Moll v. Gardner

Mr. Justice Wilkin delivered the opinion of the court: It is insisted by appellant as a ground of reversal that the language of the will created in her an active trust; that the legal title to the property was vested in the trustee; that the Statute of Uses does not apply to active trusts, and the legal title can pass from the trustee only by deed or a decree sufficient for that purpose; that it was the intention of the tesr tator that none of the beneficiaries should anticipate the net income or have any share or title in the property until a certain time, hence none of the judgment creditors or grantees under sheriff’s deeds acquired any title, and all such deeds and judgments are clouds upon appellant’s title, which she has a right to have removed; that the property being devised to appellant under an active trust, to be divided at a fixed time, and such actual division by the trustee being impossible, and the will containing no power of sale, a court of equity will aid in the execution of the trust by appointing a trustee to make sale and divide the proceeds. Many authorities are cited by appellant in support of her view of the law, but upon examination it is found that in each of those cases the power and authority conferred upon the trustee by the language of the will materially differed from that conferred by the will of Constantine Kami. It is undoubtedly the law that where a testator conveys land, bjr will, to a trustee and imposes active duties upon -him, such as the care and management of the property and the paying of the income to certain persons, such a will creates an active trust and the legal title to the property vests in the trustee, and judgment creditors can obtain no lien, as against any of the remainder-men, so long as the legal title remains in the trustee. (King v. King, 168 Ill. 273.) And if the language of the will is such that the trustee, at the time of the termination of the trust, is given the power of sale and disposition of the property and is to divide the proceeds among certain persons therein named, such disposition may be made, notwithstanding the fact that there are judgment creditors who have claims against the persons named in the will as remainder-men. This is for the reason that such remainder-men have no vested legal title, as the legal title is in the trustee with power to sell. (Binns v. LaForge, 191 Ill. 598; Hurd’s Stat. 1903, chap. 22, sec. 49; Lawrence v. Lawrence, 181 Ill. 248.) ’ But the language of the will in question cannot be so construed. The premises were devised to appellant in trust, to collect the rents, issues and profits, to make improvements and repairs, to appropriate the net profits and rents equally among the four children, to keep the estate intact until Charles F. G. Kann arrived at the age of twenty-five years, and then to divide the same into four equal parts. By this language an active trust was created, to continue until Charles F. G. Kami arrived at the age of twenty-five years, when the active duties of "the trustee were to terminate and the estate was to be divided. The evidence shows that when the time for distribution arrived, owing to the character of the property, it was impossible to divide it into four equal shares. It being impossible to divide it, there was no power given by the will for the trustee to sell the premises and divide the proceeds, and we do not think that such power was necessary in order to carry out the purposes of the trust. A trust which is active may become passive after all of the active duties have been performed, and the trust may become executed by the Statute of Uses and the title vested in the remainder-men. In 2 Washburn on Real Property (3d ed. p. 435,) it is said: “There are, moreover, some trusts which partake successively of the character of active trusts, in réspect to which the trustee is clothed with the legal estate, and of executed uses, when it passes to the one beneficially intended in it, according to the nature and terms of the limitation. Thus, it may be incumbent upon the trustee to dispose of the rents in a particular manner during the life of A B, and then the trust may so change as to be executed in a new' cestui .que trust. A trust of this character would be a devise to trustees and their heirs to receive the rents and support the devisor’s son until he was twenty-one and then over to him. In such case it was held that the legal estate vested in the trustee till the son was of age and then was executed in him; * * * yet if he had active duties to do which required him to hold the legal estate for a term of time, he will be considered as seized thereof accordingly, so long as it shall be necessary, and it will then be executed in the cestui que trust, upon the principle that trustees only take so much of the legal estate as the' purposes of the trust require.” In the case of Meacham v. Steele, 93 Ill. 135, we said (p. 145) : “Often, in cases of this character, the objects of the trust become defeated or for some cause or other performance becomes impossible, and the trust will thereby become stripped of its executory character, leaving no duties to be performed with reference to the trust estate. In such cases the trust becomes a use and is executed by the statute.” To the same effect see 2 Perry on Trusts, (2d ed.) sec. 320; Kirkland v. Cox, 94 Ill. 400. Upon the arrival of Charles P. G. Kann at the age of twenty-five the active trust became executed and nothing remained but for the trustee to divide the estate. Physical division being impossible, the trustee might have completed her duties by conveying to each beneficiary an undivided one-fourth of the premises by deed. Each beneficiary was of age, and they might have partitioned the estate among them-, selves without the intervention of a court of equity and without the costs incident thereto; or, upon the termination of the active duties of the trust, the Statute of Uses would execute the remaining provisions of the will and the title to the property would vest immediately in the beneficiaries without deed or the decree of any court. The decree below found that the trust was executed by the Statute of Uses and that the title was in the beneficiaries, and it ordered the trustee to execute deeds of conveyance to the beneficiaries within five days, and upon default said deeds to be executed by the master. Under the bill, and issues formed thereon, it was not improper to order these conveyances to be made. The' decree also found that certain judgments therein enumerated were liens upon the shares of the beneficiaries. We think this finding was correct, for as soon as the title became vested in the beneficiaries the judgments became liens upon their respective shares. The decree was clearly correct and will be affirmed. Decree affirmed..