Zimmer v. Sennott

Citations

• 134 Ill. 505
• 25 N.E. 774

Syllabus

<p>1. WmiiS—devise of rents and profits of land—operating as a devise of the land itself. A devise of the rents, income and profits of land is equivalent to a devise of the land itself.</p> <p>2. Same—of the estate devised—whether a trust is created. A testator devised to his wife as follows: “All the rents, income and profits-arising from all my real estate which I may own, (excepting certain specified property,) until the eldest one of my children has attained the age of eighteen years, upon condition that my said wife shall raise, support and educate my children until they respectively have attained the age of eighteen years, after which my wife shall receive one-third, only, of the net rents and income of such real estate, the other two-thirds to be paid to and equally divided among my children by my present wife:” Held, that the wife took an interest in the land as a devisee, which was liable to sale on execution against her, and that she did not hold such title as trustee for the testator’s children.</p> <p>3. If the testator had expressed a wish, expectation, hope, desire or request that the devisee should devise the rents, profits and income to the benefit of his children, a trust might have been created in favor of the children. The mere expression of the motive of a gift or grant is not sufficient to establish a trust. If the raising and education of the children had been required out of the rents and profits, the rule might be different.</p> <p>4. Same—legacy as a charge—as a personal charge, and a charge upon the estate. If a legacy is made a personal charge on the devisee, an acceptance of the devise imposes a personal liability on the devisee, who will take the estate devised as a purchaser and in fee; but if the legacy is charged on the estate devised, the devisee does not taije as a purchaser, but as beneficial devisee.</p>