APPEAL from the Circuit Court of McDonough County; the Hon.
ALBERT SCOTT, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
The parties here identified and designated plaintiffs, are the heirs of Mary Olive Woods. They appeal judgments consolidated on appeal which dismiss with prejudice a complaint for declaration of a resulting trust and deny plaintiffs' petition to intervene in a pending action seeking cy pres relief upon a trust. The appellees include the trustees of the Littleton Baptist Church (Littleton), the successors to the trustees appointed by the grantor of the trust (Trustees), the Illinois Baptist State Convention, a corporation (Baptist), and the Attorney General.
Each action is founded upon a trust created by Mary Woods in 1949, conveying 12 parcels of real estate to named trustees with provision for management and compensation and appointment of successor trustees. The trust instrument reserved a life estate in the grantor. The essential portions of the trust deed relevant to the issues raised here are:
"5. PROVISION FOR LITTLETON BAPTIST CHURCH
It is directed that the trustees annually pay the Littleton Baptist Church of Littleton, Illinois or to the trustees of such church in honor of the following persons (naming parents and brothers and sisters) a sum equal to ten (10) per cent of the net annual income of the property herein described other than Tract #1, or property purchased in lieu thereof. It is directed, however, that not to exceed Five Hundred Dollars ($500.00) of any annual payment shall be used for the payment of any salary for any minister of said church which may be in addition to the ten per cent above provided.
6. AID FOR YOUTH OF LITTLETON BAPTIST CHURCH
I direct that any young man or young woman, a member of the Littleton Baptist Church who desires to train for the ministry or for church work other than ordained ministry shall be aided by the trustees herein named to such extent as they deem advisable. I also direct that the trustees shall give such aid as they deem advisable for the junior and senior choirs of said church."
Mary Woods executed a will in 1954 which, upon her death in 1956, was admitted to probate. The will disposed of real and personal property other than that provided in the trust deed.
The plaintiffs, as the heirs of Mary Woods, in 1957, filed a complaint designated Chancery 6159, seeking construction of the trust deed, construction of the will, partition and accounting. Parties-defendant in such action included the trustees, Littleton, and the Attorney General. The sum of the allegations is that except for the provisions of paragraph 5 of the trust deed, which provides 10 percent of the income to be paid to Littleton, the instrument does not designate the beneficiaries of the trust and such remain unascertainable; no purpose of the trust can be ascertained; the trust is dry and passive as to 90 percent of its income; provides for an unlawful accumulation and violates the rule against perpetuities. It is reiterated that paragraph 6 does not designate with sufficient certainty the beneficiaries of that provision and that such beneficiaries can not be ascertained or identified.
The complaint prayed that the trust be declared to be a valid trust for Littleton as to 10 per cent of Tracts #2 through #12, and that the plaintiffs be held to hold equitable title to such tracts. Tract #1 included in the conveyance to the trustees, provided that the residence of the grantor be maintained as a home for members of the grantor's family.
In September 1959, the court entered a decree finding that paragraph 4 (provision for the donor's residence, Tract #1), and paragraph 7 (providing for conveyance of trust property to any future theocratic government) were void and unenforceable but that the remaining provisions for Tracts #2 through #12 were under "a valid and existing trust." It was further found in the decree that by reason of the invalidity of paragraphs 4 and 7 of the trust, there was a resulting trust in and for the benefit of the heirs of the value of $100,000. The decree directed the sale of certain tracts to satisfy such interests. By reason of the changes in the trust corpus, the decree ordered that Littleton receive 12 percent of the trust income. It was further found and decreed that Mary Woods died intestate as to the real estate conveyed by the trust. The issues upon appeal are argued in the terms and context of that decree.
In May 1974, a petition filed in Chancery 6159, recited the death of the trustees named by the donor and prayed the appointment of the petitioner, Ronald Greer, as a relative of Mary Woods residing in the vicinity, to be successor trustee. Littleton filed an answer objecting to the appointment of Greer and "would recommend" the appointment of Marvin Caldwell, as successor trustee.
In July 1974, Baptist filed a petition to intervene alleging that it was a religious corporation of which Littleton was a member and further alleged that as to paragraph 6 the petitioner was informed that Littleton has no "young men or young women who are members of the Littleton Baptist Church" who desire to train in the ministry or other church work who have been aided by the trust, and that the aid given junior and senior choirs of Littleton had been minimal. It was further alleged that it was impossible, impractical or inexpedient to apply the approximately 82 percent of the net income provided in the trust deed as modified by the decree of the court, that such income should be applied in accordance with the general intent of Mary Woods to train young men or young women for the ministry or for other church work, and that the distribution of the surplus arising from 82 percent of the net income to educational and other programs of Baptist would effectuate such intent. Some 6 percent of income was allocated as fees to trustees and farm management.
The petition to intervene was allowed. On the same date the court appointed trustees pendent lite. They subsequently received permanent appointment.
In February 1975, the trustees filed a motion to dismiss the petition by Baptist to intervene, alleging that the petition for appointment of trustees had been granted and that there was no pending litigation. Littleton also thereafter filed a motion to dismiss Baptist's petition to intervene.
In September 1975, Littleton filed a "Motion for Approval of Additional Charitable Use," alleging that Littleton has approximately 70 members; that few young members of the church have requested assistance under the provisions of paragraph 6 of the trust, and that the surplus of net income of the trust has grown to a sum in excess of $60,000 and that by reason of the circumstances it is not practical to carry out the charitable intent of the donor to assist persons in the Littleton area seeking a Christian education. Littleton prayed that the court apply the cy pres doctrine and direct the balance of the net income be used for establishing a church camp and recreation area in Littleton, to assist Littleton area students in attending Christian colleges and to assist the aged and needy of Littleton.
In January 1976, Baptist filed its complaint in intervention alleging the minimal use of 82 percent of the trust income for trust purposes, and seeking application of accumulated income through cy pres as alleged in its petition.
In January 1976, plaintiffs filed a complaint to construe the trust deed and for declaration of a resulting trust. Parties-defendant included the trustees, Littleton, the Attorney General and the unknown heirs of Mary Woods.
The complaint referred to and incorporated the pleadings to construe the trust in Chancery 6159, culminating in the decree of September 1959; recites the circumstances leading to the accumulation of income as were alleged by Littleton and Baptist and continued to allege that the trust deed made no provision for income remaining after satisfaction of the trust provision in paragraph 6 and that the decree of September 1959 made no provision for disposition of excess income; that it is impractical and inexpedient to apply the accumulated income for the purposes stated in paragraph 6 of the trust; that the excess accumulation is unlawful by reason of Illinois Revised Statutes 1973, chapter 30, paragraph 153, so that the excess income would be lost forever to Littleton. It was also alleged that the trust deed "did not reflect a general charitable intent" of the grantor, but a narrow intent and that by reason ...