In their opinion deciding this case the Appellate Court say:
“We think the assignment for error that the court below refused to decree that appellee did not have a homestead and dower interest in the lands, and to settle the account charged in the answer for money and personal property of the estate received and appropriated by her, involves the controlling question in the case, namely, the extent to which it could properly inquire and act under the pleadings. There is no claim that it could have set off a homestead or assigned dower, even if her claim of right thereto had been admitted by the answer. The bill did not seek it. The proper parties were not before the court. It certainly was not a bill for an accounting, and there was no cross-bill. Counsel for appellants also concede that it did not ask for any construction of the will, and say that bone was necessary. That proposition has our full concurrence. As we understand it, the object was simply and solely to get an impediment to the execution of a direct and express trust removed, and a decree thereupon for its execution. Complainant was the cestui que trust and defendants were the trustees. The trust is stated in the bill, and created by the will of her deceased husband therein set forth. As thus shown, it is simply to pay to her out of a certain fund, for her support and' maintenance, certain sums and at certain times, to be determined by their mutual agreement, or, in case of their inability to agree, by the circuit court of Montgomery county. It is thus further shown that the amount to be so paid was to be sufficient for her liberal and generous support, considering the value of his estate and the fact that she had greatly contributed towards its accumulation, and that the questions of amount and times of payment were to be determined, and the first payment made not longer than ninety days after his death. The bill is filed against them, not in their general character or with reference to their other powers as executors of said will, but only as trustees of the particular fund and for the particular purpose in that behalf therein stated. That fund consisted of §19,500, invested in the stock of two certain banks. The amount of dividends thereon is not stated. It is averred that the parties have been and are unable to agree upon the amount to be paid to her and the times of payment, by reason whereof the trust is not executed, and cannot be until that impediment is removed by the adjustment by the court of the differences between them, and its determination of those questions according to the will creating the trust in such case made and provided. It is not charged, nor was it necessary to charge, that in differing from her upon the questions stated, the defendants acted fraudulently, dishonestly or without right on their part so to do, but only that they have in fact differed, and that by reason thereof complainant, except to the extent of §900, has failed, and is failing, to receive the benefit of the trust so created in her favor and to which she is in equity entitled. The emergency and condition upon which, according to the terms of the instrument creating the trust, the court was to intervene and determine those questions, are thus alleged to have happened, and the prayer, in substance, is that the court do intervene and determine them, and thereupon order that the defendants pay her accordingly.
“This, in our opinion, is all that is essential or material in the bill. The statement of her interest in the land, as well as in the trust fund, as complainant understands it, and the prayer that upon that basis her allowance may be fixed, do not change the questions or the case for the consideration of the court. She did not ask for a homestead or dower, or for rent, as rent, but for money for her maintenance and support, to be paid in amounts and at ■times to be determined by the court,—and that was to be the extent and limit of the court’s determination, as fixed by the trust.
“The answer admits all the material averments of the bill, the character and capacity of defendants as trustees, the terms of the trust, the failure of its execution and the reason thereof, and the right of complainant, as cestui que trust, to an allowance, out of the trust fund, of money for her maintenance and support in the style indicated, to be paid to her by them in amounts and at times to be determined as alleged in the bill. Their denial of her claim of homestead and dower in the lands, and of right to all the dividends on the bank stock which constitutes the trust fund, forms no issue in the case made by the bill. Their consideration is unnecessary for any purpose contemplated by it. That purpose was simply to ascertain and fix the amount of money to be allowed for her support and the times of payment. In so doing the court was expressly directed, by the terms of the trust, to take into consideration the value of the testator’s estate and her meritorious agency in its acquisition, and his declared intention that the allowance should be amply generous and liberal for the purpose indicated. It was also necessary to consider her age, health, social position, habits and tastes, and the probable effect of the change in her mode of living in consequence of her being then a widow and living alone. The court had all the information on these points that the parties saw fit to furnish. It was also proper to consider the fact that ever since the death of her husband she had been, and then was, occupying their homestead without charge for rent, because from such occupancy she had been and then was deriving some means of support, and would, of course, require so much less for her allowance out of the trust fund for that purpose while she so occupied it. But we fail to perceive how its determination could be affected by the question of her claim of right to homestead and dower and all the dividends upon the bank stock, unless she was actually receiving, under such claim, some such means. Under the circumstances, and since she was not receiving any thereunder, we think the court rightly refused to consider questions that may or may not hereafter arise between her and the devisees upon such claim. Should she succeed in any attempt to enforce it, and so acquire additional means of support, the changed conditions can be fully met by an application for a change in the order of allowance out of the trust fund.
“We are of opinion that the amount allowed was fully warranted by the evidence, and that the solicitor’s fee might well be regarded as a part of such allowance and made under the will, rather than in the light of any technical rule of law. The court intended that the amount to be paid to her was not to be diminished by expenses already incurred to procure its determination. But appellants weré alike interested in procuring it. All the parties were seeking it, and it was for the benefit of all alike. The necessity for it arose under the provisions of the will, without any wrong on either side. The testator might have prevented it, and the case bears some analogy to one brought for coustruction of a will. In such case the expenses, including solicitors’ fees, are generally borne by the estate. (Missionary Society v. Mead, 131 Ill. 338.) Perceiving no substantial error in the record, the decree will be affirmed.”
We endorse the foregoing views, and think that they correctly dispose of the material questions involved in the case. '
The judgment of the Appellate Court is accordingly affirmed. Judgment affirmed.