Trustees of Schools v. Petefish

Mr. Justice Carter delivered the opinion of the court: The first, and perhaps the only, question to be solved in this case is, whether or not appellants have, under the will of Zuschke, any interest in the lands in controversy. If they have no interest, it is plain their bill was properly dismissed, even if the lease in question was made without authority. Their contention is, that as “trustees of schools of township No. 17, range No. 11,” the title to the land in controversy is vested in them in their corporate capacity, in trust for the purposes mentioned in the will; that they are, by virtue of the statute, the legal successors of the trustees of school lands‘appointed by the county commissioners court under the act approved February 26, 1841, or of the trustees of schools of the township authorized to be elected under certain sections of that act, which act of 1841 was in force when Zuschke’s will took effect, and that upon the death of Zuschke said land passed to such trustees so appointed or elected under said act of 1841. Our attention is called to section 5 of said act, which declared such trustees to be “a body politic and corporate,” etc., and to section 6, which provided: “The said trustees shall be vested with the following powers, viz.: * * * rp0 receive, by deed or otherwise, and hold for the use of any school or schools in the township, any real estafie, personal property or money which may be conveyed or delivered to them for the uses aforesaid.” (Laws of 1841, p. 259.) It is clear that under that act such trustees, if appointed, had the power to take these lands and hold thé title in trust for the public school in Arenzville if the devise had been to them. But the lands were not devised to them, but were devised to “the school at Arenzville,” by which was meant, as shown by other language employed, the public school in Arenzville. There is nothing in the will which discloses any intention on the part of the testator to vest the title in the trustees of school lands or to give them any control over the property whatever. The statute did not then, and does not now, provide that the title to all property held for the common or the public schools should or shall be vested in the township trustees. In Heuser v. Harris, 42 Ill. 425, where a will gave to a school district one-half of the proceeds of the sale of a farm, but to be under the control of some person to be elected by the people of the district every four years, and the other half to “the poor of Madison county, ” it was contended that the will was void for uncertainty, and that the law vested in the school directors the custody and control of all school moneys of the district and that no other persons were authorized to take charge of such moneys, bpt it was held that the will was valid, and that if no trustee were elected, a court of equity had power to provide other means of carrying into effect the charitable bequest of the donor. True, it is not contended in this case that the devise is void, but only that the title vested in appellants’ predecessors as trustees, because, as it is said, they were the only persons or corporation, within the provisions of the will, authorized by law to take the title. But, as we have seen, they do not come within the designation of devisee mentioned in the will, and it cannot be inferred from any provision of the will or the language used that it was the intention of the testator to vest the title to the land in the trustees of school lands of the township. While the devise is clearly a gift to a charitable use and would be enforced by a court of equity, (Hunt v. Fowler, 121 Ill. 269; Andrews v. Andrews, 110 id. 223; Crerar v. Williams, 145 id. 625; Alden v. St. Peter's Parish, 158 id. 631; Heuser v. Harris, supra;) it does not follow that in order to enforce it the legal title must be declared to have vested in the trustees of school lands, pr their successors, the trustees of schools of the township authorized to be elected under section 61 of the act of 1841 then in force. Section 47 of that act provided that whenever a school should be organized, the employers of the teacher should meet together at the school house and appoint three of their number as trustees of the school and invest them with power to conduct and manage the school, and section 91 provided that where school districts had been laid off the legal voters of each of such districts should elect three “school directors” for the term of two years. Construing the will with reference to the law as it then was, it is perfectly clear “the trustees or school directors of the public school in Arenzville,” mentioned in the will, were the trustees and the school directors who, under the law, should, respectively, according to the status of the school, have the management of such school. It will be observed that the statute did not provide that the title to all lands given for school purposes should be vested in the township trustees, and as the will did not so vest it in the case at bar, they took no title, and their successors, the appellants, have no title or interest whatever in the property. This being so, we do not feel authorized, upon their bill, to pass upon the validity and binding force of the lease. The decree of the learned chancellor dismissing the bill was correct and will be affirmed. Decree affirmed.