Drake v. Steele

1. Wills—the law favors the vesting of estates. An estate left under a will will vest immediately unless the testator has by clear language indicated to the contrary. 2. Same—mere directions to executor to sell real estate does not vest legal title in him. Where the executor of a will is merely directed to sell real estate and divide the proceeds among certain devisees he takes only a power of sale, as that enables him to execute the will, and no legal estate in the land passes to him. 3. Same—devise of beneficial interest is equivalent to a devise of the land itself. Where a will provides that the testator’s entire estate “be held by the executor hereinafter named in trust, for the use and maintenance of my wife, Milbra Stivers, and my children,” (naming them,) and that the estate be so held by the executor for the benefit of the wife and children until the death or re-marriage of the wife, and that at such death or re-marriage the estate be divided' equally among the children, and that to such of the latter as have then arrived at lawful age “their distributive share of my estate be paid to them,” the legal title vests immediately, under the Statute of Uses, in the widow and children. 4. Same—when trust is executed by Statute of Uses. Where there are no active duties devolving upon an executor, who is directed by the will to hold the estate in trust for the life tenant and the remainder-men, and there is no express devise of the legal title to him, the trust as to such estate is a dry or passive one, which is executed by the Statute of Uses at the testator’s death. 5. Same—what direction to executor does not impose an active duty as to land. A direction to the executor to invest all the remaining personal property, after payment of debts and expenses, in profitable farm land, has no effect to impose on him an active duty with reference to land owned by the testator at his death. 6. Same—tvhen the executor-trustee does not necessarily have power coupled with an interest. A direction in a will that at the termination of the life estate the distributive shares of such remainder-men as are then of lawful age shall “be paid to them,” even if construed as a direction to the executor-trustee to make the distribution and as carrying with it a power of sale, does not necessarily give to the executor-trustee a power coupled with an interest.

Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. This is an appeal from a decree of the circuit court of Moultrie county which set aside a master’s deed and certain partition proceedings, together with another deed and two mortgages, and construed the will of George M. Stivers, a former owner of the real estate here involved. Said Stivers died testate November n, 1904, leaving eighty-three acres of farm land in said county, which is the land here in controversy, and certain other real estate and personal property. He left surviving him his widow, Mary Milbra Stivers, and four children, Etna H., Mary V., Ora L. and Carl M., the last named being under age at the time of the hearing in the lower court. September 11, 1907, three of the children filed a bill in the circuit court of said county for the partition of said eighty-three acres of land, making all those in interest parties. A decree of sale was entered and a master’s sale was had March 7, 1908. On hearing objections to the sale the trial court sustained the same and set aside the sale, ordering the master in chancery to return to the purchaser the money and notes given in payment of the land. From that finding the purchaser appealed to this court, and in Stivers v. Stivers, 236 Ill. 160, we reversed the decree and remanded the cause to the circuit court, with directions to enter a decree confirming the sale to the purchaser, P. J. Harsh, and ordering that the master convey the eighty-three acres to him. In accordance with the mandate of this court there was executed and delivered to said Harsh a deed to said eighty-three-acre farm, and afterwards said Harsh conveyed the farm to one William A. Steele, who took and still retains possession. The widow of George M. Stivers, after his death, conveyed whatever interest she had in said eighty-three acres of land to her four children, and the three daughters, who were of age, borrowed from their grandfather, Samuel S. Peters, $5000, and secured the same by a mortgage on said eighty-three acres. Afterwards they borrowed from the appellant J. E. Dazey $1500, secured in the same manner by a second mortgage. The decree in the partition suit heretofore mentioned provided that the Dazey mortgage should be paid out of the proceeds of sale and that the land should be sold subject to the Peters mortgage. The will of said Stivers was executed October 6, 1898, and after providing in clauses 1 and 2 that his just debts and expenses should be paid, continued as follows: “Third—After the payment of the items of expense and indebtedness mentioned in sections 1 and 2 of this will, I direct that all my remaining estate, not then consisting of real estate, be invested by the executor hereinafter named in profitable farm land. “Fourth—It is my will and request that my entire estate, after the payment of the items hereinabove directed, be held by the executor hereinafter named in trust for the use and maintenance of my wife, Milbra Stivers, and my children, viz., Etna H. Stivers, Mary V. Stivers, Ora L. Stivers and Carl M. Stivers; that said estate be so held by said executor for the benefit of my said wife and children so long as my wife, Milbra Stivers, shall remain my widow; and it is my will and desire that my said widow shall have the use of said estafé for her support and maintenance, and for the support, maintenance and education of my said children, until the death of my said wife or so long as she remains my widow. “Fifth—At the time of the death of my said wife, Milbra Stivers, or at such time as she may cease to be my widow, it is my will and request that my entire estate be divided equally between my four children, viz., Etna H. Stivers, Mary V. Stivers, Ora L. Stivers, and Carl M. Stivers, share and share alike, equally between them. It is also my will and request that if at the time my wife shall depart this life or shall marry again, then it is my will that to such children as have arrived of lawful age their distributive share of my estate be paid to them, and that a suitable and competent person be appointed guardian for any such children as may not have arrived at lawful age. “Sixth—I hereby appoint S. P. Drake executor of this my last will and testament and direct that he carry out the instructions of this will, complying with the law of this State with reference to bond and security.” February io, 1909, the bill in the matter now at issue was filed by the executor, S. P. Drake. After setting forth the death of said Stivers and naming the heirs, it averred that under the provisions of said will the title to the entire estate was held in trust by said Drake until the death or marriage of said Mary Milbra Stivers, and that in order to carry out the provisions of said will it would become necessary for complainant to sell the real estate, and asked that the master’s deed to Plarsh and the latter’s deed to Steele, as well as the deed from the widow to the four children and a deed from the three daughters to the minor son, be set aside as a cloud on complainant’s title, and that the Peters and Dazey mortgages be declared no lien on said premises. One of the defendants, Emma Lee, filed a cross-bill, claiming" a lien on the land by virtue of a judgment for $555.58, based on a note made by the widow and three daughters. Said widow and three adult children made no answer. There is some dispute as to whether the minor, Carl M. Stivers, was properly served. After the pleadings were settled and a hearing had, the chancellor found that the testator, George M. Stivers, fixed by said will when his estate should be divided among his four children at such time as Mary Milbra Stivers should cease to be his widow or at her death, and therefore that said children were not entitled to partition; that said Harsh did not acquire any title under the partition decree and master’s deed and that the said decree and master’s deed be set aside; that Steele did not acquire any title from his deed from Harsh and that said deed also be set aside; that said Steele had collected from one Landers, a tenant on said farm, for the year 1908, the sum of $509.85,' of which $380.35 should be paid by said Steele to the complainant, Drake, as executor; that said Drake was also entitled to collect the rents of the farm from the tenant thereof; that the said widow and three daughters, when they executed the Peters mortgage, were not seized of the lands in question, and that the right acquired in the lands by said Peters under said mortgage, if any, was subject to the right of the complainant, Drake, to hold said lands, lease them and collect all rents therefor during such time as Mary Milbra Stivers should live and remain unmarried, and that the said Dazey mortgage was likewise made without the mortgagors having title and was also subject to the like rights of said Drake; that the deed executed by the widow to the children March 21, 1906, and a deed from the three daughters to the minor son, executed March 16, 1908, were without consideration and should be set aside; that said S. P. Drake, as executor, was entitled to manage and control and lease said eighty-three acres of land so long as Mary Milbra Stivers should live and remain unmarried, and from the rents and income of said real estate he should pay all taxes, repairs and necessary expenses and pay over the residue to said Mary Milbra Stivers for her use and for the support and education of said children so long as said widow should live and remain unmarried; that the master should pay to the defendant Harsh, for the use of Steele, all the moneys remaining in his hands received by him as purchase money for the eighty-three acres.