Raymond v. Northern Trust Co.

150 Ill. App. 282, 1909 Ill. App. LEXIS 586

• Court: Appellate Court of Illinois
• Decided: October 7, 1909
• Docket: Gen. No. 14,573
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The provisions of the will which appellants claim are void as creating a perpetuity are contained in the following clauses of the will:

‘ ‘ The entire net income of said trust estate * * * shall be paid to my son, Oliver S. Barrett, during the entire term of his natural life, in monthly installments. Upon the death of my said son, the net income from said trust estate shall be paid in equal portions to the child or children (not adopted), if any, of my said son, or their issue, until the youngest of his said children from time to time living reaches the age of twenty-one years, or until the death of the last survivor of said children, in case they should all die before the youngest reaches the age of twenty-one years, at which time the entire principal of my said trust estate shall be divided, etc. * * *

“In case of the death of my said son, leaving no children or issue of any deceased child surviving, or in case he should die leaving a child or children surviving and such child or all of such children should die before the youngest from time to time living-reaches the age of twenty-one years leaving no issue, then I direct that, upon the death of my said son, or upon the death of the last surviving of his said children, the entire balance of said trust estate be paid to my daughter if living'; if not, income to be paid to her son Harold until he reaches the age of thirty-five, and the principal then to be paid to him.

“If, at the death of my said son, Oliver S. Barrett, leaving no child or issue of a deceased child, or after the death of all his children before the youngest from time to time living reaches the age of twenty-one years, leaving no issue, neither my daughter, Phila D. Raymond, nor her son, Harold Raymond, shall be living, or in case said Harold Raymond shall be then living, but shall die before reaching the age of thirty-five years, then I direct that said trust estate shall be divided,” etc.

The first clause above set forth of the will provides for the termination of the trust estate in either of two contingencies. The first is when the youngest of the children of deceased’s son, Oliver S. Barrett, “from time to time living reaches the age of twenty-one years.” The second is upon the death of the last survivor of the children of Oliver S. Barrett “in case they should all die before the youngest child reaches the age of twenty-one years.” Upon the happening of either of said contingencies, the trust estate is to be divided among the children of Oliver S. Barrett, or their issue if any be dead.

The second clause above set forth- of the will provides for the termination of the trust estate in case of the death of the testator’s son, Oliver S. Barrett, “leaving no children or issue of a deceased child surviving, or in case he should die leaving a child or children surviving, and such child or all of such children should die before the youngest from time to time living reaches the age of twenty-one years, leaving no issue.” TJpon the happening of either of such contingencies, the trust estate, is to be paid to the testator’s daughter, Phila D. Baymond, if then living, but if not, to be held and the income therefrom paid to testator’s grandson, Harold Baymond, until he reaches the age of thirty-five years, when the principal is to be paid to said Harold.

The third clause above set forth of the will provides that if at the death of testator’s son, Oliver S. Barrett, “leaving no child or issue of deceased child, or after the death of all of his children before the youngest from time to time living reaches the age of twenty-one years leaving no issue,” neither testator’s daughter, Phila D. Baymond, nor her son, Harold Baymond, shall be then living, or in case Harold Baymond shall be then living, but shall die before reaching the age of thirty-five years, then the trust estate shall be divided among the heirs at law of the testator.

“A perpetuity is defined to be a limitation taking the property out of commerce for a longer period of time than a life or lives in being and twenty-one years beyond, and in case of a posthumous child, a few months more, allowing for the time of gestation.” Waldo v. Cummings, 45 111. 421, 426.

“If by any possibility a devise (or bequest) violates the rule against perpetuities, it cannot stand. If there is a possibility that a violation of this rule can happen, then the devise (or bequest) must be held void.” Bigelow v. Cady, 171 Ill. 229, 232-3.

The contention of appellants is that each of said clauses fails to provide for the termination of the trust or a distribution of the trust estate, m case testator’s son, Oliver S., shall die leaving two or more children, and the youngest of such children shall die before reaching the age of twenty-one years, leaving surviving a child or children of said Oliver 'S. Barrett then above the age of twenty-one years. With this contention we are unable to agree. In the contingency suggested, the child of Oliver S. Barrett over twenty-one, or the youngest of his children over twenty-one, if there be more than one, will be the youngest of the children of Oliver S. Barrett “from time to time living, ’ ’ and such youngest child having reached the age of twenty-one years, the trust will, under the terms of the will, be terminated, and it will be the duty of the trustee to pay over or distribute the estate in accordance with the provisions of the will. The fact that such child becomes the youngest child of Oliver S. Barrett after reaching the age of twenty-one, cannot continue the trust after the time that such child becomes the youngest child.

The chancellor did not err in sustaining the demurrer to the bill and dismissing" the same for want of equity, and the decree will be affirmed.

Affirmed.