Mr. Chief Justice Ricks
delivered the opinion of the court:
This is a bill filed in the circuit court, of Macon county by a portion of the heirs of James Dingman, deceased, to set aside a certain sale, made by the executor or trustee appointed by the will of James Dingman, of certain real estate under the terms of the will.
James Dingman died testate on August 14, 1900, and at the time of his death left surviving him his widow, six children and twenty-five grandchildren, all of whom are parties to this suit, either as complainants or defendants. It appears from the evidence that at the time of his death he was the owner of about one thousand acres of land. The will was dated June 16,1897, and three codicils were afterwards made, one dated June 16, 1898, the second dated September 1, 1899, and the third November 23, 1899; By his will all of the real estate except about three hundred and twenty acres was disposed of among his heirs. This three hundred and twenty acres not specifically devised was placed in trust under the following conditions:
“Seventeenth—To the executor of this my will, hereinafter nominated, and to his properly appointed successor and successors in trust, I give and devise in fee simple all the lands not herein specifically devised of which I may die seized and possessed, in trust, nevertheless, for the uses and purposes hereinafter declared and set forth, and none other; and I hereby give and bequeath to said executor and his successors in trust all of my personal estate of every description not hereinbefore specifically bequeathed, in trust, nevertheless, for the uses and purposes hereinafter declared and set forth, and none other.
“Eighteenth—As .soon after the probate of this will my said executor or his successor in trust shall in his discretion, from time to time, in parcels or as a whole at one time, sell the land devised in item 17 of this will upon best terms and for best price reasonably attainable, but not for less than one-third of purchase price to be paid in hand and the remainder on credit not exceeding five years, to be secured by note of purchaser and first mortgage on premises, with interest at six per cent per annum, payable annually, the whole to become due and payable upon default in payment of any interest. Such sale may be either public or private, in the discretion of said executor. Said executor is hereby fully empowered to make conveyance of said lands by deed or deeds, and may in his discretion postpone sale and lease said lands for a term not exceeding one year.
“Nineteenth—The funds, principal and interest, from sale of lands, and rents, if any, and personalty, shall constitute a common fund, which said executor shall keep at the best attainable rate of lawful interest, upon real estate first mortgage or invested in bonds of the cities and counties of the State of Illinois or of said State or the United States of America, however always selecting loan or investment at best rate of lawful interest on best available security. Said executor shall collect said interest annually, and upon collection annually divide said interest into eight parts, should my said wife at such time be in life, and pay one equal part to each my said wife and my said sons and daughters.”
On September 13, 1900, William J. Lawton was by the county court "of Macon county duly appointed executor of said will and qualified as such, and executed a bond in the sum of $12,000 as executor, conditioned for the faithful performance of his duties as such. No other bond was ever given by Lawton in connection with the estate. It appears that on the 28th day of March, 1901, the said William J. Lawton, after giving thirty days’ notice, sold the land devised to him in trust, at public auction, to Hillary Beall and John F. Beall, who are also made defendants to this suit, they being the highest bidders, for the sum of $7400.
Three amendments to the bill were filed, the first one on February 19, 1903, and a second on October 27, 1903. A third amendment was made on December 11, 1903. The second amendment was demurred to and the demurrer sustained. The cause was tried in January, 1904, and near the close of complainants’ testimony they again asked leave to amend their bill, which was refused by the court. At the close of complainants’ evidence the defendants demurred to the same. The court sustained the demurrer and rendered a decree dismissing complainants’ bill, and this writ of error is prosecuted from said decree dismissing the bill.
Numerous errors are alleged, part, only, of which have been argued by the respective parties.
The first alleged error argued by plaintiffs in error -is, that Lawton sold the land, under the provisions of the will, as executor, and not having given a bond for the faithful performance of the sale the same was void; and that even if the sale was made as trustee, unless an additional bond was given the sale was void, and therefore the demurrer should have been overruled.
We are of the opinion that this sale was made as it should have been, by the trustee. While it is a question, sometimes, where the trustee is also the executor, when the title ceases to be in the executor, as such, and title as trustee begins, yet where there is a separate and distinct part of the estate set apart in trust, as was done in this case, we see no good reason why the trustee could not act in the dual capacity of executor and trustee, holding the personalty as executor and the real estate devised to the trustee, and the proceeds of the sale of the same, in the capacity of trustee? the same as if twq separate and distinct persons had been appointed. At common law, executors, as executors, had no estate in or power over the real estate of their testator, and if an executor has any power, right or interest in respect to the real estate, it must be by virtue of some statute or of the provisions of the will itself. (Gammon v. Gammon, 153 Ill. 41.) And while the word “executor” is used in the clauses of the will where directions are made for the sale of the property, the directions, as given, were for the purpose of disposing of a trust estate separate from any other part of the estate, the fee being willed to Lawton in trust, and it was his duty, as trustee, to take charge of the same upon the death of the testator and carry out the trust imposed upon, him independently of his duties as executor, and the acts of the trustee need not be void simply because another title is given him other than that of trustee. The sale having been made by the trustee as provided for by the will, cannot be held to be void because no bond as trustee was given, as no bond was required by the will and none is required by the statute.
We are of the opinion that section 7 of the statute on administration (chap. 3) has no application, as this section only applies to administration of estates. And further, county and probate courts have no jurisdiction over trust estates and trustees, they coming under the jurisdiction of a court of chancery, and for this reason it cannot be held the ábove section of the statute applies to trustees handling trust property.
But the testator, by his will, set aside the lands in controversy for the purpose of creating a special trust fund that should be held for the benefit of his wife and children during their lives, but which, by section 20 of the will, is directed ultimately to rest in his grandchildren.
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Mr. Chief Justice Ricks
delivered the opinion of the court:
This is a bill filed in the circuit court, of Macon county by a portion of the heirs of James Dingman, deceased, to set aside a certain sale, made by the executor or trustee appointed by the will of James Dingman, of certain real estate under the terms of the will.
James Dingman died testate on August 14, 1900, and at the time of his death left surviving him his widow, six children and twenty-five grandchildren, all of whom are parties to this suit, either as complainants or defendants. It appears from the evidence that at the time of his death he was the owner of about one thousand acres of land. The will was dated June 16,1897, and three codicils were afterwards made, one dated June 16, 1898, the second dated September 1, 1899, and the third November 23, 1899; By his will all of the real estate except about three hundred and twenty acres was disposed of among his heirs. This three hundred and twenty acres not specifically devised was placed in trust under the following conditions:
“Seventeenth—To the executor of this my will, hereinafter nominated, and to his properly appointed successor and successors in trust, I give and devise in fee simple all the lands not herein specifically devised of which I may die seized and possessed, in trust, nevertheless, for the uses and purposes hereinafter declared and set forth, and none other; and I hereby give and bequeath to said executor and his successors in trust all of my personal estate of every description not hereinbefore specifically bequeathed, in trust, nevertheless, for the uses and purposes hereinafter declared and set forth, and none other.
“Eighteenth—As .soon after the probate of this will my said executor or his successor in trust shall in his discretion, from time to time, in parcels or as a whole at one time, sell the land devised in item 17 of this will upon best terms and for best price reasonably attainable, but not for less than one-third of purchase price to be paid in hand and the remainder on credit not exceeding five years, to be secured by note of purchaser and first mortgage on premises, with interest at six per cent per annum, payable annually, the whole to become due and payable upon default in payment of any interest. Such sale may be either public or private, in the discretion of said executor. Said executor is hereby fully empowered to make conveyance of said lands by deed or deeds, and may in his discretion postpone sale and lease said lands for a term not exceeding one year.
“Nineteenth—The funds, principal and interest, from sale of lands, and rents, if any, and personalty, shall constitute a common fund, which said executor shall keep at the best attainable rate of lawful interest, upon real estate first mortgage or invested in bonds of the cities and counties of the State of Illinois or of said State or the United States of America, however always selecting loan or investment at best rate of lawful interest on best available security. Said executor shall collect said interest annually, and upon collection annually divide said interest into eight parts, should my said wife at such time be in life, and pay one equal part to each my said wife and my said sons and daughters.”
On September 13, 1900, William J. Lawton was by the county court "of Macon county duly appointed executor of said will and qualified as such, and executed a bond in the sum of $12,000 as executor, conditioned for the faithful performance of his duties as such. No other bond was ever given by Lawton in connection with the estate. It appears that on the 28th day of March, 1901, the said William J. Lawton, after giving thirty days’ notice, sold the land devised to him in trust, at public auction, to Hillary Beall and John F. Beall, who are also made defendants to this suit, they being the highest bidders, for the sum of $7400.
Three amendments to the bill were filed, the first one on February 19, 1903, and a second on October 27, 1903. A third amendment was made on December 11, 1903. The second amendment was demurred to and the demurrer sustained. The cause was tried in January, 1904, and near the close of complainants’ testimony they again asked leave to amend their bill, which was refused by the court. At the close of complainants’ evidence the defendants demurred to the same. The court sustained the demurrer and rendered a decree dismissing complainants’ bill, and this writ of error is prosecuted from said decree dismissing the bill.
Numerous errors are alleged, part, only, of which have been argued by the respective parties.
The first alleged error argued by plaintiffs in error -is, that Lawton sold the land, under the provisions of the will, as executor, and not having given a bond for the faithful performance of the sale the same was void; and that even if the sale was made as trustee, unless an additional bond was given the sale was void, and therefore the demurrer should have been overruled.
We are of the opinion that this sale was made as it should have been, by the trustee. While it is a question, sometimes, where the trustee is also the executor, when the title ceases to be in the executor, as such, and title as trustee begins, yet where there is a separate and distinct part of the estate set apart in trust, as was done in this case, we see no good reason why the trustee could not act in the dual capacity of executor and trustee, holding the personalty as executor and the real estate devised to the trustee, and the proceeds of the sale of the same, in the capacity of trustee? the same as if twq separate and distinct persons had been appointed. At common law, executors, as executors, had no estate in or power over the real estate of their testator, and if an executor has any power, right or interest in respect to the real estate, it must be by virtue of some statute or of the provisions of the will itself. (Gammon v. Gammon, 153 Ill. 41.) And while the word “executor” is used in the clauses of the will where directions are made for the sale of the property, the directions, as given, were for the purpose of disposing of a trust estate separate from any other part of the estate, the fee being willed to Lawton in trust, and it was his duty, as trustee, to take charge of the same upon the death of the testator and carry out the trust imposed upon, him independently of his duties as executor, and the acts of the trustee need not be void simply because another title is given him other than that of trustee. The sale having been made by the trustee as provided for by the will, cannot be held to be void because no bond as trustee was given, as no bond was required by the will and none is required by the statute.
We are of the opinion that section 7 of the statute on administration (chap. 3) has no application, as this section only applies to administration of estates. And further, county and probate courts have no jurisdiction over trust estates and trustees, they coming under the jurisdiction of a court of chancery, and for this reason it cannot be held the ábove section of the statute applies to trustees handling trust property.
But the testator, by his will, set aside the lands in controversy for the purpose of creating a special trust fund that should be held for the benefit of his wife and children during their lives, but which, by section 20 of the will, is directed ultimately to rest in his grandchildren. The direction to sell is for re-investment in mortgage security or municipal bonds. The trustee is directed to sell at the best price reasonably attainable, and is not required to make the sale at any particular or stated time. He was authorized to sell in single tracts or en masse, and the direction as to time is as soon after the proof of the will as in his discretion is deemed proper, with power to lease the lands for a year and a postponement of the sale, in his discretion, and to make the sale either public or private. Under these provisions the trustee is not limited to a specific time nor is he required to make the sale within a year. Provisions, such as are contained in this will, as to the time of sale are held to be directory, only, and the sale and good title could be made after the lapse of one year. (Perry on Trusts, sec. 490, p. 771; Pierce v. Gardner, 10 Hare, 287; Smith v. Kinney, 33 Tex. 283.) As the purpose was re-investment for the creation of what may be termed a permanent fund, there was nothing in the purpose or object of the sale calling for haste.
The trustee had been advised that the will under which he was acting would be contested, and also knew that the proposed contest was of public notoriety. Knowing, then, these matters, he must, as a reasonable man, be held to have known that such proposed contest, and the publicity thereof, would necessarily, or at least reasonably, depreciate the market value of the lands, whether sold at public or private sale, until such dispute or contest was terminated. The trustee also knew that any contest of the will must be had within two years from its probate, and as he was executor as well as trustee his relation to the heirs of the testator was such, his information as to the proposed contest being derived from them directly, that he must also have reasonably known that the beginning of the contest would not be postponed until the expiration of the time allowed by statute to bring it, and the .bill shows that the contest was, in fact, begun very shortly after the sale. It was the duty of the trustee to sell the land for the best price attainable, and it was his,duty to not sell the land, when there was nothing calling for haste, at a time " when he knew it would not bring what it was reasonably worth, but that its sale value would be affected by the threatened contest. Under such conditions he must have known that the land would only bring such a price as a buyer was willing to pay, taking into consideration the hazard of losing the benefit of his purchase as the result of the contest. It must be further borne in mind that although Lawton advertised the land and received bids therefor at the time fixed by the advertisement, he was still under no obligation to make the sale. It was not a judgment sale, but was the sale of the trustee, and the fact that he made advertisement of the sale and proposed to make it public did not change its character or make it other than his sale as trustee, nor require him to accept what he knew to be an inadequate bid.
Upon the question of the inadequacy of price the witnesses varied. The time of the sale was taken as the measure, and the trustee fixed the value at $9900 while most of the witnesses fixed the value at from $10,500 to $14,000, one witness placing it as high as $16,090.- The case was disposed of upon a demurrer to the evidence, and it was the duty of the court, in considering the demurrer, to take as true that evidence most favorable to complainants. If that be done, then the record shows the land did not sell for half its value. With such glaring inadequacy in the price, if the sale, for that reason alone, should not be held a fraud upon the cestuis que trust, it at least calls for great scrutiny upon the part of the court of the acts of the trustee in making the sale. Before the sale the trustee had been offered $8640 for the land, and the party who made the offer testified that he regarded the land then worth $12,000. The witnesses who testified as to value were residents in the vicinity of the lands. It was the duty of the trustee to inform himself of the value of the property, and if he had gone among these witnesses and made inquiry it cannot be presumed that he would have failed to receive such information as would have prompted him to withdraw the property from sale when the bids made therefor were so disproportionate to its value. It has been held a breach of trust to sell property at a disadvantageous time when there is no immediate necessity for such sale. (Perry on Trusts, sec. 771, and authorities under note 5.) Here there was no emergency. The time was manifestly disadvantageous and the fact known to the trustee.
Before the close of the' evidence for the complainants a motion was made upon their behalf to amend the bill. The proposed amendment alleged that on a certain forty acres of land in controversy there was a cemetery, fenced, and containing from six to ten acres; that about two and one-half acres of said cemetery tract had been deeded by the testator in his lifetime and that the balance of said cemetery tract belonged to the testator at the time of his death; that at the time of the sale the trustee announced that the cemetery was reserved from the .sale, and like announcement was made in the public announcement of the sale, and that the trustee, in fraud of the rights of complainants and other heirs, legatees and devisees of the late testator, conveyed to the Bealls the said cemetery tract in addition to the lands offered and sold to them. There was evidence in the record supporting these allegations. Defendants in error did not offer any evidence in the case, and if the allegations of this proposed amendment were true, a fraud was perpetrated upon those interested in this land, which was a part of the trust estate. The subject matter before the court was a controversy relating to a trust, which it is the special province of a court of equity to guard and enforce, and while it is true that the allowing of amendments must be, and is generally, largely committed to the discretion of the court, yet where it is apparent, as in the record before us, no injury can be -done the' opposing party by allowing the amendment and where the matter proposed to be introduced by the amendment is of a material character and germane to the suit, the court will not be warranted in denying leave to amend simply because previous amendments have been allowed, and the action of the court in such case is open to review upon error. We think the amendment should . have been allowed, and that, taking into consideration the disidvantageous' time at which a sale was made, the inadequacy of the price and the manifest' wrong shown by the proposed amendment, which would all be considered together in the final determination of the case, the failure to allow the amendment was such an error as should work a reversal of the decree.
The decree will be reversed and the cause remanded to the circuit court of Macon county, with directions to allow the amendment to the bill offered, and for such further proceeding as to law and justice shall appertain.
Reversed and remanded, with directions.