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elected to take under the will of George Weller and not under the deed of January 4, 1898.
The election of appellant to take under the will did not necessarily have the result of justifying the act of the trustees in paying an inheritance tax out of the whole of the lands attempted to be devised to appellant for life by the will of her grandfather. George Weller did not own the 160 acres which he conveyed by the deed of January 4, 1898, at the time of his death. He could not devise or pass the title to any part of that land. He did have the right or power to offer appellant a life estate in 320 acres provided she would accept a life estate in her own 160 acres and permit the remainder of'the whole to go to her children or to the children of John Weller at her death, and this he did do by his will. The 160 acres conveyed by the said deed was no part of the estate of George Weller and was not subject to any inheritance tax as a part of the estate which passed by his will. Whether or not the conveyance of January 4, 1898, was made under such circumstances and conditions as would require the payment of an inheritance tax is not presented by this record. It appears that the inheritance tax upon this land was fixed upon the theory that it conveyed to appellant an immediate life estate under and by virtue of the last will and testament of George Weller. The Inheritance Tax act provides that a tax shall be imposed upon the transfer of any property when the transfer is made by will or by the intestate laws of this State from any person dying seized or possessed of the property while a resident of the State. George Weller died a resident of Illinois, but he was not seized or possessed of the property which he had conveyed by the deed of January 4, 1898. The title to that property passed from him by virtue of that deed and it was no part of his estate, and was therefore not subject to an inheritance tax as a part of his estate which passed by his will. It was erroneous to require the payment of an inheritance tax by
reason of this pretended transfer under the will of George Weller.
The question then remains whether the trustees are properly chargeable with the erroneous payment of this tax, which was one-third of the whole amount of inheritance tax paid by them and for which they ask credit. It appears that Herman Weller, one of the trustees, was present at the time of the hearing before the appraiser on the question of the fixing of the inheritance tax in the estate of George Weller and that he testified in reference to the matters involved. He now admits that at that time he knew of the deed of January 4, 1898, although he says he was not advised as to its legal effect. He knew, however, that George Weller had executed a deed to this 160 acres of land to Henry Lorenz and that Henry Lorenz was living upon the land at the time of the hearing before the appraiser. He testifies that although he knew this deed had been executed he did not call that fact to the attention of the appraiser, or say anything to the special guardian appointed for appellant or to anyone else concerning it. It became the duty of the trustees, under the Inheritance Tax act, to inform the county treasurer of the fact that the real estate devised by the will of George Weller had passed to them in trust for appellant, in order that the inheritance tax might be fixed. As trustees they were required to pay this tax and were made personally liable for its payment, with interest, and they were empowered, if necessary, to sell so much of the property devised as would enable them to pay the tax. It devolved upon the trustees to see that this tax was not only properly assessed but was immediately paid, and they owed it to their infant cestui que trust to disclose to the appraiser or to the court all knowledge they had which would have any bearing upon the amount of tax which should be fixed. By the negligence of the trustees and their failure to inform anyone of the conveyance of January 4, 1898, of which they had actual knowledge, an inheritance tax was fixed on lands which were not owned by George Weller at the time of his death, and the same is not properly payable out of the trust funds. The trustees are not entitled to credit for one-third of the inheritance tax paid, and the court erred in not sustaining the objectiors of appellant to that item.
In support of her contention that the court erred in refusing to remove the trustees, appellant urges that they are improper persons to serve in this capacity, for the reason that Herman Weller and Mary Kiick, the wife of Jacob E. Kiick, are contingent remainder-men, and she relies upon Yates v. Yates, 255 Ill. 66, and similar cases, which hold that contingent remainder-men should not ordinarily be appointed as trustees of the lands in which such remainder exists, and that where such appointment is made and it is opposed by the cestuis que trustent who are life tenants, they should be removed by a court of equity upon proper proceedings being instituted. In the Yates case the trustee, who was a contingent remainder-man, was not appointed by the will but was appointed by the original trustee under a provision of the will authorizing him to appoint as his successor some suitable person to execute the trust. The holding in the Yates case is correct but it has no application to the situation here. There the court was dealing with the question whether one who had been appointed as a successor in trust under a power to appoint a suitable person as such successor should be removed by reason of his relationship to the property, while here appellant is asking the court to remove the trustees appointed by the will. It does not necessarily follow that because a court of equity would not, under given circumstances and conditions, appoint certain persons to execute a trust created by a will, that the testator himself could not make a valid appointment of such persons under the same conditions. The desires of a testator in the appointment of a trustee will be observed although he may see fit to appoint a person whose relationship to the estate is such that a court of equity would not appoint him if the appointment was to be made by the court.
Appellant further contends that the trustees should be removed because of the feeling of animosity they admitted and displayed towards her. On the hearing Herman Weller testified that the relations between himself and Henry Lorenz and appellant had not been friendly; that the trustees did not consult appellant or her father as to any of their acts in the execution of the trust; that he did not know how long he had been on unfriendly terms with appellant's family; that it was impossible to be friendly with them, and that he had never known appellant when he could be friendly with her. This is the only testimony on this subject. It does not appear that appellant has ever made an effort to consult with the trustees in regard to the execution of the trust or upon any matters relating thereto, or that they have refused or declined to consult with her or carry out her wishes so far as the same would be compatible with their duties. While it is true that in many cases it has been said that where the ill-feeling between trustees or between the trustees and the cestui que trust has become so bitter as to prevent beneficial co-operation in the administration of the trust, the trustee or trustees offending will be removed, that situation does not exist here. While Herman Weller admits he is not on friendly terms with appellant or her father, it does not appear that the relations are such as to interfere with the beneficial administration of the trust. No complaint is made that the management of the estate by the trustees has not been frugal, honest or beneficial.
Appellant complains that one-third of the receipts during the time covered by the two reports filed by the trustees has been paid out for expenses, exclusive of commissions and attorney's fees, argues that this is too large a proportion to put back on the lands in the way of betterments, and insists that it indicates an improper administration of the trust. She does not point out any particular item as having been improperly expended, and no attempt was made upon the hearing to show that unnecessary expenses had been incurred in the way of improving the property.
From a careful consideration of the record we find no basis for the contention that the court erred in refusing to remove the trustees.
The decree of the circuit court in so far as it approved the item paid out for inheritance tax is reversed. In all other respects it is affirmed, and the cause is remanded to the circuit court, with directions to sustain the objection to the item paid for inheritance tax.
Reversed in part and remanded, with directions.
Narcissa I. MITCHELL, Appellee, vs. ARTHUR C.
Opinion filed February 17, 1915—Rehearing denied April 7, 1915.
1. Duress—what does not constitute duress. Mere annoyance or vexation, or a quarrel or cruelty at a previous time, does not constitute duress, but there must be such compulsion affecting the mind of the party executing the instrument that its execution is not the voluntary act of the maker.
2. Same—when previous acts of cruelty cannot be relied upon to show duress. Acts of cruelty by a husband to his wife at the time she refused to execute certain deeds cannot be relied upon to show duress at a subsequent time, when the wife, accompanied by friends, met the husband in a lawyer's office, where she signed a contract and deed with the object of making a peaceful settlement and providing for the support of herself and her children.
3. Parties—when minor children should be made parties to a bill to set aside deed. Where a husband and wife, for the purpose of making provision for the separate maintenance of the wife, execute a contract and a deed conveying a life estate in a farm to the wife with remainder to her minor children, and the wife subsequently files a bill to rescind the transaction for fraud on the ground that the deed should have conveyed her a fee, the children