Warner v. Connecticut Mutual Life Insurance Company

'I, Mary Beers, wife of Cyrenius Beers, of Chicago, of lawful     age and sound mind, in view of the uncertainty of human life,      do make, publish, and declare this my last will and      testament.

'First. I order all of my debts to be paid, including the     expenses of my funeral and last illness.

'Second. I give and bequeath to my husband, Cyrenius Beers,     all the estate, both real, personal, and mixed, of which I      die seized or possessed, to be held by him in trust for the      following uses, purposes, and trusts, and none other; that is      to say: To receive the rents, income, and profits thereof      during his life, with the remainder to my children, Mary C.      Foster, wife of Orrington Co. Foster, Rissa J. Beers, and      Charles G. Beers, share and share alike, to them, their heirs      and assigns, forever. But provided that said Cyrenius Beers     may incumber the same by way of mortgage or trust deed or      otherwise, and renew the same, for the purpose of raising      money to pay off any and all incumbrances now on said      property, and which trust deed or mortgage so made shall be      as valid as though he held an absolute estate in said      property. But provided further, that the said Cyrenius Beers     may, in his discretion, during his life, sell and dispose of      any or all the real estate of which I may die seized or      possessed, as though he held an absolute estate in the same,      and out of the proceeds pay any of the incumbrances upon any      of the property of which I may die seized and possessed, and      the remainder, over and above what may be required to pay the      indebtedness upon said property, the same being now      incumbered, to rein vest in such way as he may see proper,      and from time to time sell and reinvest, such reinvestment to      continue to be held in trust the same as the estate of which      I may die possessed; that is to say, the said Cyrenius Beers      only to have the use during his life of said estate, with the      right of sale and to incumber and reinvest, the remainder      after his death to go to my children and their heirs forever.

'Third. I hereby appoint said Cyrenius Beers executor of this     my last will and testament, hereby waiving from him all bail      and security, as I have a right to do under the statute in      such cases made and provided, as such executor.'

Cyrenius Beers qualified and acted as executor, administered the estate fully, and was discharged September 20, 1877.

The appellants are children and devisees of the testatrix, and the only ones interested in the mortgaged premises, as such; a brother, the only other child, Charles G. Beers, having released his interest to them. The life estate of Cyrenius Beers was determined by his death, on or about February 25, 1878. The accruing interest on the mortgage debt had been duly paid by him until the maturity of the principal sum, February 24, 1874, when the appellee and Cyrenius Beers entered into a written agreement whereby the time of payment of the principal of the mortgage debt was extended and postponed until February 24, 1879, in consideration of the agreement of Cyrenius Beers to pay the same when due, and interest thereon in the mean time at the rate of 9 per cent. per annum, payable semi-annually.

[Statement of Case from pages 359-361 intentionally omitted]

Mr. John S. Miller for appellants.

[Argument of Counsel on page 361 intentionally omitted.]

Edward S. Isham, for appellee.

MATTHEWS, J.