{ "id": 5580150, "name": "Inez Dalrymple et al. v. Rebecca Leach et al.", "name_abbreviation": "Dalrymple v. Leach", "decision_date": "1901-10-24", "docket_number": "", "first_page": "51", "last_page": "57", "citations": [ { "type": "official", "cite": "192 Ill. 51" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "55 Ill. 160", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5271726 ], "opinion_index": 0, "case_paths": [ "/ill/55/0160-01" ] }, { "cite": "134 Ill. 88", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5437799 ], "opinion_index": 0, "case_paths": [ "/ill/134/0088-01" ] }, { "cite": "92 Ill. 515", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2739817 ], "weight": 2, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill/92/0515-01" ] }, { "cite": "2 Gilm. 132", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2560865 ], "opinion_index": 0, "case_paths": [ "/ill/7/0132-01" ] }, { "cite": "14 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2586189 ], "opinion_index": 0, "case_paths": [ "/ill/14/0244-01" ] }, { "cite": "44 Am. Dec. 375", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 } ], "analysis": { "cardinality": 639, "char_count": 12926, "ocr_confidence": 0.612, "pagerank": { "raw": 2.1509793481020992e-07, "percentile": 0.7685017543493848 }, "sha256": "43d75394f75a0c7adcfd90c884d824ce96f714e3adcd0b9c2cf2c690984c7678", "simhash": "1:9152b4e254ee3724", "word_count": 2284 }, "last_updated": "2023-07-14T19:05:46.627890+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Inez Dalrymple et al. v. Rebecca Leach et al." ], "opinions": [ { "text": "Mr. Chief Justice Wilkin\ndelivered the opinion of the court:\nRussell C. Peck died testate January 24, 1880, leaving Isabella, his widow, but no children. Frederick Dalrymple, a nephew, survived him. By his will he provided, first, that his executors should pay all his debts and funeral expenses; second, after the payment of such funeral expenses and debts \u201cI give, devise and bequeath to my beloved wife two-thirds of all my property-, real and personal, and of every character whatsoever; third, I give, devise and bequeath to my sister-in-law, Rebecca Leach, one-third of all my property, real and personal; fourth, if at my wife\u2019s death there is any property then in her possession or control, I desire one-half the same shall revert to my nephew, Frederick Dalrymple.\u201d The will was duly probated in the county court of Cook county, and the widow, Isabella Peck, appointed executrix, without bond. The testator died seized of two hundred and sixty acres of land near the village of La Grange, in Cook county; also some real estate in Hinsdale, DuPage county, and some in Riverside, in Chicago,\u2014all of which was unencumbered. Isabella Peck died intestate September 20, 1890, having, previous to her death, conveyed away her two-thirds interest in all of said lands, except a part of a block in an addition to Hinsdale, and leaving Rebecca Leach and Catharine Bannister, her sisters, Joseph Leach and Robert Leach, her brothers, and a nephew, John A. Robb, and Maria E. Leitch, her niece, her only heirs-at-law. The testator seems to have left little or no personal estate. Frederick Dalrymple, the nephew named in the fourth clause of the will, died intestate October 4, 1896, leaving Inez, his daughter, and Mary E., his widow. The widow, in her own right-and as next friend of the daughter, Inez, filed this bill in the superior court of Cook county against the heirs and grantees of Isabella Peck, seeking to recover a supposed interest in the real estate of which Russell C. Peck died seized, under and by virtue of said fourth clause in his will. The defendants filed a demurrer to the bill, which was sustained and the bill dismissed at complainant\u2019s cost. To reverse that decree this appeal is prosecuted.\nThe demurrer was both general and special, several objections to the sufficiency of the bill being pointed out; but the ground of demurrer relied upon was, that under a proper construction of the will of the testator Frederick Dalrymple took no interest in his uncle\u2019s estate, and in our opinion the disposition of that question will render other questions raised by the demurrer unimportant.\nThe contention of counsel for appellants is, as stated by him: \u201cAppellants claim that the whole will is to be given effect, and that the fourth clause limits the second clause, reducing the interest of the widow in one-half of two-thirds, or in one-third, to a life estate, subject to her right, fairly and liberally to herself, to use or dispose of it for her comfort, support and maintenance, according to her condition in life, and also to expend what might be necessary to protect the interest, by paying taxes, etc. The testator having given one-third absolutely to his wife\u2019s sister and one-third absolutely to his wife, and also given her power to take more if she should possibly need it, might well intend, and by the language used did intend, that the one-third, subject as above stated, should go to his own blood.\u201d\nWe find nothing in the will to justify the statement that the testator intended that his widow should take one-third of his estate upon conditions or limitations different from the other one-third given her. The second clause gives her two-thirds of the testator\u2019s estate as a whole. The fourth makes no reference whatever to one-half of that devise, but simply says, if at his wife\u2019s death there is any property in her possession or control he desires his nephew to have it. Manifestly, the two-thirds bequeathed to the wife passed to her absolutely upon the death of the testator, unless it can be said that by the precatory words in the fourth clause a trust was created in some part of it for the benefit of Frederick Dalrymple. It is true that words of recommendation, request or entreaty to a devisee or legatee will make him a trustee for the person in whose favor such request, entreaty, wish or expectation is made, provided the testator has pointed out with sufficient clearness and certainty both the subject matter and the object or objects of the intended trust. (1 Jarman on Wills,\u20145th Am. ed.\u2014680; Story\u2019s Eq. Jur. \u201412th ed.\u2014sec. 1068; Perry on Trusts, sec. 112.) In Hill on Trustees (4th Am. ed. 71, 110,) it is stated that words of entreaty, etc., directed to a legatee or devisee, will create a trust, \u201cfirst, if the words, on the whole, are sufficiently imperative; second, if the subject be sufficiently certain; third, if the object be also sufficiently certain.\u201d If the prior devisee or legatee is given a discretion in the matter, or if the property about which the request is made is not definitely stated, or if the person in whose favor the trust is to be created is not sufficiently certain, no trust will be created, and such request or desire, however clearly expressed, will not be enforced if either of these three requisites be wanting.\nWe think a fatal objection to 'the precatory words in the fourth clause results from a failure of the testator to sufficiently describe the subject matter of the request. \u201cIf at my wife\u2019s death there is any property then in her possession or control, I desire one-half the same shall revert to my nephew,\u201d leaves it wholly uncertain as to what property is meant. Assuming that the testator, in the use of this language, referred to the property named in the second clause of the will, that which he desires his nephew to have one-half of is what is left of the whole two-thirds, if anything, at his wife\u2019s death, and there is nothing whatever to limit or qualify her power of disposition. In Pope v. Pope, 10 Sim. 1, where it was provided that if the wife should marry, the testator desired her to convey what property she may then possess to trustees, for the benefit of the children, as they may severally need or desire, it was held that there was not enough to create a clear and definite trust for the children, and that the expression \u201cwhat property there may be\u201d was \u201cindefinite, and had regard to the fact that the wife might sell or alien any part of it.\u201d So where a testator left his property to his wife, \u201cnot doubting but that she will dispose of what shall be left at her death to her two grandchildren,\u201d Lord Chancellor Thurlow said: \u201cIf the intention is clear what was to be given and to whom, I should think the words \u2018not doubting\u2019 would be strong enough. But when, in point of context, it is uncertain what property was to be given and to whom, the words are not sufficient, because it is doubtful what is the confidence which the testator has reposed, and where that does not appear the scale leans to the presumption that he meant to give the whole to the first taker.\u201d In Wynne v. Hawkins, 1 Bro. C. C. 179, where the testator, after appointing his wife guardian of his children, gave all his property to her, \u201ctrusting that she would, in fear of God and love to the children committed to her care, make such use of it as should be for her own and their spiritual and temporal good, remembering always, according to circumstances, the church of God and the poor,\u201d it was held the wife was absolutely entitled to the property, there being no ascertained part of it provided for the children, and the wife being at liberty, at her pleasure, to diminish the capital, either for the church or the poor, and hence that it was the plain intent of the testator to leave the children dependent on the wife. (Curtiss v. Rippon, 5 Madd. 434; Harrison v. Harrison's Admx. 44 Am. Dec. 375.) The foregoing authorities are cited in a note, and the author of the same note adds: \u201cIn the great majority of cases where there has been a gift of property to a person, followed by words of recommendation that he should give to a certain object, and which have been held uncertain as to the subject matter of the gift, the expressions used have referred to a residue or remainder existing at the person\u2019s death, as \u2018what shall be left,\u2019 \u2018what he shall die seized of,\u2019 \u2018what he shall die possessed of,\u2019 \u2018what he may have saved,\u2019 \u2018bulk of his residuary estate,\u2019 \u2018remainder of her property,\u2019\u201d etc.,\u2014citing numerous cases.\nThe attempt to construe the language of the fourth clause so as to make it apply to one-third of the testator\u2019s estate cannot be sustained. There is not a single word, either in the first or fourth clause, from which such an inference can be drawn. Counsel speaks of the will as \u201cmentioning the one-half of the two-thirds.\u201d To read those words into the fourth clause would be to make a will for the testator under the guise of construing the one made by him. Manifestly-, the two clauses, taken together, show a clear intention to give two-thirds of the estate to the wife absolutely, with the expressed wish or desire that if any part of it remain in her possession or control at her death it should go to the nephew; but the desire expressed in the fourth clause created no trust in favor of Frederick Dalrymple, for the reason that' whether anything should be left or not depended entirely and solely upon the unrestrained will of the wife. The same construction, under a long line of decisions of this court, also renders the fourth clause repugnant to the second, and therefore void. \u201cIf land be devised to a person with general power to dispose of the same, an estate in fee simple passes. Such a power of disposition amounts to an absolute gift of the property. But if it be devised to a person for life, with power to dispose of the reversion, an estate for life only passes; and if the devisee dies without disposing of the reversion, it g'oes to the heir of the devisor.\u201d (Fairman v. Beal, 14 Ill. 244; 4 Kent\u2019s Com. 535, 536; Jarrot v. Vaughn, 2 Gilm. 132.) To the same effect are Funk v. Eggleston, 92 Ill. 515, Wolfer v. Hemmer, 144 id. 554, Wilson v. Turner, 164 id. 398, and Lambe v. Drayton, 182 id. 110.\nThat the language, \u201cif at my wife\u2019s death there is any property then in her possession or control,\u201d gives to the wife an absolute power of disposition, see Estate of Cashman, 134 Ill. 88, and Saeger v. Bode, 181 id. 514. Of course, if the power of disposition in the first taker is a qualified or limited power, there is not necessarily a repugnancy, \u2014and this, we think, will generally explain any seeming conflict in the authorities. Thus, in Bergan v. Cahill, 55 Ill. 160, in which counsel for appellants says the will was very similar to the one at bar, \u201cthe wife is only given the power to sell and dispose of the property in case she is not supported by her children.\u201d Had the wife, in that case, attempted to exercise the power of alienation without reference to the condition imposed, a court of equity would have restrained her. She did not dispose of the property or attempt to do so.\nTo attempt to reconcile the language used by courts in the construction of wills would be a hopeless effort. The variety of language used in such instruments is without limit, and as the words must always be so construed and given such a meaning as will best effectuate the intention of the testator, the decisions are necessarily as varied as are the different expressions used in the wills. We have been unable, however, to find a case which will give support to the construction attempted to be placed upon this will by appellants, and we entertain no doubt that to give it the construction contended for would defeat, rather than carry out, the intention of the testator.\nThe judgment of the superior court will be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Chief Justice Wilkin" } ], "attorneys": [ "H. M. Matthews, for appellants.", "William C. Schaefer, and Clark Varnum, for appellees." ], "corrections": "", "head_matter": "Inez Dalrymple et al. v. Rebecca Leach et al.\nOpinion filed October 24, 1901.\n1. Wills\u2014when trust is not created by precatory words. A will devising to the testator\u2019s wife \u201ctwo-thirds of all nay property, real and personal,\u201d and providing in a subsequent clause that \u201cif. at my wife\u2019s death there is any property then in her possession or control, I desire one-half the same shall revert to my nephew,\u201d passes two-thirds of the estate to the wife absolutely, and no trust is created in favor of the nephew by the precatory words used.\n2. Same\u2014what is necessary to create a trust by precatory words. In order that words of recommendation, request or entreaty to a devisee or legatee may make him a trustee for the party in whose favor the request1 is made, it is essential that the testator clearly point out both the subject matter and the objects of the trust.\nAppeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.\nH. M. Matthews, for appellants.\nWilliam C. Schaefer, and Clark Varnum, for appellees." }, "file_name": "0051-01", "first_page_order": 51, "last_page_order": 57 }