Bergman v. Arnhold

Mr. Justice Carter delivered the opinion of the court: The chief contention in this case is as to whether the trustee under the will had the power to convey a fee simple title to the lots in question to the widow, Helena Bergman. Did the testator intend simply to give his wife a life estate in this property, and if the rents, income and profits were not sufficient to support her, enough of the proceeds to support her in comfort? This is the contention of plaintiffs in error, and they further insist that if the conveyance by the trustee to the widow had any effect it simply gave her a life interest in or made her a trustee for life of the property; that while she might, by written request and direction, have caused the real estate to be actually sold by the trustee to some other person, there was no power given the trustee to convey it to her; that the purport of the entire will is that the main purpose of the trust was the preservation, increase and improvement of the trust property during the life of the widow, in order that after she had received proper support during her lifetime it might descend to the natural objects of the testator’s bounty, namely, the four children and grandchild. The reading of this will clearly shows that in making it the testator had chiefly in mind his wife. She was to have the rents, issues and profits, and, so far as necessary, the residue of the property, for her benefit, support and comfort. It was made the duty of the trustee, on her application in writing, to convey or assign the property to her, or sell, assign, transfer, mortgage, convey or otherwise dispose of it to such other person or persons as she might designate, for such considerations and for such purposes as she desired, and it was provided that if she did not use all the property, any trust funds that remained at the time of the death of the wife should be sold, conveyed and disposed of as she by her last will and testament might direct or appoint. If she failed to have it all conveyed, transferred or sold during her" lifetime, and did not direct, by will, how it should be done, then the testator provided that in such case any that might remain should descend to his four children and to his grandchild, one of the plaintiffs in error herein. The will does not say that the trustee shall only sell, assign, convey, transfer and mortgage, at her written request, to other persons, but distinctly says that if she shall so request, in writing, said trustee shall “convey and assign to her.” Manifestly, the testator intended that his wife could require the trustee to. sell and transfer to other persons for a consideration or convey and assign to her without consideration, the word “convey” applying aptly to real estate and the word “assign” to personal property. Counsel for plaintiffs in error ask why, if the testator wanted to give her such control over the property that she could ultimately have it all for herself by talcing the proper steps, he did not will it to her direct.' It is possible he thought that by so drafting the will as to make his son a trustee the wife would be more apt to consult with and be advised by the children as to what should be done with the property. It is not necessary, however, for us to speculate as to why the testator made certain provisions in his will. The sole question is, what provision did he make? Counsel on both sides concede and argue that the paramount rule in the exposition of wills, to which all others must bend, is, that the intention of the testator as expressed therein must be ascertained and given effect, if not prohibited by law. (Armstrong v. Barber, 239 Ill. 389, and cases cited.) One plain purpose of the testator, as shown by the will, was to give to the trustee the title in fee to all of the land. For the purpose of executing the trust the will authorizes him to grant, bargain, sell, convey, mortgage or otherwise encumber, to convert the real estate, from time to time, into personalty or the personalty into realty, and, as we have seen, he was given the power to convey or assign to the widow, or sell, convey and transfer to others. He could not perform the duties placed upon him by this will unless he was clothed with the legal title in fee. The trustee acquires whatever estate is needed in order to enable him to accomplish the purpose of the trust. Lord, v. Comstock, 240 Ill. 492; West v. Fitz, 109 id. 425; Kirkland v. Cox, 94 id. 400. Our attention has been called to a large number of authorities which counsel contend show that the construction placed by the lower court on this will is not the. proper one. It has been frequently said in construing a will, that “the court derives but little assistance in determining the meaning to be given the various terms and expressions used therein from the examination of adjudged cases. No two wills are precisely alike, and the conditions which surround one testator differ so widely from those which surround another that the conclusion reached in one instance is rarely of great service as a guide in another.” Dee v. Dee, 212 Ill. 338. If this will had given to Helena Bergman only a life estate, with the power of appointment in her will as to the remainder, then such power of appointment would not, as contended by the plaintiffs in error, enlarge the life estate. (Ducker v. Burnham, 146 Ill. 9; Carter v. Carter, 234 id. 507; Keays v. Blinn, 234 id. 121.) But, as we have seen, the will gave her the right to take the fee, if she chose. Conceding that under this will the four children and the grandchild, Edward Arnhold, took a vested remainder in the property in question, it is well settled by the authorities in this State that a vested remainder may be divested by such a power of disposal as is contained in this will. (Ducker v. Burnham, supra; Kirkpatrick v. Kirkpatrick, 197 Ill. 144; Harvard College v. Balch, 171 id. 275; Hawkins v. Bohling, 168 id. 214.) It appears to us from a study of the will that the testator’s main thought was to provide for the widow and allow her to have the full authority as to how the property should go, and not to hold the property together for the children and grandchild. The children and grandchild, Edward Arnhold, were only named in order to provide for beneficiaries in case the widow did not previously dispose of all the property. It is contended by plaintiffs in error that it was necessary under the will that the written request to convey to the widow should designate the purpose for which the property was to be conveyed, and that the request now under consideration did not so designate. The provision as to designating the terms, considerations and purposes only applied if the trustee was requested to sell, assign, transfer or mortgage the property to some person other than the widow, and did not apply when the request was to convey to the widow herself. If plaintiffs in error’s contention be upheld as the proper construction of this will, then the words “to convey and assign to her” must be construed to mean exactly the same as the next clause immediately following: “to sell, assign, transfer, mortgage, convey or otherwise dispose of to such other person or persons as she may in such written application designate,” etc. When one construction of a will renders a portion of it meaningless and the other will give effect to all the words, the latter should be accepted. Wardner v. Baptist Memorial Board, 232 Ill. 606, and cases cited. We think the will was properly construed by the superior court, and the decree of that court will therefore be affirmed. Decree affirmed.