Eldred v. Meek

Mr. Justice Phillips delivered the opinion of the court: We shall consider the fourth and seventh assignments of error above first. Appellants contend that the circuit court had no power to grant the relief asked in the bill even if the contentions in the bill were well founded, and insist that the 'controversy involves only legal titles, and hence only legal remedies can be invoked; that by the will the trustee is clothed with only naked power to execute deeds under certain contingencies, and that if he failed to execute them the law would unite the use and the trust, and that as the bill seeks no other relief than that the will be construed the bill should have been dismissed. The recent cases of Harrison v. Owsley, 172 Ill. 629, and Minkler v. Simons, id. 323, are cited as conclusive of this contention. We do not concur in this view. Appellants seem to overlook the thirteenth clause of the will, which directs that the executor (trustee) shall keep the lands rented and the personal property lent at the highest legal rate of interest and well secured upon farm mortgages; that he shall pay legal taxes and. assessments, repair buildings, etc., and re-build when for the best interest of the estate, and keep the building’s insured, and that he apply the balance of the proceeds equally in the “necessary care, maintenance and education of those entitled to the actual benefit of the respective trusts under the terms and provisions of the will.” The duties imposed upon the trustee are more than passive. They are active duties, vesting and holding the title in him pending the period mentioned, and constitute him more than a mere naked trustee, and hence would authorize a court of chancery to direct and control the mode and manner of execution. Steib v. Whitehead, 111 Ill. 247; Minkler v. Simons, supra; Knox v. Jones, 47 N. Y. 389. On an examination of the will above, the first question for consideration is, what is the nature of the estate given to the grandchildren? Appellants contend that under the provisions of the will they take a vested interest, with the enjoyment, only, postponed. The tendency of courts is to consider limitations as vested. Gray on Perpetuities, sec. 673, p. 402.) “The event upon which a conting’ent remainder is limited may happen and the contingent become a vested remainder, but not to be enjoyed in possession until some fixed time or until the dropping out of an existing estate for life. There is a difference between ‘vesting’ and ‘the enjoyment of possession,’ and it is sufficient if the contingent becomes a vested remainder within the time limited by the rule against perpetuities, although the enjoyment may be postponed beyond such time.” Madison v. Larmon, 170 Ill. 65. In Knight v. Pottgieser, 176 Ill. 368, we held that an immediate rig’ht of present enjoyment is not essential 4o a vested remainder; that it is sufficient if there is a present vested rig'ht to future enjoyment; that the vesting of a gift in remainder will not be postponed, but will vest at once, the right of enjoyment, only, being deferred; that the principle which applies to and controls the vesting of bequests of personal property is, in general, equally applicable to devises of real estate. “If a remainder is vested,- — that is, if it is ready to take effect whenever and however the particular estate determines, — it is immaterial that the particular estate is determinable b}r a contingency which may fall beyond a life or lives in being. For instance, if an estate is given to the unborn child of A until he dies or changes his name, and to B and his heirs, B has a vested remainder, for he will take the estate whether the child dies or changes his name, although the contingent determination of the estate before the child’s death depends upon an event which may not take place'until beyond the limits prescribed by the rule against perpetuities. And it makes no difference whether the provision for termination be expressed in the form of a condition or a limitation. So a remainder to a person ascertained and his heirs after a term of years, however long the term or whatever be the conditions to which the term is subject, is not too remote.” Gray on Perpetuities, sec. 209. “It is a general rule in regard to vesting of personal legacies, that if there is no independent bequest, but only a direction to pay at a future time or upon the happening of a certain event, the vesting will be postponed until the event has occurred or the time arrived. But the general rule is subject to an exception so well established and universally recognized as to practically constitute another general rule, which is: though a gift arises wholly out of directions to pay or distribute in futuro, yet if such payment or distribution is not deferred for reasons personal to the legatee, but merely because the testator desired to appropriate the subject matter of the legacy to the use and benefit of another for and during the life of such other, the vesting of the gift in remainder will not be postponed, but will vest at once, the right of enjoyment, only, being deferred. (Scofield v. Olcott, 120 Ill. 362; Carper v. Crowl, 149 id. 465.) The principles which apply to and control vesting of bequests of personal property are in general equally applicable to devises of real estate.” Knight v. Pottgieser, 176 Ill. 368. A gift to a person if or when he shall attain a certain age will not vest until that age is attained. Scofield v. Olcott, 120 Ill. 362; 2 Jarman on Wills, (R & T.’s ed.) 458; Theobald on Wills, 412; In re Bennett’s Trusts, 3 K. & J. 280; Johnson’s Estate, 185 Pa. St. 179. “There is a distinction between a gift of a legacy to a person to be paid to him at a future time, and a direction to pay or transfer the legacy to him at a future time. In the former case the legacy is considered as vesting in him immediately, but where the gift is merely by a direction to pay to him at a future time the legacy does not vest forthwith. Until the time arrives he has no vested interest in the bequest.” (Scofield v. Olcott, supra; Jones v. MacMilwain, 1 Russ. 223; Kingman v. Harmon, 131 Ill. 171; Illinois Land and Loan Co. v. Bonner, 75 id. 315.) Thus, a direction to trustees to pay (transfer, deed, etc.,) to certain devisees “when they should, arrive at twenty-five years of age,” or “upon their becoming twenty-five years of age,” has been held to convey a contingent interest, only. (Leake v. Robinson, 2 Mer. 363.) In Coggin’s Appeal, 124 Pa. 36, the court says: “In a doubtful case it would be persuasive, but where the nature of the interest is clear it is entitled to but little weight. There is abundant authority that where the attainment of a certain age forms part of the original description of the devisee, the vesting is suspended until the attainment of that age, even thoug’h the limitation over is only to take effect in case of his death under that age without issue.” Had the testatrix closed her will at the end of the seventh clause it might be held that a reasonable interpretation would be that the grandchildren take a vested interest; but the intention of a testator is to be arrived at, not by considering portions of the will, but by an examination of the entire will or the system of béquest, giving due consideration to each and every part thereof. Courts must construe a will according to its own terms. They cannot make a new will or build up a scheme for the purpose of carrying out what might be thought was or would be in accordance with the wishes of the testator. (Tilden v. Green, 130 N. Y. 29; Lawrence v. Smith, 163 Ill. 149.) It is true that parts of a will which are valid will be sustained though other parts are rejected as invalid, if no violence is done to the parts sustained. (Lawrence v. Smith, supra; Gray on Perpetuities, secs. 233, 423; Howe v. Hodge, 152 Ill. 252; 1 Jarman on Wills, — 4th ed.— p. 297.) But this rule should apply only when the first gift is absolute. And bequests of a will valid in themselves will be rejected with the invalid ones where the retention of them would defeat the testator’s wishes, as evidenced by the general scheme adopted, or where manifest injustice would result to the beneficiaries. Lawrence v. Smith, supra. In the light of the above authorities an examination of the subsequent provisions of this will indicates to us clearly that the testatrix did not intend that the grandchildren should take a vested interest. By the eighth and ninth clauses it is provided that if one or both grandchildren should die without leaving legitimate child or children, his or their estate shall be paid to the survivor or survivors upon reaching the age of twenty-five years. By the tenth clause it is provided that if any grandchild shall die before arriving at twenty-five years of age, leaving legitimate chjld or children, then the executor shall, upon said child or children becoming twenty-five years of age, respectively, give, transfer and deliver to said child, or equally divide among said children, their said -father’s share which he would have received under the will in case he had lived. If any effect is to be given to these clauses whatever, they mean that the right of either of the three grandchildren to enjoy the property devised to them, respectively, is contingent upon their reaching the age of twenty-five years, and that failing to do so but leaving issue, their respective issue shall not enjoy the property until they shall arrive at the age of twenty-five years. These clauses, taken together, comprise one entire clear and distinct scheme of devise, and it were to do violence to the will to reject any one of them in the construction of the others. The eleventh, twelfth and thirteenth clauses of item 2 strengthen the views we have above expressed. In Lawrence v. Smith, above cited, this court said: “We see no way by which a division of the trust created by this will cán be made, and part held valid and the rest invalid, without doing violence to the intention of the testator. It is all one entire scheme, and although the trust is an instrument to effect the beneficial purpose of the testator, it is made the most prominent feature of the will.” See, also, Post v. Rohrhach, 142 Ill. 600. In Tilden v. Green, 130 N. Y. 29, the court, after reviewing a number of authorities, say: “The rule as applied in all reported cases recognizes this limitation: that when some of the trusts in a will are legal and some illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion was retained and other portions rejected, * * * then all the trusts must be construed together and all must be held illegal and must fall.” In Matter of Will of Butterfield, 133 N. Y. 473, the court, while holding that a valid testamentary trust may be re-. lieved from the peril of some unlawful incident or limitation by disregarding it, say: “This can only be done where the vicious provision is clearly separable from the valid demise or trust, and may be disregarded without maiming the general frame of the will or the testator’s substantial and dominant purpose.” In Johnson's Estate, 185 Pa. St. 179, a testator devised his real estate to his executors in trust for the period of seventy-five years, giving to the executors power in the management of the estate, and directing them to pay all charges against the land, and all legacies, out of the rents and profits. After all the charges and legacies were paid out of the rents he directed his children to select a trustee, and directed that such trustee should collect the rents and profits of the land, and after paying for repairs and taxes should distribute the balance to his children and their legal descendants until the expiration of the seventy-five years, at the expiration of which time the trustee was authorized to sell the land, and the proceeds were to be distributed “to and among all my children, share and share alike, that may be then-living, and the legal descendants of any of my said children that may be then dead, the legal descendants of such deceased child or children to take, however, only such share and portion of the said proceeds as their deceased parent would have taken if then living.” It was held (1) that the particular devise — the term of seventy-five years given to the trustee — did not violate the rule against perpetuities; (2) that the gift of the ulterior estate in remainder was a future contingent interest repugnant to the rule against perpetuities, and therefore void for remoteness; (3) that as the testator’s general scheme was to keep his estate entire for an unlawful period, and as the particular estate was created for this purpose only, the particular estate must fall with the ulterior estate; (4) that the testator died intestate as to his real estate, which accordingly passed at his death to his heirs-at-law. The above rule has been applied in Fosdick v. Fosdick, 6 Allen, 48, and in In re Walkerly, 108 Cal. 627. The rule being that if provisions of a testamentary character are snch that under them a violation of the rule against perpetuities may possibly happen the devise is void, it is clear that the tenth provision of item 1 offends this rule, as providing for a disposition of the estate upon contingencies which may not happen within the life or lives of persons in being or twenty-one years thereafter, and it follows that all of item 1 of the will after the first and second clauses must be treated as void. Gray on Perpetuities, sec. 207; Jarman on Wills, p. 814. We find no error in the decree of the circuit court of Greene county as rendered, and the same is affirmed. Decree affirmed.