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(148 N.E.) (317 III. 241)

10. Descent and distribution Om 17-Remainder PONTIUS v, CONRAD et al. (No. 16594.) after widow's death held not devised in con

tingency which happened, (Supreme Court of Illinois. April 24, 1925.

Where will gave life estate to widow, and leRehearing Denied June 9, 1925.)

gacy to granddaughter, and provided that, should 1. Wills w 449—Testator presumed to have granddaughter die before majority, her legacy intended by will to dispose of all his property. should be divided with the residue of the es

tate, among testator's children, remainder after A testator is presumed to have intended by widow's life estate was not devised, but dehis will to dispose of all his property and leave scended to testator's heirs including his grandno part of it intestate.

child, where she did not die before reaching

2. Wills em449—Courts adopt any reasonable
construction of will, rather than hold testator
intended to die intestate.

Appeal from Superior Court, Cook Coun-
Courts will adopt any reasonable construc-ty; Charles M. Foell, Judge.
tion of will, rather than hold that testator in Bill by Paulina Pontius against Wilhel-
tended to die intestate as to any of his proper- mina Conrad and others. Decree for defend-

ants, and complainant appeals. Reversed 3. Wills E-435—Courts cannot guess at provi. and remanded, with directions. sion testator would probably have made and

Edward B. Zahn, of Chicago, for appellant. read it into will,

John E. Foster, of Chicago, for appellees. If testator has overlooked condition which he would perhaps have provided for if it had occurred by him, court cannot guess at what · DUNN, J. August Bercher died on Ocprovision he would probably have made, and tober 26, 1908, leaving his wife, Maria Anna by construction read it as part of will, on pre- Bercher, surviving him. His heirs were his sumption that he would naturally have made three daughters, two sons, and a grandprovision if he had thought of it.

daughter, Paulina Pontius. He executed a

will a few weeks before his death, which 4. Wills ww440— Intention to be sought is that was admitted to probate, by which, in addiexpressed by words used in will.

tion to directing the payment of his debts Intention to be sought in construing will is and funeral expenses and the erection of a not that which by inference may be presumed to have existed in his mind, but that which by monument and naming an executor, the only words used in will he has expressed.

disposition made of his property is contained

in the second and third paragraphs: 5. Wills @ 452—Presumption is against con "Second-After the payment of such funeral struction which will disinherit heir.

expenses and debts, I give, devise and bequeath Presumption prevailing in interpretation of unto my beloved wife, Maria Anna Bercher, all wills is against construction which will disin- my estate, real, personal or mixed of which I herit heir.

shall die seized and possessed, or to which I

shall be entitled at the time of decease; to 6. Wills Cm 452—Intention to disinherit heirs have and to hold the same during her natural must be indicated clearly.

life. When testator intends to disinherit heirs “Third-I direct that five hundred dollars he must indicate that intention clearly, either ($500) be paid by my executor hereinafter by express words or by necessary implication, named to Paulina Pontius, the only surviving and intention cannot rest on conjecture.

child of my deceased daughter, Paulina Pontius,

when she shall have attained legal age and after 7. Wills Cm452-Heir not disinherited except the death of my wife. Should my said grandby express devise or clear implication. daughter, Paulina Pontius, die before attaining

The heir is not to be disinherited except by legal age, the said five hundred dollars ($500) express devise, or implication so inevitable that shall revert to and be equally divided with the an intention to the contrary cannot be sup- rest and residue of my then estate among all posed.

of my following children: Wilhelmina Conrad,

Aloisius Bercher, Maria Baumer, Katharina 8. Wills www 478-Devises by implication must Kohler, and John Bercher, share and share be so strong that contrary intention cannot

alike." be presumed.

To create devises by implication, impli The testator owned two pieces of real cation must be so strong that contrary inten- estate in Cook county, which he had owned tion cannot be presumed to have existed, and for many years. At the time of his death 80 necessary as to leave no hesitation in mind he was 65 years old, his wife was 62, and his and permit no other inference.

granddaughter was 3. His widow died on 9. Wills w 478-Gift by implication not in- December 18, 1913, and his granddaughter ferred from silence.

arrived at the age of 18 years on May 14, A gift by implication cannot be inferred 1923. Soon after, she filed a bill in the sufrom silence on the subject, but must be based perior court of Cook county for the construcon some expression in will.

tion of her grandfather's will and an For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-2

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counting of the rents and profits, making the be equally divided, with the rest of the esother heirs defendants. They demurred to tate, among the five children. The rest of the bill, their demurrer was sustained, and the estate not having been previously rethe bill was dismissed for want of equity. ferred to was not affected by the will, but She has appealed from this decree.

by operation of law would, in case of PaulIn addition to the facts which have been ina's death before attaining legal age, go to stated, the bill alleged that one tract of the the children equally. The testator's heirs real estate had been taken by the city of Chi- were his five children and this granddaughcago for the extension of Ogden avenue by ter, the appellant, who would all inherit condemnation proceedings, to which she and equally. The effect of the legacy of $500 to all the other heirs of August Bercher were Paulina was to give her that much greater made parties, but her guardian, who had share in the estate, and the object of the subbeen appointed by the probate court of Cook sequent provision was to declare that, if county, was not made a party, and no guard- Paulina did not live to receive the legacy, it ian ad litem was appointed for her and no was to be divided among the remaining heirs, summons was served on her; that a certain who would receive the rest of the estate. sum of money was deposited with the county | This sentence by its terms was to have no treasurer of Cook county, purporting to have effect unless Paulina died before attaining been awarded to the heirs of August Bercher legal age, and she did not. Therefore neither as compensation for the real estate taken by the legacy nor the rest and residue of the the city, and a petition was filed in the coun- estate was affected. ty court praying for the distribution of the [1-4] It is true, as the appellees insist, that money so deposited, in which the children of a testator is presumed to have intended by August Bercher were all named, either as pe- his will to dispose of all his property and titioners or defendants, but to which neither leave no part of it as intestate estate, and the appellant nor her guardian was made a the court will adopt any reasonable conparty, and no reference was made to her or struction of the will rather than hold that to her rights, and neither she nor her guard- the testator intended to die intestate as to ian had any knowledge of the proceedings, any of his property. If, however, the testaand no guardian ad litem was appointed for tor has overlooked a condition which he her; that upon reaching her majority the would perhaps have provided for if it had appellant received the legacy of $500 men- occurred to him, the court cannot guess at tioned in the will but has not received any what provision he would probably have made of the rents and profits of the real estate or and by construction read it as a part of his any part of the consideration paid by the city will on the presumption that he would natof Chicago under the condemnation proceed- urally have made such a provision if he had ings, but the children of the testator claim to thought of it. Moeller v. Moeller, 281 Ill. be the sole owners of the real estate, and 397, 117 N. E. 1002. Where there is nothing deny the right of the appellant to a share in in the will itself to show the intention of it; that the testator's son Aloisius, who was the testator as to the disposition of his propnamed as executor of the will, collected the erty in the condition which has actually rents from the real estate, of the amount of arisen, the court cannot hold that the will which the complainant has no knowledge. disposes of the property in a particular way, The bill prays that the court will construe on the supposition that the testator would the will; that the defendants be required to probably have disposed of it in that way if account to the complainant for an undivided his attention had been called to the par. one-sixth interest in the estate of her grand- ticular circumstances. Minkler v. Simons, father, and for one-sixth of the rents, issues, 172 III. 323, 50 N. E. 176. The testator havand profits of the real estate after the death ing devised a life estate to his wife and be-, of his widow.

queathed a legacy of $500 to his infant grandThe question for decision is whether under daughter, payable upon her attaining her the will the children of the testator take his majority, thus making an additional provi. real estate as residuary devisees, and this sion for her in excess of the shares of the depends upon the construction of the third other heirs, all adults, in consideration of the paragraph of the will. There is no express fact that she might die before the legacy devise of the fee to them, but the appellees became due, expressed the intention that in contend that there is a clear implication from that case the $500 should be equally divided the provisions of the will of a devise of the among the other heirs. This provided for residue to the testator's five children.

the one alternative of her death before atThe only gifts made by the will expressly taining legal age. What if she did not die are the life estate to the widow, the legacy before that time? He had already provided to the appellant, and the gift of it over to the for that event by declaring that she should testator's children, should she die before at be paid the $500, and the law of descent protaining legal age-meaning her majority. vided that she should have her equal share of The latter gift was to have no effect unless the rest of the estate. There is no suggesPaulina should die "before attaining legal |tion in the will as to any purpose to change, age,” and in that case it was to revert to and I by the last sentence of paragraph 3, the in

(148 N.E.) tention of the testator; except in the event of

(317 Ill. 348) the death of the appellant before attaining AUSTIN V. PARKER et al. (No. 16262.) her majority, and we cannot supply such intention. The intention sought is not that (Supreme Court of Illinois. April 24, 1925. which by inference may be presumed to have Rehearing Denied June 10, 1925.) existed in the mind of the testator, but that which by the words used in the will, he has | 1. Trusts (w210 - Trustee cannot create lien expressed. Engelthaler v. Engelthaler, 196 on trust estate by his contract, without exIII. 230, 63 N. E. 669; Williams v. Williams, press authority in trust instrument. 189 Ill. 500, 59 N. E. 966; Bingel v. Volz, 142 Trustee cannot create a lien on the trust 111. 214, 31 N. E. 13, 16 L. R. A. 321, 34 Am. ) estate in favor of a creditor, or charge the trust St. Rep. 64.

estate, even by his contract, without express [5-9] Another presumption which prevails authority in the instrument creating the trust. in the interpretation of wills is against a construction which will have the result to 2. Trusts Cw236–Trust estate property not

available to reimburse trustee for expenses disinherit the heir. The heirs of a testator

or losses incurred, in absence of exercise of are favored by the policy of the law and can good faith and common prudence. not be disinherited upon mere conjecture. When the testator intends to disinherit them reimburse trustees for expenses or losses in

Property of trust estate cannot be used to he must indicate that intention clearly, either curred, unless he has used good faith and comby express words or by necessary implication,

mon prudence. The intention must be manifest and rest on something more certain than conjecture. 3. Trusts am 236—Trustee may charge his acThe heir is not to be disinherited except by counts with whatever expense or loss he has express devise, or by implication so inevitable been required to meet, where he exercised that an intention to the contrary cannot be good faith and common prudence. supposed. Devises by implication have been If losses occur to a trustee in cases where recognized where a necessary implication of he has used good faith and common prudence, devise arises from the provisions of the will, he may be allowed to charge his account with but probabilities as to the testator's inten- whatever expense or loss he has been required tion cannot be weighed.

to meet.

The implication must be so strong that an intention contrary to that imputed to the testator cannot be pre

4. Trusts 250—Trustee's indemnification by

trust estate for losses sustained, does not sumed to have existed in his mind. The im

create direct liability against estate to third plication must be so necessary as to leave no

persons. hesitation in the mind and permit no other inference. Connor v. Gardner, 230 Ill. 258,

That a trustee is indemnified by the trust 82 N. E. 640, 15 L. R. A. (N. S.) 73. A gift estate, in those cases where, in the exercise of

good faith and common prudence, he has susby implication cannot be inferred from si- tained losses, does not create a direct liability lence on the subject, but must be based upon against the trust estate for the benefit of third some expression in the will. Bond v. Moore, persons dealing with the trustee. 236 111. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 510; Martin v. Martin, 273 Ill. 695, 113 N. Trusts 250-Generally, remedy of third L. 150.

persons dealing with trustee is against trus. [10] At the testator's death the remainder tee only. after the life estate devised to his widow, not Remedy of third persons dealing with a having been devised by the will, descendea | trustee is generally against the trustee only. to his heirs, including the appellant. The erent had not occurred upon which the gift 6. Trusts On 250—When third person dealing of the residue to the children was based. with trustee may proceed directly against It never did occur. The will gave the legacy

trust estate in chancery, stated. to the granddaughter, but indicated no in Where the trust estate is either indebted tention that it should be in full of her share to the trustee, or would be if he should pay a of the estate.

It was payable only after demand against him in favor of third person, the death of the widow, and, if she was not and the trustee is insolvent or nonresident, living to receive it, the will provided that it the trust estate may be reached directly by a should be divided among the other heirs, but proceeding in chancery. there is no intimation in the will that if she

7. Trusts 254–Trustee, binding himself for should receive it she should receive no other

benefit of estate, is liable in action at law, and part of the estate.

bill of equity will not lie against trust estate. The demurrer should have been overruled.

A trustee, who binds himself for the benefit The decree is reversed, and the cause remanded, with directions to overrule the de- of the estate, is liable in an action at law, and

a bill of equity will not lie agaist the trust es

tate, since the right of action is against the Reversed and remanded, with directions. trustee personally.


For other cases see game topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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8. Trusts 210—Contract with third persons ( for the First District, where it was affirmed,

binds trustee personally, in absence of agree and that court issued a certificate of imporment, to look to funds of estate exclusively. tance and allowed an appeal to this court.

A trustee, by a contract with third persons, The Co-operative Society of America was binds himself personally, unless the person con- created by a declaration of trust executed on tracted with agrees to look to funds of estate or about February 20, 1919. The instrument exclusively; that being true whether or not the charge is one for which the trustee may be creating the trust provided that its assets reimbursed from the trust estate.

and business should be in charge of three

trustees. It also provided for the issuance 9. Contracts Om 178—"Trustee' is but descrip-of certain certificates of beneficial interest,

tio personæ, in absence of agreement in con- which were widely sold to the public, the retract, to look to trust estate.

ceipts of which sales constituted assets of In the absence of language in a contract, the trust estate. The trustees at the time of by which the parties specifically agree that the the filing of complainant's bill were Harrithird party shall look to the trust estate alone for his compensation, the word "trustee" is but son Parker, N. A. Hawkinson, and John Coe. descriptio personæ.

At the time of the trial Hawkinson and Coe

had resigned and appellants Seymour Sted10. Joint-stock companies and business trusts man and George H. Wilkins had been named

18-Trust estate held not liable on quan- as trustees and were made parties defendant, tum meruit for services of one employed by After the decree was rendered, Parker and trustee.

Wilkins resigned and Edward C. Kessler and Where one of three trustees of "common- John Coe were made trustees. The latter aplaw trust” employed plaintiff to render services

Neither in obtaining control of certain corporations, of pears to have been 'reappointed. one of which he was to be made president, Stedman nor Kessler was a trustee at the with no agreement that trust estate should be time of the supposed agreement with the combound, and there was no express ratification of plainant. the agreement, trust estate held not liable on The instrument creating the trust gave to quantum meruit for his services.

the trustees, collectively, full control and 11. Trusts (w210_That trust estate receives management of all matters involving the ad

benefit of contract made by trustees does not ministration of the trust estate. It provided render it liable to third parties upon implied that they hold the legal title to its property, liability.

and gave them full right and power to alienThat trust estate receives benefit of con- ate, mortgage, or otherwise incumber or distract made by trustees does not render it liable pose of the real estate belonging to the trust to third parties upon theory of implied liability. estate, and power to employ the funds and

other property of the trust estate at any time

in the establishment and operation of grocery Appeal from Third Branch, Appellate

or other stores, wholesale or retail, in ChiCourt, First District, on Appeal from Circuit cago or elsewhere. The instrument also proCourt, Cook County; George F. Rush, Judge. vided that the trustees, to the extent of the

Bill by Harry G. Austin against Harrison trust estate held by them, but not personally, Parker and others, as trustees of the Co- should indemnify and hold harmless the benoperative Society of America, a common-law eficiaries, and such other persons as might trust. The circuit court's decree for com- be associated with them, against loss or liaplainant was affirmed by the Appellate Court, bility by reason of any contract, obligation, and defendants appeal. Judgment of Ap- or liability entered into by them as trustees. pellate Court and decree of circuit court re- They were also empowered to sue for and versed.

receive all moneys coming due to the trust Stedman, Kesler & Dingle, of Chicago estate, to prosecute or defend suits at law (John A. Leitch, of Chicago, of counsel), for or in equity, to compromise, or refer to arappellants.

bitration, claims in favor of or against the Cleland, Lee & Phelps, of Chicago (Robert trust estate. They were given power, by G. Phelps, of Chicago, of counsel), for appel- unanimous consent of the trustees, to exlee.

change stock or securities held by them in

any corporation or trust, taking over the STONE, J. Appellee recovered a money

property of such corporation or trust by condecree against appellants Harrison Parker,

solidation or otherwise. They were authorSeymour Stedman, and George H. Wilkins, as

ized to loan money to any corporation or trustees of the Co-operative Society of Amer- trust of which they might own shares of ica (a common-law trust), for services ren-capital stock, or embark in any lawful busidered in procuring a controlling interest in ness, and subscribe for, purchase, or otheran insurance company and a certain building wise acquire shares in the capital stock of in the city of Chicago. An appeal was tak- any corporation or trust engaged in lawful en from this decree to the Appellate Court l business.

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(148 N.E.) The eighth paragraph of the instrument proval of Hawkinson and Coe, the other truscreating the trust provided that

tees, concerning the employment of Austin "All acts to be done by the trustees, includ- for the purposes for which Parker employed ing the alienation or incumbering of real estate, him. Austin testified that he was introduced may be performed by any two of the trustees; to Hawkinson and Coe as the man who was the acts or signatures of all three trustees not putting over the stock deal for the trustees. being necessary.”

This is vigorously denied by Coe. Hawkinson By the sixteenth paragraph it was provid- was not called as a witness. All three of ed that, in every written contract, order, or the trustees participated in the subsequent obligation which the trustees should give, it purchase of the stock for which Austin had was their duty to stipulate that neither the contracted. The record does not show that trustees nor the holders of the beneficial Coe and Hawkinson had anything to do with interest should be held to any personal lia- the contract existing between Parker and bility by reason of such contract, and to con- Austin; nor does it show that they ratified vey notice in that language to third parties that contract, which was, as we have seen, that the trustees were not dealing on their that Austin was to receive the presidency of own responsibility as individuals, but as the new insurance corporation as compensatrustees in an express trust under the com- tion for his services in bringing about the mon law,

deal. He was to receive as such president a The facts as we gather them from the salary of $25,000 per year and certain comrecord are that appellant Parker called up missions on business done. on one Craig, who conducted an employment

The circuit and Appellate Courts were eviagency, for assistance in securing a man to dently of the view that the trustees of the act as president of a small insurance com- estate having later purchased for the estate pany owned by this trust estate. Through the stocks contracted for by Austin, though, Craig's efforts, Parker and appellee, Austin, after Austin had been relieved of his conwere brought together, and, after discussing tract with the owners of such stock, the trust the matter with Austin, Parker decided not estate, by reason of having had the benefit of to develop this small insurance

Austin's services, is under an implied liabil

company, known as the Rockdale Insurance Company, ity to pay a reasonable fee for that service, but that Austin should endeavor to find a which fee, together with expenses and attorcompany which Parker and his associates neys' fees incurred by Austin were fixed in could purchase. Austin's testimony is that the decree at $17,400. Appellants urge that Parker, in his dealings with him, purported this trust estate can be bound only by an exto represent the trustees, and, pursuant to press agreement of the trustees to subject this agreement with Parker, he investigated the assets of the estate to liability; that, in a number of different concerns and ultimate the absence of such express agreement, the ly made a contract for the purchase of the trustees are personally liable on the contracts controlling interest in the People's Life In- entered into. by them, and this being so, a surance Company and in the Randolph Build- court of equity has no jurisdiction to enter ing Company, taking the contract in his own

a decree against the estate; that, while a name. It appears that, by an agreement with

trust estate may be sued only in equity, that Parker, he incurred liability for legal serv- court has jurisdiction only where the conices. It is undisputed that, as consideration tract is with the estate and not with the for his services, Austin was to be appointed

trustees. president of the new insurance company

The prayer of the bill in the instant case when purchased. After Austin had made the was that the complainant be held to be encontract for the purchase of the controlling titled to receive from the trustees reasonable interest in the insurance company and build compensation for his services and that the ing, a dispute arose between him and Parker trustees may be required to pay the same to concerning the terms upon which Austin was the complainant. The decree entered on this to become president of the insurance com- prayer was as follows: pany, by reason of which dispute the rela- ! “And the defendants, as such trustees, are tions between them were terminated. After hereby ordered to pay the complainant, within Austin had procured a release from his con- 10 days from the entry of this decree, the sum tract of purchase of the stock referred to, of $17,400.” appellants, as trustees of the Co-operative Society of America, took over the stock con [1-7] A trustee cannot create a lien on the tracted for by Austin at the terms upon trust estate in favor of a creditor, or charge which he was to purchase it, and he therefore the trust estate, even by his contract, withclaims that he is entitled to a money decree out express authority by the instrument creagainst the trust estate, by reason of his ating the trust. Property of the trust estate services in securing the purchase of this cannot be used to reimburse the trustee for

expenses or losses incurred, unless he has There is nothing in the record which shows used good faith and common prudence. If å meeting of the trustees or the express ap- losses occur in cases where the trustee has

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