{ "id": 3306548, "name": "In re Estate of Louis Danne, Deceased; Adele Cooper et al., Appellants, v. Gertrude Kryger et al., Appellees", "name_abbreviation": "Cooper v. Kryger", "decision_date": "1928-01-18", "docket_number": "Gen. No. 31,851", "first_page": "196", "last_page": "203", "citations": [ { "type": "official", "cite": "247 Ill. App. 196" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "190 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3244007 ], "opinion_index": 0, "case_paths": [ "/ill/190/0058-01" ] }, { "cite": "283 Ill. 584", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2417590 ], "opinion_index": 0, "case_paths": [ "/ill/283/0584-01" ] }, { "cite": "266 Ill. 414", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4787893 ], "opinion_index": 0, "case_paths": [ "/ill/266/0414-01" ] }, { "cite": "239 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 849046 ], "opinion_index": 0, "case_paths": [ "/ill/239/0389-01" ] }, { "cite": "230 Ill. 610", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5633010 ], "opinion_index": 0, "case_paths": [ "/ill/230/0610-01" ] }, { "cite": "202 Ill. App. 351", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5413405 ], "opinion_index": 0, "case_paths": [ "/ill-app/202/0351-01" ] }, { "cite": "120 Ill. 362", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5385107 ], "opinion_index": 0, "case_paths": [ "/ill/120/0362-01" ] } ], "analysis": { "cardinality": 606, "char_count": 13505, "ocr_confidence": 0.53, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0929280046828985 }, "sha256": "055fbd033fa66be539d81b3960a14dc159b977a0f573d9e92bd3f6128d66beba", "simhash": "1:07b2f752ce2dd2ad", "word_count": 2424 }, "last_updated": "2023-07-14T21:19:24.032975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Estate of Louis Danne, Deceased. Adele Cooper et al., Appellants, v. Gertrude Kryger et al., Appellees." ], "opinions": [ { "text": "Mr. Presiding Justice Taylor\ndelivered the opinion of the court.\nIn the matter of the estate of Louis Danne, deceased, the probate court, on May 20, 1926, passing on the final account of the executors, entered an order, which, among other things, provided that certain funds in the hands of the executors should be distributed as follows: $18,588.91 to Adele D. Cooper, $5,004.20 to Gertrude Kryger and $5,004.21 to Julia Danne Curren. On appeal to the circuit court, the order of the probate court was affirmed. This appeal is from the judgment of the circuit court.\nThe testator, Louis Danne, died on May 21, 1918, leaving a last will and testament. At the time of his death, he left him surviving as his only heirs at law and next of kin, Adele D. Cooper, his sister, and Emil Danne, his brother. In the fall of the year 1918, Emil Danne, the brother of the testator, died, leaving him surviving as his only heirs at law and next of kin, his son, Jay Danne, and his daughter, Gertrude Kryger. About three years after the death of Emil Danne, Jay Danne died, leaving him surviving as his only heir at law and next of kin, his widow, Julia Danne (now Julia Danne Curren).\nThe question that arose in the probate and the circuit court, and that arises here, is whether the distribution as provided in the final account of the executors is correct; and in order to determine that, it is necessary to interpret the meaning of the will, in so far as it pertains to the following residuary clause:\n\u201cThe balance of my estate I desire to be divided between my brother Emile Danne, of Birmingham, Alabama, and my sister Adele Danne Cooper, seven twentieths to my brother and thirteen twentieths (13/20ths) to my sister. Should my brother Emil Danne pass on his share reverts to my estate and instead I bequeath to his son Louis Emile Danne two thousand dollars, and his brother Reginald Danne the sum of one thousand dollars, the difference going to my sister Mrs. Cooper.\u201d\nThe testator, Louis Danne, having died on May 21, 1918, and Emil Danne having died afterwards, on November 5, 1918, it is claimed by the appellants, Adele D. Cooper, Louis Emil Danne, and Reginald Danne, that, inasmuch as it is stated in the will, \u201cI desire that my estate be kept \u2018in tact\u2019 for three years,\u201d no interest vested in Emil Danne, even though he died after the testator; in other words, that no interest-in the estate vested until the expiration of the three-year period.\nThe will named one Luecker and Adele Danne Cooper (the testator\u2019s sister) executors, without bonds. It gave first, to his sister Adele Danne Cooper, certain personal property, and then one piece of personal property to the executor Luecker. It then stated as follows:\n\u201cI desire that my estate be kept in tact for three years after my demise and that my sister occupy my residence for that length of time of until sold, and if sold before the expiration of the three years, that my executors hire an apartment and pay $40.00 per month therefor during the three years; that my estate is to be kept in tact and also pay her $50.00 per month for table expense and hire of Albert L. Dixon, my servant, provided she desires to continue his employment. Also to pay my taxes, coal, gas, electric and telephone bills and repairs, if any.\u201d\nIt then made five specific bequests, the first being $250 for the upkeep of a cemetery lot; the second being $250 for the maintenance of a niece, and in mailing that bequest, it provided, \u201cand in case of her demise, before the final execution of this Will, the same is to revert to my estate, but thereafter to her brother\u2019s children, John W. Danne, of Fairhope, Ala., to share and share alike. Adele Danne is partially blind, and wish that1 you Send her to an asylum for the blind.\u201d The third is to Alberta O. Cooper the sum of $250; the fourth to a servant, Albert L. Dixon, the sum of $200 \u201cif in my employ at the time of my death;\u201d and the fifth to his niece Nellie E. Cassidy, the sum of $2,000, \u201cbut if she should die before the final execution of this will, then her bequest reverts to my estate.\u201d Then follow eleven bequests, chiefly in the nature of jewelry, to various persons; the last of which is \u201cto Albert L. Dixon, my servant, if he is in my employ at the time of my death.\u201d\nFollowing that is the direction, \u201cShould any of the foregoing beneficiaries of jewelry die before the final execution and distribution of my estate, I desire that my sister dispose of his share or gift as she sees fit.\u201d\nThen follows the residuary clause, as set forth above. There was attached to the will the following addendum:\n\u201cI omitted to say that if my residence is not sold at the time of the final distribution of my estate, that my executors put up the property' at public auction and sell it to best advantage on terms agreeable to them.\u201d\nThe inventory showed real estate of the value of $7500, being the house occupied by Adele Danne Cooper; and personal property of the value of $21,530.55, making a total of $29,030.55.\nThe final account and report of the executors shows receipts of $39,607.33 and disbursements of $12,508.90, leaving a balance of $27,087.32. We agree with the probate and the circuit court that Emil Danne, under the residuary clause in the will, had a vested interest at the time of his death, and that the appellees, as the only heirs at law and next of kin of Emil Danne, are entitled to that interest.\nIn Scofield v. Olcott, 120 Ill. 362, the court said:\n\u201cViewed in the light of the definitions, here quoted, the interest of William Abbey was a vested one. The testator deidsed and bequeathed all his real and personal property (except that embraced in the second and fourth clauses) to his executors and trustees \u2018to have and to hold the same for the uses and purposes and upon the trusts,\u2019 mentioned in clauses 3, 5, 6 and 7.\u201d\n\u201cA will takes effect at the death of the testator. At the death of George T. Abbey the legal title to all his property vested in the trustees for the uses and purposes above set forth. It so vested at that time for all such purposes and for one as much as another. As soon as the testator died, the trustees at once took title to the residue, named in clause 7, and at once and thereafter held it in trust to be conveyed, assigned and delivered to William, when the proper time should come. It is true, that his enjoyment of it was to be postponed, until a future period; But their holding it in trust to be conveyed to him began immediately upon his father\u2019s death. * * * At his father\u2019s death there vested in him a present equitable right to have a conveyance from the trustees, when his mother\u2019s life estate should determine, subject to the payment of the legacies of $15,000; he then had \u2018a present fixed right,\u2019 although only an equitable one, of future enjoyment. This right vested, not in a person thereafter to be born, but in a person, definite and ascertained, and then in being. * * * If futurity is annexed to the substance of the gift, the vesting is suspended; but if it appears to relate to the time of payment only, the legacy vests instanter. \u2019 \u2019\nIn Henderson v. Cadwalader, 202 Ill. App. 351, the court said:\n\u25a0 \u201cWhenever the person who is to succeed to the estate in remainder is in being and is ascertained, and the event, which by express limitation will terminate the precedent estate, is certain to happen, the remainder is vested.\u201d\nIn Pearson v. Hanson, 230 Ill. 610, the court said:\n\u201cThe law favors the vesting of estates, and in cases of doubt the construction will be adopted which leads to that result. An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment. It carries with it the seizin in law or in equity, according to the character of the estate, and takes effect in interest and right immediately on the death of the testator, although it may not take effect in possession and enjoyment until the death of a life tenant or the termination of another particular estate.\u201d\nIt is urged that the fact that the trustee, or the executor, was to sell the real estate, the legacy did not vest until the real estate was sold, but as the court said in Armstrong v. Barber, 239 Ill. 389:\n\u201cWhile the rule is general that where there are no words importing a gift, other than to the executors or trustees to divide or pay at a future time, the legacy is contingent, still, if the payment is postponed for the convenience of the funds of the estate and not for the reasons personal to the legatees or devisee, it should be held vested.\u201d\nIn the instant case, it may be said that the estate for the three-year period, was given, in part, to Adele Danne Cooper, and that Emil Danne was a remainder-man, and that as he ivas in being at the time of the death of the testator, and the event for the termination of the estate was certain to take place, as it was fixed in terms of years, it follows that the remainder became vested in Emil Danne on the death of the testator. Lynn v. Worthington, 266 Ill. 414; McComb v. Morford, 283 Ill. 584.\nAs so frequently happens, there may be some doubt as to the exact meaning of the testator as he expressed himself in his will. There are a number of expressions that seem to suggest an intention to postpone the vesting of rights until a future time, that is, to some point of time after his death. He says, for example, \u201cI desire that my estate be kept in tact for three years after my demise.\u201d He provides that his. sister may keep his residence for that length \u2022 of \u2022 time, or until sold, but if sold before the expiration of three years, that then his executors shall take care of her,, and that his executors shall provide an apartment for-her. The will also provides for a bequest of-$250.-for the maintenance of a blind niece, and it says, \u201cIn case of her demise before the final execution of this Will,the same is to revert to my estate, but thereafter to her brother\u2019s children.\u201d There is, also, a bequest of $2,000 to another niece,, with the provision, \u201cbut. if she should die before the final execution of\" this will,' then her bequest reverts to my estate.\u201d Also, each of the eleven bequests of jewelry is subject to the following : \u201cShould any of the foregoing beneficiaries of jewelry die before the final, execution and distribution of my estate, I desire that my sister dispose of his share or gift as she sees fit.\u201d However, in the so-called residuary clause, which is here chiefly to be considered, the testator merely says, after giving the balance of his estate to be divided between his brother and his sister, \u201cShould my brother, Emil Danne pass on, his share reverts to my estate, and instead I bequeath to his son,\u201d etc. Of course, his brother might die any time before the document becomes a will by the testator\u2019s death, or he might die the day after, or three years or more from the date thereof. The words, \u201cShould my brother Emil Danne pass on,\u201d are not expressly connected with any event, save the death of the testator and the coming into being of the will itself as an effective document. When the testator wrote the words, \u201cShould my brother Emil Danne pass on,\u201d necessarily he had reference to a future event, but which event, we think, was to transpire before his own death.\nThe will is inartistically drawn, and does contain, as set forth above, some expressions on the matter here in question, which are confusing. However, we feel quite convinced that the interpretation of the will, made by the probate and the circuit court, was justified. The cases cited by counsel for the defendant, do not, in our judgment, justify any other construction.\nIn Johnson v. Askey, 190 Ill. 58, the court said:\n\u201cWhile the law favors the vesting of remainders, and will fix the time at which they vest at the time of the death of the testator rather than at the period of distribution, where it clearly appears, from the entire will, that it was not the intention of the testator that the remainder should vest at the time of his death but at the period of distribution, such intention will be carried out by the courts. \u2019 \u2019\nHere, as we have intimated above, we are constrained to the conclusion' that it does not clearly appear, upon consideration of the entire will, that it was not the intention of the testator that the remainder should vest at the time of his death. In two instances in the will, the expression is \u201cbefore the final execution of this will,\u201d and in the other, \u201cbefore the final execution and distribution of my estate,\u201d but in the one here in question, the words are simply \u201cshould my brother Emil Danne pass on.\u201d In the latter instance, the point of time seems quite certain to be that of the beneficiary\u2019s death before that of the testator; in the other two instances, the point of time is before the execution of the will, whatever that may mean. Obviously, therefore, we think the only fair interpretation of the whole will is that the bequest to Emil Danne vested immediately upon the death of the testator.\nFor the foregoing reasons, the judgment is affirmed.\nAffirmed.\nHoldom and Wilson, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Taylor" } ], "attorneys": [ "Robert E. Hogan, for Adele D. Cooper, appellant.", "Barbie Blumenthal, for Louis Emil Danne and Reginald Danne, appellants.", "Sidney N. Ware, for appellees." ], "corrections": "", "head_matter": "In re Estate of Louis Danne, Deceased. Adele Cooper et al., Appellants, v. Gertrude Kryger et al., Appellees.\nGen. No. 31,851.\nHeard in the third division of this court for the first district at the March term, 1927.\nOpinion filed January 18, 1928.\nRobert E. Hogan, for Adele D. Cooper, appellant.\nBarbie Blumenthal, for Louis Emil Danne and Reginald Danne, appellants.\nSidney N. Ware, for appellees." }, "file_name": "0196-01", "first_page_order": 226, "last_page_order": 233 }