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In Re Estate of Tomlinson

OPINION FILED NOVEMBER 15, 1976.

IN RE ESTATE OF JOSIE A. TOMLINSON. — (KATHERINE D. SHELTON, APPELLEE,

v.

FIRST NATIONAL BANK OF PEORIA, APPELLANT.)



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1977.

This case involves the construction of the will of Josie A. Tomlinson which was executed in 1951. She died on February 28, 1973. The will was admitted to probate in the circuit court of Peoria County. Katherine D. Shelton, who is also referred to in these proceedings as Catherine D. Shelton, is the adopted daughter of the decedent. She filed the complaint to construe the will. The primary issue is whether a bequest to a nonexisting charitable beneficiary must fail.

The will provided for certain nominal bequests to the plaintiff and other individuals and for bequests to each of three churches. All of the remainder of her estate was given to the First National Bank of Peoria as trustee with directions to convert it to cash and to erect a suitable monument on decedent's grave and to provide for perpetual care of the burial lot. The will then provided:

"I order and direct that my said Trustee shall then distribute all of the remainder of my said estate to the CANCER RESEARCH FUND absolutely and forever."

Following this provision the testator provided that it was her intent to "generally and specifically disinherit each, any and all persons whomsoever claiming to be or may be determined to be my heirs at law."

The complaint alleges that notice of the petition to admit the will to probate and of the other probate proceedings had been given to her, certain other individuals, the three churches named in the will, the trustee and the American Cancer Society. It alleges that no notice was given to "Cancer Research Fund" because there is not now in existence nor was there in existence at the time of the execution of the will or at the date of decedent's death any organization known as "Cancer Research Fund."

At the hearing on the complaint an affidavit of an executive vice president of the Illinois Division, Inc., of the American Cancer Society was introduced as evidence. Attached to the affidavit was a list of estates from which the American Cancer Society had received funds although the designations of the beneficiaries in those estates were not the same as the legal name of the society. Three of the 17 estates listed were probated in Illinois. In three of the estates the beneficiary was referred to as "CANCER RESEARCH FUND," "The Cancer Research Fund," and "Cancer Research Fund." No other evidence was introduced in support of the American Cancer Society's claim. The plaintiff, Katherine D. Shelton, introduced into evidence a copy of certain pages from a 1973 publication of an encyclopedia of national organizations of the United States. The pages copied related to health and medical organizations active in the field of cancer research and education. It was stipulated that at the present time, at the time the decedent died and at the time the will was executed there was no organization known as the "Cancer Research Fund." The circuit court of Peoria County construed the questioned clause in the will as intending to bequeath the remainder of the estate to the American Cancer Society, Inc. The plaintiff appealed.

The appellate court found that there was no evidence in the record which establishes that the decedent intended to give the remainder of her estate to the American Cancer Society, Inc., and held that the bequest failed and the property passed as intestate property. (30 Ill. App.3d 502.) We reverse this holding.

The Attorney General filed a petition for leave to appeal to this court as did the American Cancer Society, Inc. Both petitions were allowed. The plaintiff contends that the Attorney General has no authority to intervene in this case. In the trial court no notice of the hearing on the complaint was given to the Attorney General, and he was not a party to the appeal in the appellate court. He has entered the case by filing a petition for leave to appeal in this court.

We find that the Attorney General properly intervened in this case by filing a petition for leave to appeal. Rule 301 of this court (58 Ill.2d R. 301) provides that "[a]ll rights that could have been asserted by appeal or writ of error may be asserted by appeal." Prior to the enactment of the Civil Practice Act, one who was not a party to an action had no statutory right of appeal. He could, however, prosecute a writ of error by showing that he would be injured by the judgment or decree or that he would benefit by its reversal. (Gibbons v. Cannaven, 393 Ill. 376.) This court has held that the interests that will justify an appeal by one not a party must be direct, immediate and substantial. It must be an interest which would be prejudiced by the judgment or benefit from its reversal. City of Alton v. County Court, 16 Ill.2d 23.

The interest of the Attorney General in this litigation is sufficient to meet this test. He has the authority to protect a charitable trust and its property either defensively, where an attack is made on its validity, or by an action as plaintiff, by securing the construction of the trust instrument. In a suit by others where the validity or the enforcement of a charitable trust may come into question the Attorney General should be made a party defendant. Bogert, Trusts and Trustees sec. 411 (2d ed. 1964); see also Stoner Mfg. Co. v. Y.M.C.A., 13 Ill.2d 162; Kerner v. Thompson, 365 Ill. 149, 153; Stowell v. Prentiss, 323 Ill. 309, 321; Attorney General v. Newberry Library, 150 Ill. 229, 236. See also Leo v. Armington (1948), 74 R.I. 124, 59 A.2d 371; New York East Annual Conference of the Methodist Church v. Seymour (1964), 151 Conn. 517, 199 A.2d 701.

A trust for the promotion of health is a charitable trust. (Restatement (Second) of Trusts sec. 372 (1959).) If an outright gift of property to a charitable corporation without restrictions on its use or disposition is involved, the corporation is under a duty to apply the property to one or more of the charitable purposes for which it was organized. This duty is ordinarily enforceable by the Attorney General. (Restatement (Second) of Trusts sec. 348, Comment (f) (1959); Bogert, Trusts and Trustees sec. 411, at 325 (2d ed. 1964).) The Charitable Trust Act (Ill. Rev. Stat. 1973, ch. 14, par. 51 et seq.) vests in the Attorney General authority to enforce and supervise charitable trusts. For these reasons we hold that the Attorney General is a proper party to this appeal.

Generally if a bequest is given to a specific entity and the legatee declines to accept the bequest or cannot take or is not capable of taking and holding it the bequest fails. See First National Bank v. Elliott, 406 Ill. 44, which distinguishes Volunteers of America v. Peirce, 267 Ill. 406; Chicago Daily News ...


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