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fourth; Josephus W. Martin one-fourth; and of all claims of Nancy Stephens to the propEffie Karr, Walter Karr, Edna Karr and Charles erty of Josephus Martin, deceased. Karr one-fourth; and in the event of the death of any of my said children or grandchildren prior to my death, the legal heirs of such deceased child or grandchild, as provided by the rules of descent in the statute of the state of Illinois, shall take the share of the deceased."

The substance of the objections filed by plaintiff in error is that the propositions of settlement of Nancy Stephens are contrary and in opposition to the express terms of the said will of Josephus Martin, deceased, and The descriptions of the real estate in the that the court has no jurisdiction or power said will are lengthy, and the descriptions in to alter the terms of the will or to compel the foregoing brackets are used for the pur-him to settle upon the terms proposed; that pose of brevity and for ready comprehension the propositions of settlement proposed are of the tracts to be considered in this opinion. manifestly to his prejudice, and that a deThe petition upon which the court entered cree of the court either setting aside or susits decree in this case, after reciting the taining the will would much better protect proceedings in the cause down to that time, his interests than the acceptance of said propfurther stated that a large amount of costs ositions of settlement named in said petition. had already accrued, besides solicitors' fees, in this litigation. It also stated that Emma decision is whether or not a court of equity [1] The real question in this case for our B. Collison, Mary E. Collison, and the chil- has the power and the authority to entirely dren of Dora B. Karr, grandchildren of the disregard the terms of a trust created by a testator, were willing to accept the proposi-will and to compel a party interested in the tions of Nancy Stephens, and that Josephus trust property to accept a compromise setW. Martin had been served with a copy of tlement of the trust estate against his will the petition and notice that it would be pre- and against his interest, where all the other sented to the court for its decision and the interested parties are willing and desire the time and place thereof, and prayed for an settlement. The court found and recites in order and direction of the court authorizing settlement. The court found and recites in the executors to accept and carry out the the decree that it would be for the best terms of the said proposed settlement. An- interests of the estate of Josephus Martin nexed to it and made a part thereof was a and of all parties interested therein to accopy of the offer of compromise of Nancy cept the proposition of settlement submitted Stephens, subject to the approval of the and thus to end the litigation, which has court, which is, in substance, (1) that she been long-continued and expensive. It furwould refund to the parties who paid it the ther found that Emma B. Collison, Mary E. $1,000 which was paid to her on the former Collison, and the children of Dora B. Karr, compromise, with accrued interest thereon; deceased, together with plaintiff in error, are (2) that she will retain the lease for the 227 the only beneficiaries whose rights and interacres which was executed by them under the ests will be reduced if the settlement is carformer settlement of May 26, 1909, subject ried out, and that they are all willing, exto any possible claim of Hannah J. Martin cept plaintiff in error, that the settlement for dower, and that she is to have the ac- be made if the same is approved by the cumulated rent thereon, after deducting tax-court. The defendants in error contend that, es, repairs, receiver's commissions, and fees inasmuch as the subject-matter of the controand other charges against the land; (3) that versy herein is a trust, the court of chancery she is to take a quitclaim deed from Emma B. had general jurisdiction of the subject-matCollison and her husband, and Mary E. Col-ter; and, all the parties except plaintiff in lison, a widow, and the children of Dora B. error having consented to said settlement, Karr, deceased, to said (first 80-acre farm), and plaintiff in error having been notified and subject to any possible claim of dower of filed his objections, the court had complete Hannah J. Martin; (4) that she is to take the power and authority, under its findings aforeIt is further inexecutors' deed to said (second 80-acre farm) said, to enter the decree. at an agreed valuation of $10,000, subject to sisted that, as no certificate of evidence or a lease thereon expiring March 1, 1914, the bill of exceptions was filed in this case, the rent notes for said lease to be assigned to her said facts found by the court are binding on without recourse, and she is to take said plaintiff in error, and are sufficient to sustain land subject to claim of dower of said wid- the decree. ow; (5) that she will pay all costs made It cannot be questioned that the effect of by her, and the heirs and executors are to the compromise and approval thereof by the pay all costs made by them in the circuit court, and its decree ordering the parties to court and all costs in the Supreme Court; execute the compromise settlement upon the (6) that she will dismiss all suits now pend- terms proposed, is to change the terms of ing, and it is to be understood that when the will of the testator, or, rather, to abrothese propositions are approved by the cir- gate it altogether, and to vest title to the cuit court this shall be a final and complete property devised by the will in trust in the compromise settlement of all litigation and heirs and devisees according to the court's causes of action growing out of the disposi-judgment of what is just and best for them. tion by Josephus Martin of his real and per- The only threatened calamity to the parties

party creating the trust is best subserved by the court's action and the intent of the creator of the trust actually carried out. In the instant case, not only is the title of the property in trust changed against the express terms of the will, but the trust itself is destroyed and the intent of the testator entirely defeated. There is no authority for such action of the court, so far as we can find.

erty itself, so far as appears in this record, | 1916B, 1073, Ann. Cas. 1916A, 996. In all is that the validity of the will itself, and such cases, however, the main object of the of certain deeds made by the testator just prior to the execution of the will, is being contested by the party proposing the settlement, and that the litigation has been longcontinued and expensive and is likely to be still continued. The parties are all adults, and, if there is no valid will, the court would be absolutely without any power or jurisdiction to compel a settlement of their property rights. Plaintiff in error has in no way caused the litigation and has appeared to be entirely indifferent as to its results. But, if he had been a principal instigator of the suits and not disposed at all to settle them on any terms, we know of no rule of law or equity by which a court could compel him to accept terms of settlement proposed by the other parties to the suit, no matter how much more it might, in fact, be to his and to their interests to so settle than to pursue the litigation to any possible conclusion.

Defendants in error rely on the case of Williams v. Williams, 204 Ill. 44, 68 N. E. 449, as authorizing the court to approve and authorize a compromise and settlement of a suit filed to contest a will. That suit was filed by an infant to contest a will; and the court merely exercised its power and its duty to authorize a compromise for the infant, using its best judgment and discretion to do the best thing for the minor's interests. It was not a compromise or settlement of a trust estate, but the exercise of the court's

contest was best and safest for the ward. The case of Curtiss v. Brown, 29 Ill. 201, is not in point and is no authority to sustain the decree in this case.

[2] If the will is valid, a court of chan-judgment as to whether a compromise or a cery may define, but cannot alter or enlarge, the powers conferred upon the trustees by the will. The court has also the power to do whatever is necessary to be done to preserve the trust from destruction, and in the exercise of this power it may, under certain unusual circumstances, modify the terms of the trust to preserve it but not to defeat or destroy it. Courts are slow to exercise their power even to modify the terms of a trust, and will only do so when it clearly appears to be necessary. Rolfe, etc., Asylum v. Lefebre, 69 N. H. 238, 45 Atl. 1087.

[4] In the instant case there are no facts presented, and the decree makes no findings of facts, which show a necessity for the court's interfering with the plan of the trust as created by the testator. It is true, no doubt, that the litigation has been long and expensive, and it may be absolutely true that all parties would save more money or property to themselves by this compromise than to continue the litigation to a final conclusion. Plaintiff in error, however, insists that he will be injured by the settlement. We do not think he will be injured to the extent he claims he will in his argument, but we have no means of knowing or determining the extent of loss or benefit to any one by the settlement. There is a clear subversion of the trust from the plan originally made by the testator, if Nancy Stephens be given the entire income from the 227-acre farm instead of $1,000 per year, and the terms of the will will be materially changed in other respects if the compromise is carried out. cision cannot rest upon the question whether or not any of the parties will be benefited or injured by the compromise.

[3] Where the trustees cannot under the existing circumstances, or any circumstances that can be anticipated, so manage the trust fund as to carry out the plain intentions of its creator, and such circumstances were clearly not within his contemplation or the subject of any direction in the scheme of the trust as formulated and prescribed by him, a case of necessity is presented requiring the intervention of a court of equity, which may direct a change in the management of the trust fund, if by such change the manifest intention of the creator of the trust may be carried into effect. Pennington v. Metropolitan Museum of Art, 65 N. J. Eq. 11, 55 Atl. 468. So, in a case where the income of the trust property is insufficient to pay the taxes and the body of the estate is in danger of being lost entirely, the court will order the sale of all or a part of it in order to preserve it as far as possible. Voris v. Sloan, 68 Ill. 588. Under circumstances where the income of the trust property is insufficient to pay taxes, special assessments, etc., without modi- E. 337; fication of the terms of the trust, the court may and will modify its terms and the use of the property as specified by the creator of the trust, and permit farm lands to be platted and sold as town lots. Johns v. Montgomery, 265 Ill. 21, 106 N. E. 497, L. R. A.

This de

A trust created by a will cannot be altered or destroyed by a court of chancery on the sole ground that in the judgment of the court it will be beneficial to the parties in interest. Johns v. Johns, 172 Ill. 472, 50 N. Johnson v. Buck, 220 Ill. 226, 77 N. E. 163; Lackland v. Walker, 151 Mo. 210, 52 S. W. 414; Morris v. Boyd, 110 Ark. 468, 162 S. W. 69, Ann. Cas. 1916A, 1004, and notes in same volume, page 999, under case of Johns v. Montgomery. What was said in Drake v. Crane, 127 Mo. 85, 29 S.

W. 990, 27 L. R. A. 653, is applicable in the instant case, to wit:

"It may be conceded that a court of equity has no power to make a new will for a testator, and that the extent of its power is to construe the will as presented to it, and, further, that such court can no more authorize an act to be done which is in excess of the powers conferred by the will than can the trustees therein do such act."

The will in the instant case gave no authority to the trustees or to the court to authorize the compromise in question, and the court had no power or authority to order such a settlement.

Appeal from Cook County Court; John H. Williams, Judge.

Proceeding by the City of Chicago against Frederick L. Wells and others to assess property for street improvements. From a judgment confirming the assessment, defendants appeal. Affirmed.

John M. Blakeley, of Chicago, for appellants. Harry F. Atwood and Harry F. Hamlin, both of Chicago (Samuel A. Ettelson, of Chicago, of counsel), for appellee.

CARTER, J. This is an appeal from a judgment of the county court of Cook county

The decree of the circuit court is reversed overruling certain objections and entering

and the cause remanded.

Reversed and remanded.

(274 Ill. 360)

CITY OF CHICAGO v. WELLS et al. (No. 10520.)

(Supreme Court of Illinois. June 22, 1916. Rehearing Denied Oct. 11, 1916.)

1. EVIDENCE 344-ORDINANCE-PROOF OF PUBLICATION.

judgment of confirmation as to a special assessment levied and assessed by the city of Chicago under an ordinance for paving portions of South Kedzie avenue. The sole question raised in the briefs is as to the sufficiency of the proof of publication of the ordinance, as required by section 11 of the Local Improvement Act. Appellants waived on the record all controversy as to other questions.

[1-4] The estimated cost of the improvement as made by the engineer and reported Compliance with Local Improvement Act, by the board of local improvements to the § 11 (Hurd's Rev. St. 1913, c. 24, § 517), re- city council was $104,500. Said section 11 of quiring publication in council proceedings of cer- the Local Improvement Act provides that, tain proposed ordinances "at least one week before any action shall be taken thereon," can- if the estimated cost of the improvement not be proved by printed council proceedings shall exceed $100,000 "such ordinance shall certified by the city clerk, under Cities and Vil- be referred to the proper committee, and lages Act, art. 5, § 4 (Hurd's Rev. St. 1913, c.published in the proceedings of the council 24, § 65), providing that ordinances and the date of their publication may be proved by clerk's or board of trustees, in the usual way, in certificate, etc.; the latter section being in no full, with the recommendation and estimates, way intended to cover the subject of the method of at least one week before any action shall be proving the ordinary proceedings of the council, but only the ordinances and publication thereof. taken thereon by the council or board of trustees." [Ed. Note. For other cases, see Evidence, Hurd's Stat. 1913, p. 415. Cent. Dig. § 1293; Dec. Dig.

2. MUNICIPAL

PROVEMENTS

CORPORATIONS
ASSESSMENT

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TION BY COURT-JURISDICTION.

344.]

Counsel for the appellants argues that the proof 498-IM- offered by him showed that this ordinance CONFIRMA- was published only six days before it was passed by the city council-that is, on June

The subject-matter jurisdiction of a county 9, 1914-while the ordinance was passed on court to confirm a special assessment was not, dependent upon publication of the ordinance June 15, 1914. Counsel for the city insist, for the improvement under Local Improvement on the other hand, that the proof shows that Aet, § 11 (Hurd's Rev. St. 1913, c. 24, § 517), requiring, where the estimated cost exceeds $100,000, that the ordinance be published at least one week before action thereon.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1169; Dec. Dig. 498.] 3. MUNICIPAL CORPORATIONS 488, 489(1)IMPROVEMENTS-PRELIMINARY ORDINANCEWAIVER OF DEFECTS.

Unless properly objected to, failure to pub

lish is waived.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1147, 1151, 1152; Dec. Dig. 488, 489(1).]

the ordinance was published on May 25th. The only proof offered by either counsel on this question was the printed minutes of the council proceedings certified to by the city clerk. Counsel for both sides assume that the time when this proposed ordinance was published may be proven by the printed minutes of the proceedings of the city council

under section 4 of article 5 of the Cities and Villages Act, providing that ordinances and the date of their publication may be proven by the certificate of the clerk, and when 4. MUNICIPAL CORPORATIONS 502(1)-IM- printed in book or pamphlet form, purporting

ASSESSMENT

PROVEMENTS
TION BY COURT-BURDEN OF PROOF.

CONFIRMA In a proceeding before a county court to confirm a special assessment, the burden is on objector to show the officers of a city, in passing the local improvement ordinance, did not perform their duty.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1174; Dec. Dig. 502(1).]

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[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 8 429; Dec. Dig. 176(3).]

only the ordinances and publication thereof, | after retirement. Section 4 provides for the and they could only be proved, under this payment of a pension to any policeman who has section, in the manner therein provided, when become physically disabled while in and in the consequences of the performance of his duty. they were printed in book or pamphlet form Sections 6 and 13 make other provisions with by authority of the city council. The printed relation to the pensions. Const. art. 4, §§ 19, council proceedings introduced by both parties 20, forbid the General Assembly from authorizwere not a printed book or pamphlet of ordi- ing extra compensation to a public officer after ordi-service has been rendered or contract made, and nances, as provided in said section. No at- prohibit the state from becoming responsible for tempt was made by either party to make the debts of or in any manner extending credit proof in any other way as to the time when to any individual, while article 9, §§ 10, 11, dethis ordinance was published. We find, there- clare that taxes levied by the General Assembly upon municipal corporations must be uniform fore, no competent proof in the record by and that the fees and compensation of no offieither party as to the time when this pro- cer shall be increased or diminished during his posed ordinance was published before its pas-ficers are sustained on the ground of being comterm. Held that, as pensions to municipal ofsage. The question of such publication did pensation for services for which adequate comnot go to the jurisdiction of the court as to pensation has not already been made and are subject-matter, and could therefore be waiv- intended to promote fidelity of service, the Pened. Fisher v. City of Chicago, 213 Ill. 268, sion Act is not in violation of such constitutional provisions. 72 N. E. 680. The burden of proof was upon the objectors to show noncompliance with the requirements preliminary to the passage of the improvement ordinance. Yaggy v. City of Chicago, 192 Ill. 104, 61 N. E. 494; McVey v. City of Danville, 188 Ill. 428, 58 N. E. 955. The burden has been held to be on the objector to show that the city had not acquired title to land on which to construct a sewage pumping station. City of East St. Louis v. Davis, 233 Ill. 553, 84 N. E. 674. Objections not urged and proved by counsel are considered waived. Village of Oak Park v. Swigart, 266 Ill. 60, 107 N. E. 158; Fisher v. City of Chicago, supra; Lingle v. West Chicago Park Com'rs, 222 Ill. 384, 78 N. E. 794. The presumption is that the officers of a city, in passing a local improvement ordinance, performed their duty, and the burden is upon the objector to show the contrary. City of Chicago v. Wilshire, 238 Ill. 317, 87 N. E. 383; Chicago Telephone Co. v. Northwestern Telephone Co., 199 Ill. 324, 65 N. E. 329; Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999, and cases cited.

2. MUNICIPAL CORPORATIONS
PENSION ACTS-CONSTRUCTION.

187-POLICE

In such case, as it appears that only a small percentage of the police pension fund will be derived from the salaries of such officers, and as section 4 provides for the payment of a pension at any time to a policeman physically disabled in the performance of his duty, the act must be deemed applicable to police officers in active service who had served a period of 20 years and were over the age of 50 when it went into force, though of course the act is not applicable to those who had previously retired from such service.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 518-521; Dec. Dig. 187.]

3. MUNICIPAL CORPORATIONS
LICE PENSION ACTS-VALIDITY.

176(1)—Po

Pension acts to be valid can only confer pensions upon persons who at the time of receiving them are officers or employés of the municipality.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 427, 433, 436, 438, 439; Dec. Dig. 176(1).]

There being no competent proof in the rec-4. ord that the ordinance was not published before its passage, the trial court properly overruled the objection on this question.

MUNICIPAL CORPORATIONS 187-POLICE
PENSION ACT-CONSTRUCTION-"SHALL."

The Police Pension Act, as amended in 1913, section 1, providing that there shall be The judgment of the county court will be sion fund, is mandatory; the ordinary meaning set apart moneys to constitute the police penof the word "shall" being mandatory.

affirmed.

Judgment affirmed.

(274 Ill. 380)

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 518-521; Dec. Dig. 187.

For other definitions, see Words and Phrases,

PEOPLE ex rel. KRONER et al. v. ABBOTT. First and Second Series, Shall.]

(No. 10645.)

(Supreme Court of Illinois. June 22, 1916. Rehearing Denied Oct. 11, 1916.)

1. MUNICIPAL CORPORATIONS 176(3)-Po

LICE FORCE-PENSIONS.

Error to Circuit Court, Adams County; Albert Akers, Judge.

Application by the People, on the relation of John B. Kroner and others, for writ of mandamus against William K. Abbott. There was a judgment for relators, and respondent brings error. Affirmed.

Police Pension Fund Act (Laws 1909, p. 133), as amended by Laws 1913, p. 174, provides in section 1 that there shall be set apart certain moneys to constitute a police pension fund.. Section 3 declares that whenever any person T. B. Pape and John T. Inghram, both of who at the time of the taking effect of the act Quincy, for plaintiff in error. George H. is a member of the police force or who shall Wilson and Henry E. Schmeideskamp, both thereafter become a member of such force and shall, having served for 20 years and having of Quincy (Howard W. Hayes, of Chicago, reached the age of 50, receive a yearly pension of counsel), for defendants in error.

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

CARTER, J. The relators, John B. Kron-in which the money for such fund shall be er and Joseph Hildebrand, on September 20, raised, including a fixed per cent. of certain 1915, filed a petition in the circuit court licenses granted by the city; a per cent. of of Adams county praying that a peremptory the fines collected for the violation of city writ of mandamus be issued against William ordinances; the fines imposed upon and reK. Abbott, as mayor of the city of Quincy, wards granted to the police force; and all commanding him to appoint two qualified money theretofore accumulated in such city residents as members of the board of trus- for the purpose of establishing a fund for tees of the police pension fund of said city, the benefit of disabled or superannuated poin accordance with the provisions of the licemen. The eighth item provides that in Police Pension Fund Act of 1909 (Laws of cities under the civil service law 1 per cent. 1909, p. 133). The respondent filed a gen- shall be deducted from the salary of every eral demurrer to the petition, which was member of the police force, not to exceed one overruled by the court. Respondent having dollar per month. Section 3 provides, in elected to stand by his demurrer, judgment part, as follows: was entered ordering that a peremptory writ "Whenever any person who, at the time of the of mandamus issue, commanding the re-taking effect of this act is a member of a reguspondent to appoint two members of such board. The case has been brought to this court by writ of error.

The petition alleges that the relators are, and have been for over 50 years, taxpayers and residents of the city of Quincy; that each is over 70 years of age; that on July 1, 1909, the date when said act went into effect, they were both members of the regularly constituted police force of said city and so remained until the year 1911, at which time they retired from said force and have not been members since; that at the time of their retirement they had served on such force for 38 and 43 years, respectively; that for more than one year immediately prior to their retirement each had received a salary of $60 per month, Kroner holding the rank of patrolman and Hildebrand that of station officer. The petition further alleges that said city had a population of not less than 20,000 nor more than 50,000 on July 1, 1909, and since that date, and is within the provisions of said Police Pension Fund Act; that Abbott, some three years ago, duly elected and qualified as mayor of said city and is still so acting; that no police pension fund has been set apart, formed, or disbursed in said city and no board of trustees of such fund appointed pursuant to said act; that relators are entitled to have said pension fund set apart and to participate in the benefits thereof as pensioners; that at divers times since March, 1915, they have requested said mayor to appoint two men for said board of trustees, and that he refuses to make such appointment.

was

The act was amended in 1913, making it applicable to all cities between 9,000 and 50,000, while the original act only applied to cities between 20,000 and 50,000. The amendment further provided that certain portions of the act should not apply to cities that have not adopted civil service in the police department, but said amendments in no way affect the questions raised in this cause. Section 1 of the act provides that in all cities under it "there shall be set apart the following moneys to constitute a police pension fund." Then fol

lage or town or who shall thereafter become a larly constituted police force of such city, vilmember of such a police force, shall have served for the period of twenty years or more upon the village or town of this state said board shall, regularly constituted police force of such city, subject to the provisions of this act, order and direct that such person after becoming fifty years of age and his service on such police force shall have ceased, shall be paid from such fund a yearly pension equal to one-half of the amount of salary attached to the rank which he may have held on such police force for one year immediately prior to the time of such retirement,"

etc.

Section 4 provides for the payment of a pension to a policeman who has become physically disabled while in, and in consequence of, the performance of his duty. Section 6 provides for the payment of a pension to the widow, child, or children of a policeman who loses his life in the performance of his duty or receives injuries from which he thereafter dies, giving in some detail when and under what circumstances the family shall receive such pension. Among other provisions are the following:

"That whenever any member of the police retired or shall have been retired after twenty force of such city, village or town shall have years service or on account of being physically disabled, shall then marry, such wife or child or children or dependent parent of such policeman, shall after his death, receive no pension from said fund. Whenever any member of a police force shall die after ten years service therein and while still in the service of such city,, village or town, leaving a widow or child or children under the age of sixteen years or dependent parent," then certain specified members of his family shall receive a pension.

Section 13 of the act provides, among other things, that:

"If at any time there shall not be sufficient moneys belonging to this fund to pay * * * its beneficiaries, then they shall be paid pro of such board shall be held to create any liarata from said funds, but no allowance or order bility against any such city, village or town, except upon the fund so set apart as aforesaid for the payment thereof."

While the entire act should be read and considered in order to obtain a full understanding of the meaning of its various sections, the provisions above set forth are the chief ones that must be considered in deciding the questions raised in the briefs.

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