Condell v. Glover , 56 Ill. App. 107 ( 1894 )

Mr. Justice Boggs

delivered the opinion oe the Court.

Albert died, leaving surviving him neither wife, child, children or descendants thereof; that is, without leaving heirs of his body within the meaning of those words as employed in the will. The parties hereto unite in the view that the fund held for him by Sudduth, as trustee, did not descend as intestate property to the heirs and legal representatives of Albert under the Statute of Descents, but that it fell under the operation of the eleventh clause of the will, which provides that in such an event the fund should be added to a fund provided for Elizabeth H. Condell, wife of the testator, by the fifth clause of will. Elizabeth H., the wife, died before the testator, and no fund in her favor ever existed to which the fund created for the benefit of Albert could be added. We, however, agree with the parties hereto that the will operates to control the disposition of the fund held for Albert.

Then, by the effect and operation of the eleventh clause of the will, it became a trust fund, to be administered in accordance with the provisions of the fifth clause of the will, which are in that respect, as follows: “ My executors, as trustees, shall hold the same in trust, and pay the interest or dividends derived therefrom to my children, in such proportions as their circumstances may require to keep them from want or to furnish them the necessaries of life foi* themselves and children.”

The appellant being one of the children of the testator, and there being no proof or allegation that any of the children are in want, or need to be furnished with the necessaries of life, unless reason appear to prevent the operation of this clause, must be regarded as one of the beneficiaries of this fund. Appellee insists that two good and sufficient reasons exist: First, that as the advancements and loans made to appellant by his father exceeded his one-sixth part or share of the estate, he can not have more from this estate without first bringing into hotchpot what he has received; second, that appellant, by his solemn agreement, divested himself of and invested Mary J. Glover with all his rights in the fund. In support of the first reason or proposition, it is urged that the fund is still part of the estate of Thomas Con-dell, deceased; that under the will, the loans made to the appellant by the testator are to be considered as advancements; that the statute as to advancements was to make provision for all children equal—the intention of the act being equality, founded upon equity; that the law ascribes to donors of advancements an intention to treat children equally in the absence of a contrary intent, and if a child be advanced and be not content, but would receive more, he must bring into hotchpot what he has before, received, to effect equality and equity.

We do not, however, agree that the fund constituted a part of the assets of the estate of the deceased testator. We think that when the claims of creditors and the costs attending the proceedings in the estate in the Probate Court had been met and discharged and the time the law requires the estate to be kept open had expired, that it became the duty of the executor to settle the estate and dispose of the assets according to the directions of the will. Then the amount of the legacies to the children of the deceased should have been ascertained and the net assets of the estate devoted to the creation of a fund for each of them found entitled thereto, and such fund lodged in the custody of a trustee, as the will required. This done, the estate ought to have been regarded as settled or closed, and no longer existing. True, the trusts continue, and the executor or trustee must look to the will for guidance in the administration thereof. It is not uncommon to raise a trust by will and devote funds through the medium of trustees to the furtherance of specified purposes; and though such trustees must look to the will in such cases for direction and instruction in the management and disposition of the trust fund, yet it has never been held or deemed to follow that the estate of the donor must remain unsettled until the fund has served the purposes of its creation or been exhausted. Executors may serve in a double capacity, one of executorship pure and simple, the other that of trustee, or a testator may devolve the trust duties and powers upon another than the executor. When the duties of the first capacity are discharged, it is to be considered that the estate is settled and closed, though the trusts remain in full force to be administered as in other cases, according to the provisions of the instrument by which they are created, and by the person appointed trustee, whether he be the executor or another. When assets of the estate have been under the provisions of the will transferred from the custody of the executor to that of the trustee, Avhether he be the same or another person, such assets constitute a trust fund and are no longer part of the estate. Therefore, when the property of this estate Avas converted into the íavo trust funds—one for Albert and the other for Emily Montgomery—it ceased to be of the assets of the estate. Hence, upon the death of Albert, the fund held for him did not constitute a part of the estate, but Avas still a trust fund to be disposed under the provisions of the instrument by Avhich the trust was created, Avhich in this instance is the will. The rule as to bringing advancements into “ hotchpot ” can have no application to defeat the execution of such a trust.

The maxim that equality is equity and means shares equalized by deducting adAmncements, and the rule that advancements shall be brought, into hotchpot, has, moreover, no application against the manifest intention of the testator to the contrary, and here we think a contrary intention is manifested. When the testator executed his will in 1865, it is clear that he understood that the amount to be charged to Moses B., the appellant, Avould not amount to one-half the part or sha,re in the estate bequeathed to him, because the testator provided in the sixth clause of his will that Moses B. should be paid so much as would, with the amounts charged to him, amount to one-half of the sixth part of the estate willed to him. Afterward, the testator deemed it necessary to execute a codicil to his will. It contained two clauses, one relating to the share of his estate provided for Moses B. by the original will, and the other to the share of Thomas E. As to Moses B., the codicil directs that if, in the settlement of the estate, it should appear that the amount loaned and advanced to Moses B. should exceed his share of the estate, then his share shall be what he has received, and his notes shall be canceled and given up to him. Manifestly the testator had, during the time intervening between the execution of the will and the codicil, made advancements or loans, or both, to Moses B., to such an extent that it seemed probable to him that the total amount thereof would exceed a one-sixth part of the estate, and that he executed the codicil to make it clear that he did not intend that Moses B. should be held liable to repay such loans or advancements, and to provide all notes given by Moses B. in excess of his share should be canceled and delivered up to him. It is perfectly clear that the testator intended that loans or advancements to Moses B. in excess of the amount his other children would receive, should be deemed absolute. gifts. It can not be contended that the testator intended that his children should at all events share alike in his estate. He may have had reasons of which we know nothing for favoring Moses, or he may have been disposed to favor him capriciously and without reason. It is not contended that he was incapable of making a will or that he was unduly influenced, nor is the validity of the will questioned; hence the law will execute the directions of the will without regard to the reasons that influenced the maker.

W e hold that the fund in question does not constitute a part of the estate of Thomas Condell and that Moses B. is not deprived of his interest and right in it because he did not bring his advancements and loans into hotchpot. The release or conveyance executed by Moses B. Condell and wife relied upon to effect a transfer of all interest in question to Mary J. Glover was executed in 1883. It purports only to affect “ the right, claim, title and interest of Moses and wife in the estate, lands, real estate and personalty of Thomas and Elizabeth Condell.” It was executed three years before the death of Albert, and there is nothing upon the face of the instrument, nor do we find anything otherwise in the record, tending to show that a transfer of the contingent interest of Moses in the fund held by the trustee for the use of Albert, was in the contemplation of the parties. Before its execution Mary J. Glover, Emily Montgomery and Albert B. Condell were contending that Moses and Thomas E. had each received from their father by way of loans and advancements, an amount in excess of his share of the estate, and consequently, that neither were entitled to any part of the estate, but the entire assets of the estate belonged to them. Acting upon this Mary J. Glover, Emily Montgomery and Albert entered into a contract by the terms whereof the entire property of the deceased was to become the property of Mary J. Glover to be devoted by her, so far as necessary, to the creation of two funds to be held in trust, one for Emily and the other for Albert, as required by the will of Thomas Condell, deceased. In pursuance of the contract the lands belonging to the deceased were sold by the executor at the request of Mary J. Glover and the proceeds delivered to her, and she also invested with the ownership of the other assets of the estate. It had not then been judicially determined, and Moses was then denying that his advances and loans exceeded his one-sixth part of the estate. The conveyance or release was, as we think, desired by Mary J. Glover and executed by Moses B. to settle this controversy in order to warrant and obtain the approval by the court of a final report of the executor showing disposition by the executor of assets of the estate in accordance with the agreement between Mary Glover, Mrs. Montgomery and Albert. A like release was taken from Thomas E. Condell for the like purpose, as we think, and the two releases and the agreement between the other legatees under the will seem to have been accepted by the County Court as affecting the transfer of the assets of the estate to Mary J. Glover, and the final report of the executor framed upon that basis was approved accordingly. However this may be, the release executed by Moses B. and wife did not purport to, and, in our view, did not affect his contingent interest in the fund which the will required should be raised for the use of Albert. The validity of the transfer of the assets of the estate to Mary J. Glover under the agreement between her and Emily Montgomery and Albert can not be questioned by Moses B., for the reason that he executed a like agreement and, moreover, has acquiesced in the transaction for such length of time that it would be highly inequitable to permit him to object now.

The decree of the Circuit Court must be reversed so far as it decrees that the two trust funds of $14,000 each, provided for by the will of Thomas Condell, deceased, and created thereunder by the operation of the agreement between Mary J. Glover, Emily Montgomery and Albert Con-dell, and now in the custody of Winthrop Sudduth, as successor in trust to the trustee named by said will, are to be deemed part of the estate of said Thomas Condell, deceased,' and also in so far as it declares that Moses B. Condell has no right, title or interest in or to the principal of, or interest accruing upon the said funds of $14,000, or either of them, and in so far as it declares that upon the death of Albert B. Condell said Mary J. Glover and Emily Montgomery took and each became entitled to one-half of the income or interest accruing upon the fund of $14,000 held by said trustee for the use of Albert, and also so far as it directs the trustee to administer the fund upon the theory that said Mary and Emily Montgomery are the only beneficiaries thereof. The cause will be remanded with directions to the chancellor to declare by a decree to be entered in the cause that the fund created by the will in favor of Albert B. Condell and. upon which he was entitled to receive the interest accruing during his lifetime, upon the death of said Albert B., constituted a trust fund to be held by a trustee acting under the provisions of the will of Thomas Condell, deceased, and to decree that such fund shall be administered as follows: Such trustee shall in\ the fund in stocks or cause it to be loaned out at interest with good security and shall pay the interest or dividends derived therefrom to Mary J. Glover, Emily Montgomery, Moses B. Condell and Thomas E. Condolí in equal parts, unless a greater proportion shall be required to be paid to some one of them to keep them from want or to furnish them with the necessaries of life for themselves or children, in which event said trustee shall apply to a court sitting in chancery for specific directions as to his duties. Reversed and remanded with directions.