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disposed of." The residuary clause is as follows: "Subject to the provisions hereinbefore made by way of legacies, and to the creation of the trusts herein before specified, all of which are to be ratably diminished in casa, by any unforseen occurrence, my estate should be so diminished as not to amount to the aggregate hereinbefore disposed of, I give, devise, and bequeath all the rest, residue, and remainder of my entire estate, both real and personal, unto the next of kin of my dear husband, the late John H. Wells, and to my next of kin, in the proportion of two-thirds of the amount to my next of kin, and onethird to the next of kin of my late husband, 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 has been in this proportion enlarged." The father of the testatrix, Alvah Miller, Sr., died March 24, 1888, leaving a will, in which he gave all the residue of his estate to his two sons, Augustus Miller and Alvah Miller, Jr. Augustus Miller died December 28, 1888, leaving a son, Nathaniel W. Miller, one of the defendants. The executors have paid all debts and legacies, have set apart the amounts directed for the trust funds, and have settled their accounts in the probate court; and there remains in their hands for distribution a balance of $4,000. There is also valuable real estate.

clause, without considering what they meant, or might mean in the various contingencies which might happen. The primary rule is that a will is to be construed according to the intention of the testator, as expressed in it, if that intention can be ascertained with reasonable certainty. Whatever force may be given to artificial rules of construction, it is certainly an objection of some weight against any particular construction that it leads to a result which the testator could not have intended. In Abbott v. Bradstreet, 3 Allen, 587, 589, it is said in the opinion that "the rule is well settled, as a general rule of construction, that a bequest or devise to heirs' strued as referring to those who are such at the time of the testator's decease, unless a different intent is plainly manifested by the will;" that "where such an intent is plainly manifested, it will, of course, prevail;" and that "this rule is a consequence of the preference which the law gives to vested over contingent remainders." The rule is undoubtedly the same when the devise or bequest is to the next of kin of the testator as when it is to the heirs of the testator. The cases on this subject are collected in the opinion in Abbott v. Bradstreet; and subsequent decisions have emphasized the rule there stated. 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 never 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 married, she intended that he should cease thereafter to receive any benefit from her estate. The legacies were to be paid, and the five trust funds were to be created and set apart, at the decease or marriage of the father. The first trust so to be created was to continue during the life of the sister of the testatrix; and upon her decease the fund was to be paid over to the next of kin of the testatrix, share and share alike. This contemplates that there might be more than one next of kin, and that they should take equal shares.

In

of the next of kin, “are generally recognized as exceptional, and the construction adopted is usually strengthened by some special circumstances indicative of intention." Minot v. Tappan it is said that the fact that the life-tenant is one of the heirs at law of the testator at the time of his decease "does not take the case out of the general rule." See Bullock v. Downes, 9 H. L. Cas. 1; Mortimore v. Mortimore, L. R. 4 App. Cas. 448; Elmsley v. Young, 2 Mylne & K. 82, 88. Whether, if the life-tenant were he 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 of property and rights of possession and enjoyment, and that, having written down all the specific provisions she wished to make, she used general phrases in the residuary

as free from doubt. See Lees v. Massey, 3 De Gex, F. & J. 113; 2 Jarm. Wills, (5th Ed.) 132, 141; Cusack v. Rood, 24 Wkly. Rep. 391.

In the present case the distribution of the

deem, when no rights of third persons have inter-
and creditor, and must act impartially between
vened, as the trustee is the agent of both debtor
them.

Appeal from appellate court, first district.
William C. Goudy, for appellees.
Gregory, Booth & Harlan, for appellants.

MAGRUDER, J. This is a bill to redeem from a sale made under a trust-deed. By trust-deed dated June 17, 1875, Isaac Stone and his wife, Julia A. Stone, conveyed three lots in Chicago, with the improvements thereon, known as Nos. 122, 124, and 126 Quincy street, to Erskine M. Phelps, as trustee, to secure a note for $12,000, of same date, made by Isaac Stone, payable to I. V. Williamson, three years after date, with interest at 8 per cent. per annum, payable semi-annually. Stone lived in Northampton, Mass., Williamson in Philadelphia, Pa., and Phelps in Chicago. The note was given for money loaned by Williamson, through Phelps, to Stone. The sale was made by the trustee on Decem

whole estate was, by the terms of the will, | quitclaim deed, equity will allow the debtor to reto be postponed till the death or marriage of the father. There is no reference in the will to the statutes of distribution. Such a reference has sometimes been regarded as a circumstance indicating that the testator intended that his next of kin should take as of his death, because the persons who are distributees under the statute take from that time. The legacy to the father would, of course, be of no effect, if he died before the testatrix; but, if he survived her, she intended that he should not marry and retain any benefit from her will. She contemplated the possibility that the whole of her estate might be consumed in taking care of her father, and that the legacies to others might never be paid, or the special trust funds set apart. The reason which she gives for dividing the residuum of her estate between the next of kin of her husband and of herself in the proportion of two-thirds and one-third is that "from my family and kin my estate has been in this proportion enlarged." This does not show that she contemplated that, if her fa-ber 23, 1878, for the non-payment of the printher survived her, he, or only those claiming under him, should take the one-third. We think that there are significant indications in the will that the testatrix did not intend that her father should take any part of the residue as her next of kin, and that she did intend that the residue should be distributed as of the time of his death or marriage, and that the next of kin should be ascertained as of that time, in addition to the fact that the use of the whole estate, and, if necessary, portions of the principal, had been given to him for life, or until he married; and, in our opinion, the will should receive this construction. See Knowlton v. Sanderson, 141 Mass. 323, 6 N. E. Rep. 228. As the next of kin of the testatrix must be ascertained as of the death of her father, the next of kin of her husband must be ascertained as of the same time. In determining the meaning of the words "next of kin," we see nothing in the will by which this case can be distinguished from Swasey v. Jaques, 144 Mass. 135, 10 N. E. Rep. 758. Those persons who were living, and were the nearest blood relations of her husband and of herself, at the time of the death of her father, or their legal representatives, if they have since deceased, are entitled to the residue in the proportion declared in the will. The details of the decree must be settled by a single justice. So ordered.

(128 Ill. 129)

WILLIAMSON et al. v. STONE et al. (Supreme Court of Illinois. April 5, 1889.)1

SALE UNDER TRUST-DEED-REDEMPTION. Where, at a sale under power in a trustdeed given to secure a debt, the property is bid off by the trustee's attorney for the creditor, the trustee, who is the business agent of the creditor, fixing the amount of the bid with reference to the amount of unpaid indebtedness which he thought would be required to force the debtor to give a

'Publication delayed by failure to receive copy.

cipal note and the last interest note, both of which fell due on June 17, 1878. The property was sold to Williamson for $9,000, and a trustee's deed was executed in pursuance of the sale. This bill was filed on August 11, 1883, by Stone and wife against Williamson and Phelps. The circuit court allowed the redemption, and decreed in favor of the complainants. This decree, having been affirmed by the appellate court, is brought before us by appeal from the latter court.

Where a trust-deed is made to secure the payment of a debt, the trustee named therein is the representative, not only of the owner of the indebtedness, but also of the maker of the trust-deed. He is the agent of both the creditor and the debtor. His duty is to act fairly towards both, and not exclusively in the interest of either. The law requires the conduct of such a trustee to be absolutely impartial, as between the two parties whom he represents. Ventres v. Cobb, 105 Ill. 33; Cassidy v. Cook, 99 Ill. 385; Meacham v. Steele, 93 Ill. 135. Hence his relations with one of them ought not to be of such a character as to tempt him to neglect the interests of the other. We do not think that Phelps, the trustee in the present case, was guilty of any intentional fraud in his conduct towards Stone. But at the time the trust-deed was executed, and from that time to the date of the sale and thereafter, he was the agent of Williamson in making and collecting the loans and looking after the business of the latter in Chicago. As a consequence of the relation which he thus sustained, he so conducted the sale under the trust-deed as to make it inure to the advantage of Williamson, and to the disadvantage of Stone.

We cannot go into a lengthy examination. of the testimony, which consists mainly of correspondence between Stone and Phelps, and between them both and Williamson, but will only glance at a few features of it.

A court of equity will always examine with the closest scrutiny a sale that is made under the power contained in a trust-deed, and where the rights of third persons have not intervened, as is the fact in the case at bar, redemption from such a sale, conditioned upon the full payment, to the holder of the indebtedness, of all that is due to him, will be allowed where there is evidence of any such unfairness on the part of the trustee, whether intentional or unintentional, as has resulted in injury to the debtor.

Three days after the sale, to-wit, on Decem-auction 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, by the name of Francis W. Jones, bid off the property for Williamson. Although Jones collected some rents, and remitted them to Williamson, and perhaps transacted some other business for him, yet, as a matter of fact, he was the attorney of Phelps. He never saw Williamson, and what he did for the latter he did at the request and under the direction of Phelps. Jones consulted with Phelps before the sale as to the amount to be bid, and was present at the sale at the request 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 sum 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 affirmed. as to the value of the property. Some of the witnesses say that it was only worth $9,000 at the time of the sale; others place its value at that time at $22,000 and $25,000. Phelps says it was worth $24,000 in 1875, when the trust-deed was made, and Magill, one of the real-estate experts, states that there was no difference in values in the years 1875 and 1878. It appears from letters written by Phelps to Williamson and Stone, early in December, that negotiations were then going on with certain brokers for a private sale of the property at $15,000. The letter of December 26th, as above quoted, shows that Phelps had been assured, up to the day after the sale under the trust-deed, of an offer sufficient in amount to cover the total indebtedness, which was not less than $13,000. But, whatever may have been the value of the property on December 23d, the amount bid for it on that day was not determined with reference to the value, but with reference to the possibility of forcing a quitclaim deed from Stone. It was not proper for the trustee to direct the representative of Williamson what bid he should make. It is the duty of the trustee to offer the property at public bar.

SHOPE, J., not having been present at the argument of the case, took no part in its consideration.

(131 Ill. 27)

WALKER v. RAND et al.1
(Supreme Court of Illinois. Nov. 25, 1889.)
APPELLATE COURT-JURISDICTION-DOWER-Trust
DEEDS JUDGMENT.

land, where the complainant's right to dower in
1. A suit to assign dower in several pieces of
one of the pieces is contested, involves a freehold,
within the meaning of the statute defining the ju
risdiction of the Illinois appellate court.

2. A trust-deed was dated and acknowledged by the grantor nearly a month before his marriage. Afterwards, his wife was made a party, and the deed was executed by her, and acknowlthe wife's right of dower was from the first subedged by both her and her husband. Held, that ordinate to the trust-deed; the presumption being that the deed was delivered on the day of its date. ceased person, subject to the widow's right of 3. One who has purchased the land of a dedower, is not a joint tenant with the widow before her dower is assigned.

4. Where the owner of land subject to a right

of dower, and to a trust-deed superior to such 1Reported by Louis Boisot, Jr., of the Chicago

1

6. Pending an appeal from a judgment against joint obligors, one of the defendants gave a trustdeed to secure the payment of such judgment, or any judgment rendered in any other suit on the same cause of action. The judgment was reversed, and the suit abandoned. After the death of said defendant and of one of the plaintiffs, the surviving plaintiffs sued the surviving defendants on the same cause of action, and obtained judgment. Held, that the trust-deed secured the payment of such second judgment, notwithstanding the change of parties.

dower right, agrees with the holder of the trust-judgment 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. surety was extinguished by the judgment of this court; and. therefore, that said deed of trust was a cloud upon her estate in the premises, which she asked to have removed, and declared void. The members of the firm of Tucker, Brown & Co. answered, admitting that said judgment had been recovered, but denying that there had been any final judgment as to the legal liability of the lessees, and alleging the commencement of a suit for the same causes of action in the circuit court of the United States for the northern district of Illinois, and claiming that they were entitled to recover a judgment therein, which, When recovered, would come within the conditions of said deed of trust. Demurrers were filed by the other defendants, which were sustained as to two of them and overruled as to the others. Complainant thereupon amended her bill, and the amended bill was answered by all the defendants.

7. The fact that the parties to the second suit stipulated that no execution should issue against the individual property of the surviving defendants, who had previously sold all their rights in the contract sued on to the deceased defendant, does not, in the absence of any showing that the judgment was entered by consent, render the judgment fraudulent as against the widow of the deceased defendant.

8. In such case, the proceeds of property belonging jointly to all of the original defendants may properly be applied to the payment of such second judgment.

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 marriage with Martin O. Walker, and his taxes, tax-sales, mechanics' liens, and the seisin of said lots during coverture; his death; her demand for her dower of the heirs of Martin O. Walker, and their refusal to assign dower; the appointment of Augustus L. Chetlain as administrator of the estate of Martin O. Walker; the sale and conveyance of the premises above described by the administrator to George C. Rand; the conveyance of said premises by Samuel O. Walker and Edward S. Walker, the heirs at law of Martin O. Walker, and the vesting of their title, through certain mesne conveyances, in said Rand, Rand's title being in trust for John W. Doane; and it was also alleged that said premises were subject to a deed of trust executed by Martin O. Walker, in his lifetime, to Charles E. Brown, to secure, under certain conditions in said deed of trust specified, a certain judgment against said Walker in favor of Tucker, Brown & Co., and which was then pending in this court on appeal, in case said judgment should be affirmed by this court, and also to secure any other judgment which might thereafter be rendered against him upon the covenants of the lease upon which the then existing judgment had been rendered. The bill further alleged that said

trust-deed to Tucker, Brown & Co.; and they denied that the trust-deed had ceased to be a lien, or that the complainant signed the same as surety for her husband; and they also set up the judgment recovered in the federal court. Defendants Samuel O. Walker and Edward S. Walker denied the complainant's demand for dower, and admitted the conveyances by which their title to said premises had become vested in Rand. Defendant Fargo answered, disclaiming all interest in the premises. Defendant Chetlain denied having any money belonging to the estate, and also denied that he had been guilty of any fraud or misrepresentation in. the premises, and averred that he had paid over to the creditors all the money received by him. On the 25th day of September, 1882, Thomas Brown, claiming to be the sole owner of said judgment, filed his cross-bill, making the complainant and the other parties to the original bill parties defendant, and setting up in detail the facts in relation to the execution of said deed of trust, and the recovery of said judgment in the federal court, and praying for a foreclosure of said deed of trust. 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 O. 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, and while said inines were being operated by said lessees, Walker purchased and received an assignment of the interests of Throop and McClelland in said firm, and executed to them an instrument, in which Cutting and Mullins, his other partners, also joined, in which they covenanted to pay the rent, and perform all the covenants of the lease, and save said retiring partners from all the liabilities of the firm. During the time the mines were being worked, there was a dispute between the les-ant took place May 9, 1874. There is no evi sees and their lessors concerning certain of the demised premises of which the lessors refused to give possession to the lessees, and the lessees in consequence declined to pay the royalties reserved in the lease. In December, 1871, a suit was brought by the lessors against the lessees upon the covenants of the lease; the breaches assigned being both the non-payment of the royalties reserved and the failure of the lessees to take out the amount of coal stipulated for in the lease. In defense of said suit the lessees pleaded, among other things, (1) an eviction from a portion of the demised premises; (2) an unlawful detention from the lessees of a portion of the demised premises;

Gray, and Taylor, April 16, 1874. The name of the complainant appears from a memorandum at the bottom of the deed to have been interlined in the premises of the deed May 18, 1874, and her signature now appears at the bottom of the instrument; and there is appended to the deed a second certificate of the acknowledgement of the instrument by Martin O. Walker and the complainant, his wife, on said 18th day of May, 1874. The marriage between Martin O. Walker and the complain

dence, apart from the deed itself, as to the date of its actual delivery. The appeal from said judgment resulted in a decision of this court reversing said judgment, and remanding said cause to the circuit court, with directions to that court to overrule the demur. rer to said pleas. Walker v. Tucker, 70 Ill. 527 The cause was never reinstated in the circuit court in pursuance of the mandate of this court, and no further proceedings were taken therein, said suit being thereby abandoned.

On the 28th day of May, 1874, Walker died intestate and insolvent, leaving him surviving the complainant, his widow, and his two

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