disposed of.” The residuary clause is as fol- | clause, without considering what they meant, lows:. “Subject to the provisions hereinbe- or might mean in the various contingencies fore made by way of legacies, and to the cre- which might happen. The primary rule is ation of the trusts hereinbefore specified, all that a will is to be construed according to the of which are to be ratably diminished in casa, intention of the testator, as expressed in it, by any unforseen occurrence, my estate if that intention can be ascertained with reashould be so diminished as not to amount to sonable certainty. Whatever force may be the aggregate hereinbefore disposed of, I give, given to artificial rules of construction, it is devise, and bequeath all the rest, residue, and certainly an objection of some weight against remainder of my entire estate, both real and any particular construction that it leads to a personal, unto the next of kin of my dear result which the testator could not have inhusband, the late John H. Wells, and to my tended. In Abbott v. Bradstreet, 3 Allen, next of kin, in the proportion of two-thirds 587, 589, it is said in the opinion that “the of the amount to my next of kin, and one- rule is well settled, as a general rule of conthird to the next of kin of my late husband, struction, that a bequest or devise to • heirs' the said John H., the larger part to my next or heirs at law' of a testator will be conof kin, as from my family and kin my estate strued as referring to those who are such at has been in this proportion enlarged. The the time of the testator's decease, unless a father of the testatrix, Alvah Miller, Sr., died different intent is plainly manifested by the March 24, 1888, leaving a will, in which he will;" that “where such an intent is plainly gave all the residue of his estate to his two manifested, it will, of course, prevail;" and sons, Augustus Miller and Alvah Miller, Jr. that “this rule is a consequence of the prefAugustus Miller died December 28, 1888, erence which the law gives to vested over leaving a son, Nathaniel W. Miller, one of contingent remainders.” The rule is unthe defendants. The executors have paid all doubtedly the same when the devise or bequest debts and legacies, have set apart the amounts is to the next of kin of the testator as when directed for the trust funds, and have settled it is to the heirs of the testator. The cases their accounts in the probate court; and there on this subject are collected in the opinion in remains in their hands for distribution a bal- Abbott v. Bradstreet; and subsequent decisance of $4,000. There is also valuable real ions have emphasized the rule there stated. estate.

Minot v. Tappan, 122 Mass. 536; Dove v. The principal question is whether the next Torr, 128 Mass. 38; Minot v. Harris, 132 of kin of the testatrix, and of her deceased Mass. 528; Whall v. Converse, 146 Mass. husband, who take under the residuary clause, 345, 15 N. E. Rep. 660. In Abbott v. Bradare those persons who were living and next street it is also said that "it has been held in of kin at the time of her death, or at the time some cases that if there is a gift to a person of the death of her father. If her next of for life, with remainder to the testator's kin are determined as of the time of her death, next of kin, and the person taking the lifeher father would be her sole next of kin; and estate is the sole next of kin at the death of he would have been the sole distributee and the testator, the remainder will be considersole heir of her estate, if she had died intes- ed as given to the persons answering the detate. It is manifest, we think, that the tes- scription at the termination of the estate for tatrix neyer intended that he should receive life,” and that this, as well as another class absolutely any of her property, beyond that of cases in which the first legatee is only one given to him for his life, and that, if he mar- of the next of kin, “are generally recognized ried, she intended that he should cease there- as exceptional, and the construction adopted after to receive any benefit from her estate. is usually strengthened by some special cirThe legacies were to be paid, and the five cumstances indicative of intention." In trust funds were to be created and set apart, Minot v. Tappan it is said that the fact that at the decease or marriage of the father. The the life-tenant is one of the heirs at law of first trust so to be created was to continue the testator at the time of his decease "does during the life of the sister of the testatrix; not take the case out of the general rule.” and upon her-decease the fund was to be paid See Bullock v. Downes, 9 H. L. Cas. 1; over to the next of kin of the testatrix, share Mortimore v. Mortimore, L. R. 4 App. Cas. and share alike. This contemplates that there 448; Elmsley v. Young, 2 Mylne & K. 82, might be more than one next of kin, and that 88. Whether, if the life-tenant were he they should take equal shares.

sole next of kin or heir of the testator when It is possible that the testatrix did not the will was made, and would continue to know the provisions of our statutes concern- be such if he survive the testator, and this ing the descent of real, or the distribution of were known to the testator this fact alone personal, property; but it cannot be pre-would be sufficient to show that the testator sumed that she did not know who her near- did not intend to include him in a bequest or est kindred were. It is also possible that she a devise of a remainder to the heirs or next did not know the distinction between vested of kin of the testator, cannot be considered and contingent remainders, or between rights as free from doubt. See Lees v. Massey, 3 of property and rights of possession and en- De Gex, F. & J. 113; 2 Jarm. Wills, (5th joyment, and that, having written down all Ed.) 132, 141; Cusack v. Rood, 24 Wkly. Rep. the specific provisions she wished to make, 391. she used general phrases in the residuary In the present case the distribution of the

whole estate was, by the terms of the will, I quitclaim deed, equity will allow the debtor to reto be postponed till the death or marriage of deem, when no rights of third persons have interthe father. There is no reference in the will and creditor, and must act impartially between

vened, as the trustee is the agent of both debtor to the statutes of distribution. Such a refer- them. ence bas sometimes been regarded as a cir

Appeal from appellate court, first district. cumstance indicating that the testator intended that his next of kin should take as of William C. Goudy, for appellees.

Gregory, Booth & Harlan, for appellants. his death, because the persons who are distributees under the statute take from that MAGRUDER, J. This is a bill to redeem time. The legacy to the father would, of from a sale made under a trust-deed. By course, be of no effect, if he died before the trust-deed dated June 17, 1875, Isaac Stone testatrix; but, if he survived her, she intend- and his wife, Julia A. Stone, conveyed three ed that he should not marry and retain any lots in Chicago, with the improvements therebenefit from her will. She contemplated the on, known as Nos. 122, 124, and 126 Quincy possibility that the whole of her estate might street, to Erskine M. Phelps, as trustee, to be consumed in taking care of her father, secure a note for $12,000, of same date, made and that the legacies to others might never by Isaac Stone, payable to I. V. Williamson, be paid, or the special trust funds set apart. three years after date, with interest at 8 per The reason which she gives for dividing the cent. per annum, payable semi-annually. residuum of her estate between the next of Stone lived in Northampton, Mass., Williamkin of her husband and of herself in the pro- son in Philadelphia, Pa., and Phelps in Chiportion of two-thirds and one-third is that cago. The note was given for money loaned “from my family and kin my estate has been by Williamson, through Phelps, to Stone. in this proportion enlarged." This does not The sale was made by the trustee on Decemshow that she contemplated that, if her fa- ber 23, 1878, for the non-payment of the printher survived her, he, or only those claiming cipal note and the last interest note, both of under him, should take the one-third. We which fell due on June 17, 1878. The propthink that there are significant indications in erty was sold to Williamson for $9,000, and the will that the testatrix did not intend that a trustee's deed was executed in pursuance her father should take any part of the residueas of the sale. This bill was filed on August 11, her next of kin, and that she did intend that 1883, by Stone and wife against Williamson the residue should be distributed as of the and Phelps. The circuit court allowed the time of his death or marriage, and that the redemption, and decreed in favor of the comnext of kin should be ascertained as of that plainants. This decree, having been affirmed time, in addition to the fact that the use of by the appellate court, is brought before us the whole estate, and, if necessary, portions by appeal from the latter court. of the principal, had been given to him for Where à trust-deed is made to secure the life, or until he married; and, in our opin- payment of a debt, the trustee named therein ion, the will should receive this construction. is the representative, not only of the owner See Knowlton v. Sanderson, 141 Mass. 323, of the indebtedness, but also of the maker of 6 N. E. Rep. 228. As the next of kin of the the trust-deed. He is the agent of both the testatrix must be ascertained as of the death creditor and the debtor. His duty is to act of her father, the next of kin of her husband fairly towards both, and not exclusively in must be ascertained as of the same time. In the interest of either. The law requires the determining the meaning of the words "next conduct of such a trustee to be absolutely imof kin,” we see nothing in the will by which partial, as between the two parties whom he this case can be distinguished from Swasey represents. Ventres v. Cobb, 105. Ill. 33; v. Jaques, 144 Mass. 135, 10 N. E. Rep. Cassidy v. Cook, 99 Ill. 385; Meacham v. 758. Those persons who were living, and Steele, 93 Ill. 135. Hence his relations with were the nearest blood relations of her hus- one of them ought not to be of such a charband and of herself, at the time of the death acter as to tempt him to neglect the interests of of her father, or their legal representatives, the other. We do not think that Phelps, the if they have since deceased, are entitled to trustee in the present case, was guilty of any the residue in the proportion declared in the intentional fraud in his conduct towards will. The details of the decree must be set- Stone. But at the time the trust-deed was tled by a single justice. So ordered.

executed, and from that time to the date of

the sale and thereafter, he was the agent of (128 Ill. 129)

Williamson in making and collecting the WILLIAMSON et al. v. STONE et al.

loans and looking after the business of the

latter in Chicago. As a consequence of the (Supreme Court of Illinois. April 5, 1889.)

relation which he thus sustained, hie so conSALE UNDER TRUST-DEED-REDEMPTION.

ducted the sale under the trust-deed as to Where, at a sale under power in a trust- make it inure to the advantage of Williamdeed given to secure a debt, the property is bid off by the trustee's attorney for the creditor, the trus- son, and to the disadvantage of Stone. tee, who is the business agent of the creditor, fix We cannot go into a lengthy examination. ing the amount of the bid with reference to the of the testimony, which consists mainly of amount of unpaid indebtedness which he thought correspondence between Stone' and Phelps, would be required to force the debtor to give a

and between them both and Williamson, but Publication delayed by failure to receive copy. will only glance at a few features of it.

Three days after the sale, to-wit, on Decem-Jauction in such a way as to make it bring the ber 26, 1878, Phelps thus wrote to William- highest possible price, and to leave the parson: “On the 23d inst., I bid in the prop-ties to decide for themselves what they will erty, and should have written you the next offer for it. But, even if it had been allowday, but did not, on account of two real-es- able for Phelps to advise Jones what to bid, tate brokers assuring me they had an offer it was his duty to base that advice upon his for the property sufficient to pay us out in own deliberate judgment as to the value of full. *

* * We bid the property off for the property. Instead of this, he determined nine thousand dollars, and shall take judg- the amount of the bid by his opinion as to the ment against Mr. Stone for the balance, of amount of unpaid indebtedness which it about four thousand dollars. * * * My would require to force Stone to give a quitimpression is, we had better get a quitclaim claim deed. This is a matter of which Stone deed from Mr. Stone, and, if you desire, will has a right to complain, because such conhave one sent for him to sign. I did not bid duct on the part of the trustee, who was his the whole amount of the property, as I agent as well as the agent of Williamson, thought by having four or five thousand [dol- unquestionably prevented the property from lars] hanging over him he would be more bringing what it ought to have brought. willing to give us a deed of the property.” Stone was injured and prejudiced by the fact This language, literally interpreted, would that a large indebtedness was left hanging convey the idea that Phelps was not only auc- over him, which might have been canceled, tioneer at the sale, but bidder as well. The if Phelps had pursued a different course. testimony, however, shows that an attorney, A court of equity will always examine by the name of Francis W. Jones, bid off the with the closest scrutiny a sale that is made property for Williamson. Although Jones under the power contained in a trust-deed, collected some rents, and remitted them to and where the rights of third persons have Williamson, and perhaps transacted some not intervened, as is the fact in the case at other business for him, yet, as a matter of bar, redemption from such a sale, conditioned fact, he was the attorney of Phelps. He upon the full payment, to the holder of the never saw Williamson, and what he did for indebtedness, of all that is due to him, will the latter he did at the request and under the be allowed where there is evidence of any direction of Phelps. Jones consulted with such unfairness on the part of the trustee, Phelps before the sale as to the amount to be whether intentional or unintentional, as has bid, and was present at the sale at the request resulted in injury to the debtor. of Phelps. Phelps says, in his testimony, We do not think there is any ground for that he exercised his own judgment as to the the charge of laches against the appellees, beamount of the bid, and struck the property cause the facts above set forth were not disoff at $9,000, and that he has no recollection covered until after the filing of the original of receiving any instructions from William- bill in this cause. When they were discovson as to the sun to be bid. It thus appears ered, the original bill, to which laches may that, although Jones made the bid, the trus- have been a successful defense, was amended tee fixed the amount of it. As is usual in by setting them up. The judgment of the such cases, there is conflict in the testimony appellate court is aifirmed. as to the value of the property. Some of the witnesses say that it was only worth $9,000 SHOPE, J., not having been present at the at the time of the sale; others place its value argument of the case, took no part in its conat that time at $22,000 and $25,000. Phelps sideration. says it was worth $24,000 in 1875, when the

(131 Ill. 27) trust-deed was made, and Magill, one of the

WALKER 0. RAND et al.1 real-estate experts, states that there was no difference in values in the years 1875 and (Supreme Court of Illinois. Nov. 25, 1889.) 1878. It appears from letters written by APPELLATE COURT-JURISDICTION-DOWER-TRUST Phelps to Williamson and Stone, early in De

DEEDS-JUDGMENT. cember, that negotiations were then going land, where the complainant's right to dower in

1. A suit to assign dower in several pieces of on with certain brokers for a private sale of one of the pieces is contested, involves a freehold, the property at $15,000. The letter of De- within the meaning of the statute defining the jucember 26th, as above quoted, shows that risdiction of the Illinois appellate court. Phelps had been assured, up to the day after by the grantor nearly a month before his mar

2. A trust-deed was dated and acknowledged the sale under the trust-deed, of an offer suf- riage. Afterwards, his wife was made a party, ficient in amount to cover the total indebted and the deed was executed by her, and acknowlness, which was not less than $13,000. But, the wife's right of dower was from the first sub

edged by both her and her husband. Held, that whatever may have been the value of the ordinate to the trust-deed; the presumption being property on December 23d, the amount bid that the deed was delivered on the day of its date. for it on that day was not determined with 3. One who has purchased the land of a dereference to the value, but with reference to dower, is not a joint tenant with the widow before

ceased person, subject to the widow's right of the possibility of forcing a quitclaim deed her dower is assigned. from Stone. It was not proper for the trus 4. Where the owner of land subject to a right tee to direct the representative of William- of dower, and to a trust-deed superior to such son what bid he should make. It is the duty

1 Reported by Louis Boisot, Jr., of the Chicago of the trustee to offer the property at public 'bar.

dower right, agrees with the holder of the trust- I judginent had been reversed, and that this deed that such deed shall be foreclosed, and the court had decided that no liability existed on land-owner be allowed to bid in the land at foreclosure sale, at a sum less than the secured debt, the part of Walker in favor of said lessors; such agreement does not release the trust-deed as that no judgment could be recovered to enagainst the dowress, where she is expressly al- force any liability on the covenants of the lowed, by decree of court, the same right to bid in lease; that the deed of trust had ceased to be the land as the owner obtained by his agreement.

5. The reversal of a judgment because of error a lien on the premises; that said deed was in sustaining a demurrer to certain pleas is no bar executed by the complainant as surety for to another suit on the same cause of action, in her husband; and that her obligation as such which such pleas are not pleaded.

6. Pending an appeal from a judgment against surety was extinguished by the judgment of joint obligors, one of the defendants gave a trust this court; and, there'ore, that said deed of deed to secure the payment of such judgment, or trust was a cloud upon her estate in the any judgment rendered in any other suit on the same cause of action. The judgment was reversed, premises, which she asked to have removed, and the suit abandoned. After the death of said and declared void. The members of the firm defendant and of one of the plaintiffs, the surviv- of Tucker, Brown & Co. answered, admitting ing plaintiffs sued the surviving defendants on the that said judgment had been recovered, but Held, that the trust-deed secured the payment of denying that there had been any final judgsuch second judgment, notwithstanding the change ment as to the legal liability of the lessees, of parties. 7. The fact that the parties to the second suit the same causes of action in the circuit court

and alleging the commencement of a suit for stipulated that no execution should issue against the individual property of the surviving defend of the United States for the northern district ants, who had previously sold all their rights in of Illinois, and claiming that they were enthe contract sued on to the deceased defendant, titled to recover a judgınent therein, which, does not, in the absence of any showing that the judgment was entered by consent, render the judg. when recovered, would come within the conment fraudulent as against the widow of the de- ditions of said deed of trust. Demurrers ceased defendant.

were filed by the other defendants, which 8. In such case, the proceeds of property belonging jointly to all of the original defendants were sustained as to two of them and overmay properly be applied to the payment of such ruled as to the others. Complainant theresecond judgment.

upon amended her bill, and the amended bill

was answered by all the defendants. Error to superior court, Cook county. Tucker, Brown & Co. answered, setting

On the 4th day of April, 1881, Martha A. up, by way of supplement, that on the 8th Walker exhibited her bill, in the superior day of October, 1881, they recovered a judgcourt of Cook county, against George C. ment in the said suit begun by them in the Rand, John W. Doane, Samuel O. Walker, federal court for $92, 171, and claimed that Edward S. Walker, Augustus L. Chetlain, said judgment was secured by said deed of Charles Fargo, Charles E. Brown, Thomas trust. Defendants Rand and Doane neither Brown, and Henry G. Tucker, to have her admitted nor denied the complainant's dedower assigned in lots 16, 17, 18, 19, 20, and mand for dower, but averred that it had been 21, block 9, Fort Dearborn addition to Chi- impracticable and impossible to set off her cago. The bill alleged the complainant's dower' on account of the large amount of iparriage with Martin O. Walker, and his taxes, tax-sales, mechanics’ liens, and the seisin of said lots during coverture; his trust-deed to Tucker, Brown & Co.; and they death; her demand for her dower of the heirs denied that the trust-deed had ceased to be a of Martin O. Walker, and their refusal to as- lien, or that the complainant signed the same sign dower; the appointment of Augustus as surety for her husband; and they also set L. Chetlain as administrator of the estate of up the judgment recovered in the federal Martin O. Walker; the sale and conveyance court. Defendants Samuel 0. Walker and of the premises above described by the ad- Edward S. Walker denied the complainant's ministrator to George C. Rand; the convey- demand for dower, and admitted the conveyance of said premises by Samuel O. Walker ances by which their title to said premises and Edward S. Walker, the heirs at law of had become vested in Rand. Defendant Martin O. Walker, and the vesting of their Fargo answered, disclaiming all interest in title, through certain mesne conveyances, in the premises. Defendant Chetlain denied said Rand, Rand's title being in trust for having any money belonging to the estate, John W. Doane; and it was also alleged that and also denied that he had been guilty of said premises were subject to a deed of trust any fraud or misrepresentation in the premexecuted by Martin 0. Walker, in his life- ises, and averred that he had paid over to the time, to Charles E. Brown, to secure, under creditors all the money received by him. On certain conditions in said deed of trust speci- the 25th day of September, 1882, Thomas fied, a certain judgment against said Walker Brown, claiming to be the sole owner of said in favor of Tucker, Brown & Co., and which judgment, filed his cross-bill, making the was then pending in this court on appeal, in complainant and the other parties to the origcase said judgment should be affirmed by this inai bill parties defendant, and setting up court, and also to secure any other judgment in detail the facts in relation to the execution which might thereafter be rendered against of said deed of trust, and the recovery of him upon the covenants of the lease upon said judgment in the federal court, and praywhich the then existing judgment had been ing for å foreclosure of said deed of trust. rendered. The bill further alleged that said During the pendency of the suit, Thomas

Brown died, and by stipulation his executors and (3) a plea of set-off of the annual rental were substituted as parties to the suit. The value of the demised premises so detained complainant also filed a supplemental bill, from the lessees. A demurrer to these pleas making John N. Jewett a party defendant, was sustained; and a trial of the cause on the and alleging that the judgment of October 8, issues formed on the remaining pleas resulted 1881, had been collusively entered, but that in a judgment against said lessees for $119,said Jewett had a sum of money in his hands, 637. From that judgment Walker prosecutheld by him, in trust, to be applied upon ed an appeal to this court. While said appeal any valid judgment which might be recov- was pending, Walker, in consideration of the ered upon the covenants of said lease, and in release by Thomas Brown, who was then the exoneration of the complainant's dower, and sole owner of said judgment, of all the repraying that said Jewett be required to make maining real estate of said Walker from the discovery as to the amount of money so held lien of said judgment, executed to Charles E. by him, the source from which it was ob- Brown, as trustee, a deed of trust conveying tained, and how much of it he had applied the premises in question in this suit, and lots upon said judgment, and that said judgment 22, 23, and 24 of the same block; the deciabe declared to be fraudulent as against the ration of trust in said deed being as follows: complainant, and be held to be no bar to or “In trust, nevertheless, to secure to said cloud upon the complainant's dower. Thomas Brown, or to whomsoever may be

The facts, as disclosed by the evidence, are the owner of said judgment, and entitled in substantially as follows: On the 15th day of equity to the benefit of the aforesaid lien July, 1865, Tucker, Brown & Co., consisting thereof, the payment of any execution that of Chancey Tucker, Thomas Brown, and may be issued on said judgment, with Henry G. Tucker, executed a lease by which the costs as aforesaid, in case the same they demised to Martin 0. Walker, Guy H. shall be affirmed in the supreme court, to Cutting, Amos G. Throop, Robert McClel- which the same is now appealed; and, in land, and James Mullins, as partners under case the same shall be reversed, or "not afthe firm name of the “Carbon Hill Coal & firmed, then for the payment of any judgMining Company,” for the term of 10 years, ment that may be thereafter ultimately certain lands in the state of Ohio, with the rendered in said suit, or ultimately rendered right to mine coal therefrom; said lands be- in any other suit that may be thereafter ing chiefly valuable as mining lands. Said brought and founded upon the covenants conlease contained, among other things, cove- tained in the indenture of demise set forth in nants on the part of the lessees to work the the pleadings in said suit, and upon which mines to their full capacity, in a good and covenants the said suit or action is founded.” workman-like manner, and to pay as royal- Said deed of trust bears date April 15, 1874. ties 35 cents per ton on all the coal mined. Appended to it appears a consent by John Shortly after the date of said lease, the lessees Gray and George Taylor, the sureties on the commenced mining coal on said lands, and appeal-bond, to a release of Walker's other continued to operate said mines down to Sep- real estate from the lien of the judgment, and tember, 1871, when they abandoned them, also the certificate of a notary public of an acclaiming that the merchantable coal was ex- knowledgment of said instrument by Walker, hausted. On the 28th day of June, 1866, Gray, and Taylor, April 16, 1874. The name and while said inines were being operated by of the complainant appears from a memoransaid lessees, Walker purchased and received dum at the bottom of the deed to have been an assignment of the interests of Throop and interlined in the premises of the deed May 18, McClelland in said firm, and executed to them 1874, and her signature now appears at the an instrument, in which Cutting and Mul- bottom of the instrument; and there is aplins, his other partners, also joined, in which pended to the deed a second certificate of the they covenanted to pay the rent, and perform acknowledgement of the instrument by Marall the covenants of the lease, and save said tin 0. Walker and the complainant, his wife, retiring partners from all the liabilities of the on said 18th day of May, 1874. The marriage firm. During the time the mines were being between Martin O. Walker and the complainworked, there was a dispute between the les- ant took place May 9, 1874. There is no evisees and their lessors concerning certain of dence, apart from the deed itself, as to the the demised premises of which the lessors re- date of its actual delivery. The appeal from fused to give possession to the lessees, and said judgment resulted in a decision of this the lessees in consequence declined to pay the court reversing said judgment, and remandroyalties reserved in the lease. In December, ing said cause to the circuit court, with di1871, a suit was brought by the lessors against rections to that court to overrule the demur. the lessees upon the covenants of the lease; rer to said pleas. Walker v. Tucker, 70 Ill. the breaches assigned being both the non-pay- 527 The cause was never reinstated in the ment of the royalties reserved and the failure circuit court in pursuance of the mandate of of the lessees to take out the amount of coal this court, and no further proceedings were stipulated for in the lease. In defense of said taken therein, said suit being thereby abansuit the lessees pleaded, among other things, doned. (1) an eviction from a portion of the demised On the 28th day of May, 1874, Walker died premises; (2) an unlawful detention from the intestate and insolvert, leaving him survivlessees of a portion of the demised premises;'ing the complainant, his widow, and his two

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