delivered the opinion of the court:
The record in this case presents two questions: First, has a court of equity jurisdiction and power to break in upon this trust and order the real estate to be sold and converted into money; and second, if it has the power, is such a case presented as should move the court to exercise such jurisdiction and power.
The first question has received the attention of this court in the cases of Curtiss v. Brown, 29 Ill. 201, Voris v. Sloan, 68 id. 588, Dodge v. Cole, 97 id. 338, Longwith v. Riggs, 123 id. 258, Hale v. Hale, 146 id. 227, and Gavin v. Curtin, 171 id. 640, and on the authority of those cases it must be answered in the affirmative. It remains however to be determined whether such power should be exercised in this instance.
When the trust deed was executed the lands were devoted to purposes of agriculture and the grazing of animals. It is now equally well adapted to those purposes and is not shown to be less productive than when the trust was created. It has increased in salable value by reason of the growth of the city of Decatur and of its proximity to the extended limits of that city. If divided into city lots, the premises, or a portion of them, could be disposed of at such prices that the proceeds of such sale would create a fund which, if put at interest, would produce a much greater annual income than can be realized from the sales of the products of the land if farmed or by devoting it to the grazing of animals. The argument seems to be, the trust should be administered with the sole view of making it yield the greatest possible yearly income for the benefit of the defendant in error and her children, or, at least, that as the trust property would, if sold, produce a very large sum of money, their condition in life should be deemed by the courts to be that of persons possessing life interests in property of such great value, and they consequently entitled to live in a style and manner corresponding to such condition of life. Upon this theory defendant in error insists the dwelling house on the premises should be piped for water and supplied with fixtures for lighting it with electricity, and that a bay window be added, and such other modern improvements made as would convert it into a residence suitable to the condition of persons having a life estate in property of such great value as this land, and further, that they should be deemed entitled to an annual income sufficient to maintain a position in life commensurate to the money value of the trust estate. Evidence was produced with reference to the sum necessary to so improve the dwelling house and to defray the expenses of so maintaining a family, and on this basis the decree in question was entered and the proposed sale of the lands, or a portion of them, justified. The position of the defendant in error therefore is, that the fact that the best interests of the cestuis que trustent would be subserved by° selling the lands amply justifies the court in breaking in upon the trust and disposing of the subject matter thereof.
It is beyond controversy it was the intention of the said William Martin, deceased, the donor of the trust, that the tract of land which is the subject matter of the trust should not be aliened during the continuation of the trust, but that the title thereto should remain in the said trustee,—that is, the land itself should be preserved intact,—until all the purposes of the trust had been fully fulfilled, and that when such purpose had been accomplished the possession of the identical land should pass and the title thereto vest in accordance with his wishes, as explicitly declared by the provisions of the trust deed. The question then relates to the propriety of exercising the power of the court to defeat the manifest desire and intention of the donor, by ordering the tract of land, or a portion thereof, disposed of contrary to his expressed will and intention. Undoubtedly it is the duty of the court to observe the wish of the donor, and to aid in upholding" the trust and causing it to be administered in accordance with the will of him who created it.
Many of the adjudicated cases relied upon to support the view that the court should break in upon the trust here involved and dispose of the title to the subject matter thereof are cases where the trusts were created for the purpose of devoting the subject matter of the trust to the benefit of infants or lunatics, or persons under other disabilities, during the continuance of such disability, and only because of the existence of the disability. Therefore the holdings in such decisions that the best interest of the cestui que trust is a sufficient consideration to warrant the court in changing the character of the trust property from real to personal estate is not sufficient, within itself, to warrant a decree ordering the sale of real estate the title to which has been placed in trust for the express purpose of preserving such title for the use of -persons other than those to be benefited by the income arising from the land, as in this case. The donor in this case created the trust for the purpose of devoting the income from the land to the use of certain persons and of preserving the title to the land,-—that is, the land itself,—intact during the continuation of the trust, and vesting such title, after the purposes of the trust had been fully accomplished, in persons designated by the donor to receive it. The duty of the court in such instance is to regard the express wish of the donor and to lend its aid to the accomplishment of his desires, and the best interest of those entitled to the annual income of the subject matter of the trust is, it is believed, never considered as a sufficient reason for breaking in upon such a trust and disposing of the subject matter thereof in violation of the intention and purpose of the donor. In the late case of Gavin v. Curtin, supra, speaking with relation to the circumstances which ought to authorize courts to defeat the will of a donor in such instance, we said: “The exercise of that power can only be justified by some exigency which makes the action of the court, in a sense, indispensable to the preservation of the interests of the parties in the subject matter of the trust, or, possibly, in case of some other necessity of the most urgent character.” And in Voris v. Sloan, supra, it was said that it is only in cases of the most urgent necessity that the terms of the trust will be changed.
In the case of Curtiss v. Brown, supra,where the subject was brought to the attention of this court, the circuit court entered a decree ordering land which was the subject -matter of a trust of this character to be sold upon the ground, mainly, that the interest of the immediate beneficiary, who was entitled to the annual income from the land, would be best subserved by a sale of the land, and the decree was affirmed, and this case is relied upon by the defendant in error as authority to support the decree of the circuit court in the case at bar. An examination of that case will disclose that the decision should not be given such weight, but that, in fact, upon the contrary, the principles announced are in entire harmony with our holdings in the later cases hereinbefore cited. In Curtiss v. Brown,supra, the decree was rendered in 1852. Certain real estate which had been conveyed to Brown as trustee for Mrs. Curtiss, a feme covert, to hold during the lifetime of her husband free from his interference or control, was ordered to be sold while the husband was still living. The land was sold under the decree and the proceeds of the sale paid to Mrs. Curtiss. Some years after, Mrs. Curtiss prosecuted a writ of error to reverse the decree. The court held that the circuit court had jurisdiction to break in on the trust and power to sell the land, but with reference to the propriety of exercising the power, in the course of the opinion it was said: “If the record had been brought before us before the decree had been executed and while a reversal of it would have afforded any practical remedy to the beneficiary by preserving the estate from being wasted, according to her own request, we should, no doubt, have reversed it.” And in the further course of the opinion it was said: “And we repeat, were the decree unexecuted we should not hesitate to reverse it at once.” But the decree was affirmed upon the ground that it was inequitable to reverse it, and thereby cloud the title of the purchaser under it, after it had been executed and after Mrs. Curtiss had obtained, at her own request, through the medium of the decree, the proceeds from the sale of the land.
In Dodge v. Cole, supra, relied upon by the defendant in error, the question presented was as to the propriety of decreeing that certain lands which belonged to the insane ward of the conservator should be sold, for the reason the interests of the insane person would be conserved by disposing of the land and converting it into personal property and appropriating the proceeds to the support and maintenance of the insane person. There the title vested in the insane person, and hence the best interest of such insane person was of controlling importance, and no reason appeared why the interest of any person should be consulted.
In Longwith v. Riggs, supra, also relied upon by the defendant in error, the beneficiary was an imbecile daughter of the donor, and there was a gift over to other children of the donor. The trust was created by will, and the intention of the testator, as gathered by the court from the will, was to raise the trust for the protection and maintenance of the idiotic beneficiary, and that the title to the land was placed in a trustee, and not in the cestui que trust, only because the latter was incapable of managing her share of the estate. The view of the court therefore was, that the central idea of the testator was to place the share of the imbecile daughter in secure hands for her benefit, and that the direction of the testator as to the gift over was subordinate in his mind to the maintenance of the beneficiary, and for such reasons the court was moved to approve a decree of the circuit court which broke in upon the corpus of the trust fund for the purpose of paying physician’s bill, funeral expenses, and other claims of like character incurred in the necessary support and maintenance of the cestui que trust.
The doctrine of these cases and that of Dodge v. Cole is, tbat’a court of equity, in dealing with a trust created for the benefit of an insane person, an infant or one otherwise under some disability, and because of such disability, will exercise the power to convert the real estate into personal property or break in upon the corpus of the trust if the best interest of the beneficiary demands that course. But those cases are not to be understood as authority for the proposition that the court, in the case of a trust such as appears at bar, is justified in breaking in upon the trust and disposing of the subject matter against the will of the donor, on the ground the immediate beneficiaries will receive greater benefit by reason of the proposed change in the trust than would accrue to them if the trust is administered according to the will of the donor. The trust in the case at bar was not made or created because any beneficiary was of unsound mind or under any disability, but in pursuance of a matured plan of the donor to which he devoted the use of the property. True, certain of those intended to be benefited by the trust were minors at the time of its creation; but it is manifest the controlling purpDose of the trust was not to preserve and secure the estate for the maintenance of the minors until they should reach the age of maturity, but the central idea was to preserve the estate itself until all the purposes of the trust had been subserved and then to devolve the title upon the said beneficiaries, should they be living. The mere fact that a sale of the land might benefit the beneficiaries more than the compliance with the terms of the trust does not furnish a reason for a decree ordering the title of the land to be disposed of in opposition to the manifest wish of the donoi;. The duty of the court in dealing with such a trust is to observe and carry out the purposes and plans of the donor, unless the preservation of the subject matter of the trust, or some other like necessity, demands interference with his will and intention. The evidence does not disclose a condition of such urgency or necessity. The decree is grounded solely upon the interest and convenience of the immediate beneficiaries. This is not enough to justify a decree nullifying the expressed wish and purpose of the creator of such a trust as the one under consideration.
The decree is reversed and the cause remanded.
Reversed and remanded.