Mr. Justice Wilkin
delivered the opinion of the court:
In disposing of the first and third of the foregoing grounds of reversal, in an opinion by Justice Scott heretofore adopted, we said:
“First—Among the assets of - the estate received from the executor of Charles P. Williams, deceased, by Codding-ton Billings, as trustee, on February 3, 1882, were 630 shares ' of the capital stock of the Chicago Gas Light and Coke Company. On November 7,1882, that company, by resolution of its board of directors, increased its capital stock forty-two per cent and distributed the new stock ratably among the holders of the old stock, and on that day Billings, as trustee, received from said company 265 shares of its stock as a stock dividend upon the 630 shares of'stock then held by him belonging to the principal of the trust estate. On March 22, 1887, he sold said 265 shares of stock for the sum of $11,262.50. The master, in stating the account, held that said 265 shares received as a stock dividend belonged to the principal of the trust estate and charged the amount received therefor by Billings to his administrator, and the trial court approved the action of the master in that regard. The question whether stock dividends similar to the stock dividends issued to Billings are income and go to the life tenant, or belong to the corpus of the trust estate and go to the remainder-men, was considered by this court in the case of DeKoven v. Alsop, 205 Ill. 309, and it was there held that a stock, dividend, as between the life tenant entitled to the net income and the remainder-men entitled to the principal of a trust estate invested in capital stock, -is a part of the principal of the trust estate and goes to the remainder-men. That case is decisive of the question at bar, and the trial court did not err in requiring the administrator of Billings to account for the amount received by Billings from the sale of the 265 shares of stock received by him as a stock dividend from the Chicago Gas Light and Coke Company upon the original 630 shares of stock received by him as a part of the principal of said trust estate. * * *
“Third—The position assumed by the administrator of the Billings estate was not in the interest of the trust estate, but hostile to it, and the expenses incurred by it in defending this suit should not be paid out of the trust fund. o This case, upon the facts, is very similar to that of Haines v. Hay, 169 Ill. 93, where it was said (p. 97): ‘This litigation was not in the interest of the trust fund, but hostile to it, and no principle of equity will, as we conceive, permit the trust fund to be diminished to pay the expenses of such litigation. * * * The administrator represented the estate, and as such he had a right to make such defense as he thought its interests demanded, and the estate is liable for all costs so- incurred, and not the party or estate against whom the defense was unsuccessfully made.’ And in the view of this case taken by this court the defense has been but partially successful. Nor is there any ambiguity in the will involved which would justify the allowance claimed. The case turns not upon a construction of the will, but upon a determination of certain questions of the law of trusts and trustees. We do not think the court erred in refusing to make an allowance to the administrator of Coddington Billings, deceased, and its solicitors, out of said trust fund for expenses and services incurred in the defense of this suit.”
We adhere to the conclusions thus announced on those questions. The second contention presents a more difficult point for decision, and we reached the conclusion on an application for a rehearing that it should be again considered.
The history of the dealings of Coddington Billings with the real estate in controversy is stated substantially as follows in the amended bill of the complainants: From time to time during the years 1881 and 1882, and the month of January, 1883, Coddington Billings, then of Chicago, and one Henry K. Sheldon, of Brooklyn, N. Y., jointly purchased various tax certificates and claims against blocks 72, 73 and 74 in the city of Chicago, and on the 30th day of January, 1883, they purchased from the South Park commissioners, who held a tax deed for the same, all interest which they then had in the said real estate, and took title thereto in the name of James O. Sheldon, a brother of Henry K. Sheldon, who contributed nothing to the purchase of said real estate and acquired no beneficial interest therein, and who after-wards executed, acknowledged and delivered to said Billings and Henry K. Sheldon his declaration of trust in writing, setting forth that he had no beneficial interest in said real estate, but merely held the legal title thereto for their exclusive and joint use and benefit. After said January 30, 1883, (the date of the purchase from the South Park commissioners,) Billings and Henry K. Sheldon jointly purchased and acquired other tax certificates and claims against said real estate, and for the purpose of clearing up and strengthening the title thereto, transferred to James O. Sheldon all of said tax titles, certificates and claims, which were duly canceled by them or procured to be assigned and conveyed to said James O. Sheldon. Thereafter it appeared that one Maria S. Scammon had the fee simple title to said real estate, and said Billings and Henry K. Sheldon, by agreement with her, caused James O. Sheldon and wife to convey to her, by quitclaim deed dated February 20, 1889, block 73 and the west half of block 74, and she and her husband conveyed to James O. Sheldon, by a quit-claim deed of the same date, block 72 and the east half of block 74, and thereafter he held the legal title to block 72 and the east half of block 74 in trust for the joint use and benefit of Billings and Henry K. Sheldon. The bill then shows that by a subsequent subdivision said blocks 72, 73 and 74 were added to Fernwood addition to Hyde Park, by which the real estate then and now held by James O. Sheldon became and is described as the east half of block 1 and all of block 3 in said addition.
It is further alleged in said amended bill that the original purchase price paid by Billings and Henry K. Sheldon for blocks 72, 73 and 74, including money expended by them in the purchase of tax claims before and after January 30, 1883, was about the sum of $40,000, of which each contributed one-half; that from January 30, 1883, the date of the deed from the South Park commissioners to James O. Sheldon, until the conveyances to and from Mrs. Scammon, the taxes, assessments and charges against the said real estate to the death of said Billings, against that part now held by said James O. Sheldon, amounting in all to about $30,000, were furnished and paid by them in equal proportions; that the undivided one-half interest acquired by the said Coddington •Billings was purchased by him for and to become a part of the trust estate then held by him under the thirteenth section of the will of Charles P. Williams; that all the moneys furnished, expended and used by said Billings in the purchase of said real estate and said tax claims against the same, and after said purchase in paying taxes, assessments and charges, amounting to about $35,000, were moneys of arid belonging to the principal of said trust estate. The claim is then made that the complainants in equity are, and should be taken to be, the real and beneficial owners of the undivided one-half interest in and to the east half of block 1 and all of block 3 in said Fernwood addition to Hyde Park, and that said James O.
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Mr. Justice Wilkin
delivered the opinion of the court:
In disposing of the first and third of the foregoing grounds of reversal, in an opinion by Justice Scott heretofore adopted, we said:
“First—Among the assets of - the estate received from the executor of Charles P. Williams, deceased, by Codding-ton Billings, as trustee, on February 3, 1882, were 630 shares ' of the capital stock of the Chicago Gas Light and Coke Company. On November 7,1882, that company, by resolution of its board of directors, increased its capital stock forty-two per cent and distributed the new stock ratably among the holders of the old stock, and on that day Billings, as trustee, received from said company 265 shares of its stock as a stock dividend upon the 630 shares of'stock then held by him belonging to the principal of the trust estate. On March 22, 1887, he sold said 265 shares of stock for the sum of $11,262.50. The master, in stating the account, held that said 265 shares received as a stock dividend belonged to the principal of the trust estate and charged the amount received therefor by Billings to his administrator, and the trial court approved the action of the master in that regard. The question whether stock dividends similar to the stock dividends issued to Billings are income and go to the life tenant, or belong to the corpus of the trust estate and go to the remainder-men, was considered by this court in the case of DeKoven v. Alsop, 205 Ill. 309, and it was there held that a stock, dividend, as between the life tenant entitled to the net income and the remainder-men entitled to the principal of a trust estate invested in capital stock, -is a part of the principal of the trust estate and goes to the remainder-men. That case is decisive of the question at bar, and the trial court did not err in requiring the administrator of Billings to account for the amount received by Billings from the sale of the 265 shares of stock received by him as a stock dividend from the Chicago Gas Light and Coke Company upon the original 630 shares of stock received by him as a part of the principal of said trust estate. * * *
“Third—The position assumed by the administrator of the Billings estate was not in the interest of the trust estate, but hostile to it, and the expenses incurred by it in defending this suit should not be paid out of the trust fund. o This case, upon the facts, is very similar to that of Haines v. Hay, 169 Ill. 93, where it was said (p. 97): ‘This litigation was not in the interest of the trust fund, but hostile to it, and no principle of equity will, as we conceive, permit the trust fund to be diminished to pay the expenses of such litigation. * * * The administrator represented the estate, and as such he had a right to make such defense as he thought its interests demanded, and the estate is liable for all costs so- incurred, and not the party or estate against whom the defense was unsuccessfully made.’ And in the view of this case taken by this court the defense has been but partially successful. Nor is there any ambiguity in the will involved which would justify the allowance claimed. The case turns not upon a construction of the will, but upon a determination of certain questions of the law of trusts and trustees. We do not think the court erred in refusing to make an allowance to the administrator of Coddington Billings, deceased, and its solicitors, out of said trust fund for expenses and services incurred in the defense of this suit.”
We adhere to the conclusions thus announced on those questions. The second contention presents a more difficult point for decision, and we reached the conclusion on an application for a rehearing that it should be again considered.
The history of the dealings of Coddington Billings with the real estate in controversy is stated substantially as follows in the amended bill of the complainants: From time to time during the years 1881 and 1882, and the month of January, 1883, Coddington Billings, then of Chicago, and one Henry K. Sheldon, of Brooklyn, N. Y., jointly purchased various tax certificates and claims against blocks 72, 73 and 74 in the city of Chicago, and on the 30th day of January, 1883, they purchased from the South Park commissioners, who held a tax deed for the same, all interest which they then had in the said real estate, and took title thereto in the name of James O. Sheldon, a brother of Henry K. Sheldon, who contributed nothing to the purchase of said real estate and acquired no beneficial interest therein, and who after-wards executed, acknowledged and delivered to said Billings and Henry K. Sheldon his declaration of trust in writing, setting forth that he had no beneficial interest in said real estate, but merely held the legal title thereto for their exclusive and joint use and benefit. After said January 30, 1883, (the date of the purchase from the South Park commissioners,) Billings and Henry K. Sheldon jointly purchased and acquired other tax certificates and claims against said real estate, and for the purpose of clearing up and strengthening the title thereto, transferred to James O. Sheldon all of said tax titles, certificates and claims, which were duly canceled by them or procured to be assigned and conveyed to said James O. Sheldon. Thereafter it appeared that one Maria S. Scammon had the fee simple title to said real estate, and said Billings and Henry K. Sheldon, by agreement with her, caused James O. Sheldon and wife to convey to her, by quitclaim deed dated February 20, 1889, block 73 and the west half of block 74, and she and her husband conveyed to James O. Sheldon, by a quit-claim deed of the same date, block 72 and the east half of block 74, and thereafter he held the legal title to block 72 and the east half of block 74 in trust for the joint use and benefit of Billings and Henry K. Sheldon. The bill then shows that by a subsequent subdivision said blocks 72, 73 and 74 were added to Fernwood addition to Hyde Park, by which the real estate then and now held by James O. Sheldon became and is described as the east half of block 1 and all of block 3 in said addition.
It is further alleged in said amended bill that the original purchase price paid by Billings and Henry K. Sheldon for blocks 72, 73 and 74, including money expended by them in the purchase of tax claims before and after January 30, 1883, was about the sum of $40,000, of which each contributed one-half; that from January 30, 1883, the date of the deed from the South Park commissioners to James O. Sheldon, until the conveyances to and from Mrs. Scammon, the taxes, assessments and charges against the said real estate to the death of said Billings, against that part now held by said James O. Sheldon, amounting in all to about $30,000, were furnished and paid by them in equal proportions; that the undivided one-half interest acquired by the said Coddington •Billings was purchased by him for and to become a part of the trust estate then held by him under the thirteenth section of the will of Charles P. Williams; that all the moneys furnished, expended and used by said Billings in the purchase of said real estate and said tax claims against the same, and after said purchase in paying taxes, assessments and charges, amounting to about $35,000, were moneys of arid belonging to the principal of said trust estate. The claim is then made that the complainants in equity are, and should be taken to be, the real and beneficial owners of the undivided one-half interest in and to the east half of block 1 and all of block 3 in said Fernwood addition to Hyde Park, and that said James O. Sheldon should be compelled to convey to them the legal title thereto; also, that they are willing and elect to accept said undivided one-half interest in lieu of the trust moneys invested therein and necessarily expended in connection therewith by said Coddington Billings. The widow and heirs of Coddington Billings, defendants, by their answer to this part of the amended bill deny that any portion of the trust estate held by Coddington Billings was invested in said real estate, and aver that he was, in-fact, at the time of his decease the legal owner of the undivided half interest in said property; that the investment was made by him jointly with Henry K. Sheldon from his own funds, and deny that the complainants are in any sense the beneficial owners thereof.
The master found that Coddington Billings, in the purchase of said property, used $3298.11 of his own money prior to receiving the trust fund and subsequently invested therein $15,341.85 of the principal of said fund, and thereafter paid out on special assessments, taxes and other charges against said real estate the sum of $15,947.57, also out of the trust estate, making the whole amount of such trust estate so expended $31,289.42, which, with the $3298.11 of his individual moneys, aggregated $34,587.53. It is not denied but that the investment of $31,289.42 was from the principal of said trust estate, nor that the complainants are entitled to a lien on the F'ernwood property to secure the payment to them of that amount. We also think the evidence fully justified the finding that Billings transferred to the trust estate the $3298.11 originally paid by him and thereafter treated that amount as an advancement for said trust estate, he having in the meantime used for his own purposes a large amount of that fund, so that the case was properly treated in the circuit court as though he had directly invested in said Pernwood property $34,587.53 of the principal of the trust estate.
It is insisted on behalf of the complainants below, and the decree of the circuit court finds, that they are entitled to pursue the trust fund so invested into the real estate, and that the increased value of the property must be treated as a part of the principal estate. The contention of the widow and heirs of Coddington Billings is, that although the full amount of said trust fund was invested in the real estate described in the bill, it did not thereby become a part of the principal of the trust estate, and all the complainants are entitled to is a lien upon the land for the amount so invested. The complainants claim, and the decree gives them, not only the principal, fund invested, but all the gains or profits made by that investment, allowing Billings or his representatives no income therefrom whatever. While counsel for the respective parties differ widely as to the rules of law governing the trust estate as applied to this case and have filed very elaborate arguments in support of their respective contentions, the controversy between them grows largely, if not altogether, out of the different constructions which they place upon the thirteenth clause of the will of Charles P. Williams. In other words, as we view the case the rights of the parties on this point must be determined by a construction of that clause of the will as to the power given to the trustee, and the benefits which the testator intended that he and his wife, Mary W., should receive. Counsel for the complainants contend that the language “to manage, invest, alter the investments and re-invest the assets in said shares so given him in trust as he may deem best, and the net income of said estate during their joint lives, and the life of the survivor of them, apply to the use and benefit of said Coddington Billings and Mary W.,” gave Coddington Billings no power to invest the funds in property which would produce no “net income,” which words (net income) they say do not mean profits realized from investments, and. that if the trustee chose to invest in non-productive real estate with the view to profit, however much the gain may have proved to be, the life tenants could receive nothing and the remainder-men could elect to take the whole. The defendants, on the contrary, contend that “net income,” as used by the testator, means any gain realized by the management, investment, altered investments or re-investments, and belongs, by the terms of the will, to the life tenants. That is, the complainants treat the question here involved as one purely between trustee and cestui qtie trust, the trustee having no personal interest whatever in the estate. If they are right in this position, we agree that by the plainest rules of the law of trusts the decree below is right. In that state of the case the evidence is clearly sufficient to establish either an express or resulting trust in the land. If the defendants are to be left entirely out of the case, surely the trustee, as such, could not be heard to admit that he had treated every cent of the money used by him in this property as belonging to the trust estate, and at the same time deny that the property so purchased and maintained belonged to the principal of that fund.
In this case, as in all other cases involving the construction of wills, the intention of the testator, as gathered from the instrument, must prevail, unless to give effect to such intention would result in the violation of some positive rule of law or contravene the public policy of the State. Of course, it was perfectly lawful for Charles P. Williams to-give Coddington Billings and Mary W., his wife, all the increase of the principal trust fund if he chose to do so, and we are inclined to the view that such was his intention as expressed in said thirteenth clause. The discretion conferred upon the trustee to manage, etc., said trust estate, and to invest the same “as he may deem best,” is not in any way expressly limited or qualified. No time is expressed when the net income shall be applied to the use and benefit of the life tenants, whether annually, as received, or at the expiration of the trust. The trustee might, under this language, retain the income, together with the principal, until the termination of the trust. It may be admitted that ordinarily “net income” is understood to mean that which comes in from the principal and to be payable to the beneficiary as received, but such common understanding cannot be allowed, of itself, to control in the construction of the will. Supposing, in this case, Coddington Billings, upon receiving the trust funds, had invested them in non-productive land with a view of its increasing in value, and at the end of a year sold it for an advance and re-invested, and again sold at an advance; could it be seriously doubted that within the contemplation of the testator, by the terms of the thirteenth clause of his will, the gains so made would belong to Coddington Billings and his wife, Mary W. ? It seems to us that whether it be called “net income,” “profits,” “gains” or “increase,” the intention was that as a reward, in part, at least, for the management, investment, altered investments and re-investments, the trustee and his wife should receive the benefits arising from any investments which the trustee might see best to make. Therefore Coddington Billings, 'at the time of his death, which terminated the trust, as the survivor of his wife, Mary W., had an interest in the real estate to the extent of the increase in value thereof, which descended to and-became vested in his heirs, and it then became the duty of his successors in trust to treat the property as belonging, not to either party exclusively, but to both, according to their respective interests therein. In other words, they were jointly interested in the property, and the court, upon this bill,' should have settled their respective rights therein according to its value at the date of the death of Billings, which would have given the defendants the increased value to that date, and the complainants the principal of the trust fund and any increase in value after the death of Coddington Billings to the date of the decree.
The decree of the circuit court will accordingly be reversed and the cause remanded, with directions to allow the parties to amend their pleadings if they shall see proper to do so, and for further proceedings in conformity with the ' views here expressed.
Reversed and remanded.