dissenting:
I do not concur in the conclusions reached in the foregoing opinion. It must be conceded that the legislature could give jurisdiction over testamentary trusts, as provided for in said act, to county courts under the wording of section 18 of article 6 of the constitution, and I think that the authority to give jurisdiction to probate courts as provided in this act is fairly included in the words “all probate matters,” as used in section 20 of article 6 of the constitution. In Winch v. Tobin, 107 Ill. 212, this court held that the words “all probate matters” were used in the constitution “in their broadest apd most general sense;” that “we need not scan words with critical nicety to see whether, in strict precision of language, the legislative definition of probate matters may have been accurate.” In Woerner’s American Law of Administration (vol. i, 2d ed. sec. 150,) the author says: “Logically the jurisdiction of probate courts should extend to all matters necessarily involved in the disposition of the estates of deceased persons, from the time of the owner’s death until the property has been placed in the possession of those to whom it devolves.” In Schouler on Wills (3d ed. sec. 608,) it is said: “Into the general law of trusts and trustees we need not enter. But of testamentary trusts we may observe that probate legislation and practice, especially in the United States, tends at the present day to assimilate such trustees, as to their credentials, the method of their appointment and removal and the supervision of their functions, to the executor. * * * Legislation in our several States tends to simplify the administration of testamentary trusts by bringing such trustees under the immediate supervision of the probate court instead of leaving all to the more indefinite direction of chancery.”
All matters of trusts have never been held to be exclusively within the jurisdiction of chancery. Under section 70 of chapter 3, relating to the administration of estates, all claims against estates of deceased persons are there classified. Class 6 reads as follows: “Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for.” It follows that the probate court must, in the allowance of claims under this section, have jurisdiction of and pass upon trust matters. That such courts have the authority so to do has been recognized in Howell v. Moores, 127 Ill. 67, Wilson v. Kirby, 88 id. 566, and Shipherd v. Furness, 153 id. 590. Furthermore, under this same chapter on administration of estates, probate courts are invested with special and particular chancery powers for the purpose of dealing with partnership estates. This jurisdiction is as much one of the recognized objects of control in equity as is that of trusts. If testamentary trusts are not fairly included within the term “probate matters,” then how can it be argued that the closing up of partnership estates is a probate matter?
What is included in the term “probate matters” is necessarily more or less indefinite and is decided differently in different jurisdictions, according to the special wording of the various constitutions and statutes on that subject. It is evident, however, from an examination of the statutes and decisions in other jurisdictions, that the great weight of authority would include testamentary trusts and supervision arid settlement of such trust accounts in the term “probate matters,” and therefore as a proper subject of probate jurisdiction. This court, in Newell v. Montgomery, 129 Ill. 58, decided that under this provision of the constitution the legislature rightly included as a probate matter within the jurisdiction of the probate court, the authority to call before it, in selling real estate to pay debts, all adverse claimants to the land and adjudicate upon their rights before ordering a sale, on the theory that the land could be sold more advantageously and with the expectation of realizing a better price after the interests of all parties had been determined, so that the purchaser might know precisely the nature and extent of the interest for which he was bidding. The reasoning of this court in’ that case and in Winch v. Tobin, supra, practically answers all the objections raised to the constitutionality of this act. The same arguments that are urged here were raised and answered in those cases. The control granted to county and probate courts over testamentary trusts under the conditions named in the said act can be held, under those decisions, to be included within the phrase “all probate matters.” Such control might also be fairly included in the jurisdiction granted by said sections 18 and 20 of article 6 of the constitution under the phrase, “the settlement of estates of deceased persons.” The powers granted in that act are auxiliary to the complete exercise of the acknowledged jurisdiction of those courts, as conferred by the constitution. The legislature, therefore, in my opinion, had the constitutional authority to pass the act in question.
Mr. Justice Hand : I concur in the foregoing dissenting opinion of Mr. Justice Carter;