Leman v. Sherman , 18 Ill. App. 368 ( 1886 )

McAllister, J.

After much consideration of the matter we are of opinion- that the clause of the will in - question respecting the appointment of a new trustee does not admit of the construction that the testator intended to give the power to the individual who might, for the time being, happen to be the judge of the county court, but his intention Avas to confer the power upon the county court as a court, a judicial body, having a clerk, who kept the records of such court.

The proposition does not admit of controversy or discussion, that the County Court of Cook county possessed no chancery powers, and had no authority, given to it by law, to act in the appointment of trustees in such a case. The question, therefore, arises and is directly involved in this case, whether the supposed power in question was a valid power, or in other words, whether it is competent for a private individual to confer any power upon a court as such, over any subject-matter, as to which the law has conferred no power or jurisdiction. It is a familiar rule, and one as to which all the authorities agree, that consent can never give to a court jurisdiction of the subject-matter. That must be given by the law, or it does not exist. So, it must follow, that it is not in the power of a testator to confer upon a judicial tribunal a jurisdiction which is not conferred by law. Shaw v. Paine, 12 Allen, 296. In that ease the power was given to an individual described as the judge of probate for the time being, like the case of Pool v. Potter, 63 Ill. 533.

In Morrison v. Kelly, 32 Ill. 610, the deed of trust gave the power of appointing a new trustee to the court of chancery, as a court. That court having full jurisdiction over the subject-matter, the power was held to be valid. Mr. Justice Walker, in delivering the opinion of the court, used this language : a It will not be contested that a grantor conveying to a trastee, may confer a power upon an officer, as the chief executive of the State, a circuit judge, a probate judge, or upon any court of record, the power to appoint a trustee, in the event of the death of the trustee named in the deed.” That expression “ any court of record,” is invoked by appellant’s counsel as authority for holding the power as properly conferred by the testator upon the county court in this case. The case in which the learned judge used the expression, was one wdiere the court, in which the power was conferred, had jurisdiction of the subject-matter given it by the law. The observation was wholly impertinent and unnecessary as regarded that ease, and is, for that reason, not of binding authority. With all deference to the learning and ability of the judge who made it, we think, upon principle, it can not be the law.

Every question of this nature ought to be susceptible of solution, upon some elementary grounds. The very great pressure of business to which we are subject, and the necessity for a speedy decision by this court, have prevented us from making the thorough investigation which the importance of the question demands, and, if this were a court of last resort, it ought to receive at our hands.

It is apparent from the early discussions as to who may properly be the donee of a power, and when the power was valid, that such donee, was regarded in the same light asan attorney in fact, or an agent. Thus in Hearle v. Greenback, 3 Atk. 675, the question was in what cases, if any, a valid power of appointment could be conferred upon an infant. The arguments of counsel are very instructive. Lord Chancellor Hardwicke, as was usual with him, brought the case down to elementary principles, and held, that an infant could not exercise a power which involved prudence or discretion, before he arrived at years of discretion; that where a testator, by will, provided for the execution of a power by an infant and the power was coupled with an interest, it was void, because no private person could give to such infant a capacity which the law denied. S. C. 1 Ves. Sen. 298; Co. Litt. 52 a.

It is, however, the settled law, that a mere naked or collateral power may be conferred upon an infant, because the law recognizes in him after arriving at years of discretion, a natural competency. But an idiot, lunatic or other person otherwise non compos mentis, can not do any act as an agent or attorney binding upon the principal; because they have not any legal discretion or understanding to bestow on the affairs of others, any more than upon their own. Story on Ag. § 7.

Kent, Vol. 4, p. 325, says : “Every person capable of disposing of an estate actually vested in himself, may exercise a power, or direct a conveyance of the land. The rule goes farther, and even allows an infant to execute a power simply collateral, and that only.” In the execution of a naked, or collateral power, the law recognizes no want of legal capacity. But when he undertakes to exercise a power coupled with an interest, there being a want of legal capacity, the power is void.

The appointment of a new trustee in a case like that in hand, necessarily involves the exercise of prudence and legal discretion.

The reason why a person non compos mentis can not exercise a power is, that not possessing a natural and therefore not a legal capacity, he is incapable of exercising a legal discretion. The reason why an infant can not exercise a power coupled with an interest is the want of legal capacity to do the particular thing, and the law denying him such capacity it is not in the power of a testator to confer it by any words he may write in his will.

We can readily comprehend the reason why a court of chancery can exercise a power created by a deed or will. The law has conferred upon such court full and complete jurisdiction over the subject-matter. It is thereby endowed with a faculty or capacity for the exercise of a legal discretion as respects that subject-matter. But we can -not understand how, upon any known elementary principles, a court which is clothed by the law with no power, authority or jurisdiction, with reference to or over the subject-matter of a power, can be said to possess any faculty or capacity for the exercise of a legal discretion in respect to that subject-matter; because a court is purely the creature of law. It is an institution of the law. It possesses no natural faculties, and its legal capacity is such only as the law has given to it. If, therefore, the law had not conferred upon the county court a legal faculty or capacity for the exercise of a legal discretion in such a case as this was, it is entirely clear that it had none because the testator could confer none by his will. That the law had given the county court no jurisdiction or authority in such a case is not only not questioned but expressly conceded by appellant’s counsel.

It follows from these views that we agree with the chancellor who decided the case below, that the county court having no jurisdiction by law, of the proceedings to appoint appellant, those proceedings were void and the appointment not valid. The nature of the trusts, the great value of the property, the circumstances, all conspire to render it eminently proper to resort to a court of chancery to make a new appointment, establish title and secure the complete execution of the trusts. Hill on Trustees, 4 Am. Ed. 298, 302, *190 et seq.

But aside from the position that the decree below was wrong, appellant’s counsel insist that' the chancellor should have appointed appellant as trustee. The decree operates as a vindication of the motives and conduct of appellant, while acting as trustee under the proceedings of the county court; but we can discover nothing in the circumstances which clothed him with any superior, equitable right to appointment by the chancellor. The trusts were created for the benefit of those named as beneficiaries, and not for the benefit of any person as trustee. Besides, the law has confided the matter of choosing and appointing trustees- in such cases to the sound discretion of the chancellor. Unless there is a palpable abuse of such discretion, an appellate court can not interfere. We perceive no evidence of abuse. The person appointed is a reputable member of the bar, possessed of excellent business- qualifications-lie was acceptable to all-the adult beneficiaries save one only, and appellant was acceptable to none but that one. We think the decree below should be affirmed.

Decree affirmed.