dissenting:
I believe that it was implicit in our earlier opinion in this case that IIT was entitled to interest on its grant of $3.5 million. In our October 1977 opinion it was determined “that the circuit court erred in its denial of the relief requested by plaintiff IIT in count III of the second amended complaint.” (68 Ill. 2d 502, 533.) While that opinion did not refer specifically to the question of interest on the $3.5 million, the relief requested by plaintiff IIT in count III of its second amended complaint included an amount for “increases, gains, earnings or profits” on the $3.5 million grant. Since the majority opinion concedes that “we did not specifically exclude an increase of the IIT grant in the earlier opinion,” it would seem more logical to resolve the ambiguity by referring to the pleadings to determine what relief was requested, since we concluded that the circuit court had erred in its denial of the relief requested by IIT.
More fundamentally, however, it seems contrary to logic and reason to declare, on the one hand, that IIT had a vested right to the $3.5 million grant as of June 30, 1971, but on the other hand to deny IIT any right to the interest which accrued on this grant during the subsequent course of this protracted litigation. The result reached by the majority seems especially unsound when one considers article V(e) of the Stuart will, which provides:
“[T] he Executors shall, prior to the expiration of such period of five (5) years after my death, select in writing the qualified charitable organizations to take hereunder and the proportion of my estate each such organization is to receive, and the interest of each such charitable organization shall vest at the expiration of such five-year period.” (Emphasis added.)
Since IIT was selected as a charitable organization to take under the will within the 5-year period immediately following the testator’s death on June 30, 1966, its interest “vested” on June 30, 1971, pursuant to the express terms of the will.
Despite this fact, the majority opinion concludes that this vested right only entitles IIT to the principal amount of $3.5 million upon distribution, following the termination of this lengthy litigation. This view is based upon what I believe to be an overly restrictive interpretation of the word “vest.” The majority opinion concludes that IIT’s vested interest gave it a “present fixed right to future enjoyment upon distribution” and only guaranteed IIT that once it had been designated as a charitable organization to receive under the will, such designation could not be withdrawn.
I find it difficult to accept such an inequitable construction of the Stuart will. I concede that the word “vest” may have a different meaning depending on its legal context, but it seems to me that there is no basis in the language of the will for the conclusion reached by the majority. On the contrary, I think that a careful analysis of the Stuart will reveals that the testator used the word “vest” in the usual sense of an immediate right to present enjoyment.
Article V(d) of the Stuart will, which the majority opinion fails to discuss, provides as follows:
“The executors acting as trustees may, in their sole judgment and discretion, accumulate the net income of the trust estate and add the same to principal (provided the accumulations shall not take place for more than five years), or may from time to time distribute the net income, or such part thereof, as the trustees in their sole judgment and discretion may deem proper, to such qualified charitable organizations as the trustees may select. ” (Emphasis added.)
This clause, to me, demonstrates the testator’s intent that accumulations of net income may be added to the general residue of the trust estate only for the 5-year period immediately following the testator’s death. The only reasonable interpretation of this clause, when read in conjunction with article V(e), is that the testator intended the charitable organizations designated within the prescribed 5-year period to come into present enjoyment and possession of their grants on June 30, 1971. After that date, any accumulation of interest would belong, as of right, to the appropriate designated charity and could not be added to the general residue of the trust estate.
Clearly, if the executors had been successful in designating the charities to take under the will and the proportion each was to receive pursuant to article V(e), there would be no doubt that under article V(d) any further accumulations of income prior to distribution would accrue to the benefit of the appropriate charity. The fact that the executors failed to reach agreement prior to June 30, 1971, on the charitable organizations, other than IIT, to take under the will should not operate to deprive IIT of interest that it would otherwise have been indisputably entitled to. The prohibition in article V(d) against accumulations of net income subsequent to the “vesting” date of June 30, 1971, reinforces my belief that the testator used the word “vest” to connote present enjoyment and possession, including the right to receive all “increases, gains, earnings or profits” accruing after the vesting date. I would allow IIT interest on the $3.5 million from the date of vesting, June 30, 1971.
MR. JUSTICE MORAN joins in this dissent.