Armstrong v. Barber

Mr. Justice Carter delivered the opinion of the court: Appellants contend that the legal title to the property vested in the trustees, and that the equitable title to the residue, after the payment of debts and the $5000 legacy to appellee, vested in the testator’s children at his death, and that the will is valid in all respects. If the title did so vest, then the will is not obnoxious to the rule on perpetuities, as vested estates are not subject to this rule. Gray on Perpetuities, (2d ed.) sec. 205; Lunt v. Lunt, 108 Ill. 307. “An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment.” (Flanner v. Fellows, 206 Ill. 136; Pearson v. Hanson, 230 id. 610; Scofield v. Olcott, 120 id. 362.) The rule as to perpetuities has been thus defined: “No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.” (Gray on Perpetuities,—2d ed.—sec. 201; Quinlan v. Wickman, 233 Ill. 39.) A perpetuity has been stated to be: “Any limitation tending to take the subject of it out of commerce for a longer period than a life or lives in being and twenty-one years beyond, and, in case of a posthumous child, a few months more, allowing for the term of gestation.” (2 Bouvier’s Law Dict. 326; Flanner v. Fellows, supra.) The rule is against the postponement of the vesting of estates and not against the postponement of possession. An interest which begins within lives in being and twenty-one years thereafter, although it may end beyond them, does not come within the rule. Gray on Perpetuities, (2d ed.) sec. 232; Flanner v. Fellows, supra; Madison v. Larmon, 170 Ill. 65. . The devise to the trustees must be held valid, as it is an immediate devise of all the testator’s property. ■ We find nothing in the will to indicate that the gift is not to take effect in the trustees until ten years after probate. Even if it be conceded that the trusteeship may, in the discretion of the trustees and over the objections of the cestui que trust, last ten years from the,probate of the will, that does not make the gift to the trustees void. The estate in the trustees vested in interest and possession at the death of the testator, and therefore the rule invoked by appellee has no application. The probate or letters testamentary, when granted, relate back to the date of a testator’s death and validate acts done by an executor before he qualified. The probate merely furnishes the means of establishing by record evidence the validity of an existing right. Richards v. Pierce, 44 Mich. 444; 11 Am. & Eng. Ency. of Law, (2d ed.) 907; 3 Redfield on Wills, *23. Counsel for the appellee earnestly insist that such a construction placed upon this will is in conflict with our holding in Johnson v. Preston, 226 Ill. 447. We think otherwise. That case can be readily distinguished from the one before us. There the executor was “to have and to hold for the space of twenty-five years from and after the probate of this will,” etc., and the will distinctly provided that there should be no power of sale or alienation of the land during said twenty-five years, either by the. executor, as trustee, or by the beneficiaries, except transfers between the beneficiaries themselves. In this case the executors, as trustees, were invested from the date of the death of the testator with unconditional power and authority to sell and dispose of any of the property, and to execute and deliver any and all instruments of conveyance necessary to carry into effect said power of sale and disposition. Not only was that will worded very differently from the will in this case as to the title vesting in the trustees, but the construction placed on the will in that case carried out substantially the.wishes of the testator, whereas if the construction contended for here by appellee be upheld, the testator’s intention will be absolutely defeated. The paramount rule in the exposition of wills, to which all others must bend, is, that the intention of the testator as.expressed in the will must be ascertained and given effect if not prohibited by law. (Bradsby v. Wallace, 202 Ill. 239; Wardner v. Memorial Board, 232 id. 606.) So far has this principle been carried, that this court quoted with approval in Orr v. Yates, 209 Ill. 222, that “cases on wills may guide us to general rules of construction, but unless a case cited be in every respect directly in point and agree in every circumstance it will have little or no weight with the courts, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.” (See, also, to the same effect, Smith v. Bell, 6 Pet. 68.) The legal title under the will having vested in the trustees at the date of the death, all the reasoning in Johnson v. Preston, supra, tends to uphold the conclusion that the equitable title vested in the children of testator at the same date. What was said by this court in Harvard College v. Batch, 171 Ill. 275, not only upholds the conclusion that the legal title vested in the trustees, but the conclusion, also, that the equitable title vested, at the date of the testator’s death, in his children, and that such vesting was not postponed until the time of distribution. The law always gives preference to vested over contingent estates. “Where, in the construction of a clause, there is a doubt as to the point of time it was intended the estate should vest, the earliest will be taken.” (Kellett v. Shepard, 139 Ill. 433.) It has long been the settled rule of construction in the courts that estates, legal or equitable, given by will should be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should' be contingent on a future event. (Grimmer v. Friederich, 164 Ill. 245.) The contention of appellee that the vesting of the equitable interests is postponed until ten years after the probate is certainly not clearly expressed in the will. While the rule is general that where there are no words importing a gift, other than to the executors or trustees to divide or pay at a future time, the legacy is contingent, still, if the payment is postponed for the convenience of the funds of the estate and not for reasons personal to the legatee or devisee, it should be held vested. (Knight v. Pottgieser, 176 Ill. 368; Carter v. Carter, 234 id. 507; 30 Am. & Eng. Ency. of Law,—2d ed.—771.) The record shows that the personal property at the death of the testator was not sufficient to pay the indebtedness against his estate. It is reasonable to assume that the testator did not wish to compel the immediate sale of all his real estate, but intended to provide that the executors could sell such portion of .it as was necessary to pay debts and to hold the remainder until in their judgment it was wise to sell. Talcing into ■ consideration the relation of the parties, the nature and situation of the subject matter, the purpose of the testator as shown in the will and the motives which might be reasonably supposed to influence him in the disposition of his property, we do not think there is anything in this record that compels' the conclusion that the postponement was on account of the position of the legatees. On the contrary* we think it may be held that such postponement was for the convenience of the funds of the estate. The general rule referred to, that where there are no words importing a gift otherwise than a direction to divide or pay legacies at a future time such a legacy is contingent, is usually applied where the gift is to a class, but the court will hesitate in applying it where the gift is to legatees by name, as in this will; (30 Am. & Eng. Ency. of Law,—2d ed.—773; Carter v. Carter, supra; Howe v. Hodge, 152 Ill. 252.) The absence of words of immediate gift will not be held conclusive in deciding whether a gift or devise is vested or contingent. The rule on this question is flexible, and does not govern where the wording of the entire will indicates that it was the testator’s intention that the devise or gift was to vest at his death. A gift of the whole of the interest or income from a legacy vests the principal at the testator’s death. (Kales on Euture Interests, sec. 218; Carter v. Carter, supra; Theobald on Wills,—6th ed.—564; 2 Underhill on the Law of Wills, sec. 872; 2 Red-field on Wills,—3d ed.—*233; 30 Am. & Eng. Ency. of Law,—2d ed.—786.) The income from the residuaiy clause under this will was directed to be paid to the legatees from the date of the testator’s death until the payment of the legacy. Another circumstance in this will that is strongly persuasive in favor of the vesting of the equitable interests in the testator’s children at his death is, that such legacies were created by the residuary clause in the will. “The presumption which arises from the fact of the execution of a will, that the testator in making it did not mean to die intestate as to any portion of his property, strengthens the presumption in favor of the vesting of gifts when the gift is a disposition of a residue. Language which ordinarily would be construed as creating contingent gifts, if employed in relation to specific legacies or devises or particular gifts not included in a general or residuary clause, will, in the case of a residuary clause, be construed as creating vested interests.” 2 Underhill on the Law of Wills, sec. 862; 30 Am. & Eng. Ency. of Law, (2d ed.) 793; Theobald on Wills, (6th ed.) p. 563. All parties to this litigation seem to agree that the legacy to the grandson, James Mix Armstrong, the appellee herein, is valid, and therefore the provisions of the will referring thereto need not be considered. The beneficial interests created in Arthur, George and Elsie by paragraphs (c) and (d) of clause 2 of the will are valid. They are present absolute interests, taking effect on the testator’s death and subject to gift over, as indicated in clause 3 of the will. These children get one-third, each, of all the net income of the residue from testator’s death, which is to be paid to them at the end of every six months from the date of probate. The fact that the probating of the will was to be taken as the date from which the distribution of the income and the paying over of the principal was to be figured in no way affects the time when the title vested in the children. In paragraph (d) the testator speaks of the shares “set apart” for Arthur, George and Elsie. This indicates that he considers them as having a present, and not a future or presumptive, interest. In clause 3 of the will, in referring to Arthur’s share, the words, “the portion of my estate set apart for” him and the “interest set apart for” Elsie’s benefit, and again, in the same clause, the use of the word “residue” if the children died before the period of distribution, are all strongly persuasive that the preceding gifts to Arthur and Elsie were present interests, vesting at testator’s death. Appellee contends that the use of the word “revert” in the third clause indicates that the testator did not intend that the equitable interest of the children should be vested by the residuary clause. The Standard Dictionary defines “revert“to return, come or fall back.” Various meanings have been given this word in Lewis v. Lewis, 114 Iowa, 399, Ingraham v. Ingraham, 169 Ill. 432, and Johnson v. Askey, 190 id. 58. It is evident from these decisions that the meaning of the word must depend very largely on the connection in which it is used. We are disposed to hold that the testator meant here that the interest of the children referred to should “revert” to the residuary fund, to which he had referred in a former clause. All the reasons for holding that George and Elsie take a present interest at testator’s death are alike applicable to Arthur’s one-third. If it be conceded that as to Arthur’s share the'trusteeship, in the discretion of the trustees, may last longer than ten years from the probate, and even during Arthur’s whole life, still that does not render the provisions void, because his interest vested, as did those of George and Elsie, at the date of testator’s death: If it be argued that this might create an indestructible trust in the trustees, the answer is as suggested in Gray on Perpetuities, (2d ed. sec. 121ƒ,) that this does not violate the rule against perpetuities, as that rule “is concerned only with the beginning of intereststhat said rule “settles the time within which interests must vest, but when once vested they are all, present and future alike, subject to the same restraints against alienation, and with this the rule against perpetuities has nothing to do.” In England the creation of such indestructible trusts of such absolute equitable interests is not pennitted. (Saunders v. Vautier, 4 Beav. 115; Harbin v. Masterman, (1894,) 2 Ch. 184; Weatherall v. Thornburgh, 8 Ch. Div. 261; Gray on Restraints on Alienation,—2d ed.—secs. 105-112.) In this State such trusts have been permitted, (hunt v. hunt, supraS) • The authorities in this and other jurisdictions bearing on this question are reviewed at some length in Kales on Future Interests, sections 286 to 296, inclusive. Once such trusts are permitted, it follows that there must be some limits as to the length of time they can be made to last. It is suggested in Gray on Perpetuities, (2d ed. sec. 1219) that it is perhaps likely that the same period as that prescribed by the rule against perpetuities should be taken, but the author adds that it is open to the courts to' adopt some other period, if found advisable. There are intimations in some of the authorities that, in a case like the present, any provision which permits the trustees to retain property in trusteeship for ten years from the probate of the will is wholly void, the trusteeship, however, still remaining, with the difference that instead of being indestructible the beneficiaries who are of age and who have an absolute indestructible equitable interest may compel the trustees to transfer the legal title to them although the time specified in the will for the termination of the trust has not arrived. This court, in Kohtz v. Eldred, 208 Ill. 60, has stated that such a trust will terminate as soon as the object for which it was established has been accomplished. The question when this trust may end is, however, not necessary for the decision in this case. Admitting, as most- favorable to appellee’s contention, that the probate of this will might have been long delayed, still that does not in any way militate against the legal and equitable interests vesting thereunder immediately upon the death of the testator. At most, the failure to probate promptly could only delay the distribution of the funds, and such distribution, as we have pointed out, could be controlled by the courts under the rules governing restraints on alienation of property, v In the consideration of wills the courts may look at the circumstances under which the devisor makes his will, the state of his property, his family, and the like. (Ingraham v. Ingraham, supra; Strain v. Sweeny, 163 Ill. 603 ; Wardiner v. Memorial Board, supra.) Construing this will in the light of these surroundings, the testator’s intention is clear that the legal title was to vest in his trustees and the equitable title to the residuary fund in his three children at his death. The decree of the circuit court must be set aside and the cause remanded to that court, with directions to dismiss the bill for want of equity. Reversed and remanded, with directions.