hearne and Susan Hearne Wood, a son and daughter respectively of the testator, Frank P. Hearne, deceased, and Edwardsville National Bank and Trust Company, the administrator with the will annexed of the Estate of Elizabeth Ellen Hearne and as Successor in Title of the Trust Estate of the Residuary Trust under the Will of Frank P. Hearne, deceased. The defendants prosecute this appeal from a decree entered in favor of the plaintiff, St. Louis Union Trust Company.
Frank P. Hearne died May 12, 1935. He left surviving his wife, Elizabeth Ellen Hearne and three children, William G. Hearne, James G. Hearne and Susan Hearne Wood. The will of Frank P. Hearne was admitted to probate on July 15, 1935. The portions applicable to this appeal provide as follows:
"ITEM 4. All the rest, residue and remainder of my estate, real, personal or mixed, of whatsoever nature or wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise, and bequeath to Mercantile-Commerce Bank & Trust Company and my beloved wife, Elizabeth Ellen Hearne, IN TRUST, NEVERTHELESS, to pay the net income of the trust fund in twelve (12) installments per annum to my said beloved wife, Elizabeth Ellen Hearne, so long as she shall live, with the right and privilege of giving Twenty-five Thousand ($25,000.00) Dollars of said trust fund to my said wife, Elizabeth Ellen Hearne at any time she may desire the same, in addition to the income from the trust funds as aforesaid." (Then follows three paragraphs devoted to the powers of the trustees which provide in substance that the trustees shall hold and manage the trust fund according to their sole judgment and discretion.)
"At the death of my beloved wife, Elizabeth Ellen Hearne, this trust estate shall terminate and the principal of the trust then remaining shall be paid unto my children, William G. Hearne, James G. Hearne, and Susan Hearne Wood, share and share alike, or if they or either of them be deceased, then share and share alike unto such child or children of such deceased child or children of mine, in the place and stead of such deceased child or children of mine; but in no event unto such surviving child or children of any deceased child of mine until such surviving child or children of such deceased child shall have reached the age of twenty-five (25) years." (Then follows a paragraph creating a trust for a child or children of a deceased child not having reached the age of 25 years.)
Mercantile-Commerce Bank and Trust Company declined to accept the trusteeship and the widow acted as sole trustee and managed the trust estate until her death on November 17, 1963. The will of Elizabeth Ellen Hearne was admitted to probate on December 13, 1963. In this will she had appointed her son, William G. Hearne, executor, but by reason of his death, the Edwardsville National Bank and Trust Company was appointed Administrator with Will Annexed of her estate and succeeded as trustee under the will of Frank P. Hearne.
As stated above, William G. Hearne predeceased his mother, having died on September 26, 1962. William was survived by his wife but left no children. His will was admitted to probate in the Probate Court of Madison County, Illinois, and the St. Louis Union Trust Company, the plaintiff herein, was appointed executor.
In the complaint filed by the plaintiff it is alleged that the administrator of the estate of Elizabeth Ellen Hearne and successor trustee proposes to make a distribution of all of the remaining assets of the Frank P. Hearne estate to the two surviving children, namely, James G. Hearne and Susan Hearne Wood. The complaint seeks a construction that the will create a vested remainder interest in the three children of the testator or in the alternative that the will violated the rule against perpetuities.
The answer of the defendant, Edwardsville National Bank, admits that it intended to make a final distribution to the two named children and the answers of all three defendants seek a construction of the will which would sustain such a distribution.
After a full hearing on the matter the Court entered an order finding for the plaintiff. At the same time an extensive and scholarly written opinion was filed by the Court in support of its findings and order. A subsequent decree was entered pursuant to such order which found that the provision here at issue created a vested remainder in the children of the testator upon the condition that it could be divested if any of the children who predeceased the life tenant had surviving a child or children and as such was a vested remainder, subject to a condition subsequent. Accordingly, the Court held that since William G. Hearne did not have any surviving child the gift over in event of death of a remainderman failed and his interest became absolute and should go to his estate to be disposed of by his will. The Court further in its decree assessed a portion of the plaintiff's attorney fees against the defendants, James G. Hearne's and Susan Hearne Wood's share of the trust estate.
This appeal brought by all of the defendants seeks a determination of three issues: (1) whether the estate of William G. Hearne, deceased, had any interest in the Frank P. Hearne residuary trust in view of William G. Hearne's death prior to the death of the life tenant, Elizabeth Ellen Hearne; (2) whether the remainder interest violated the rule against perpetuities; (3) whether the assessment of attorney fees was error.
The cardinal rule of testamentary construction to which all other rules must yield is to ascertain the intention of the testator from the will itself and to effectuate this intention unless contrary to some established rule of law and public policy. Vollmer v. McGowan, 409 Ill. 306, 311, 99 N.E.2d 337. The defendants urge that although the trial court acknowledged the prominence of such rule the court relied primarily upon the ...