dissenting :
The devise to the Woman’s Home Missionary Society was subject to the condition that the society, if it desired to accept the devise on the terms proposed, should file a written acceptance with the executor within one year after the probate of the will, and if it did not do so the premises should be sold by the executor and the proceeds divided among the heirs of the testatrix and the heirs of her deceased husband, and if, after having accepted the devise, the society should fail or neglect to establish the orphanage within three years after the testatrix’s death, the devise should become void and the land should be divided among the heirs of the testatrix and the heirs of her deceased husband. The written acceptance was filed but the orphanage was not established until more than three years after the death of the testatrix. After the expiration of more than three years after the testatrix’s death, and after the failure to establish the orphanage during that time, some of the devisees over began this proceeding, which is an action at law for the partition of the premises, by filing a statutory petition for that purpose.
The report of the former appeal (Peek v. Woman’s Home Missionary Society, 293 Ill. 337,) sets forth the paragraph of the will containing the devise, the pleadings and the facts as they appeared in the record at that time. The judgment was reversed because it was held that the court erred in sustaining a demurrer to the first plea and in sustaining objections to testimony offered to support it. The discussion which appears in the opinion of testimony in support of a plea which was not in the case, a demurrer having been sustained to it and no evidence for or against it being admissible, cannot be considered as an adjudication of fact upon that plea but must, of course, be regarded in the nature of illustration or argument only, and has no reference to facts subsequently proved on issue made upon the replications filed after remandment to the circuit court. The cause was remanded practically for the purpose of forming issues on the first plea and trying such issues. It was held that the evidence did not sustain the second plea. A demurrer had been sustained to the third plea, nothing was said about it in the opinion, no further action was taken on it after remandment, and it was therefore of no importance on the trial. As to the fourth plea, evidence was introduced of the expenditures made by the appellee and its receipts from rents, and the rental value of the premises while it occupied them are shown to be largely in excess of its payments. As to the first plea, when the cause was re-instated in the circuit court the petitioner filed three replications, and the missionary society filed a rejoinder taking issue on each replication.
The second trial was upon the issues of fact raised by the three replications to the first plea which denied the averments of that plea, (1) that the delay in establishing the orphanage was caused wholly by the filing of the bill based upon the alleged want of legal capacity of the appellee to take title to the premises and the litigation following thereafter and the acts of David B. Eaton and the other parties to that suit; (2) that the appellee prior to March 1, 1916, and as promptly as it could do so, did establish the orphanage in accordance with the terms of the will; (3) that the appellee did establish the orphanage in accordance with the terms of the will. On these issues the court found that the appellee did not fail and neglect, as alleged in the petition, to establish a home for orphan children or orphanage upon the lands, but, on the contrary, the court found that the appellee “did establish upon the said lands, and has since maintained and does now maintain, a home for orphan children, or orphanage, known as the Peek Orphanage, all of which the court finds has been done in compliance with the said last will and testament of said Martha E. Peek, deceased.” These findings are not, in terms, responsive to the issues or in accordance with the evidence or the claims of any of the parties. The orphanage was not established within three years after the death of the testatrix, as required by the terms of the will, and no one claims that it was so established. There is no such issue in the case, but the issue raised under the first plea presented only the question whether the facts shown relieved the appellee of performance and vested the title in it without performance of the condition. There is no specific finding of the date when the orphanage was established, but, contrary to all the evidence and the admissions of the parties, the court finds that it was done in compliance with the will. On the only substantial issue on the plea, which was the sole cause of the reversal on the former appeal, as to whether the delay in establishing the orphanage was caused by the filing of the bill calling in question the appellee’s capacity to take the title and the subsequent litigation and by the acts of David B. Eaton and other parties to that suit both .before and after its final disposition, the court made no finding.
There is no disputed fact in the case, no contradiction in the evidence. Mrs. Peek died June 17, 1912. Her will was admitted to probate July 31, 1912. On July 24, 1913, David B. Eaton, one of the heirs of Mrs. Peek and the executor of her will, filed the bill mentioned in the plea, claiming that the appellee was incapable, in law, of taking title under the will. The bill-was dismissed on a hearing for want of equity. The decree was affirmed by the Supreme Court on June 16, 1914, and on February 29, 1916, more than three years and eight months after Mrs. Peek’s death, the appellee obtained possession of the land and established an orphanage upon it.
At Mrs. Peek’s death the land was in the possession of Henry D. Rebuck, as tenant under a written lease made in 1908, which was not in evidence but which Rebuck testified “terminated from year to year,” and provided that either party desiring to terminate the lease at the end of any year should give the other six months’ notice. The lease was in the possession of Harry Typer, a lawyer at Polo, before Mrs. Peek’s death, and after her death her executor, David B. Eaton, got it. There was no copy of it. Eaton, the executor, claimed the rent for the first two years after Mrs. Peek’s death, due March 1, 1913 and 1914, and it was paid to him. The third and fourth years the rent was paid to the appellee. The appellee made no attempt to compel the surrender of the possession of the farm to it, but in the face of the refusal of the tenant to surrender, without taking any action whatever to gain possession, waited until several months after the expiration of the time within which it was required to establish the orphanage, when the possession was voluntarily surrendered to it by the tenant.
The testimony which counsel for the appellee contend sustains their claim that the delay in establishing the orphanage was caused by litigation and the acts of the appellants is summed up by them in their briefs, as follows: “The first year saw the executor in possession of the farm claiming it for the estate and found both the Eatons and the Peeks openly disputing the right of the society to take the farm. The second year was entirely consumed by the litigation started by the Eatons to enforce their claim that the society was not lawfully authorized to take the farm. The third year and eight months of the fourth year were consumed by the repeated efforts of the society to get possession of the farm and to oust the tenant, Rebuck. In these efforts four different officers of the society, as well as Mr. Kingery, who was an honorary member of the society, and Mr. Rigby, who was its attorney, took part. It is difficult to see how the society could have been more diligent or could have taken any further steps to establish the orphanage sooner than it did.”
The executor had no right to collect the rents for the first year after the testatrix’s death. The farm was in the possession of a tenant, and there was nothing in the claim of the executor to prevent the appellee from compelling the payment of rent to it. There was nothing to prevent the appellee from recovering the possession of the premises on March i, 1913. It is true that it did not have the lease, but by the slightest effort it could have obtained it or a copy of it. It never asked for a copy, made no effort to obtain a copy and no effort to obtain possession of the land. The Eatons and the Peeks took no action for a year to establish any interest in the farm, and it has never before been held that the mere verbal claim of an adverse interest would prevent the running of the Statute of Limitations for the recovery of land or was an excuse for laches in bringing a suit to recover possession or in the performance of a condition on which a right depended.
Conceding that the delay of the appellee during the eleven months of the pendency of the suit was excused by reason of such pendency, there still remained a year after tin final decision of that case in the Supreme Court in favor of the appellee in which no effort was made to comply with the condition of the will, and no legal obstacle existed to such compliance. That decision adjudicated the title in the appellee’s favor. (Eaton v. Woman’s Home Missionary Society, 264 Ill. 88.) Nothing remained to be done except for the appellee to take possession of the farm and establish the home. No objection was made in the way of litigation, adverse claim or otherwise except on the part of the tenant, who never made any greater claim than that he was entitled to six months’ notice to quit before the end of the year. There were two and a half months in which to give this notice after the case in the Supreme Court was decided and more than two years after the death of the testatrix. In fact, no notice was given for more than sixteen months after the end of all litigation and more than three years after the death of the testatrix. The repeated efforts of the society to get possession of the farm and to oust the tenant, referred to by the counsel for the appellee, are wholly imaginary. The only action ever taken looking toward a compliance with the condition consisted of a resolution of the National Convention of the Woman’s Home Missionary Society accepting the devise, the filing of the written acceptance with the executor and the county court of Ogle county, and the appointment by the Rock River Conference of a chairman, who selected her associates constituting the local Peek Orphanage committee. The repeated efforts of the society consisted simply of occasional visits to the farm and conversations with Rebuck, the tenant. Mrs. Ray, who was chairman of the committee, testified that she went over to the farm in 1912 and had a talk with Rebuck about his moving off the farm. She asked him if he had a lease, and he said he had but did not say where it was, and she never saw it or tried to see it. She talked with him in the fall of 1913 and in 1914 about getting possession. He said he would stay there as long as he wanted to and when he got ready he would move. In answer to the question, “What you did in reference to trying to get on that farm,—just tell it in your own words,” she said: “Well, we went down there several times,—sometimes some of the local people and sometimes some of the people from Chicago who were on that committee, Mrs. Kingery of Oak Park and Mrs. Dangel of Oak Park. We went down together some time in the spring of 1913, after Mr. Rebuck refused to move off that March,—the latter part of March or first of April. Mrs. Kingery was national chairman. I asked him to give us the privilege of going on there to make some improvements and to start a building for the forming of this orphanage. Mr. Rebuck said, ‘As long as I stay here you will never turn a shovel full of dirt on this place,’ and then we endeavored to get him to take some children to board after we found we couldn’t get on the place, and he refused to do that. I never had any other talk in regard to that. I had not talked myself with him prior to that. I was not there prior to that.” She testified further that she did nothing personally to get possession except what she had told, and that she served a notice on Rebuck in November, 1915, but she does not state what the notice was. This was more than three years after Mrs. Peek’s death. Mrs. Dangel, who is vice-president of the Rock River Conference organization of the Woman’s Home Missionary Society, corroborated Mrs. Ray’s account of the interview with Rebuck when Mrs. Dangel was present, and testified to a similar interview the next day and another in January, 1916, when Rebuck again refused permission to place children on the farm. In answer to a question by the court she said that the sole reason the society did not establish an orphanage on the farm was that it could not get possession of the farm. Mrs. Kingery also testified to the interview in April, 1915, and to another in the fall. She also testified that her husband made two trips to Polo in the interest of the work and also went with Rigby in the winter of 1915? but she did not tell anything that these two gentlemen did. These women all testified that they never heard Rebuck say he was entitled to six months’ notice to quit.
This is all the evidence of anything done to get possession of the farm or comply with the condition of the devise. Nothing was done. There was talk with Rebuclc and nothing more. There were no “tactics of the tenant, Re-buck,” tending to prevent the recovery of possession of the farm. He simply declined voluntarily to surrender possession but never interposed any obstacle to legal proceedings to dispossess him, and the society never began any such proceedings though there was nothing to hinder the recovery of possession. The burden was on the appellee to show a compliance with the condition, or, at least, reasonable diligence in an earnest effort to comply. It does not show reasonable diligence in one entitled to possession of real estate whose title depends upon his recovery and possession within a year, to let that whole period elapse without taking any action to recover possession merely because the person in possession refuses to surrender. No person of reasonable prudence would so neglect his own interest.
If private rights, only, were involved there could be no question about the application of the rule. The gift to the missionary society was a charitable devise, but it was not, therefore, exempt from the ordinary rules which apply to the devolution of property. While charitable gifts may be regarded by courts with special favor, the courts have no right to disregard the intentions expressed by donors as to the conditions on which their gifts shall be enjoyed. A general gift to charity may be sustained though it may be impossible to carry it out in the particular manner indicated, but where the donor has seen fit to impose a condition upon the enjoyment of his beneficence, courts have no right to disregard the condition and enforce the gift at the expense of those whose rights are founded upon the condition.
In our opinion the judgment should be reversed.