DeHaven v. Sherman

Illinois Supreme Court

DeHaven v. Sherman

131 Ill. 115

CourtIllinois Supreme Court

DecidedNovember 26, 1889

StatusPublished

Cited by20 cases

This text of 131 Ill. 115 (DeHaven v. Sherman) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeHaven v. Sherman, 131 Ill. 115 (Ill. 1889).

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Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

Yery clearly, the payments which the will directs the trustee to make to the widow and the children are not a rent charge. 1 Thomas’ Coke, 349, 143 b; 3 Greenleaf’s Cruise’s Digest, 71, 72; 3 Kent’s Com. (12th ed.) 595, *496. They are simply annuities, to be paid from the annual rents contemplated to accrue from the leasing of the Sherman House. 1 Broom & Hadley’s Com. (Ward’s notes,) 459, *55; 1 Thomas’ Coke, 352, *144 b; 3 Kent’s Com. (12th ed.) 595. It could not have been intended by the testator that the payment of these annuities are a charge against the copus of the estate, because that might have defeated the power expressly given to the trustee to borrow money to rebuild, and secure the loan by mortgage on the property, and his expressed intention that his trustee “shall have, hold and manage the Sherman House property entire and undivided,” and appropriate the rents, issues and profits in the manner therein before directed, during the natural life of his wife and children, and until the death of the survivor of them. The rule is, that unless it appears it was intended by the testator to charge the payment of the annuities upon the corpus of the estate, they can only be enforced against the trustee, personally, so far as he has received the rents. The-fee in the realty, whether for life or for years, can not be sold for their payment. (Irwin v. Wollpert, 128 Ill. 527; Delaney v. Van Aulen, 84 N. Y. 16; Nudd v. Powers, 136 Mass. 276; Baker v. Baker, 6 H. L. 616.) Whatever, therefore, may, in other respects, be the effect of the deed of assignment of Francis T. Sherman, the deed of the assignee in bankruptcy to Hugh A. White, and the deed of Hugh A. White to De Haven, it is impossible that they can have the effect of passing a freehold in the Sherman House property to De Haven. It hence follows, that under the 89th section of the Practice act (2 Starr & Curtis, 1842,) the appeal should have been to the Appellate Court for the First District, instead of to this court.

The appeal is accordingly dismissed at appellant’s costs, and leave is given to her, if she shall so desire, to withdraw record, abstracts and briefs, for the purpose of filing them in the Appellate Court. Appga, dismissed^

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Mr. Justice Scholfield

delivered the opinion of the Court:

Yery clearly, the payments which the will directs the trustee to make to the widow and the children are not a rent charge. 1 Thomas’ Coke, 349, 143 b; 3 Greenleaf’s Cruise’s Digest, 71, 72; 3 Kent’s Com. (12th ed.) 595, *496. They are simply annuities, to be paid from the annual rents contemplated to accrue from the leasing of the Sherman House. 1 Broom & Hadley’s Com. (Ward’s notes,) 459, *55; 1 Thomas’ Coke, 352, *144 b; 3 Kent’s Com. (12th ed.) 595. It could not have been intended by the testator that the payment of these annuities are a charge against the copus of the estate, because that might have defeated the power expressly given to the trustee to borrow money to rebuild, and secure the loan by mortgage on the property, and his expressed intention that his trustee “shall have, hold and manage the Sherman House property entire and undivided,” and appropriate the rents, issues and profits in the manner therein before directed, during the natural life of his wife and children, and until the death of the survivor of them. The rule is, that unless it appears it was intended by the testator to charge the payment of the annuities upon the corpus of the estate, they can only be enforced against the trustee, personally, so far as he has received the rents. The-fee in the realty, whether for life or for years, can not be sold for their payment. (Irwin v. Wollpert, 128 Ill. 527; Delaney v. Van Aulen, 84 N. Y. 16; Nudd v. Powers, 136 Mass. 276; Baker v. Baker, 6 H. L. 616.) Whatever, therefore, may, in other respects, be the effect of the deed of assignment of Francis T. Sherman, the deed of the assignee in bankruptcy to Hugh A. White, and the deed of Hugh A. White to De Haven, it is impossible that they can have the effect of passing a freehold in the Sherman House property to De Haven. It hence follows, that under the 89th section of the Practice act (2 Starr & Curtis, 1842,) the appeal should have been to the Appellate Court for the First District, instead of to this court.

The appeal is accordingly dismissed at appellant’s costs, and leave is given to her, if she shall so desire, to withdraw record, abstracts and briefs, for the purpose of filing them in the Appellate Court. Appga, dismissed^

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131 Ill. 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dehaven-v-sherman-ill-1889.

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