#### The Northern Trust Company of Chicago, Complainant and Appellees, v. John R. Thompson et al. Defendants. Wallace R. Condict, Appellant.

Gen. No. 31,473.

*21Opinion filed June 14, 1927.

Rehearing denied June 28, 1927.

*34McNab, Holmes & Long, Matthias Concannon and Mayer, Meyer, ■ Austrian & Platt, for defendants; Henry Russell Platt and M. Paul Noyes, of counsel.

John J. Healy, for appellee Northern Trust Co. Owen Rall, for appellees John H. S. Lee et al. Roswell B. Mason, guardian ad litem, for infant appellees.

Mr. Presiding Justice G-ridley

delivered the opinion of the court.

As grounds for a reversal of the decree, counsel for Condict and Lucy Smith here contend, as they strenuously urged before the chancellor, (1) that complainant, as trustee, under a proper interpretation of said trust indenture of July 7, 1892, has no'power, express or implied, to execute the compromise agreement of December 16, 1925; (2) that, if such power in the trustee be lacking, a court of chancery is not justified, over the objections of adult beneficiaries of the trust, in so modifying and enlarging the terms of the trust instrument as to approve and confirm said compromise agreement, especially where the evidence does not disclose any necessity for such modification or en*35largement in order to preserve the trust estate from destruction or to carry out the main intentions of its creator; and (3) that the compromise agreement, as drafted, is not beneficial to the trust estate.

As to the first contention. In 26 R. C. L. 1372, § 232, it is said: “It is an elementary principle in the law of trusts that in the execution of a trust, the trustee is bound to comply strictly with the directions contained in the trust instrument, defining the extent and limits of his authority, and the nature of his powers and duties.” In 3 Pomeroy’s Eq. Juris. (4th Ed.), § 1062, it is said: “The trust itself, whatever it be, constitutes the charter of the trustee’s powers and duties; from it he derives the rule of his conduct; it prescribes the extent and limits of his authority; it furnishes the measure of his obligations.” In 2 Perry on Trusts (6th Ed.), § 475, it is said: “In a court of Imu, the trustee is the absolute owner of the estate, and he can exercise all the powers of ownership; * * * but in equity the cestui que trust is the owner, and the question in equity is, how far the trustee can act without exceeding his powers, and rendering himself responsible to the cestui que trust. * * * In trusts of a more particular and active kind, the general power of the trustee is limited to the exact performance of the duty imposed upon him. The duty and power given in such trusts must be strictly performed.” By the trust indenture Mrs. Haskell conveyed to complainant, as trustee, the real estate (excepting the building thereon) and said 99-year lease of March 18, 1889, and empowered the trustee “to have and to hold” both, with all privileges and appurtenances, upon certain mentioned express trusts, viz, (1) to collect the rents of the property, at the times and in the manner provided in the lease, and, after deducting the trustee’s reasonable charges and expenses, to pay over the same as specified, and (2), at the termination of the trust as specified “to sell *36and convey the said real estate and leasehold interest” for the best price the same will bring in cash, and, after deducting the trustee’s reasonable charges and expenses, to divide and distribute the proceeds of the sale as specified. It is also provided, in two separate clauses at the end of the instrument, that “in the performance of the trusts hereunder, the trustee shall be held only to fair and reasonable diligence and discretion” ; and that, if for any reason the said lease “should become forfeited or at an end,” then cmd in that case the trustee “shall have and is hereby given full power to manage, improve, control, lease, protect and care for” the trust estate and property, “according to its best judgment and discretion” but for the purposes and trusts provided for. Counsel for the trustee contended before the chancellor, and here contend, that, because of the language of these two clauses when read in connection with the other provisions, the trustee had at least the implied power to make with Thompson the compromise agreement. The chancellor Evidently agreed with the contention for, in delivering his oral opinion (contained in the transcript), he said in part, after quoting from the second of said separate clauses: “Of course, it may be said that under the ordinary rules of construction that' power is limited to — does not come into being until the contingency in question happens. But it occurs to me that the settlor had full knowledge of the fact that a forfeiture of the lease might occur, even within one year of the date of the execution of the instrument. If she was willing to give those large powers to the Trustee, in that event then it must have been her intention that the Trustee should have those general powers, at all events. I think that from that provision of the agreement the Trustee has an implied power to do these very things, because there is no reason for making the powers broader in the event of a termination of the lease, because that presents the same situation as it was at *37the outset.” We cannot agree with the contention of counsel for the trustee, or with the reasoning or conclusion of the chancellor in this regard. Inasmuch as by the trust indenture the said lease is made a part of the subject matter of the trust, and as the trustee is empowered “to have and to hold” the real estate and said lease until the termination of the trust and then to sell and convey the same, and as the trustee is directed and given full power (if the lease “should become forfeited or at an end”) to do the things mentioned according to its discretion, we think that it was the intention of Mrs. Haskell that such discretionary power in the trustee to do such things was to be exercised only in the event that the lease should become forfeited or at an end (neither of which contingencies have happened). And we think that the giving to the trustee of such discretionary power, only in such event, excludes the idea that Mrs. Haskell intended to grant to the trustee any discretionary power to amend, change or modify said lease, so long as it remained, in force (which the evidence shows was the case when the present bill was filed). And we think that the provision in the first of the two separate clauses (viz, that, in the performance of the trust, “the Trustee shall be held only to fair and reasonable diligence and discretion”) was intended only to be a limitation on the possible liability of the trustee, while acting as such within the limits of the powers. conferred upon it by the instrument. And we cannot believe that it was Mrs. Haskell’s intention, by the use of the words of said clause, to extend or alter the trustee’s power, granted by the other clauses of the instrument, so as to give it discretionary power to modify or change the lease (expressly made a part of the subject matter of the trust) and to make with Thompson such an agreement as the one in question, which the court refers to as a “supplemental or sublease.” It is well-settled law that “a deed should be *38so construed if possible as to give force to all its provisions.” (Walton v. Follansbee, 131 Ill. 147, 158.)

Although there is no express provision in the lease granting to the lessees the right to remove the building upon the premises or to rebuild it, there is a covenant therein on their part that, “in case of loss or damage by fire or otherwise to the buildings, now upon said premises or that may hereafter be erected thereon,” they will “rebuild or repair the same within twelve (12) months thereafter, equal in value or condition to the building or buildings so destroyed or damaged.” And counsel for the trustee further contended before the chancellor, and further contend here, that, because of the language of the covenant, and particularly the words italicized, the right in Thompson (assignee by mesne assignments from the original lessees) to remove the present building and erect another in its stead, and the power in the trustee to execute with Thompson the compromise agreement, may properly be implied. We cannot agree. It seems clear to us that said clause, as regards rebuilding or repairing the building, has reference only to the contingency where the building is destroyed or damaged by fire or other casualty, and affords no basis for the claimed implied power on the part of the trustee. And we fail to see wherein the holdings in the case of Hawes v. Favor, 161 Ill. 440, cited by counsel, are at variance with these views.

After considering the provisions of the trust indenture, taken in connection with the provisions of the lease, we are of the opinion that the first contention of counsel for Condict and Lucy Smith is well founded, and that the trustee, as such, has no power, express or implied, to execute the compromise agreement with Thompson, particularly where objections to such execution are made by two of the present adult beneficiaries of the estate. This brings us to the consideration of the question, raised by counsel’s second con*39tention, whether, considering the provisions of the trust indenture, of the lease and of the compromise agreement, and also considering the evidence contained in the present transcript, the circuit court was justified, under the authorities, in so modifying and enlarging the terms of the trust indenture as to approve and confirm said agreement, against said objections.

There are numerous decisions in this State to the effect that, when exigencies arise, unforeseen by the creator of a trust, which can only be met by modifications of the terms of the trust, a court of chancery has power to make such modifications as are required to preserve the trust estate from destruction, or to carry out the main intentions of its creator. Among the cases holding that the particular facts warranted the exercise of such power are: Curtiss v. Brown, 29 Ill. 201; Voris v. Sloan, 68 Ill. 588; Johns v. Montgomery, 265 Ill. 21; Marsh v. Reed, 184 Ill. 263; Cary v. Cary, 309 Ill. 330. In the Curtiss case (p. 230), it is said: “Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had he anticipated the emergency.” In the Voris case (p. 592), it is said: “it is only in cases of the most urgent necessity that the terms of the trust will be changed.” In the Montgomery case (p. 25) it is said that, while the power is exercised “with great caution,” courts of chancery have not hesitated to direct “such necessary modifications as will preserve the trust estate for the use of the beneficiaries.” In the Marsh case (p. 274) it is said that the court should exercise the power “to change the directions of the donor as to the course to *40be pursued in the mere matter of managing the trust property, when it is clearly made to appear that conditions are so changed and different as to imperatively require the substitution of some other course of management in order the purpose of the creator of the trust may be conserved and accomplished. The evh dence in this case clearly demonstrates that without relief against the provision that the property shall not be leased for a longer period than ten years the trust property will be substantially unproductive and the .purpose of the donor to provide an income for his children out of the income of said trust estate wholly defeated.” In the Cary case (p. 335), it is said that the court will not authorize the modification “merely -for the purpose of enabling the beneficiaries to receive a greater income from the property or use it in what they may regard as a more profitable manner than that provided by the trust. (Johns v. Johns, 172 Ill. 472.) Where a contingency arises, however, such that the estate' may be totally lost to the beneficiaries of the trust, a court of equity will not permit such loss for lack of power to modify the terms of the trust.” Among the cases holding that the particular facts did not warrant the exercise of the power are: Johns v. Johns, 172 Ill. 472, 485; Johnson v. Buck, 220 Ill. 226; Stephens v. Collison, 274 Ill. 389; Gibbs v. Andrews, 299 Ill. 510; Outhet v. Follansbee, 218 Ill. App. 512. In the Buck case (p. 236) it is held that, while the court has full power to authorize the conversion of property contrary to the prvisions of a will, and differing from the purpose and plans of the testator, where there is a necessity for such conversion for the preservation of the estate, there must be some important and controlling reason for the action, and that it “is not justified by the mere fact that the court may conclude some other plan than that of the testator would have been better.” In the Gibbs case, supra, it was sought to obtain a decree authorizing the exchange of *41one piece of real estate, alleged to be more valuable, for another piece devised to the testatrix’s daughter, with remainder in fee simple to the heirs of her body. It was contended that the exchange should be allowed to be made by the court because it would be beneficial to the interests of all parties. This contention is somewhat similar to that of the trustee and Thompson in the present case wherein they urge that the court approve, because more beneficial to all parties in interest, the said compromise agreement, or “supplemental or sub-lease,” and authorize its substitution for the lease which was in force at the time of the creation of the trust, and which the creator of the trust directed should be held by the trustee until the specified time of sale and then be sold with the real estate. But our Supreme Court, in the Gibbs case, citing with approval the Johns v. Johns case, supra, affirmed the decree of the circuit court wherein it refused to authorize the exchange, and said (p. 516): “It is not necessary in this case to make any change in the property devised for its protection or preservation from loss or destruction or to preserve the interests of the parties in the estate or the estate itself, or any other necessity of the most urgent character, and under well settled rules the decree of the court was in accordance with the law, and it is therefore affirmed.” In the Collison case, supra, in which our Supreme court reversed a decree, wherein a certain compromise settlement had been ordered made, it is said (p. 394):

“The real question in this case for our decision is whether or not a court of equity has the power and the authority to entirely disregard the terms of a trust created by a will and to compel a party interested in the trust property to accept a compromise settlement of the trust estate against his will and against his interest where all the other interested parties are willing and desire the settlement. The court found and recites in the decree that it would be for the best *42interests of the estate of Josephus Martin and of all parties interested therein to accept the proposition of settlement submitted arid thus to end the litigation, which has been long continued and expensive. * ■ * '*■ It cannot be questioned that the effect of the compromise and approval thereof by the court, and its decree ordering the parties to execute the compromise settlement upon the terms proposed, is to ehánge the terms of the will of the testator, or, rather, to abrogate it altogether, and to vest title to the property devised by the will in trust, in the heirs and devisees according to the court’s judgment of what is just and best for them. * * * (p. 397.) ' 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 anyone by the settlement. * * * This decision cannot rest upon the question whether or not any of the parties will be benefited or injured by the compromise. 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. (Citing cases, among them the Johns v. Johns and Buck cases, supra.) 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.”

*43We regard the holdings and decision in said Collison case as particularly applicable to the controlling question in the present case, viz, the court’s power to alter certain provisions of the trust indenture (wherein the trustee is directed to hold the real estate and a specified lease, to collect the rents, etc., and at the termination of the trust to sell both the real estate and the lease) and compel all the beneficiaries, against the objection of two of them who are adults, to accept in substitution for the lease the compromise agreement (which is in effect a supplemental lease, containing provisions considerably different from those of the original lease), merely because the court, as well as the trustee, and as well as other beneficiaries (seemingly because of their default taken), are of the opinion that the execution of said agreement is for the best interests of the trust estate and all beneficiaries, but where the evidence does not disclose, and the court does not find, that there is any necessity for such action in order to preserve the trust estate from destruction or to carry out the main intentions of its creator.

Counsel for the trustee, as well as counsel for Thompson, to sustain the decree in question, especially rely upon the cases of Marsh v. Reed, supra; Packard v. Illinois Trust & Savings Bank, 261 Ill. 450; Denegre v. Walker, 214 Ill. 113; Gavin v. Curtin, 171 Ill. 640; and Hale v. Hale, 146 Ill. 227. The Marsh case has previously been referred to. In all of these cases the element of necessity for the court’s action was present. In the Denegre case all of the adult parties in interest consented to the execution of the proposed long-time lease. But in the present case, after considering the facts and circumstances in evidence, we fail to find that there is any necessity shown, requiring the execution and approval by the court, of the compromise agreement in order to preserve the estate from destruction or to carry out the main intentions of Mrs; Haskell; Although it may be true that, consider*44ing Thompson’s best interests and the highest and best uses that the land can be put to, conditions in the neighborhood have so changed as to suggest the advisability of erecting upon the land, and upon the adjoining land which he controls, a new and more modern building, still we do not think that the evidence discloses that said changed conditions are such as endanger the present trust estate. Although it is true, if the compromise agreement be approved, that the annual rental coming to the estate will be increased to the extent of $5,000, we think it is a matter of considerable doubt, under-the conflicting evidence, whether in the long run the approval and confirmation of the compromise agreement will be beneficial to the trust estate.

Counsel for the trustee also contend that, by section 50 of the Chancery Act, Cahill’s St. ch. 22, 50, as amended in 1911, additional power than that which theretofore existed was conferred upon courts of chancery, viz, to “hear and determine bills to * * * authorize trustees to lease, mortgage and sell, improve, exchange and invest any portion or all of any trust estate, or to do any other act or thing, or exercise any power and discretion which is necessary for the conservation, preservation, protection or betterment of said estate during any period of contingency pending a contingent remainder or executory devise or otherwise.” "We do not think that by the language of the amended portion of the section any greater power was conferred upon chancery courts over trustees than that which they theretofore had exercised, as sanctioned by the decisions of our Supreme Court above referred to. The necessity for the court’s action, mentioned in said decisions, is still made by the amended statute an essential condition of the right of the court to act. If it should be considered (and we do not think it should) that greater power was conferred by the amended statute upon chancery courts *45than that which they had theretofore lawfully exercised, and sufficient to warrant the entry of the present decree, it may properly be said, we think, that the amended statute should not be applied to a trust which came into being many years before said amended statute was passed. (In re Will of Tuller, 79 Ill. 99, 107; Richardson v. United States Mortgage & Trust Co., 194 Ill. 259, 267; Eddy v. Morgan, 216 Ill. 437, 447.)

We, therefore, are of the opinion that, as to the second contention of counsel for Condict and Lucy Smith, the same is meritorious, and that, under the evidence, and the law as disclosed by the above cited authorities, the circuit court was not justified in entering, over the objections of Condict and Lucy Smith, the decree appealed from.

In view of our holdings, we do not think it necessary to discuss in detail the mass of conflicting evidence bearing upon the question, whether the approval of the compromise agreement would be beneficial to the trust estate. Nor is it necessary for us to consider the further contention of counsel for Condict and Lucy Smith that complainant’s bill should be dismissed because of lack of necessary parties. Nor do we deem it necessary to consider the cross-errors assigned by Thompson to the effect that the court erred in failing to decree that he has a good title to, and is the owner of, the leasehold estate in question and the present building.

' It is contended by counsel for the trustee and for Thompson' that Condict is estopped by his conduct from raising the questions of the power of the trustee to execute the compromise agreement, or of the court to approve and confirm it. It is argued that the evidence discloses that, in the negotiations leading up to the execution of the agreement, Condict consented to its execution. While there is evidence tending to show that Condict in the earlier negotiations was in favor of the making by the trustee of some sort of a com*46promise agreement or supplemental lease with Thompson, we do not think that it is shown by a preponderance of the evidence that Condict ever consented to the terms of the agreement as finally drafted and executed. Complainant’s letter of December 19, 1925, written by its vice president in charge of trust matters (William S. Miller) to Condict, as well as to other beneficiaries, three days after said agreement was executed by complainant and Thompson and two days after the present bill was filed, militates against a contrary.view. In the letter addressed to Condict he is advised that notice will soon be served upon him of the institution of a suit against Thompson and the beneficiaries under the trust indenture and that the purpose thereof is to secure judicial consent to the execution of an agreement, which “modifies and changes in some respects the original Haskell leases.” After setting forth Thompson’s desires, etc., mentioning prior negotiations, recommending that Thompson’s offer be accepted and stating that in the trustee’s opinion the confirmation of the agreement would be beneficial to the estate and all beneficiaries, the letter concludes: “If yon desire to object to the arrangement you may do so in the pending suit and if you approve kindly let us know and we will send to you a form of appearance to be filed in court consenting to the acceptance of the offer.” Furthermore, according to Condict’s testimony, he first obtained a copy of the agreement on January 12, 1926, and before obtaining such copy he informed Miller he was going to oppose its confirmation by the court. But even if it can properly be considered under the conflicting evidence that Condict did consent to the terms of the agreement as finally drafted, and to its confirmation, still we do not think that he can be held to be equitably estopped from contesting its confirmation. The necessary elements of such an estoppel are lacking. Apparently the trustee placed no reliance upon Condict’s claimed consent *47and it neither did nor omitted to do any act, nor changed its position, because thereof. In Powers v. Wells, 244 Ill. 558, 570, it is said: “It is an essential element of an equitable estoppel that the person asserting it shall have done or omitted some act or changed his position in reliance upon the representations or conduct of the person sought to be estopped.” (See, also, Sutter v. People’s Gas Light & Coke Co., 284 Ill. 634, 639-640.) Furthermore, it does not appear from the evidence that Lucy Smith, the equitable owner of one-sixth of the trust estate, ever consented, either expressly or impliedly, to the confirmation of the agreement, and clearly no estoppel can be invoked as to her.

Our conclusion is that the circuit court erred in entering the decree appealed from over the objection of Condict and Lucy Smith, and our order is that it be reversed and the cause be remanded with directions to the circuit court to dismiss complainant’s bill. The effect of this order, as we understand the general rule, will be to carry with it the dismissal, though without prejudice, of the cross-bill of Wallace B. Condict (21 C. J. 514, § 616%; Glos v. People, 259 Ill. 332, 348.) And as to said cross-bill, we think such a result is proper, though complainant and other parties made defendants have filed answers thereto and the court by said decree retained jurisdiction of the cause and the parties to determine on a further hearing “all issues arising upon” said cross-bill, because, in our opinion, said cross-bill is not germane to complainant’s bill and the equitable relief prayed for therein. In Patterson v. Northern Trust Co., 231 Ill. 22, 26, it is said: “A cross-bill must be confined to the subject matter of the original bill, and cannot introduce new and distinct matters not embraced in the original bill. * * * Matters in the cross-bill must be germane to the matter involved in the original bill. The new facts which it is proper for the defendant to intro*48duee thereby are such, and such only, as are necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which the complainant rests his right to aid or relief.” (See, also, Hurlbut v. Talbot, 273 Ill. 299, 306; Hollan v. Kepner, 297 Ill. 332, 336.)

Reversed and remanded with directions.

Fitch and Barnes, JJ., concur.