French v. Calkins , 252 Ill. 243 ( 1911 )

Mr. Justice Cartwright

delivered the opinion of the court:

The appellants, Alice French and H. C. Rogers, alleging that they were collateral relatives and heirs-at-law of Harriet M. Lanphere, deceased, filed their bill in the circuit court of Cook county, for themselves as well as all other heirs-at-law of the said Harriet M. Lanphere, against the appellees, Frank H. T. Potter and Charles E. Field, trustees under the will of the said Harriet M. Lanphere, deceased, Jennie E. Calkins, the rector, wardens and vestry of St.'Mark’s Episcopal Church of Coldwater, Michigan, legatees under said will, and the Attorney General, asking the court to construe the seventh, eighth, tenth and eleventh clauses of said will, and to declare the seventh and eighth to be without effect and to order the bequests under the said clauses to be distributed among said heirs-at-law. The court overruled demurrers of the appellees to the amended bill so far as the bill questioned the validity of the seventh item of the eighth clause, which directed the trustees to set apart $500 to be applied for the permanent care and preservation of the cemetery lot in which the testatrix directed her remains to be buried, and held that item void, but sus- • tained the demurrers as to the remainder of the bill. The complainants elected to stand by the amended bill, and it was thereupon dismissed for want of equity, and they prosecuted an appeal to this court.

The will makes the following disposition of the real and personal property of the testatrix: (1) Directs payment of debts and funeral expenses; (2) directs the disposition of the remains of the testatrix; (3) gives to Jennie E. Calkins one share of the capital stock of a corporation, $200 in money, the clothing and writing desk of the testatrix, and the use of the dwelling house and furniture for life or until she marries; (4) gives specific legacies of chattels; (5) bequeaths to Mrs. Flora Richardson $1000 and to Charles E. Lanphere $200; (6) provides that lapsed legacies shall become a part of the general estate; (7) bequeaths to the rector, wardens and vestry of St. Mark’s Episcopal Church of Coldwater, Michigan, $5000; (8) gives and devises to the trustees all the rest and residue of the estate in trust for the following uses and purposes: (a) To convert the estate into personalty and sell and convey the real estate and convert the same into cash; (b) to collect moneys due and invest and re-invest the same in first mortgages or approved bonds or other securities; (c) to pay from the gross income the expenses of the trust, keep in repair and insured the dwelling house, pay the taxes and assessments thereon so long as the same may be occupied by Jennie E. Calkins and retain a reasonable amount for their services; (d) to pay Jennie E. Calkins from the income remaining $40 per month during her natural life or so long as she may remain unmarried; (<?) in case of any emergency arising by reason of serious or protracted illness of said Jennie E. Calkins, to pay out of the net income, in addition to the monthly payment, all or any part of the expenses necessarily contracted for medical, surgical or hospital care of the said Jennie E. Calkins; (/) if the net income shall not be sufficient to pay the monthly income of $40 then to use so much of the principal as may be necessary to pay the same in full; (g) to set apart $500 for the permanent care and preservation of the cemetery lot, which provision was held void; (h) after the payment of all the bequests and compliance with the other conditions of the will, to pay over the moneys or securities remaining in their hands to some hospital offering care and treatment for tubercular patients, or to such corporation or society conducting such a hospital as the trustees may select; (9) appoints Potter and Field as executors and trustees; (10) directs the executors to pay $40 per month to Jennie E. Calkins until the residue of the estate shall be received by the trustees; (11) authorizes the executors tp sell and dispose of any part of the estate, real or personal.

Harriet M. Eanphere at the time of her death was the owner of the dwelling house and furniture mentioned in the third clause of the will and other real estate and personal property. The provisions of the first six clauses of the will and the bequests therein contained, as well as the devise to Jennie E. Calkins of the use of the dwelling house and furniture for life unless she should sooner marry, were not questioned by the bill, and neither was the appointment of the executors by the ninth clause, nor the direction to the executors in the tenth clause to pay $40 per month to Jennie E. Calkins until the residue of the estate should be received by the trustees, nor the authority conferred by the eleventh clause upon the executors to sell or dispose of any part of the estate, real or personal. The seventh and eighth clauses are attacked by the bill, and the devise to the trustees of the real estate contained in the eighth clause involves a freehold. Therefore the appeal was properly taken to this court.

The appellants were successful so far as the direction that the trustees set apart $500 for the care of the burial lot was concerned, and succeeded in thwarting the intention of the testatrix that her grave should be cared for. The court by the decree set aside and annulled that provision of the will, and the questions to be considered relate to the other provisions of the seventh and eighth clauses. By the will the trustees are authorized and directed to convert the estate into personalty and dispose of the same as therein provided. The gift to the hospital is therefore a bequest of personal property. (Glover v. Condell, 163 Ill. 566; English v. Cooper, 183 id. 203.) Counsel for appellants contend that this bequest of the remaining moneys and securities to the hospital is void, and being void and a part of the trust scheme, without which the devise to the trustees would not have been made, the whole scheme fails and the property passes to the heirs-at-law. Therefore, beginning their argument with that final bequest, they insist that it is void because the subject matter of the gift is uncertain and the beneficiary indefinite, and because the provision violates the statute against accumulations and is obnoxious to the rule against perpetuities.

It is first argued that the subject matter of the gift is uncertain because there may be nothing remaining after paying legacies, taxes, insurance and the annuity to Jennie E. Calkins. The bill describes three pieces of real estate owned by the testatrix and alleges that she left a sum of money and personal property, so that the estate had a net value of $37,283.61. There is no authority in the trustees, as there was in Wilce v. VanAnden, 248 Ill. 358, to give what remains after the death of Jennie E. Calkins to any other object than the charity, nor any authority in a life tenant to destroy the subject of the bequest, as there was in Mills v. Newberry, 112 Ill. 123. Other cases cited by counsel for appellants to sustain their argument are similar in principle, while in this case the bill shows no reason for saying that the annuity to Jennie E. Calkins may exhaust the estate. Aside from that fact, it is not uncertain whether there will be anything left at the death of the annuitant. The trustees are directed to pay the taxes and assessments on the homestead property and to keep it in repair so long as it is occupied by Jennie E. Calkins, and as that property cannot be disposed of until her death or marriage, it is certain to remain to be converted into cash and devoted to charity.

After discussing various other questions counsel return to the bequest for the hospital, and take the ground that it is void because the will directs an accumulation for a period prohibited by the statute restraining trusts and directions for accumulation in deeds and wills. (Laws of 1907, p. 1.) That act confines within certain limits any disposition of property so that the produce shall be accumulated, and provides that in every case where any accumulation shall be directed otherwise than is provided in the act, such direction shall be null and void, and the produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of the act, go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed. There is no direction in this will for an accumulation, and the testatrix did not intend an}' accumulation for the purpose of increasing the estate. If there should be any accumulation it will be because the income exceeds the annuity and expenses, •which is uncertain, and there is no ground upon which the court could now decide any question concerning the possible accumulation. If there should be an accumulation during the lifetime of Jennie E. Calkins for a longer term than twenty-one years, it can then be determined whether it is subject to the provisions of the statute. (Young v. St. Mark’s Church, 200 Pa. St. 332.) It is not the purpose of the statute to defeat the intention of a testator as to who should be entitled to property under a will, but only to prevent indefinite accumulations of wealth. It only limits the period of accumulation, and the produce beyond that limit goes to the same person that would have been entitled to it if the accumulation had not been directed. The statute is a copy of the Thelluson act, (39 and 40 George III, chap. 98,) and under the English decisions a trust for accumulation exceeding the limits of the statute is void only as to the excess, provided the trust would have been good before the act. (Griffiths v. Vere, 9 Ves. Jr. 127; Longdon v. Simson, 12 id. 295; Elborne v. Goode, 14 Sim. 164; Mathews v. Keble, 2 L. R. Ch. App. (vol. 3,) 691; Frost v. Greatorex, 2 L. R. Ch. Div. [1900] 541.) This construction conforms to the language of the act, which provides that the produce, so long as it is directed to be accumulated contrary to the provisions of the act, shall go to and be received by the person or persons who would have been entitled to it in the absence of any direction for accumulation. Accordingly, even, if there had been an expressed direction for accumulation, the trust would not be void as a whole.

Aside from the statute, it is claimed that the bequest to the hospital is in violation of the rule against perpetuities because there is no first taker and the gift to the hospital may not vest within twenty-one years from the death of the testatrix. That rule applies to personal property as well as real estate and to equitable as well as,legal estates, and under the rule 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. This will provides for an annuity to Jennie E. Calkins, but an annuity is not an estate in property; (DeHaven v. Sherman, 131 Ill. 115;) and that is the ground for insisting that the right or interest of the hospital must vest within twenty-one years from the death of the testatrix. The life of some person in being, with twenty-one years added, is taken as a measure of time for the application of the rule, but it is not necessary that the life taken as a part of such measure should be that of one having an interest in the estate. (Gray on Perpetuities, sec. 260; Madison v. Larmon, 170 Ill. 65.) In Johnson v. Preston, 226 Ill. 447, there was neither a precedent life estate nor was the life of anyone in being taken as a measure of the time when the estate would vest, while here the life of Jennie E. Calkins was the utmost limit for the vesting in possession of the bequest to the hospital. Furthermore, this is a bequest to charity within the 43 Elizabeth, being a gift for the benefit of an indefinite number of persons for the purpose of relieving their bodies from disease; and bequests for charity are not subject to the rule against perpetuities,—at least unless there is some preceding estate which is void under that rule. (Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, no id. 223; Crerar v. Williams, 145 id. 625.) The rule against perpetuities was established and is enforced on grounds of public policy and on account of the public good; but the public is vitally interested in the maintenance of public charities, and for equally persuasive reasons of public policy they are to. be sustained by the courts. The bequest to the hospital is not rendered void by the rule against perpetuities.

It is also contended that the bequest is void because there is no certain,, ascertained or ascertainable beneficiary to take under the trust capable of asserting a right to the bequest, and because the trustees are authorized to select a hospital which is not purely charitable in its objects. The gift being to charity and the recipients of its benefits being definite and certain, it is no objection that the trustees are authorized to select a proper hospital to administer the charity. The direction of the will is that the trustees shall pay over the money or securities to some hospital offering care and treatment for tubercular patients or such a corporation or society conducting such a hospital as the trustees may select, and in making such selection the trustees are to consult with and be largely guided by the Homeopathic Medical Board of the city of Chicago as to the institution most deserving of the bequest. A valid bequest to charity may be made to a corporation not in existence, for the founding of a new colleg'e, hospital, library or other charitable institution; and it is not necessary even that the contemplated corporation should be created, but a court of equity will uphold, protect and enforce the gift for the charitable use. (Crerar v. Williams, supra.) The gift to charity will not be allowed to fail for uncertainty as to the persons who are to take or because the manner specified for managing the gift cannot be carried into exact execution. (Grand Prairie Seminary v. Morgan, 171 Ill. 444, and Tincher v. Arnold, 147 Fed. Rep. 665, where the same will was under consideration.) The hospital selected must be one offering care and treatment for tubercular patients, and it is inconceivable that the testatrix intended to make a bequest for the purpose of increasing the dividends of a private hospital conducted for profit. She did not intend, and a court of equity would not pennit, the diversion of the funds to such purpose. The name ordinarily implies a public institution, and the word “offering,” with no condition annexed and connected with a hospital, naturally implies giving, bestowing or providing free treatment to those suffering from a disease. The trustees are authorized, in their discretion, to select a hospital of that character to administer the fund as a public charity, and the direction to take advice as to the hospital most worthy clearly implies one including charitable objects. There are trustees to take the legal title and the subject and object of the charity are definitely and clearly ascertained.

No objection is pointed out in argument to the provision for paying Jennie E. Calkins $40 per month during her life or so long as she may remain unmarried, but the claim with respect to that provision is, that it must fail as a part of the general scheme. Even if the bequest to charity were invalid it would not affect that provision, since there is no connection whatever between the two. Objection is made to the provision for payments in case of emergency arising from serious or protracted illness, on the ground that it is void for uncertainty. The provision is, that in case of any emergency of that kind, if in the judgment of the trustees it shall be necessary in order to afford proper care and treatment, they are authorized to pay out of the net income, in addition to the monthly payment, all or any part of the expenses necessarily contracted for medical, surgical or hospital care. The intention expressed by the testatrix was to afford proper care and treatment to Jennie E. Calkins, and in case of emergency to require the trustees to pay such part of the expense necessarily incurred as could not be paid with the monthly payment. A similar trust to defray the expenses or support of certain persons was upheld in Ingraham v. Ingraham, 169 Ill. 432, and the provision is not invalid.

The last proposition in the argument for appellants is that the gift to the Coldwater church is void because the trust is too indefinite. A gift for the support of churches is for a charitable use, (Alden v. St. Peter’s Parish, 158 Ill. 631,) and the bequest to the rector, wardens and vestry of St. Mark’s Episcopal Church is a good charitable bequest. The added statement that the money is to be used and applied, in such manner as the rector, wardens and vestry deem proper, as a memorial to the family of the testatrix does not invalidate the bequest, since the fact that the bequest is given with an intention of obtaining some benefit or from some personal motive does not rob it of its character as a charity. (Hoeffer v. Clogan, 171 Ill. 462; Duror v. Motteux, 1 Ves. Sr. 320.) The precatory words following the bequest, expressing a wish that it should be used in the purchase of real estate for the erection of permanent improvements in connection with the church property, to remain as a permanent memorial of affection for the church body and the membership thereof, were sufficient to create a trust and require that the bequest be devoted to that use, which was unquestionably of a charitable nature.

The decree is affirmed.

Decree affirmed.