Rackemann v. Tilton

Mr. Justice Scott delivered the opinion of the court: The interest which Franklin Hancock took in the estate of his father is fixed by clause 7 of the will. The interest which Washington Hancock took in the vested remainder created by that clause is determined by the referential words found therein and by the language of clause 8 of the will, by which the primary provision for Washington was made. By that referential provision Washington takes the one-fourth of the one-fifth devised by clause 7, after the termination of Franklin’s life estate, in the same way, subject to the same trusts and provisos upon which he received his portion (to so designate it) of the estate of John Hancock. That portion last mentioned he held for life with a power of appointment by will, the legal title being vested in a trustee, who had authority to distribute to him the principal of the estate if he saw fit, and in that portion there was a vested remainder in the other four children named in the portion of the will set out in the foregoing statement, which might be defeated by a distribution of the principal to Washington or by the exercise of the power of appointment. It is entirely apparent that if the ordinary significance be attached to the words found in the referential clause, Washington, subject to his brother’s life estate, would take, with reference to the vested remainder created for him by clause 7, the same interest, right and power as, and no greater interest, right or power than, given him in reference to the property bequeathed by clause 8; that after the death of Franklin and Washington, nothing having been done to defeat the vested remainders created by clauses 7 and 8, the title to all of the property bequeathed by -thpse sections would pass to the legatees named in clauses 3, 4 and 5 of the will, or, in the event of their death, to those who represent them, and this was the view adopted by the chancellor and embodied in his decree. While it appears clear, upon an inspection of the will alone, that this conclusion is correct, appellants insist that this result involves an absurdity which could not have been contemplated by the testator, and for that reason, among others, the conclusion must be erroneous. Stated briefly, the alleged absurdity is this: If Washington took an interest in the vested remainder created by clause 7 it would be a vested remainder in one-twentieth of the estate, and if he held that one-twentieth subject to the same terms, conditions and restrictions as he held the property bequeathed by clause 8, then, as clauses 7 and 8 are identical except as to the substitution of the names of Franklin and Washington each for the other, Franklin would have a vested remainder back in the one-fourth of that one-twentieth, or in the one-eightieth of the estate, and Washington would have a vested remainder back in the one-fourth of that one-eightieth, or the one-three hundred and twentieth of the estate, and so on in unending succession, the result being, that by this mathematical demonstration an infinitesimal fraction of the estate, being the least possible portion thereof more than nothing, would never vest by virtue of the will in those who take under clauses 3, 4 and 5 °f the will. These mathematical oscillations would result immediately upon the death of John Hancock and are of no practical importance. They can be made use of only in tracing the precise course of the title to those who hold under clauses 3, 4 and 5. The absurdity consists only in the fact that according to this demonstration the testator died intestate as to a portion of his estate represented by the smallest fraction that can be expressed by our system of numbers. The chancellor’s view does not require the destruction of that portion of the estate nor violate any fixed rule of construction, but results only in the intestacy of John Hancock as to that portion of his. property. ' The chancellor disregarded that fraction-and treated it as though it had been vested in those who took under clauses 3, 4 and 5, giving to those who took under those clauses the same interest in the property as though this negligible fraction had passed to them. This error is not reversible, as we held in Glos v. Furman, 164 Ill. 585, that one-vigintillionth of one-vigintillionth of a fraction of the east inch of a tract of real es-9 tate could have no practical existence for the purposes for which lands are acquired and held. Indeed, counsel for appellants does not contend that the decree should be reversed because that inconsiderable fraction of the title was decreed to those who hold under clauses 3, 4 and 5. The only importance attached to this array of figures is, that it shows that such a result as the one reached by the circuit court could not have been intended by the testator. We think the reasoning too refined for the affairs of a practical world. The decree of the chancellor is based on the theory that the testator, by the language used, disregarded, and died intestate, as to that small portion of his estate. Appellants argue that this construction overthrows the presumption that the testator intended by his will to dispose of all his property, and insist that a construction should be resorted to that.would defeat intestacy as to any part of the estate. Where the portion as to which the testator died intestate, under a particular construction of the will, is so small that it has no visible form and no appreciable value, this presumption may be rebutted by a very slight circumstance. The appellants’ contention that Washington took in the vested remainder created by clause 7 an equitable fee subject to the life estate of Franklin, involves an incongruity of more practical moment than that shown by the mathematical demonstration alluded to above. For some reason the testator regarded Franklin and Washington as not capable of exercising proper care for the conservation of the property the income from which he desired them to enjoy, consequently he hedged their dominion over that property with the restrictions found in clauses 7 and 8 as to the prpperty conveyed by each of those clauses, respectively. But if appellants’ contention be correct he gave Washington absolute .dominion over the vested remainder which he took under .clause 7, and had Franklin’s death occurred the day after the death of his father, Washington would have been at liberty to scatter to the four winds \hat one-twentieth of the estate which he obtained by .the provisions of clause 7. Why such care so far as the property in which Washington took an interest under clause 8, and such absence of restraint upon his power to dispose of the property in which he took-an interest under clause 7? We think the conclusion reached by the chancellor, which involves merely the holding that the.testator died intestate as- to the smallest possible fraction of his property,- more reasonable than the theory, in view of the referential words used, that he intended to give an equitable fee to Washington in the .property passing to him under clause 7, while placing upon his right to the property passing under clause 8 the restrictions found therein. The case principally relied upon by counsel for appellants in this connection is Shanley v. Baker, 4 Ves. 732. In that case the testator devised certain leasehold houses in trust for the separate use of his grand-daughter-to receive the rents for the remainder of the term, and certain other property of the same character to his daughter for her separate use during her life, she to receive' the rents thereof during the unexpired terms, and after her death to her children, if any; if none, to fall into the residue; and the residue he devised in trust for the use of his daughter and grand-daughter, to be divided equally between them, and to be paid and applied in like manner as the rents and profits of the leasehold premises were to be paid. It was there held that the words of reference in the residuary clause, “in like manner,” had relation, not to the extent of the interests which the daughter and grand-daughter should take in the residue, but to the provision that they should take for their separate use, and that they therefore took the residue absolutely,—the words “in like manner” meaning only “for their separate use,” and not indicating estates for life. Following that reasoning, as he says, counsel urges that the referential words found in the will of John Hancock, to-wit, “in the same way, subject to the same trusts and provisos, upon which they respectively receive their portions of my estate,” should be given like construction, and held to mean only that Washington’s interest in the vested remainder created by section 7 should be held in the same way as the property which he held under clause 8,—that is, it should be held in trust for him,—and that the words should not be held to limit the extent of the interest of Washington in such vested remainder; that therefore Washington, subject to Franklin’s life estate, took an equitable fee absolutely in the one-fourth of the property which passes under clause 7. The referential words in the case at bar designate and apply the provisions of the clause to which they refer with greater accuracy than did those involved in the Shanley case. Here Washington’s vested remainder was to be held not only in the same way, but also “subject to the same trusts and provisos” upon which he received his principal bequest. We think it is only by disregarding the language last quoted that the result sought by appellants can be reached. It is then urged that the decree entered in the circuit court in accordance with the directions given by this court when the cause was first here, is an adjudication in favor of appellants as to the construction to be placed upon the referential words. That decree found that Elizabeth E. H. Wood, as the daughter of Elizabeth Eowell, one of the children (then deceased) of the testator mentioned in clause 5 and in clause 7 of the will, took absolutely and in fee one-twelfth of the property in which a vested remainder was created by clause 7, and if the view now contended for by appellees be correct, she would have taken that interest not in fee, but as the beneficiary of a certain trust and subject to the terms.and conditions mentioned in clause 5. The ■decree now appealed from alters the earlier decree'in this respect, and provides that this one-twelfth interest is to be held in trust for Mrs. Wood in the manner provided by section 5 of the will, and that her interest therein is precisely the same as her interest in the property specifically mentioned in clause 5. Mrs. Wood does not object to this alteration of the earlier decree but consents thereto, and agrees that the former decree was inaccurate in finding that she took this one-twelfth absolutely. Moreover, if the former decree is to be looked to for the purpose of determining the question now before us it will be found inconsistent with itself, because it provided that of the property in which -there was a vested remainder under the seventh clause, “an undivided four-sixteenths thereof belongs to Felix Rackemann, as trustee, as aforesaid, for Washington Hancock.” The words “as aforesaid” in that portion of the decree we think refer to the portion of the will providing for a trustee for Washington, and had the question now before us been under consideration, these words would have been consistent only with the theory that Washington took, in reference to the property conveyed to him by clause 7, only the same right, interest and power that he took with reference to the property bequeathed by clause 8. In the former suit, however, the principal question adjudicated by the court was as to whether the remainder created by clause 7 was vested or contingent, the conclusion being that it was vested, and that as a result thereof the interest of Charles Lowell Hancock therein, who pre-deceased Franklin, passed under the residuary clause of the will of Charles, devising and bequeathing the residue of his estate to the President and Fellows of Harvard College. The question as to the extent of the interest which Mrs. Wood or Washington took in the remainder created by clause 7 did not arise, was neither presented nor considered, and the evident inaccuracy in the decree in reference to the character of the interest of Mrs. Wood cannot be regarded as now controlling. It is also insisted that the form of the decree is wrong. The will authorized the trustee to divide the property bequeathed by clauses 7 and 8, respectively, upon the termination of the respective life estates, and it is said that under these circumstances the trustee has no power to sell, but that it is his duty to convey to each of the owners of the property his, her or its undivided interest therein. The decree does not authorize the trustee to sell the property. Manifestly, he should not be permitted to partition and set off a separate parcel to each of the owners thereof without the control of some court to which the parties aggrieved, if any, by the partition made by him could apply for protection. To convey to each of the owners an undivided part, as counsel insists he should do, is not to divide the property but to leave it undivided. The trustee has invoked the power of a court of equity to partition this property in accordance with the rights of the respective parties therein. We think the method pursued unobjectionable and a substantial compliance with the will. It is then urged that the decree is without general findings of fact upon which it is based. The decree is an ordinary decree in partition. Its form has been used in this State for at least twenty-five years without objection thereto having been made, so far as we are advised. It finds that certain of the parties to this suit are the owners of this real estate and fixes the interest of each therein and decrees partition accordingly. Counsel fails to state what particular facts should have been found that are omitted, and we are unable to discover any material omission. The supplemental bill was filed by the solicitors for the trustee and it correctly set up the interests of the parties, and asked that the will be given a construction in accordance with the theory of the trustee as to the rights of the owners of the real estate as that theory was disclosed by that bill. Counsel for the trustee seem to have taken no part in the contest over the construction of the will, but that has been carried forward by counsel for appellants on the one side and counsel for Harvard College on the other. The decree allowed for the solicitors for the trustee, as compensation for their services, the sum of $1500, and to the trustee “for his services in this cause and for making proper distribution of said estate herein” the sum of $3000. These allowances are attacked by appellants. In view of the great value of the interests involved, in view of the fact that the solicitors for the trustee correctly set out the interests of the parties by the supplemental bill, and in view of the testimony taken on the trial with reference to the value of the services of these solicitors, we are not disposed to disturb the allowance made for them. We think, however, that the allowance made to the trustee for his services is excessive. At the time the allowance was fixed Mr. Rackemann had been trustee for about ten years, receiving the trust estate upon the death of the former trustee, Mr. Batch, who had been his partner in business. During the time Mr. Rackemann has been trustee he has deducted from the rentals collected, current and usual percentages for his services. The allowance was made for his services to the estate rendered in this suit and for making distribution of the entire estate. He states in this court, by his solicitors, that actual partition of the property “seems feasible and the parties in interest are now planning such partition.” If such actual partition should be made in this proceeding no further service in reference to the principal of the estate will be required at the hands of Mr. Rackemann. All that he will be required to do farther will be to distribute the 'money in his hands. If the property is found to be indivisible the proper course is for the court to direct a master, special commissioner or other officer to make sale and distribute the proceeds. For the services rendered by such master, special commissioner or other officer the fees allowed by law to a master may be paid, and Mr. Rackemann, as trustee, will have nothing to do either with the sale or distribution of the proceeds. For such service as he has rendered in reference to setting this proceeding on foot and conducting the litigation, and for such service as he may render in distributing the rentals on hand 'at the time the decree was entered, we think $1500 is sufficient compensation. An allowance was also made to the solicitor for appellants and to the solicitors for Harvard College for services rendered by them in aiding the chancellor to arrive at a correct construction of the ambiguous clauses of the will. Some objections have been made to these allowances by the briefs. These objections we cannot consider on account of the lack of necessary assignments of error and cross-error. The decree now under review will be modified by striking therefrom, in that portion thereof fixing the allowance to the trustee for his services, the figures “3000” and inserting in lieu thereof the figures “1500.” In all other respects that decree will be affirmed. The costs of this court will be adjudged one-half against appellants and one-half against appellees. Decree modified and affirmed.