Drake v. Steele

Mr. Justice Carter delivered the opinion of the court: The principal question is whether the executor, Drake, took any legal title under said will in the real estate here in question. It is evident from the record in these proceedings that up to the time of the filing of this bill by the executor all parties in interest understood and acted on the theory that the legal and equitable titles in said real estate vested in the widow and children of said Stivers at his decease. It is contended by appellants that the trust created by the will in the executor, Drake, was a dry or passive trust, as he had no duties to perform under said trust, and that therefore, under section 3 of our statute on conveyances, (Hurd’s Stat. 1908, p. 489,) the legal title in this real estate was immediately transferred to the wife and children. The devise of the beneficial interest to the wife and children was equivalent to a devise of the land itself. (Barclay v. Platt, 170 Ill. 384.) In that case this court said (p. 388) : “No duties were imposed on the executors, either with respect to the beneficiaries ór the property itself. There was no agency, duty or power imposed on them to manage or control the property or apply the rents or income or to perform any other duty requiring them to hold the legal title. The use was therefore executed by the statute and the title passed directly to the devisees.” In O’Melia v. Mullarky, 124 Ill. 506, this court, in construing a trust in a deed, stated (p. 509) : “By virtue of that deed Edward Mullarky took a legal estate for his own life with remainder in fee to the heirs of Mark" Mullarky, as tenants in common. Of course, their estates were also legal vested estates. The deed imposed no duties upon Anthony Mullarky, either with respect to the beneficiaries or the estate conveyed, hence he took under it what is known as a dry trust, merely,—or, in other words, he acquired but a momentary seizin to serve the use which the statute executed, by transferring the legal estates to the beneficiaries named.” See, also, to the same effect, Witham v. Brooner, 63 Ill. 344; Lynch v. Swayne, 83 id. 336; In re Rodrigue, 15 Atl. Rep. (Pa.) 680; Morgan v. Morgan, 55 S. E. Rep. (W. Va.) 389; Uzzell v. Horn, 71 S. C. 426. If there were no active duties devolving under this will upon the executor with reference to the real estate here in question, the legal title, under the Statute of Uses, vested immediately in the wife and children of the deceased. By said third clause the executor was to invest the balance of the personal estate, after the payment of debts, “in profitable farm land.” However, the proof shows that the real estate here in question was owned by the testator at the time of his death, and therefore the third section does not in any manner refer to that. The law favors the vesting of estates. An estate left under a will will vest immediately unless the testator has by clear language indicated to the contrary. Flanner v. Fellows, 206 Ill. 136; Armstrong v. Barber, 239 id. 389. By the provisions of the will heretofore referred to it is manifest that at the death of the said Stivers his wife was immediately vested with a life estate and his four children with an estate in remainder in the real estate here in question, subject to the life estate of the wife, ending if she should marry. Does the provision in the sixth clause of the will give the executor any duties with reference to the real estate? No other part of the will indicates that he is to control or rent the real estate. This provision of the sixth clause might fairly be construed to refer to the payment of the debts out of the personal property and the investment of the remainder in farm land. It is a familiar rule that the estate of a trustee in real estate which is the subject matter of the trust is commensurate with the power of the trust and the purpose to be effected by it. (Lawrence v. Lawrence, 181 Ill. 248.) Does the provision in the fifth clause of the will, which states that when the children arrive at lawful age “their distributive share of my estate be paid to them,” etc., necessarily mean that it is to be paid to them by the executor or trustee ?—and if so, does it give the executor or trustee power of sale for that purpose? Reading the entire will together, it is not at all certain that the testator intended that the executor or trustee should have anything to do with dividing this real estate among his children. But conceding, for the sake of the argument, that the fifth clause was intended to give him power to distribute and pay over to the children their shares at a given time,—and in order to do this he must have the power of selling the property,—we think it is quite clear that it was for that purpose merely, and not a power coupled with an interest. In Lambert v. Harvey, 100 Ill. 338, this court held that where the executor of a will is directed to sell the real estate and divide the proceeds between certain devisees he takes only a power of sale, that being all that is necessary to execute the will, and no legal estate in the land. In Perry on Trusts (vol. 1,—5th ed.—sec. 298,) the author says: “It may happen that although words of express trust are used in the grant or bequest of an estate to a trustee yet no estate vests or remains in the trustee. This may be because only a power is given and no estate, as where a testator simply directs his executor to sell certain property and apply the proceeds to certain purposes instead of granting the property to the executor or trustee to sell, etc., or because the Statute of Uses executes the legal estate at once in the cestui que trust.” See, also, Fay v. Fay, 1 Cush. 93, and 28 Am. & Eng. Ency. of Law, (2d ed.) p. 928, and cases cited. We are disposed, however, to hold, considering the entire will together, that no active duties devolved upon the executor or trustee with reference to the real estate here in question, and therefore the trust as to such real estate was a passive or dry trust, which the Statute of Uses executed immediately. This being so, it is unnecessary for us to consider the other points discussed in the briefs. The decree of the circuit court will be reversed and the cause remanded to that court, with directions to enter a decree in accordance with the views herein expressed. Reversed and remanded, with directions. Mr. Justice Vickers, dissenting.