Barnes v. Johnston , 233 Ill. 620 ( 1908 )

Mr. Chief Justice Hand

delivered the opinion of the court:

The first contention of the appellants is, that the entire estate of Albert G. Barnes vested in his four living children and the children of Albert T. Barnes, deceased, upon his death, and that the holding of the trial court in the first case that the residuary estate, which was disposed of by paragraph io of the original will, did not vest in the devisees named in said will until the period of distribution had arrived, is erroneous. We think it clear, if the entire will, including the three codicils of Albert G. Barnes, deceased, be considered, that the holding of the chancellor in that case was correct. The testator, by the preceding paragraphs of his will and the codicils thereto, had made provision for his widow and his living children and the children of his deceased son, Albert T. Barnes, and by paragraph io of the will he directed his executors to convert the balance of his estate not specifically disposed of by his will, into money, and after the payment of the legacies provided for to be paid by the will, and the making of certain investments directed to be made and the payment of the expenses of administering upon his estate, he directed if any estate should remain it should be equally divided between his children, and if either of said children should then be deceased, leaving him surviving a child or children of his body, such child or children should take the share of the deceased parent, otherwise the deceased child’s share should go, under the terms of the will, to his surviving sons and daughters. The testator directed by said paragraph io of the original will that the estate remaining, if any, after the payment of the -legacies, etc., should be divided among his four children and the children of Albert T. Barnes, and in case of the death of a child before the period of distribution had arrived, what then remained of that portion of his estate, if any, should be divided, the share of a deceased child to go to the child or children.of his body, if he left a child or children him surviving.

In People v. Jennings, 44 Ill. 488, the testator provided his real estate should be sold by his executors as soon after his death as convenient, and the proceeds thereof, after the payment of his debts, funeral expenses, etc., should be equally divided among his four children, and in case of the death of a child, the child or children of the deceased child should take the share of the parent. One of the children died before the land was converted into money, leaving a widow and child, and it was held that the deceased child took no vested interest in the parent’s estate, and that the interest which it represented in its parent’s estate, upon the sale of the land went to the children of the deceased child, and that the widow of the deceased child took no interest therein. This case was approved by this court in Starr v. Willoughby, 218 Ill. 485, and we think it is decisive of the question that the share of the estate represented by Benjamin L. Barnes Will vest in his daughter, Lillian Barnes, if she be living when the estate is distributed, freed from any claim therein of her mother, Gertrude Barnes. To the same effect are Johnson v. Askey, 190 Ill. 58, Banta v. Boyd, 118 id. 186, and Ebey v. Adams, 135 id. 80.

In the Starr case the will provided that as soon as practicable after the testator’s decease all of the real estate not specifically devised should be sold, and the proceeds, after purchasing a home for the widow, divided among such children “as may be living at that time,” and it was held the words quoted referred to the time of distribution and not to the time of the death of the testator, and that the children of the testator took no vested interest in that portion of the estate before the time of distribution which they could dispose of by will.

While the law favors the vesting of estates and will fix the time at which they vest at the time of the death of the testator rather than at the period of distribution, when, however, it appears from the entire will that it was not the intention of the testator that the remainder should vest at the time of his death but at the period of distribution, such intention will be carried out by the courts. (Johnson v. Askey, supra.) It is apparent, we think, that the residtie of the estate of Albert G. Barnes, deceased, disposed of by paragraph 10 of his will, did not vest in his devisees until after the estate was converted by his executors into money and the period of distribution had arrived.

The testator, by paragraphs 7 and 8 of the original will and paragraph 6 of the last codicil to said will, directed his executors to hold for the benefit 'of his wife, during her life, and to pay to her during that time the income therefrom, the following personal property, namely: $10,000 in cash, $7000 in face value in bonds of the Springfield Coal Mining Company, and $2000 in face value in shares of the Sattley-Moline Manufacturing Company stock, and provided that upon the decease of his wife said personal property be divided equally between and among his children, Benjamin L. Barnes and Albert T. Barnes, and his trustees in trust for Mary Henrietta Banks, .Clara Mae Adams and William Edwin Barnes, the share of William Edwin Barnes to be held by said trustees until he should attain the age of thirty years, and upon the division of said personal property his trustees be discharged from that portion of said trust. The court decreed that said personal property be divided into five shares, one of said shares to be paid to Lillian Barnes, the child of Benjamin L. Barnes, deceased, or her guardian; one share to the three children of Albert T. Barnes, deceased, or their guardians; and that three of said shares be held by the trustees of Albert G. Barnes, deceased, for the benefit of Mary Henrietta Banks, Clara Mae Adams and William Edwin Barnes, the said William Edwin Barnes’ share to be paid to him upon his arriving at the age of thirty years. In this we think the court decreed correctly. Paragraph 7 of the will in express terms provided that said money, upon the death of the testator’s wife, should be divided by his trustees equally among his children ; and if that provision of section 7 were held to apply only to the $10,000 in cash held for the benefit of the wife of the testator during her life, section 10 of the original will would apply to the remainder of said property, and upon the death of the wife of the testator said property should be distributed under that paragraph of the will. By paragraph 7 of the will the testator set aside for the use of his wife, during her natural life, all of block 2 in Barnes’ addition to the city of Taylorville, (less 230 feet off of the north end of said block,) including the water, gas, heating fixtures, furnace, etc., and 29.43 feet off of the south side of lot 1 and the north side of lot 2, block 20, in the city of Taylorville, Illinois; also a one-half interest in the party walls of the buildings on the north and south sides of the building on said lot or parcel of ground, including the furnace, gas fixtures and counters in said building; also lots 20, 21 and 22, in block i, Barnes’ addition to Taylorville, Illinois ; and by paragraph 6 of the last codicil to said will certain property in the city of Sullivan, Illinois, known as the Walter Eden property. But the court held that all of said property, upon the death of the widow of said Albert G. Barnes, deceased, vested in fee in his three surviving children, namely, Mary Henrietta Banks, Clara Mae Adams and William Edwin Barnes, under paragraph 8 of the original will, except lots 20, 21 and 22, in block 1, in Barnes’ addition to the city of Taylorville, Illinois, and the Walter Eden property, which lots in block 1 and the Walter Eden property, upon the death of the widow of Albert G. Barnes, deceased, the court held vested in D. W. Johnston, as surviving trustee, for the benefit of the three surviving children of Albert G. Barnes, deceased, namely, Mary Henrietta Banks, Clara Mae Adams and William Edwin Barnes. By the eighth paragraph of the will, upon the death of the testator’s wife he gave and devised to his children who should survive her, in equal shares, all the real estate hereinbefore given to his wife for her life, “with power of sale or reversion, which she shall not have sold or conveyed prior to her decease,” and the court, in construing said paragraph 8 of the will, seems to have disregarded the said last clause of said paragraph as surplusage, as no real estate was given to -the widow for life with power of disposition as to the residue, which we think was justifiable.

We think it clear, therefore, that block 2 in Barnes’ addition to the city of Taylorville, (less 230 feet off of the north end of said block,) including the water, gas, heating fixtures, furnace, etc., and 29.43 feet off of the south side of lot 1 and the north side of lot 2, block 20, in the city of Taylorville, Illinois; also one-half interest in the party walls of the buildings on the north and south sides of the building on the said lot or parcel of ground, including the furnace, gas fixtures and counters in the said building; also lots 20, 21 and 22, in block 1, in Barnes’ addition to Taylorville, Illinois, upon the death of the widow of Albert G. Barnes vested in fee in the children of the testator who survived her, namely, Mary Henrietta Banks, Clara Mae Adams and William Edwin Barnes, and that the court was in error so far as it held that title to lots 20, 21 and 22, in block 1, in Barnes’ addition to Taylorville, Illinois, vested in D. W. Johnston, as trustee, for the benefit of Mary Henrietta Banks, Clara Mae Adams and William Edwin Barnes. Paragraph 6 of the last codicil, which gives to Henrietta Barnes, widow of Albert G. Barnes, the use of the Walter Eden property during her natural life, provides that said property, upon the death of Henrietta Barnes, shall be disposed of and descend in the same manner and with the same restrictions and limitations and to the same persons specified in said paragraph 7 of the original will as to the other property held by her during her life. From an examination of said paragraph 7 it appears that said paragraph contains no disposition of the property the use of which is given to Henrietta Barnes during her life. We are of the opinion, therefore, that the Walter Eden property passed to D. W. Johnston, as trustee, and should be disposed of by him under the provisions of section 10 of the original will.

The will of Albert G. Barnes, and the three codicils attached thereto, are very lengthy, and it has not been practicable to set out the same in full in this opinion. We are impressed, however, that the construction placed upon paragraphs 7, 8 and 10 of the original will and paragraph 6 of the last codicil attached thereto, by the circuit court, as evidenced by the two decrees which are now before us for review, effectuates the intention of the testator as expressed in his will and said codicils, with the exception that upon the death of Henrietta Barnes, the widow of Albert G. Barnes, deceased, the title to lots 20, 21 and 22, in block 1, of Barnes’ addition to Taylorville, Illinois, vested, under paragraph 8 of the will, in Mary Henrietta Banks, Clara Mae Adams and William Edwin Barnes in fee, and that the Walter Eden property passed to D. W. Johnston, as trustee, to he disposed of by him as a part of the residuary estate of said Albert G. Barnes, deceased, under the provisions of section io of the original will. In the two particulars pointed out the decree entered in the last case will be modified.

The decree of the circuit court in each of said causes, as modified, will therefore be affirmed. The appellants will pay five-sixths of the costs in this court, and the executor, as such, one-sixth.

Decrees affirmed.