Marsh v. Reed , 1896 Ill. App. LEXIS 962 ( 1896 )

Opinion

per Curiam.

The appeal in this case is prosecuted by the guardian ad litem of infant defendants from a decree authorizing the trustee under the will of Francis C. Sherman, deceased, to lease the trust estate for a term of ninety-nine years, notwithstanding a provision contained in the will that no lease should be for a longer term than ten years. The facts established by the evidence show that it is for the interest of all the beneficiaries under this trust that the decree should stand, and that without such decree a trust estate of more than a million of dollars will be practically unproductive and the children of the testator, the primary object of his bounty, will be deprived of the income which he intended they should receive. The children, grandchildren and great-grandchildren of the testator are parties to this suit, and his children and grandchildren are all adults and consent to the entry of the decree. The great-grandchildren have only a contingent interest in the trust estate, dependent upon their surviving and their parents being dead at the date of the termination of the trust.

Bo question is made, nor could any be made upon the evidence in this case, as to the sufficiency of the evidence to justify the decree, if a court of chancery has the power to grant the relief given in this case by the decree. The trustee has the title of the trust estate, with the power to lease for a term not exceeding ten years. The effect of the decree is to do away with the limitation as to the duration of the lease which the trustee may make upon the terms provided in the decree. It seems to us that in view of the decisions of the Supreme Court of this State the question is not an open one. In the case of Curtiss v. Brown, 29 111. 201, the court said:

“ Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated, had he anticipated the emergency. ”

In the case of Voris v. Sloan, 68 Ill. 588, it was held that a court of chancery has power to break in upon the terms of a trust and to change the terms and conditions imposed by the person creating it in extreme cases. The same doctrine was held in the recent case of Hale v. Hale, 146 Ill. 227, in which a decree authorizing a trustee to sell real estate where the will creating the trust gave no power of sale was sustained. In our opinion it is the settled law of this State that where necessity requires it, a court of chancery has power to change and alter the limitations and provisions covering trust estates. It being the duty of the court in such case to occupy the place of the party creating the trust, and to do with the fund what he would have dictated had he anticipated the emergency, we have no hesitation in affirming the decree in this case.