French v. Northern Trust Co. , 98 Ill. App. 410 ( 1901 )

Mr. Justice Waterman

delivered the opinion of the court.

The contention of appellants is principally, first, that the will of Mrs. Maxwell provides that a peculiar method for the selection of trustees who might succeed to Willard was appointed by her will, and insists that that method has not been followed, and that therefore the Northern Trust Company is no longer authorized to act as trustee; second, that the will of Mrs. Maxwell contemplated that the estate bequeathed to Charles Joel Walter should remain in trust only during such time as he was of unsound mind, and that as he is now entirely compos rnmtis the estate should be turned over to him. A very excellent brief has been submitted by appellants’ attorneys upon the subject of succession in trusteeship.

Granting that Charles Joel Walter is now, and for many years has been of sound mind, and has been so treated and regarded by the various trustees of his estate, it appears that the resignation of the trustee nominated by the will, Alonzo J. Willard, and the appointment of Anson B. Jenks as his successor,,was by the decree of the Superior Court in a proceeding to which the cestui que trust, Charles J. Walter, was a party assenting thereto, and that the subs’quent resignation of Anson B. Jenks and the appointment of the Northern Trust Company as his successor was by virtue of a decree of the Superior Court of Cook County in a proceeding to which Charles Joel Walter was an assenting party. Such changes of trusteeship as have been made having been with the assent of Charles Joel Walter, can not now be complained of by him. The reasons for placing the estate bequeathed to Charles J. Walter in the hands of a trustee are stated in the will. They are not that he was non compos mentis, but.that he had shown indications of not being in his right mind. The testatrix might have placed in trust the estate she gave to him without indicating any reason therefor. The reason given is a mere indication of her opinion as to indications he had shown, and it is not necessary for the purpose of continuing the trust, that it should appear that her judgment was then well founded or has since been shown to have been well taken.

The entire clause — and there is nothing in the will detracting in any way from the force of item 5 — indicated that the testatrix intended to put the estate bequeathed to Charles Joel Walter out of his control during his entire life, unless the trustees of such estate should be satisfied — not that he was sane, free from delusions, of composed and sound mind, but satisfied that said Charles Joel is competent to take care of the same, and not before; unless Joel C. Walter, father of said Charles Joel Walter should direct said trustee so to do. And the will further, by way of effectually placing the bequeathed estate beyond the reach of any act of said Charles Joel Walter, whether sane or insane, provides that he is to have no power to control, dispose of or incumber said share by any act done or suffered by him, until same shall have been actually conveyed to him by said trustee.

Appellants urge that because previous trustees have conveyed to Charles Joel Walter certain real estate held by them, therefore the present trustee must turn over the personal property in his hands. We do not think that this by any means follows. Whether the previous trustees were justified in doing as they did in this regard is not now for our consideration. The turning over of the estate to the cestui que trust is under the will a matter of discretion to be exercised under judgment.

We can well understand that a trustee might turn over a portion of the estate, pieces of real estate, with a view to ascertain by actual trial, the competency of the cestui que trust to manage his property.

The condition of affairs presented in this suit does not seem to indicate that such discretion has been heretofore wisely exercised, as the appellant Charles Joel Walter, for many years, ever since the death of his grandmother, has been in the receipt of a considerable cash income, augmented by addition thereto made under the will of his father, and yet we find him now owing an unsatisfied judgment amounting to over $9,000, which the sheriff of this county has returned, no property found and no part satisfied.

It is true, as is urged by appellants, that ordinarily where things are to be done to the satisfaction of a party, such party is bound to be satisfied when, under the circumstances, all reasonable men would be. We do not think that the trustee has no warrant for thinking the cesind que trust incompetent to take care of his estate,

The decree of the Circuit Court is affirmed.