APPEAL from the Circuit Court of Moultrie County; the Hon.
JOSEPH C. MUNCH, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
We grapple here with contingent and vested remainders, executory interests and divestment.
C.F. Eads died testate on February 25, 1950. By the terms of his will he gave his wife, Ella Eads, a life estate in his real estate and gave the remainder to his brother, John D. Eads, in trust. The terms directed the trustee to rent the real estate during the interim between the date of death of Ella Eads and the date of sale of the real estate which was to be by public auction within one year from the death of Ella Eads. After paying expenses, the proceeds were then to be distributed in equal one-sixth shares to nephews, John T. Eads and Clark J. Eads; sister, Viola Hines; brothers, Aaron W. Eads, James M. Eads, and John D. Eads. If a named beneficiary was dead "at the time for distribution," that person's share was to go to his heirs.
The pertinent wording of the testamentary trust read as follows:
"IN TRUST HOWEVER for the following named purposes, to wit:
(a) To rent the same during the interim between the date the [sic] death of my said wife and the date of sale by him, collect the rent therefrom, pay the taxes and special assessments and necessary repairs during said period of time.
(b) Within one year after the death of my said wife, he, said John D. Eads, as trustee shall sell all of said real estate at public sale, on such terms as he may deem best for the interest of my estate, and from the proceeds of such sale, he shall pay first, the costs and expenses on making the sale and making the distribution as herein after directed. The balance remaining after payment of said costs and expenses, shall be by him distributed as follows:
1 To John T. Eads, only son of my said brother Samuel O. Eads, one sixth of said remainder. If my said nephew, John T. Eads, should be dead at the time for distribution, then and in such case said one sixth shall be distributed in equal parts to the heirs of his body, if any, and if none, then such one sixth shall be distributed among the persons and in the manner, stated in the succeeding paragraph of said will, (paragraph (2)) to wit: Viola Hines, Aaron W. Eads, James M. Eads, John D. Eads, and my nephew, Clark J. Eads.
2 He shall pay to my sister Viola Hines, my brothers, Aaron W. Eads, James M. Eads, and John D. Eads and to my nephew Clark J. Eads, an equal one sixth of said proceeds. Provided, that if either of them shall be dead at the time for distribution and shall have heirs of her or his body then living, such share of such deceased brother, sister or nephew, shall be paid in equal parts to the heirs of the body of such deceased; other wise, in the event of the death of either of said sister, brother or nephew, without leaving heirs of her or his body surviving the share or shares of such deceased shall be distributed among the then surviving sister, brother or nephew, and the heirs of the body of such of said person as may then be dead."
The trustee, John D. Eads, died on January 26, 1958, and Ervin L. Jurgens was appointed successor-trustee by the circuit court. The life tenant, Ella Eads, died testate on April 6, 1977, and all the named beneficiaries predeceased her except Clark J. Eads. John T. Eads died leaving as heirs his children: John T. Eads, Elizabeth Eads Thomas, and James C. Eads. Viola Hines died leaving three children: Walter Hines, who died with three children surviving him, Walter E. Hines III, Leonard H. Hines, Linda Hines Warren; Leonard E. Hines; Frank Hines, who died having had one child, Betty Weissinger. Aaron W. Eads died leaving three children: James F. Eads, Sarah Hickman, and Marjorie Williams. James M. Eads died never having had a child. John D. Eads' only child predeceased him. These 12 "beneficiaries" are of lawful age and under no legal disability.
On May 12, 1977, the trustee filed a petition to sell the real estate at public sale, but on July 20, 1977, certain of the respondents and the counterplaintiffs who are the 12 "beneficiaries" filed an answer and a counterclaim requesting termination of the trust and distribution to them of the trust corpus in kind. The trustee filed an answer to the counterclaim on September 6, 1977.
After a hearing was held on the petition, the court allowed the trustee's petition to sell the real estate and denied the counterclaim on October 18, 1977. The respondents and counterplaintiffs then filed a post-trial motion on November 15, 1977, asking the court to vacate its decree authorizing the sale of the real estate (or in the alternative grant a new trial), claiming among other things that the trustee failed to deny the affirmative allegations contained in respondents' and ...