DeHaven v. Sherman

Citations

• 131 Ill. 115

Syllabus

<p>1. Winns—creating an annuity—as distinguished from a rent charge. Certain real estate was devised to a trustee, to rent the same, to receive and collect the rents thereof, with power to borrow money to rebuild in case of loss by fire, and mortgage the same to secure the loan, and the will directed that after the payment of all the taxes, etc., the trustee, out of the rents, should pay to the testator’s widow $6000 per annum, and to each of his children $3000 per annum, and apply so much of the residue as should be necessary, to the payment of the indebtedness incurred to repair or rebuild the premises, and after such indebtedness should be fully paid, that the trustee pay the widow one-third of the remaining portion of the fund and divide the balance between the children, and at the widow’s death divide the whole of such remainder among the children, equally; and further directed that the trustee should keep the property entire and undivided, and appropriate the rents and profits in the manner before stated, dru’ing the life of the widow and children, and until the death of the last survivor of them, and until the youngest child of any and all his said children should become of age: Held, that the payments directed to be made to the widow and children were not rent charges, but simply annuities, to be paid from the annual rents to accrue from the property.</p> <p>2. Unless it appears that it was the intention of the testator to charge the payment of the annuities upon the corpus of the estate, they can only be enforced against the trustee personally, so far as he has received the rents; and the fee in the realty, whether for life or for years, can not be sold for their payment.</p> <p>3. AiteaIi—whether a freehold involved—construction of a will—as to whether an annuity out of rents, or a rent charge. In the case of an annuity created by will, payable out of the annual rents of an estate, no freehold passes to the annuitant.</p>