{ "id": 5221589, "name": "Eugene Orme, Individually and Thomas D. Nash, as Administrator with the Will Annexed of the Estate of Louise de Haven, Deceased, Appellees, v. The Northern Trust Company, etc., et al. On Appeal of William P. Rogers, Attorney General of the United States, etc.", "name_abbreviation": "Orme v. Northern Trust Co.", "decision_date": "1961-01-09", "docket_number": "Gen. No. 47,821", "first_page": "75", "last_page": "97", "citations": [ { "type": "official", "cite": "29 Ill. App. 2d 75" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "28 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "306 Ill. App. 123", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5570525 ], "year": 1940, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-app/306/0123-01" ] }, { "cite": "130 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "8 Ill.App.2d 61", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5149889 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-2d/8/0061-01" ] }, { "cite": "300 U. S. 115", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 336779 ], "year": 1937, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/us/300/0115-01" ] }, { "cite": "297 U. S. 496", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3929114 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/us/297/0496-01" ] }, { "cite": "102 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "48 N.E.2d 611", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "318 Ill. App. 447", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3401355 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/ill-app/318/0447-01" ] }, { "cite": "111 N. E. 592", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1916, "opinion_index": 0 }, { "cite": "271 Ill. 614", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4817344 ], "year": 1916, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill/271/0614-01" ] }, { "cite": "107 N. E. 186", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1914, "opinion_index": 0 }, { "cite": "266 Ill. 205", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4786526 ], "year": 1914, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill/266/0205-01" ] }, { "cite": "184 N. E. 627", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1933, "opinion_index": 0 }, { "cite": "351 Ill. 414", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5298446 ], "year": 1933, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill/351/0414-01" ] }, { "cite": "145 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "12 Ill.2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779746 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/ill-2d/12/0224-01" ] }, { "cite": "280 S.W.2d 649", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10184312 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/sw2d/280/0649-01" ] }, { "cite": "324 S.W.2d 491", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10170110 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/sw2d/324/0491-01" ] }, { "cite": "319 P.2d 637", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1957, "opinion_index": 0 }, { "cite": "49 Cal.2d 514", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 12128736 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/cal-2d/49/0514-01" ] }, { "cite": "315 P.2d 681", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1957, "opinion_index": 0 }, { "cite": "49 Cal.2d 120", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 12122632 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/cal-2d/49/0120-01" ] }, { "cite": "145 N. E. 349", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1924, "opinion_index": 0 }, { "cite": "314 Ill. 220", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5131175 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ill/314/0220-01" ] }, { "cite": "44 N.E.2d 583", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "380 Ill. 616", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2554605 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/ill/380/0616-01" ] }, { "cite": "85 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2776366 ], "year": 1877, "opinion_index": 0, "case_paths": [ "/ill/85/0242-01" ] }, { "cite": "12 N. E. 65", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1887, "opinion_index": 0 }, { "cite": "120 Ill. 648", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5384077 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/ill/120/0648-01" ] }, { "cite": "56 N. E. 62", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1899, "opinion_index": 0 }, { "cite": "183 Ill. 463", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5552637 ], "year": 1899, "opinion_index": 0, "case_paths": [ "/ill/183/0463-01" ] }, { "cite": "78 N. E. 823", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1906, "opinion_index": 0 }, { "cite": "222 Ill. 413", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3340380 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/ill/222/0413-01" ] }, { "cite": "85 N. E. 240", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1908, "opinion_index": 0 }, { "cite": "235 Ill. 207", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499867 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ill/235/0207-01" ] }, { "cite": "127 N. E. 24", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 0 }, { "cite": "292 Ill. 468", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4979368 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/ill/292/0468-01" ] }, { "cite": "130 N. E. 774", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1921, "opinion_index": 0 }, { "cite": "297 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5041196 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ill/297/0321-01" ] }, { "cite": "135 N. E. 60", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "opinion_index": 0 }, { "cite": "302 Ill. 498", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5011005 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ill/302/0498-01" ] }, { "cite": "35 N. E. 38", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "opinion_index": 0 }, { "cite": "145 N. E. 87", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1924, "opinion_index": 0 }, { "cite": "313 Ill. 491", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2433739 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ill/313/0491-01" ] }, { "cite": "173 N. E. 610", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1930, "opinion_index": 0 }, { "cite": "341 Ill. 559", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5250942 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ill/341/0559-01" ] }, { "cite": "36 N.E.2d 240", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "377 Ill. 152", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2544902 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/ill/377/0152-01" ] }, { "cite": "43 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "380 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2554443 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ill/380/0215-01" ] }, { "cite": "105 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "346 Ill. App. 509", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2430889 ], "year": 1952, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/ill-app/346/0509-01" ] }, { "cite": "142 N. E. 490", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1924, "opinion_index": 0 }, { "cite": "311 Ill. 269", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5115300 ], "year": 1924, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill/311/0269-01" ] }, { "cite": "50 N. E. 704", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1898, "opinion_index": 0 }, { "cite": "173 Ill. 229", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5539543 ], "year": 1898, "pin_cites": [ { "page": "238-39" } ], "opinion_index": 0, "case_paths": [ "/ill/173/0229-01" ] }, { "cite": "302 Ill. 569", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5012165 ], "weight": 2, "year": 1922, "opinion_index": 0, "case_paths": [ "/ill/302/0569-01" ] }, { "cite": "4 N.E.2d 965", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "364 Ill. 523", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2585663 ], "weight": 3, "year": 1936, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill/364/0523-01" ] }, { "cite": "104 N. E. 156", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1914, "opinion_index": 0 }, { "cite": "262 Ill. 86", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4752220 ], "weight": 2, "year": 1914, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill/262/0086-01" ] }, { "cite": "53 Atl. 374", "category": "reporters:state_regional", "reporter": "A.", "weight": 3, "year": 1902, "pin_cites": [ { "page": "375" }, { "page": "375" } ], "opinion_index": 0 }, { "cite": "203 Pa. 566", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 994757 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/pa/203/0566-01" ] }, { "cite": "343 U. S. 921", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11354611, 11354509 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/us/343/0921-02", "/us/343/0921-01" ] }, { "cite": "410 Ill. 354", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310864 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/ill/410/0354-01" ] } ], "analysis": { "cardinality": 1317, "char_count": 32930, "ocr_confidence": 0.544, "pagerank": { "raw": 1.3410610648401266e-07, "percentile": 0.6311350584532148 }, "sha256": "cf07586ae36d152702c2523f615a400680cf1cba35b5188ee22cb753d490cb25", "simhash": "1:52ccba503c3edebc", "word_count": 5541 }, "last_updated": "2023-07-14T20:18:59.224932+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN and MURPHY, JJ., concur." ], "parties": [ "Eugene Orme, Individually and Thomas D. Nash, as Administrator with the Will Annexed of the Estate of Louise de Haven, Deceased, Appellees, v. The Northern Trust Company, etc., et al. On Appeal of William P. Rogers, Attorney General of the United States, etc." ], "opinions": [ { "text": "PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nThis is a suit to construe the will of Mrs. Louisa G. Bigelow, made in Geneva, Switzerland in 1873. Her three minor granddaughters were named primary beneficiaries. In 1941 Louise de Haven, one of the granddaughters, died testate in the United States devising her interest in the Bigelow estate to plaintiff Orme. He sued for construction of the will in 1943 and in 1959 a decree was entered adverse to him. The decree allowed substantial attorneys\u2019 fees and the United States Attorney General, a substitute defendant, appealed challenging the allowances. Orme and several other parties then cross-appealed.\nMrs. Bigelow sojourned in Geneva, Switzerland from about 1871 until her death in 1873. She had made her will on May 26, 1873. Her three granddaughters, Josephine, Louise and Sarah de Haven, then eight, six and four years old respectively, resided with her and were her only heirs at law. At her death Mrs. Bigelow owned a number of parcels of Chicago real estate which she devised as part of the corpus of a testamentary trust provided for in her will. The real estate itself has been sold since the filing of the present suit, and the proceeds are trust assets. The Northern Trust Company, as successor trustee, is administering the trust.\nUnder the Bigelow will the trustees were directed to collect the income from the real estate, pay expenses, and pay over the residue of the income to the three granddaughters \u201cin equal parts, individually, during their natural lives.\u201d The trust corpus was to be distributed only on the death of all three grandchildren. Then the estate was to be divided equally among the \u201cchildren or heirs\u201d of the grandchildren, \u201cone-third to the child or children, heirs or heirs\u201d of each grandchild.\nJosephine de Haven Caldwell, the eldest grandchild, died intestate in 1919 leaving her five children as her only heirs at law. Louise de Haven married Baron Curt von Alten, a German citizen, in 1896. She had two daughters, who are German nationals. She became estranged from her family before World War I, returned to this country after the war, obtained a Nevada divorce from her German husband in 1921, in 1923 adopted Raymond Edwin de Haven and died testate in 1941. In her will she named plaintiff Orme devisee of her interest in the Bigelow estate. Sarah de Haven married Hans von Campe who died before her. She died in Switzerland in 1951, leaving three children and a will devising to her daughter, defendant Alice von Campe Lohrer, whatever interest she had under the Bigelow will.\nOn March 22,1949, the Attorney General, as Successor to the Alien Property Custodian by virtue of the Trading With The Enemy Act, vested the interests of the German nationals, original defendants, including the daughters of Louise de Haven. His petition for leave to appear and defend in lieu of the German nationals was granted, and on appeal to the Supreme Court in 1952, the order of substitution was sustained. Orme v. Northern Trust Co., 410 Ill. 354 (1951), cert. denied, Von Hardenberg v. McGrath, 343 U. S. 921 (1952).\nWhen Josephine Caldwell died her children demanded the income which had been previously paid her. The Trustee declined to accede to the demand because the Bigelow will made no express provision for disposition of the income upon the death of a granddaughter leaving issue surviving. It provided only for disposition of income in the event of the death of a granddaughter \u201cwithout issue surviving.\u201d The Caldwell children sued for construction of the will and a decree was entered granting the income to four of Josephine\u2019s children and her daughter-in-law and the latter\u2019s children. This decree is called the \u201c1920 decree.\u201d\nThe pleadings in the instant case raised the issues whether the \u201c1920 decree\u201d was res judicata of Orme\u2019s suit; whether the Buie in Shelley\u2019s case applied so as to enable Louise de Haven to devise her interest to Orme; and whether Baymond de Haven qualified as a beneficiary under the Bigelow will. The issues were referred to a Master in Chancery who found that the 1920 decree \u201cnecessarily\u201d decided the Buie in Shelley\u2019s case did not apply to vest a fee in Louise de Haven. But he also construed the will against Orme. He also found that Baymond de Haven did not qualify as a beneficiary under the Bigelow will. The Master recommended a decree accordingly. The Chancellor approved the report and decreed that the Bigelow will was valid, \u201ccapable of construction\u201d and under it the three granddaughters of Mrs. Bigelow were given life estates with remainders to the heirs of their bodies. And the decree allowed the various parties the attorneys\u2019 fees recommended by the Master.\nWe shall consider the issues on appeal necessary for our decision in what we consider the most logical order.\nI. RES JUDICATA\nThe Caldwell decree in 1920 awarded the income from Josephine\u2019s share to her children, with the share of her son William going to his wife and children as a result of certain conveyances by William through Josephine to them. In dictum the Chancellor sought to apply the construction with respect to Josephine\u2019s share to the interests of Louise and Sarah.\nCross-appellants Caldwells and the Attorney General contend that the \u201c1920 decree\u201d is res judicata and bars Orme\u2019s claim that tbe Rule in Shelley\u2019s case operated to vest a fee in Louise de Haven and that he is owner of her fee interest by virtue of the devise in her will. They say that that decree necessarily decided that the Rule in Shelley\u2019s case did not apply and that the decree settled the question of the interests of Louise and Sarah de Haven as well as that of Josephine.\nWe think that the 1920 decree is not res judicata of the issue raised by Orme. The decree does not expressly hold that the Rule in Shelley\u2019s case did not apply to Josephine Caldwell\u2019s interest nor did the dictum as to Louise and Sarah\u2019s interest mention the Rule. The decree did not find either that they took by descent through Josephine or that they took by purchase through the Bigelow will. To decide the questions before him the Chancellor in 1920 did not necessarily have to determine by which of the two alternative methods Josephine\u2019s interest passed to her children. This he carefully avoided. We agree with Orme that the 1920 decree states the result of a construction but does not state the method of construction or interpretation of the language of the will.\nThis conclusion on the res judicata issue coincides with that of three Chancellors before whom motions to strike and dismiss Orme\u2019s suit were made.\nII. RULE IN SHELLEY\u2019S CASE\nIn paragraph 6th of the will, after providing life estates in the income for her three granddaughters, Mrs. Bigelow directed that no division of the corpus should be made until the \u201cdeath of all\u201d three; then all of her property was to \u201cbe divided equally among the children or heirs of [her] grandchildren. . . , one third to the child or children, heir or heirs\u201d of each. She went on to provide for gifts over in the event of a death \u201cwithout issue.\u201d\nPlaintiff Orme contends the words \u201cchildren or heirs,\u201d properly construed, means heirs in the technical, legal sense and that consequently the Eule in Shelley\u2019s case operates so as to vest in Louise de Haven a fee simple interest in the Chicago real estate which she devised to him.\nNo Illinois case has construed the precise words \u201cchildren or heirs.\u201d Plaintiff cites the Pennsylvania case of Shapley v. Diehl, 203 Pa. 566, 53 Atl. 374 (1902) wherein the words \u201cchildren or heirs\u201d were used. That case is distinguished from this because under a Pennsylvania statute fee tails merge to create a fee in the first taker. Therefore the court had only to determine that the term \u201cchildren or heirs\u201d described an estate in fee tail. Even if \u201cchildren or heirs\u201d was there construed to mean \u201cissue\u201d the Pennsylvania court could have applied the Eule in Shelley\u2019s case. In Illinois the Eule applies only when the words can be construed to mean \u201cheirs\u201d in the technical sense. Hanes v. Central Ill. Utilities Co., 262 Ill. 86, 104 N. E. 156 (1914). The case, moreover, was not complicated by gifts over as in the Bigelow will. Finally, in the Pennsylvania case there was but one Shapley child in existence when the will was made, this \u201cnaturally suggesting the very common form of expression \u2018child or children.\u2019 \u201d 53 Atl. at 375. The court there, as our Supreme Court has done in Hartwick v. Heberling, 364 Ill. 523, 537 (1936), 4 N.E.2d 965, took into consideration the fact of children in existence in resolving ambiguities. It suggested that the grantor, \u201cthe thought occurring to him that there might not be any children, . . . added \u2018or heirs\u2019 to complete the expression of his intent.\u201d 53 Atl. at 375. Here, however, Mrs. Bigelow\u2019s estate plan anticipates children or their lineal descendants surviving.\nWhere the word \u201cheirs\u201d is used it should be given its technical meaning unless qualified by other language which shows beyond reasonable doubt that a different meaning be given. Kaup v. Weathers, 302 Ill. 569 (1922). On the other hand \u201c\u2018children\u2019 . . . does not ordinarily mean \u2018heirs\u2019 . . . unless the context of the will leaves no doubt of such intention.\u201d Hanes v. Central Ill. Utilities Co., 262 Ill. 86, 89, 104 N. E. 156 (1914). Also, although \u201cthe word \u2018issue\u2019 as a general thing, means lineal descendants indefinitely, . . . whether it means descendants generally, or merely children, will depend upon the intention of the testator ...\u201d gleaned from the entire will. Arnold v. Alden, 173 Ill. 229, 238-39, 50 N. E. 704 (1898). The ordinary meaning of \u201cissue\u201d is \u201cto proceed out of; offspring of a common ancestor; and includes not only a child but descendants of a child.\u201d Miller v. Wick, 311 Ill. 269, 275, 142 N. E. 490 (1924); Tree v. Continental Ill. Nat. Bank & Trust Co., 346 Ill. App. 509, 521, 105 N.E.2d 324 (1952).\nThe meaning of each of the words \u201cchildren,\u201d \u201cheirs,\u201d or \u201cissue,\u201d standing alone, may be influenced by other language in a will and when used together their total meaning may be influenced by each other as well as by other language in the will. See Porter v. Cutler, 380 Ill. 215, 43 N.E.2d 929 (1942); Noe v. Moseley, 377 Ill. 152, 36 N.E.2d 240 (1941); Hege v. Provident Mut. Life Ins. Co., 341 Ill. 559, 173 N. E. 610 (1930); Patterson v. McCay, 313 Ill. 491, 145 N. E. 87 (1924); Kaup v. Weathers, 302 Ill. 569, 35 N. E. 38 (1922); Cook v. Sober, 302 Ill. 498, 135 N. E. 60 (1922); Lee v. Roberson, 297 Ill. 321, 130 N. E. 774 (1921); Sellers v. Rike, 292 Ill. 468, 127 N. E. 24 (1920); Stisser v. Stisser, 235 Ill. 207, 85 N. E. 240 (1908); Dick v. Ricker, 222 Ill. 413, 78 N. E. 823 (1906); Fishback v. Joesting, 183 Ill. 463, 56 N. E. 62 (1899); Ryan v. Allen, 120 Ill. 648, 12 N. E. 65 (1887); Leiter v. Sheppard, 85 Ill. 242 (1877); Kales, Future Interests \u00a7\u00a7 551-52 (2d ed. 1920).\nThe result of this survey indicates the wisdom of the Supreme Court\u2019s expression in Hartwick v. Heberling, 364 Ill. 523. 529, 4 N.E.2d 965 (1936): \u201cWhile decisions involving wills may serve to guide this court with respect to general rules as to construction to be placed upon the will under consideration, yet unless the case be in every respect directly in point, the decision will not control but at most will only be persuasive.\u201d\nThe Rule in Shelley\u2019s case is not a rule of construction, but a rule of property. Porter v. Cutler, 380 Ill. 215 (1942); Lydick v. Tate, 380 Ill. 616, 44 N.E.2d 583 (1942). We must first construe the language and determine the intention of Mrs. Bigelow before turning to the question of the application of the Rule.\nIn paragraph 5th of the Article Second Mrs. Bigelow provides: \u201cIn case of the death of either of my said Grandchildren (without issue surviving), then the said residue of said income, is to be paid in equal parts . . . to the survivors or survivor, or their legal representatives, or heirs, . . . the one part (or half) going to one of my grandchildren or her heirs, and the other to the other or her heirs. ...\u201d A technical meaning of \u201cheirs\u201d here would impute to the testator an intention to give greater benefit to the heirs of a granddaughter who survived another of the granddaughters dying without issue. For if the first granddaughter died without issue, her heirs could take nothing because of the express provisions for gift over in such case. Also, a gift over provision, in the paragraph, to the survivor in case of death of two of the Grandchildren \u201cwithout issue surviving\u201d would be inconsistent with any intention to benefit the heirs (used in a technical sense) of either of the two predeceased grandchildren. We think, therefore, in paragraph 5th \u201cheirs\u201d is not being used in the technical sense.\nParagraph 7th provides that \u201cin the event of the death of all my said Grandchildren, without issue, or heirs, then the said property, real and personal\u201d should go to the testator\u2019s \u201cimmediate heirs, and legal representatives, according to and in pursuance of the Laws of the State of Illinois.\u201d This ultimate disposition depends on the death of the three grandchildren without \u201cheirs\u201d as well as without \u201cissue.\u201d It is apparent that Mrs. Bigelow distinguished between \u201cheirs\u201d and \u201cimmediate heirs.\u201d The phrase \u201cimmediate heirs and legal representatives under the statutes of the State of Illinois\u201d is held to mean \u201cheirs\u201d in the technical sense. People v. Emery, 314 Ill. 220, 145 N. E. 349 (1924). If she meant \u201cheirs\u201d technically she could not have anticipated husbands, for husbands of the grandchildren would be their heirs. But in paragraph 6th she did anticipate husbands in the provision \u201cthat said property, real and personal, shall remain intact free from the husbands or husband of any or either. . . .\u201d She could not reasonably have meant that if the grandchildren died not having children but having husbands the gift over would not take place. She consistently tried to keep her property from anyone except the grandchildren and their children or lineal descendants.\nWe disagree with Orme that the exclusion of husbands in paragraph 6th pertains to life estates \u201cof necessity.\u201d Mrs. Bigelow expressly provided to keep \u201cintact, free from the husbands,\u201d property, \u201creal and personal.\u201d This would include corpus and income.\nIn paragraph 6th provision is made for a life estate to each of the three granddaughters, with remainder interests upon the death of the last survivor to go to their \u201cchildren or heirs.\u201d If one of the granddaughters should die \u201cwithout issue,\u201d then the property was to be \u201capportioned to the issue, heir or heirs\u201d of the two surviving grandchildren. Construing \u201cheirs\u201d in the technical sense would give to the heirs of a survivor and deprive the heirs of the decedent, when Mrs. Bigelow\u2019s evident affection for them does not warrant that discrimination. Furthermore, Mrs. Bigelow expressed the desire to exclude husbands and repeats that after the death of each grandchild the property he divided \u201camong their issne as hereinbefore specified.\u201d The specification was in paragraph 5th where she already nsed the word \u201cheirs\u201d and where, as we conclude hereinafter, \u201cissne\u201d could not mean \u201cheirs,\u201d and \u201cheirs\u201d must mean \u201cissue.\u201d\nPlaintiff concedes the words \u201cissue as hereinbefore specified\u201d in paragraph 6th are inconsistent with the previous \u201cchildren or heirs,\u201d and that either \u201cheirs\u201d or \u201cissue\u201d was used inadvertently. And we are not persuaded by him that the broader word \u201cheirs\u201d takes into itself the meaning of \u201cissue\u201d when used together. The two words are not always linked together in the will and not always the same way; and the super-added word is \u201cheirs\u201d, i. e., \u201cchildren or heirs\u201d not \u201cheirs or children,\u201d and \u201cissue or heirs\u201d not \u201cheirs or issue.\u201d\nThe Master found that in paragraph 6th \u201cwithout issue\u201d clearly indicates no intention of indefinite succession and negates the idea of \u201cheir\u201d technically, because there would be no gift over after the previous death of other grandchildren if \u201cheirs\u201d meant heirs generally. In Hartwick v. Heberling, 364 Ill. 523, 4 N.E.2d 965 (1936), gifts over were shown to be a factor and the Master was justified in considering the gift over in determining what the testator meant by the ambiguous language.\nWe are of the opinion that Mrs. Bigelow intended \u201cissue\u201d by the word \u201cchildren or heirs\u201d and that, therefore, the Buie in Shelley\u2019s case does not apply. We agree with the construction by the Master and confirmed by the Chancellor; i. e., Mrs. Bigelow \u201cby her said Will gave equitable life estates to her three granddaughters therein named . . . but did not give any equitable remainder to vest ... in the heirs at law of such granddaughters, and therefore . . . the Buie in Shelley\u2019s case is not applicable.\u201d\nThis conclusion makes it unnecessazy to consider other reasons why the Rule in Shelley\u2019s case should not apply.\nHI. THE CALDWELL MOTIONS\nWe disagree that the Caldwell motion to dismiss should have been sustained. We have approved the Chancellor\u2019s finding that Orme\u2019s suit presented an ambiguity needing construction and the finding that the Rule in Shelley\u2019s case did not apply. We have decided the \u201c1920 decree\u201d is not res judicata. And we see no basis for a claim of laches since Louise de Haven died in 1941 and Orme sued in 1943.\nAs to the motion for judgment on the pleadings, we agree with the Chancellor that the decree protected the interests of the Caldwells which their motion was designed to protect and \u201cno purpose\u201d would be served by passing on the motion.\nIV. RAYMOND DE HAVEN ADOPTION\nRaymond de Haven contends that by reason of his adoption by Louise de Haven he qualifies to take under the gift, in the Bigelow will, to the \u201cchild or children, heir or heirs\u201d of Mrs. Bigelow\u2019s granddaughters.\nThe decree found that \u201cDe Haven is not a member of this class [issue of the body] and has no interest in any of the trust property. . . .\u201d\nDe Haven relies upon the \u201cmodern view\u201d which accords adopted children a status of inheritance equivalent to that of natural children. As evidence of the trend he cites In re Stanford\u2019s Estate, 49 Cal.2d 120, 315 P.2d 681 (1957); In re Heard\u2019s Estate, 49 Cal.2d 514, 319 P.2d 637 (1957); Edmands v. Tice, 324 S.W.2d 491 (Ky. 1958); Hayes v. St. Louis Union Trust Co., 280 S.W.2d 649 (Mo. 1955).\nOur legislature seems to have taken a step toward the \u201cmodern view\u201d in its recent amendments to the Administration of Estate and Adoption Acts. However, the amendments are prospective in application and the law in effect when the Bigelow will was made and at the death of the testator in 1873 controls the question before us. Under the law prior to the recent amendments, the word \u201cissue\u201d would not include an adopted child unless the language of the will clearly shows the intention, or the language and surrounding circumstances if necessary to go beyond the language. Stewart v. Lafferty, 12 Ill.2d 224, 145 N.E.2d 640 (1957).\nWhen the will was made the granddaughters were small children. It is highly unlikely that Mrs. Bigelow had in mind when she made the will the probability of great grandchildren by adoption. We hold that Raymond de Haven, as an adoptee of Louise de Haven, does not qualify to take under the Bigelow will.\nV. FEES\nWe think the Chancellor was justified in finding that plaintiff\u2019s suit presented ambiguities in the will which required construction and we have agreed with that construction. A reasonable allowance of fees was, therefore, proper.\nThe trust is chargeable with the reasonable fees of attorneys for plaintiff or any defendant or cross complainant having an interest in the construction of the will. Brumsey v. Brumsey, 351 Ill. 414, 427, 184 N. E. 627 (1933); Dean v. Northern Trust Co., 266 Ill. 205, 211, 107 N. E. 186 (1914). The question in the cases is whether there is an honest difference of opinion as to the proper construction. Strickland v. Strickland, 271 Ill. 614, 621, 111 N. E. 592 (1916). And an adverse ruling does not preclude application of the rule. Cravens v. Haas, 318 Ill. App. 447, 48 N.E.2d 611 (1943).\nThe Attorney General contends that the Master applied inappropriate standards which he improperly applied in favor of persons having no substantial interest in the suit; did not confine compensation to the services on the will construction issue; and that payment for duplicate services was error.\nThe Master and Chancellor adopted a coverall rate of $25.00 per hour for legal services, for the reasons that:\nA. Where fees are paid out of a fund, a more conservative rate is adopted than is customarily used for an attorney and client who have freely agreed upon compensation.\nB. That commonly, the compensation of a judge is the test applied in situations like the one before us.\nThere was added to the rate earned by judges an allowance for overhead which lawyers have and judges do not. This matter was discretionary with the Chancellor and we are not persuaded that he abused his discretion in adopting this rate.\nThe Attorney General complains \u201cthat despite the fact that the Master recommended that virtually all of the services of plaintiff\u2019s counsel were compensable he employed different standards in setting fees for the other parties.\u201d He argues that \u201cin some cases only those services connected with the problems raised on construction were held compensable and this . . . was based upon considered guesses.\u201d For example, the Master accepted the 40% factor for computing time devoted to construction by the Attorney General, but a 50% factor was used to evaluate time spent by the Caldwells\u2019 attorneys \u201cand this despite the fact that that firm stood on their motions for judgment on the pleadings and refused to participate in the hearings on the merits.\u201d He does not complain that his compensation was based on actual costs of the services to the government rather than on the rates set by the Chancellor.\nWe do not think that the Chancellor abused his discretion in this matter since the forty per cent ruling was based on the Attorney General\u2019s own estimate and the fifty per cent figure was based upon the Master\u2019s view of the \u201cdivisions of their brief.\u201d There were allowances for. some duplication of services, but the unique nature of this litigation and its multiplicity of pleadings covering interests of various parties over a long period of time would normally result in some duplication. We see no error in these matters.\nPlaintiff\u2019s attorneys claimed $112,880.00 for 3,643 hours work and were allowed $89,550.00. The Attorney General contends the allowance should not have exceeded $36,000.00. We have examined the schedules filed in support of the claim and see no reason to upset the allowance. The rendering of services began in 1942 and the nature of the controversy precluded a narrow limitation of services on the will itself. This is not the usual will construction case.\nThe Trustee requested $105,000.00 and was allowed $84,712.50 for fees for services beginning in 1943. It does not complain about the finding as to the time expended but about the insufficiency of the rate in view of the excellence of its attorneys. There is no showing that the Chancellor should have made a distinction between the skills of the attorneys rendering services for the various parties.\nA question is raised about the fee allowance for de Haven\u2019s attorneys. Whether de Haven was a child or heir was a relevant point at the hearing. It was of substantial interest, and he was a proper party. The decree permanently removed his claim from the Bigelow will controversy and to that extent aided all having interests. Furthermore, de Haven was interested in defending because if Orme prevailed de Haven\u2019s claim would fail. Being drawn into the case, de Haven engaged attorneys who contributed to the solution of the ambiguity in the Bigelow will so far as it related to him.\nThe Master disallowed time spent by de Haven\u2019s attorneys in defending the issue raised by the Attorney General as to the validity of the adoption. We think this was error. He was allowed $6,035.00 for services on his right to take under the Bigelow will. Defense of his adoption was a necessary prerequisite to these services. De Haven\u2019s attorneys were entitled to an additional sum of $1,625.00 for 65 hours at $25.00 per hour and $1,530.00 for 102 hours at $15.00 per hour for a total of $3,155.00 additional allowance.\nAttorneys for the Caldwell interests who entered the case in 1946 were allowed fees of $1,875.00. No fees were allowed the original attorneys who \u201cmade no contribution or any aid on the construction problem.\u201d The Caldwell defendants had an interest in protecting themselves against an adverse interpretation of the 1920 decree in order to avoid a possible tax liability and in protecting their share from the total fee allowances. If the court held that the Caldwell interest was taken by descent rather than by purchase under the trust, they \u201cwould then be thirty-nine years late in filing Federal Estate and State Inheritance Tax returns, and the tax, and interest and penalties, could wipe out completely [their] remaining distributive share of this trust.\u201d\nThe attorneys for Alice Lohrer and Kraft Administrator were allowed $9,102.50. Their services rendered on tax problems were excluded, but services rendered in defining their interests in the trust estate, were included. The attorneys for the Sarah von Campe interests were allowed $700.00 by the Master \u201cwithout insisting on detail\u201d but, appropriately, no fees were allowed for work on the Rule Against Perpetuities question.\nThe decree allowed the attorney for certain German nationals $7,500.00 for fees and $332.86 for costs and expenses prior to the order substituting the Attorney General in 1949. Pees were denied for any services rendered after the 1949 vesting of the Attorney General. Complaint is made of this disallowance.\nThe Attorney General\u2019s vesting order was made in March 1949. In November 1950 the appearance of the German nationals was struck and the Attorney General substituted in their stead. They appealed to the Supreme Court of Illinois, raising contentions similar to those raised now on appeal of the vesting order. The order was affirmed. Orme v. Northern Trust Co., 410 Ill. 354, 102 N.E.2d 335 (1951). The Supreme Court denied a petition for certiorari. Von Hardenberg v. McGrath, 343 U. S. 921 (1952). The Illinois Supreme Court decision is res judicata of the questions raised by the German nationals on this appeal. That opinion was expressly made \u201cwithout prejudice\u201d to possible future litigation seeking \u201crevesting.\u201d That has no bearing in this litigation.\nThe interests of the German nationals was not freed under General License 94. That License applied to interests acquired after January 1, 1947 and the interests here in question concededly came into existence, at the latest, upon the death of their mother, the life tenant, in 1941. The Supreme Court in Helvering v. San Joaquin Co., 297 U. S. 496 (1936), interpreted the word \u201cacquire\u201d within the contemplation of the revenue acts in the manner contended for by the German nationals, but, in contemplation of the purpose of the Trading With The Enemy Act, we think our conclusion as to the acquisition is right.\nThe order vesting the Attorney General with the interests of the German nationals on March 29, 1949, divested them of their interests in the trust property. Cummings v. Deutsche Bank, 300 U. S. 115, 121 (1937). After that date they no longer had an interest in the trust and were no longer proper parties to the suit. We conclude the Chancellor correctly limited compensable services to the period before the vesting order.\nWhen plaintiff began this suit the German nationals and Mrs. von Schiller had interests under the will and were named defendants. Their interests were then being challenged by Orme\u2019s suit and they aided the court\u2019s construction. We see no reason to interfere with the Chancellor\u2019s allowances and disallowances with respect to the interests of the German nationals and Mrs. von Schiller.\nWe will not discuss other allowances made by the Chancellor, but to which no objection was made on this appeal which has not already been answered with respect to other parties.\nWe have found that the allowances to the individual attorneys were not unreasonable. We are unable to say, therefore, that the total allowance of $221,-901.33, which includes the additional sum for de Haven, out of the shares of the estate valued at about one and one-half million dollars is unreasonable. In Logan v. Harris Trust & Sav. Bank, 8 Ill.App.2d 61, 130 N.E.2d 211 (1955), 23% of a $65,000 estate was held excessive. Here the allowance is about 14% of an estate of one and one-half million. Also, the case here is unique in its history and facts.\nJustice McSurely said in Continental Ill. Nat. Bank & Trust Co. v. Hardeen, 306 Ill. App. 123, 131, 28 N.E.2d 124 (1940), \u201cwhile, possibly, we might not agree as to every item, we see no reason to conclude that the allowances were unreasonable.\u201d That is our view here. The Chancellor has had long and broad experience and was acquainted with the character and amount of the services rendered in this litigation.\nIt was not error to charge the expense of this suit against the share of Louise de Haven and Sarah von Campe only. The various interests involved in the share of Josephine Caldwell were not involved in this suit and it would have been unjust to tax that share with the costs of litigation which concerned the other two shares. The instant suit was, however, indirectly an attack upon the 1920 decree which settled the questions of the Caldwell share of the Bigelow estate. For this reason, we agree with the Chancellor that the Caldwell defendants \u201cwere forced . . . in . . . here without choice and should not be burdened with the costs and expenses thus far.\u201d We agree with the Chancellor that part of the Trustee\u2019s fees were chargeable against the Caldwells.\nWe think, too, that the court properly allowed fees to be charged against the Sarah von Campe share of the trust estate. This suit was directed at the interest of the Louise de Haven share, but the construction of the will in the decree settled definitively for the first time the interest of Sarah von Campe and her daughter, Alice Lohrer, as well as that of the Louise de Haven share. That the suit was a matter of concern to them is indicated by Alice Lohrer\u2019s adoption of the arguments in the brief submitted on behalf of the Caldwell interests, of the trustee and of the Attorney General. The share of Sarah von Campe was \u201cin question\u201d when the will was construed and we can see no abuse of discretion in the Chancellor\u2019s charging that share with one-half of the expenses of the construction.\nThe services rendered in behalf of Raymond de Haven\u2019s claim, and for defense of his adoption, however, had nothing to do with the Sarah von Campe share. The fees for those services should have been charged against the Louise de Haven share.\nWe approve the decree except as to the disallowances of fees to the attorneys for Raymond de Haven for services in defending the adoption decree. We are modifying the decree by adding the amount of $3,155.00 to that allowance, and by assessing all the fees allowed Raymond de Haven against the Louise de Haven share.\nFor the reasons given the decree, as modified, is affirmed.\nAffirmed as modified.\nBURMAN and MURPHY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE KILEY" } ], "attorneys": [ "Dallas S. Townsend, Assistant Attorney General, Director, Office of Alien Property, Chicago, Illinois; R. Tieken, United States Attorney for the Northern District of Illinois; Arthur R. Schor and William H. Arkin, for William P. Rogers, Attorney General, defendant-appellant.", "Roland Towle, Floyd E. Thompson, and Thomas P. Sullivan, of Chicago, for appellee cross-appellants Adelheit von Hardenberg, Irmgard von Alten and Irmgard von Schiller; Clausen, Hirsh, Miller, and Gorman, of Chicago (Norman A. Miller and Jerome H. Torshen, of counsel) for defendant cross-appellant Alice Lohrer; C. Lysle Smith and John Alden Powers, of Chicago, for Eugene Orme, Individually, and Thomas D. Nash, Jr., as Administrator De Bonis Non with the Will Annexed of the Estate of Louise de Haven, Deceased, plaintiffs cross-appellants, appellees, and cross-appellees; Dali-stream, Scliiff, Hardin, Waite & Dorschel, of Chicago, (Lester G-. Britton, of counsel) for defendant-appellee and cross-appellant, The Northern Trust Company, as Trustee under the Will of Louise de Haven, Deceased." ], "corrections": "", "head_matter": "Eugene Orme, Individually and Thomas D. Nash, as Administrator with the Will Annexed of the Estate of Louise de Haven, Deceased, Appellees, v. The Northern Trust Company, etc., et al. On Appeal of William P. Rogers, Attorney General of the United States, etc.\nGen. No. 47,821.\nFirst District, First Division.\nJanuary 9, 1961.\nRehearing denied February 9, 1961.\nRehearing denied and opinion modified February 27, 1961.\nDallas S. Townsend, Assistant Attorney General, Director, Office of Alien Property, Chicago, Illinois; R. Tieken, United States Attorney for the Northern District of Illinois; Arthur R. Schor and William H. Arkin, for William P. Rogers, Attorney General, defendant-appellant.\nRoland Towle, Floyd E. Thompson, and Thomas P. Sullivan, of Chicago, for appellee cross-appellants Adelheit von Hardenberg, Irmgard von Alten and Irmgard von Schiller; Clausen, Hirsh, Miller, and Gorman, of Chicago (Norman A. Miller and Jerome H. Torshen, of counsel) for defendant cross-appellant Alice Lohrer; C. Lysle Smith and John Alden Powers, of Chicago, for Eugene Orme, Individually, and Thomas D. Nash, Jr., as Administrator De Bonis Non with the Will Annexed of the Estate of Louise de Haven, Deceased, plaintiffs cross-appellants, appellees, and cross-appellees; Dali-stream, Scliiff, Hardin, Waite & Dorschel, of Chicago, (Lester G-. Britton, of counsel) for defendant-appellee and cross-appellant, The Northern Trust Company, as Trustee under the Will of Louise de Haven, Deceased." }, "file_name": "0075-01", "first_page_order": 85, "last_page_order": 107 }