APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
GREEN, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
This case involves the construction of a will. Originally the property was placed in trusts divided among various children. The trust property of certain children has now been distributed and only property of certain other children remains in trust. Two of these children died recently without issue. According to the will, their trust property under such circumstances was to be added to and divided among the other "then existing shares or parts of my said trust estate." The principal issue in this case is whether this language is to be literally enforced and the property divided only between the two shares of trust property still in existence or whether the property is to be divided among the heirs of all the children even though as to the others, the trusts terminated several years before the deaths of the children without issue. We agree with the trial court that the language of the will must be enforced as it is written and affirm. We also hold that the trial court erred in awarding attorney fees.
Edward J.E. Ward (testator) executed his will December 28, 1931. At that time he was 75; his wife was 80. There were eight living children. They were:
NUMBER OF CHILDREN NAME AGE IN 1931 IN 1931 ----------------------------------------------------------------- Charles H. Ward 56 None
Mrs. Susan Shelhamer 52 2
Mrs. Jennie F. Stewart 42 1
Mrs. Elizabeth Bailey 40 None
Mrs. Annie McKiernan 38 None
There was also one grandchild (Edward J.E. Ward II), son of another deceased child.
The will, after bequeathing the personal property to testator's wife, left the rest of the estate in trust. The widow was to be paid $25,000 yearly out of the net income of the trust, and the balance of the net income of the trust during the widow's lifetime was to be paid to the eight children. Immediately upon her death $25,000 was to be set aside for Edward J.E. Ward II. This amount was to be turned over to him at age 40. The rest of the trust was to be distributed as follows:
"Paragraph 6. (a) Immediately upon the death of my said wife, or after my death should she predecease me, and after my said Trustees (or Trustee) have set aside said trust fund for my said grandson, Edward J.E. Ward, II, provided the contingencies have arisen for establishing the same, then in the event that all of my said eight children, Charles H. Ward, Samuel H. Ward, Thomas H. Ward, Mrs. Susie Shelhamer, Mrs. Lizzie Bailey, Mrs. Annie G. McKiernan, Mrs. Jennie F. Stewart and Dora Ward, are living, my said Trustees (or Trustee) shall divide the balance of my said trust estate into eight equal shares or parts as nearly as practicable, or in the event of the death of any one or more of my said eight children prior to the death of my said wife, or prior to my death should she predecease me, leaving no lawful issue him, her or them surviving, then my said Trustees (or Trustee) shall divide the said balance of my said trust estate into as many equal shares or parts as the difference between eight and the number of my said eight children who shall have died prior to the death of my said wife, or prior to ...