text:
    James Sloan and Cora Sloan Clausen, Appellees, v. John F. Sloan, Frederick J. Sloan, Daniel E. Horan, Mary A. Cole and Alex McDonnell, Appellants.
    Gen. No. 6,392.
    1. Deeds, § 1

      —when contract for conveying land to trustee constitutes conveyance and not trust and is invalid because not signed by grantees. On a bill by a grantor to set aside and cancel an agreement whereby such grantor turned over his property to his children, and which provided that a trustee should hold the property for the beneficiaries, pay the income to the grantor during his lifetime and at the death of the grantor divide such property as directed, and where several of the children sought to have the agreement upheld, and one, after having been made a defendant, joined as party complainant, instrument construed and held to have been a conveyance of the property by the grantor to his children with an undertaking on their part, and that as such children did not sign the writing they could not be held bound by its provisions without their consent, and that the finding of the chancellor awarding a return of the property to the complainant should be sustained.
    2. Contracts, § 164*—how construed. A contract should be construed in the light of the surrounding circumstances, but if it is plain and unambiguous the court has no power to write into it something which the scrivener omitted.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Evans & Evans, for appellants.
    Judson Starr and Scholes & Pratt, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and- section number.

   Mr. Justice Carnes

delivered the opinion of the court.

James Sloan, a retired farmer about seventy-eight years old, residing in Peoria, Illinois, with property consisting of promissory notes and securities aggregating about $18,000, while sick at a hospital Janu- ' ary 8,1913, executed what purported to be his will disposing of all his property, giving it for the most part to his five children in equal shares. Some days after-wards when he had partially recovered from his sickness, he declared that he did not know anything about making the will, and that it was not such a disposition of his property as he desired. Afterwards Jhe expressed a desire to put his property in such a way that the making of such a will as he had been caused to sign while sick could not again occur; that he wished to make a new will and dispose of his estate so that the disposition could not thereafter be changed. His son, Dr. John F. Sloan, at his request consulted a lawyer in Peoria with reference to the matter and was advised that an irrevocable will could not be made, but that an irrevocable disposition of the property could be accomplished by transferring the estate to a trustee. This information was conveyed to James Sloan, and he suggested Daniel E. Horan to act as trustee. Horan was called by telephone and consented to so.act. A meeting was arranged at the attorney’s office, and James Sloan went to his box at the bank and got his notes and securities and took them there, and informed the attorney that he intended at his death that $7,000 should go to John F. Sloan, $7,000 to Frederick Sloan, $3,500 to Cora Sloan Clausen, three of his children, and $500 to Mary A. Cole, a woman with whom he had boarded. He discussed the matter with the attorney and was told that he could make an absolute transfer of his property that could not be revoked, and that would secure the income therefrom to him during his lifetime. He directed the attorney to draw such an instrument, and he did draw in duplicate the instrument hereinafter set out, and James Sloan, Daniel E. Horan and Dr. John F. Sloan went to the law office that afternoon, January 28, 1913, and James Sloan examined the instrument and had it read aloud and explained to him, and announced it was satisfactory, and signed both copies, and indorsed the notes therein described and handed them to Horan, with one copy of the instrument so executed. The instrument, signatures and acceptance by Horan read as follows:

“Know All Men By These Presents, that I, James Sloan, of the City of Peoria, in the County of Peoria, and State of Illinois, party of the first part, for and in consideration of the sum of One ($1.00) Dollar to me in hand paid, and other good and valuable considerations, the receipt of all of which is hereby acknowledged, have granted, bargained, sold and delivered, and do hereby grant, sell, bargain and deliver unto John P. Sloan, of Peoria, Illinois, Frederick J. Sloan, of Galesburg, Illinois, and Cora A. Clausen, of Omaha, Neb., my sons and daughter, respectively, parties of the second part, the following property:
(Describing securities.)
“To Have and To Hold the said property unto the said parties of the second part, their heirs, executors, administrators and assigns, to and for their own proper use and behoof forever, in the manner hereinafter provided.
“And I do hereby assign, transfer and deliver unto said parties of the second part, all of the notes and other evidences of indebtedness as above set forth, together with all the interest and other sums due or to become due thereon, and I do hereby assign, transfer and deliver unto said parties of the second part, all of my right, title and interest in and to any and all Trust Deeds, Mortgages and other securities executed in my favor or for my benefit to secure the payment of said sums of money respectively. Meaning and intending hereby to transfer and deliver absolutely to the parties of the second part, all of my right, title and interest of every kind and character in and to the above described property.
“It is expressly understood and agreed however, that in consideration of the foregoing transfer of the above described property ^to the parties of the second part, all of said property and all evidences thereof and all manner of securities therefor and all papers in connection therewith, shall be and are this day at the time of the execution of this agreement, transferred and delivered to Daniel E. Horan, of Peoria, Hlinois, as Trustee and acting as agent of and for the parties of .the second part for the following uses and purpos.es:
“First. It being understood and agreed and a consideration of this transfer that I shall receive the income from the above described property and any and all re-investments thereof during the term of my natural life, the said Daniel E. Horan, as Trustee, holding said property for the parties of the second part, shall collect all of the income, interest and other proceeds, if any, from said property from time to time, when due and deliver the same to the party of the first part for his support and maintenance.
“Second. The said Daniel E. Horan, as Trustee, shall collect the principal of said sums of money respectively and the notes evidencing the same, and shall re-invest the said sums of money, or the proceeds of said notes in such manner as he shall deem to the best interests of all parties concerned and in such manner as will produce a net income from time to time equal to that now derived therefrom, and he shall keep the principal of said sums of money intact and conserve the same for the parties of the second part.
“Third. At the death of the party of the first part, the said Daniel E. Horan, as such Trustee, shall, as soon as conveniently may be done, divide the said sums of money and the said property, among the parties of the second part in the following proportions; which are the proportions and interests respectively in said property hereby transferred and delivered to each of them, viz.: The said Cora A. Clausen, shall receive the sum of Four Thousand Dollars ($4,000.00) in money or its equivalent, provided, however, that she shall forthwith, upon receipt thereof, pay out of said sum to Mary A. Cole, now residing at No. 706 Hancock Street, Peoria, 111., the sum of Five Hundred Dollars ($500.00); the balance of said money and property shall be divided and distributed by said Trustee in equal proportions to the said John F. Sloan and Frederick J. Sloan, share and share alike, each of my said' sons thereby receiving, approximately, the sum of Seven Thousand Dollars ($7,000.00).
''This agreement shall extend to and be binding upon the heirs, executors, administrators and assigns of all parties hereto. In case of the death or inability to act of the said Daniel E. Horan, as Trustee, I hereby appoint Alex McDonnell, of Peoria, 111., to act as his successor as such trustee.
“In Witness Whereof, I have hereunto set my hand and seal this 28th day of January, A. D. 1913.
James Sloan (Seal)
“Witnesses:
“Daniel E. Horan.
“Jos. F. Bartley.
“Peoria, 111., January 28,1913.
“I do hereby accept the duties and obligations as Trustee and agent in accordance with the terms of the foregoing instrument.
Daniel E. Horan.”

April 15, 1913, James Sloan filed his bill in equity praying that this contract be canceled and the property returned to him, making all the beneficiaries therein named parties defendant. Afterwards, the bill was dismissed as to Cora Sloan Clausen, defendant, and she joined as a complainant in an amended bill, leaving the two sons, Mary A. Cole and the trustee defendants.

The grounds on which relief was sought in the amended bill were: (1) That the execution of the instrument by the complainant was obtained by fraud and undue influence; (2) that he had not at the time sufficient mental capacity to execute and deliver it, and know and understand what he was doing; (3) that as matter of law the instrument was a mere contractual one and did not become operative because of the failure of Cora Sloan Clausen to accept it or'consent to be bound by its terms.

The defendants answered, denying the allegations of the bill upon which such claim for relief was based, and the cause was submitted to the master in chancery to take the proof and report his conclusions of law and fact. He did so, and found and reported adversely to the complainant on claims numbered 1 and 2, and in his favor on number 3. It appeared without question that Cora Sloan Clausen had, when she first learned of the contract, refused to accept it or be bound by it. Each party filed exceptions to that part of the report adverse to them. The chancellor overruled all exceptions and entered a decree that the property should be returned to the complainant, James Sloan, from which decree the defendants prosecute this appeal. By errors and cross-errors assigned here, the three questions presented by the bill, as before noted, are submitted for review, but the controlling one is whether the master and the court erred, as appellants state it: “In construing the instrument to involve covenants and obligations to be kept and performed by the children of James Sloan, cestuis que trust” If it «did amount to a contract on the part of those children binding them to do and perform certain things for' the benefit of the grantor, there can be no question that the grantor could revoke the contract before its acceptance by the grantees. In such case it amounted only to an offer to his three children that they should have certain property if they would comply with certain prescribed conditions, leaving them to accept or reject as they saw fit. As we have before noted, Cora Sloan Clausen refused to be bound by the contract as soon as she learned about it; therefore, if the writing is to be taken as a contract between James Sloan and his' children and Horan, the chancellor was right in his conclusion.

Appellants strongly insist that it should be read as simply creating a trust in Horan for the benefit of the beneficiaries named; that it imposes no burden on the beneficiaries, and therefore the refusal of one of them to accept the provision in her favor is not important, and cites many authorities in support of the rule that it is not necessary for beneficiaries in a trust agreement to all assent or accept the provision made for them; but appellants find it necessary to support their contention that the writing is a mere creation of trust for the benefit of the grantor’s children by much reference to and discussion of what James Sloan said he ivanted, and told the attorney he desired. It is true that the instrument should be construed in the light of the surrounding circumstances; but if it is plain and unambiguous, the court was Avithout power in this proceeding to write into it something that the scrivener omitted. No question of reforming the written instrument is here presented.

We see no escape from the conclusion that the instrument was a conveyance of the property by James Sloan to his three children named, with an undertaking on their part that through Daniel E. Horan, as their agent and trustee, their father should, during his life, be paid an income from the property without impairing the principal, equal to what he was then receiving, and a separate undertaking on the part of Cora Sloan Clausen to pay Mary A. Cole $500. These children did not sign the writing and cannot be held bound by its provisions without their consent. There being no question that Cora Sloan Clausen never consented to be so bound, but on the contrary refused to accept the provision in her favor, we are of the opinion that the chancellor did not err in accepting the master’s construction of the contract and entering a decree accordingly. The decree is affirmed.

Affirmed.

Mr. Presiding Justice Niehaus, having at one time been connected with the case as master in chancery, took no part.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Fred C. Brown et al., Appellees, v. Phoebe Saathoff et al., Appellees. Gertrude Brown Arrison, Appellant.
    Gen. No. 6,393.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Livingston county; the Hon. Geokge W. Patton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Petition by Gertrude Brown Arrison to obtain a share of the proceeds of the partition sale of a farm and filed in the case of Fred C. Brown and others, complainants^ against Phoebe Saathoff and others, defendants. From a judgment approving the report of the master in chancery who had sold the property, and holding petitioner guilty of laches, petitioner appeals.
    Bert W. Adsit and McIlduff & Thompson, for appellant.
    A. C. Ball and Guy L. Louderback, for appellees.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Infants, § 28 —when infant guilty of laches in commencing suit after reaching majority. In a suit in equity against a former master in chancery to recover the proportionate part of the proceeds of a partition sale to which the complainant was entitled, where it appeared that the complainant, who was a minor, fifteen years old, entered her appearance in the partition suit without service of process on her, and where her minority was not known, and in an amended bill complainant was stated to be of legal age, and the master in chancery paid over the proportionate part to which complainant was entitled to certain attorneys, who he assumed were authorized to appear for her, but whom the complainant claimed not to have employed, and where the proceeds were all distributed and the master, whose term had then expired, had not filed a report (the report having been filed after commencement of the instant suit), and complainant made no move in the matter until she was twenty-seven years of age, and there was no showing of any disability on her part since her majority, held that although the master should have filed his report and should have ascertained the authority of the attorneys to collect complainant’s money, he acted in good faith and complainant was barred from recovery by laches.

2. Attorney and client, § 52*—when authority of attorneys to act presumed. The authority of attorneys to act for the parties for whom they appear is presumed xby the courts.


text:
    Frank Hockings, Appellee, v. Thomas Westmoreland, Appellant.
    Gen. No. 6,394.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Apbeal and error, § 1802

      —when case reversed and remanded. In an action where a default judgment was entered, a motion to vacate the judgment was denied and the prayer for appeal was in general terms, and on appeal it was contended that there was not sufficient evidence in the reebrd to sustain the judgment, and it appeared questionable whether the plaintiff was entitled to a judgment for any amount as damages, and a certain amount was included for taxes without any showing why the defendant should be liable therefor and interest was allowed without any contract to pay interest or any other fact entitling the plaintiff to interest being shown, held that because of the inclusion of the item of interest the judgment should be reversed and the cause remanded.
    2. Judgment, § 124*—what is effect of default. As a general rule a default admits the cause of action and the material traversable allegations of the declaration, although not the amount of damages, and hence the amount to be recovered is all plaintiff is required to prove or théi defendant is permitted to controvert.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action in assumpsit by Frank Hoekings, plaintiff, against Thomas Westmoreland, defendant. From an order overruling a motion to set aside a judgment obtained by default, defendant appeals.
    J. W. Rausch, for appellant.
    F. H. Hayes, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    John A. Hoffman, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 6,397.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 348

      —when exclusion of evidence as to basis of assessment of damages for overflow of land in prior action is erroneous. In an action against a railroad for damages to land caused by the construction of a solid embankment about two hundred feet from such land, and adjacent to a solid embankment erected by another railroad, thus leaving no outlet for a natural water course which, before such construction, ran across the defendant’s right of way, and causing the water to back up and overflow the plaintiff’s land, where it appeared that in a prior action damages had been assessed to the plaintiff and the plaintiff claimed that the judgment in the former action was res judicata, and the offer of the defendant to prove that the damages in the former action were not in fact assessed on the theory of law that the defendant was liable for the entire damage, and that in fact it was not liable for the entire damage was denied, held that the refusal to permit the introduction of the evidence offered was error.

      Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by John A. Hoffman, plaintiff, against the Chicago & Northwestern Bailway Company, defendant, to recover damages for the overflowing of plaintiff’s land caused by the obstruction of the flow of water in a stream by the construction of a high embankment. From a judgment for plaintiff for six hundred dollars, defendant appeals.
    Stevens, Miller & Elliott, for appellant.
    Sheen & Galbraith, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

2. Railroads, § 348*—when exclusion of evidence in action for damages for overflow due to construction of embankment is erroneous. In an action against a railroad for damages to land caused by the construction of a solid embankment about two hundred feet from such land, and adjacent to a solid embankment erected by another railroad, thus leaving no outlet for a natural water course which, before such construction, ran across the defendant’s right of way, and caused the water to back up and overflow the plaintiff’s land, where the defendant offered to prove that its embankment did not change conditions which had existed long prior to the building of such embankment, and also offered to prove that the plaintiff had assisted in the work of closing the water course, and made various other offers to prove that it should not be liable for the entire damage, and all the offers were refused, held that the exclusion of such evidence was error.

3. Railroads, § 348*—when evidence that embankment constructed by another railroad obstructed passage of water from land of adjoining owner is admissible. In an action against a railroad for damages to land caused by the construction of a solid embankment about two hundred feet from such land and adjacent to a solid embankment erected by another railroad, thus leaving no outlet for a water course, and causing the water to back upon and overflow the plaintiff’s land, held that the defendant had the right to show that the embankment of the other railroad had obstructed the passage of such water from the plaintiff’s land at the time the defendant constructed its embankment.

4. Judgment, § 40*—when doctrine of res judicata applies. The doctrine of res judicata does not apply unless it appears that the parties, the subject-matter and the cause of action are identical.

5. Waters and water courses, § 15*—what is liability of wrongdoer overflowing land for wrongful acts of others. In actions for damages to land by causing water to back upon and overflow such lands, the wrongdoer does not become responsible for the wrongful acts affecting the land committed independently by others.

6. Estoppel, § 16 —when doctrine of estoppel by verdict is applicable. The doctrine of estoppel by verdict is but another branch of the doctrine of res judicata, and is applicable when some controlling fact or matter material to the determination of both causes has been adjudicated in a former proceeding and the same fact or matter is again at issue between the same parties.

7. Evidence, § 323*—when parol evidence is admissible to show testimony given and questions determined. Where a judgment is offered in evidence in bar of a claim, and it is uncertain from the record what was adjudged, parol evidence is admissible to show what testimony was given and what questions were submitted for determination at the time the judgment was entered.


text:
    John McNeil, Appellee, v, Sarah Allen, Appellant.
    Gen. No. 6,406.
    1. Boundabies, § 31

      —when statute relating to surveys is inapplicable. In an action to establish a permanent survey, under the Act of 1901 providing for such surveys (J. & A. jf 11143 et seq.), where there was a dispute as to boundaries, and the defendant claimed that the act related only to disputes as to corners, held that the statute was applicable in cases of disputes as to boundaries.
    2. Boundabies, § 44*—when court has jurisdiction to assess costs. In an action to establish a survey under the Act .of 1901 providing for such surveys (J. & A. If 11143 et seq.), where the defendant failed to appear until after the making of the report by the commissioners, and then filed a writing setting up that the line found by the commissioners took about two acres of her land, and prayed for a hearing on such objections, and the writing was stricken from the files, the report approved and costs assessed equally between the parties, and the defendant objected to the assessment of costs against her, held that the petition contained averments which gave the court jurisdiction, that there was due service on the defendant and that she did not deny the averments but only presented an issue as to ownership, and that therefore the costs were properly assessed.
    , 3. Appeal and eeeob, § 1265*—when presumed that Supreme Court would have taken jurisdiction Of appeal. In a proceeding under the Act of 1901 providing for the permanent survey of lands (J. & A. 1f 11143 et seq.), where the defendant argued the case on the theory that the title to real estate was involved in the proceeding, and it appeared that an appeal had been prosecuted to the Supreme Court, where the cause was transferred to the Appellate Court, held that it was to be assumed that if such contention had been correct the Supreme Court would, have taken jurisdiction of the appeal.
    4. Boundaries, § 34*—what cannot be determined in proceedings for establishment of boundaries. In proceedings under the Act of 1901 providing for the permanent survey of land (J. & A. f 11143 et seq.), where the defendant by objections in writing to the commissioners’ report sought only to present an issue as to the title to a certain strip which she claimed the proceedings might deprive her of, and where the objections were stricken from the files and the report approved, held that although an issue might have been presented by objections to the report which would have entitled the defendant to a jury trial, the issue presented was not one which could have been determined in the proceedings in question.
    5. Boundabies, § 32

      —what are powers of commissioners in proceedings to establish. In proceedings under the Act of 1901 (J. & A. 11143 et seq.), providing for the permanent survey of lands, where one of the parties sought to have the title established to a strip which she claimed the proceeding might deprive her of, held that the proceedings were not to establish the title of the parties to any portion of the property as to which a boundary line was to be restored, and that the commissioners had no power to establish new comers or run new boundary lines, but simply to re-establish those once established by the United States.
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 19, 1917.
    A. A. Wolfersperger, for appellant.
    Henry C. Ward, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

This is a proceeding under the Act of 1901 and amendments, providing for the permanent survey of lands (J. & A. eh. 133, ft 11143 et seq.). The act is a re-enactment of the law of 1869 except as to amendments of section 2 in 1911, which do not affect any question here involved.

Appellee, John McNeil, filed a petition under that statute in the Circuit Court averring that he owned farm lands, particularly described, adjoining lands of Sarah Allen, the appellant, with common corners and common boundaries between them, with other appropriate averments to bring the case within the statute, and asked for a permanent survey in accordance with its provisions. In due time the petitioner appeared.

Sarah Allen did not appear. The court appointed a commission, which made a report not shown by the abstract. Appellant then appeared and filed a writing in which she set up that the line found by the commission was some distance over on her land from one that had been established by agreement in 1868 and acquiesced in ever since that time; that she would lose about two acres of land, and asked that the cause be set for hearing upon the facts so that she might be able to present her evidence to sustain her objections to the report. The court on motion of appellee struck said writing from the files, and entered a final order approving and confirming the commissioner’s report and directing that the expense account of said commissioners, and the costs of the court, and recording of the plat and report be equally divided and equally charged against the petitioner and said Sarah Allen. She obtained orders for and prosecuted an appeal to the Supreme Court, where the cause was transferred to this court.

Appellant argues her case on the theory that title to the strip of land is involved in this proceeding. If she was right in that view of the case we assume the Supreme Court would have taken jurisdiction on her appeal. Its action in transferring the case is an answer to any suggestion that a question of title is involved. It may be said on the authority of Townsend v. Radcliffe, 63 Ill. 9; Huston v. Atkins, 74 Ill. 474; Atkins v. Huston, 106 Ill. 492; and Hood v. Tharp, 228 Ill. 244, that an issue might be presented by objections to the commissioners’ report that would entitle any party interested to a jury trial; but the issue sought to be presented by appellant was simply and only that she had acquired title to a strip of land by adverse possession of which this proceeding might deprive her. It was held in Krause v. Nolte, 217 Ill. 298, that the statute does not confer power on the commissioners to establish new corners or run new boundary lines, but simply to re-establish those once established by the United States; that the proceeding is not one to establish title of the parties to any portion of the property as to which a boundary line has to be' restored. The court said ‘ Establishing title is an entirely different matter from re-establishing and restoring lost comers or disputed boundaries.” The same was held, in substance, in Schrader v. Kehr, 234 Ill. 205, where the court said that after the lost corners • and boundaries have been located the rights of the parties to the'lands in controversy must be determined in a proceeding at law for that purpose, citing and discussing earlier Illinois cases. Rich v. Naffziger, 248 Ill. 455, follows the doctrine of the two last cited cases. The court said the line run by the commission of surveys must be accepted as the true line in determining the record title, but there still remained the question whether the assertion of the leg’al title by the owner was barred by adverse possession; that although the defendants (in a trespass case) did not have the record title to the land in question, they might show that they had acquired title by virtue of the statute of limitations. The authorities are reviewed and discussed in Burns v. Kimber, 176 Ill. App. 515. It follows that the trial court did not err in striking from the files a pleading presenting only an issue that could not be determined in that proceeding.

Appellant suggests that the petition did not show that the dispute between the parties related to governmental corners or boundaries; that there is in fact no dispute as to the government comers, and that the statute expressly states that there must be a dispute and that appellant refused to enter into “an agreement to locate such comers.” The statute is not limited to disputes as to comers. Section 2 of the Act is a provision for cases where “comers and boundaries are in dispute,” or where it is desired to have “corners and boundaries permanently established.” It sufficiently appeared by the petition, and certainly appears on the record here, that there was a dispute as to the “boundaries.”

Appellant complains that the court assessed her one-half of the costs of the proceeding, and says that it is true the statute provides “the expenses and costs of the surveys and suits shall be apportioned among all the parties according to their respective interests” but that the statute should not be applied because the whole proceeding is based on an entirely different proposition than the act calls for, and there is no evidence in the case showing that appellant refused to enter into an agreement to have a commission appointed, and no evidence in the case that there is a dispute as to the division line; therefore she should not be assessed one-half the costs. The petition, which was sworn to, contained averments which, if true, gave the court jurisdiction. There was due service on appellant. She did not deny those averments but only presented an issue on the ownership of the land. The court seems to have followed the statute in apportioning the costs and did not err in so doing. Stevens v. Allman, 68 Ill. 245. Finding no error in the record, the judgment is affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    R. E. Gustin for use of Hiram H. Atwood, Appellee, v. Eliza J. Bryden, Executrix, Appellant.
    Gen. No. 6,359.
    1. Executors and administrators, § 313*—when award of execution improper. An award of execution against an executor is improper.
    2. Husband and wife, § 4*—when liable for burial expenses of wife. The duty of the husband to support his wife and to furnish her with necessaries, etc., includes the'duty to give her remains suitable burial after her death, and such duty is not set aside by section 4 of the Administration Act (J. & A. V 52), giving an executor, before probate of the will, authority to bury the deceased and pay necessary funeral expenses.
    3. Husband and wife, § 4*—what is effect of Married Women’s Acts on liability of husband for funeral expenses. The common-law liability of a husband for the funeral expenses of his wife has not been abrogated by the Married Women’s Acts.
    4. Husband and wife, § 4*—what is effect of classification of claims against estate on liability of husband for funeral expenses of wife. The common-law liability of a husband for'the funeral expenses of his wife is not affected by the classification of claims against estates by which funeral expenses are provided to be paid as claims of the first class.
    5. 'Husband and wife, § 4*—when husband relieved from liability for funeral expenses of wife. Where a husband paid the funeral expenses of his wife and sought to enforce the claim against the estate of the wife, and it appeared that the wife had in her last will charged her estate with the payment of funeral expenses, held that the husband was thereby relieved from liability, regardless of his common-law liability.
    6. Husband and wife, § 4*—what is effect of renouncement of husband under will on his liability for funeral expenses of wife. Where a husband paid the funeral expenses of his wife and sought to enforce the claim against the estate of the wife, and had renounced under the will, held that by such renouncement the matter was placed in the same situation as if there had been no will, so as to render him liable for funeral expenses.
    7. Appeal and error, § 1387

      —when excluded evidence treated by Appellate Court as if admitted. Where the renunciation by a husband under the wife’s will was excluded by the trial court, on the trial of a claim of the husband against the estate for funeral expenses, and where it appeared that but for such renunciation the husband" would, by the terms of the will have been relieved from his common-law liability to pay such expenses, and that the execution and filing of the renunciation was proven, and it was offered in evidence and was contained in the bill of exceptions, held that if it was competent evidence it should be treated by the Appellate Court as if it had been admitted:
    8. Husband and wife, § 4*—when husband taking assignment of claim for funeral expenses paid undertaker is not in position of undertaker. Where a husband paid the funeral expenses of his wife and obtained an assignment from the undertaker, and then sought to enforce the claim against the estate of the wife, and by the terms of the last will of the wife she charged her estate with the payment of such expenses, but the husband renounced under the will, held that even if the estate had paid the claim to the undertaker it could have deducted the amount from the moneys going to the husband from his wife’s estate, on the ground of his primary liability, and that therefore he could not, by paying the bill and taking an assignment, put himself in the position of the undertaker.
    9. Appeal and ekrob, § 1803

      —when case not reversed and remanded for new trial because of erroneous exclusion of evidence. Where the renunciation by a husband under the wife’s will was excluded by the trial court, on the trial of a claim of the husband against the estate of the wife for funeral expenses, and where it appeared that but for such renunciation the husband would by the terms of the will have been relieved from his common-law liability to pay such expense, and that the execution and filing of the renunciation was proven and it was offered in evidence, but that its admission was refused, and it was contained in the bill of exceptions, held that, as it was competent evidence and should have been admitted, there should not be a reversal and remanding of the cause for a new trial merely to let in such renunciation, but that it should be treated as if it had been admitted by the trial court.
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed April 19, 1917.
    George P. Gallaher and E. D. Reynolds, for appellant.

      Lawbaugh & Large and B. Jay Knight, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Mrs. Delia A. Atwood died testate on August 21, 1913. Her funeral was held on August 24,1913. R. E. Gustin, an undertaker, furnished the casket, hearse, carriages, etc., and conducted the funeral and the burial. His bill therefor was $226. Hiram H. Atwood, husband of the deceased, paid the bill by his check on that day or the next. On November 10, 1913, a claim for said funeral expenses was filed in the County Court in the name of Gustin against the estate of Delia A. Atwood, deceased, except that the amount was stated at $233. On September 19, 1914, an assignment of said claim by Gustin to Atwood was filed in said County Court. Said assignment was dated August 25, 1913. On April 13, 1915, said claim of Gustin was disallowed by the County Court. Up to that time the record of the County Court, as now before us, contained no reference to the name of Hiram H. Atwood as a claimant, exc.ept in the assignment so filed. Gus-tin did not appeal from said judgment, but Atwood did appeal to the Circuit Court. In the Circuit Court said case was entitled “R. E. Gustin for the use of Hiram H. Atwood vs. The Estate of Delia A. Atwood.” There was a jury trial and a verdict for claimant for $226. A motion by defendant for a new trial was denied, and Gustin, for the use of Atwood, had a judgment for $226 and costs, with an award 'of execution therefor. Thereafter the title of the cause was so amended as to make the name of the defendant ‘ ‘ Eliza J. Bryden, executrix of the last will and testament of Delia A. Atwood, deceased.” The order for an execution was erroneous. Burnap v. Dennis, 4 Ill. (3 Scam.) 478; Dye v. Noel, 85 Ill. 290; Johnson v. Devine, 192 Ill. App. 453.

Appellee concedes that at common law the husband was liable for his wife’s funeral expenses, but contends that: (1) By virtue of the Married Women’s Acts the common law on that subject is abrogated and the estate of the wife is primarily liable for her funeral expenses, and if the husband has paid those expenses he may recover from his wife’s estate therefor; (2) that the provisions of the Administration Act, which make estates of deceased persons liable for their funeral expenses, make the estate of a deceased wife primarily liable therefor; (3) that because of thé provision of the will of deceased, her estate is ultimately liable for said funeral expenses, and her husband can recover against her estate therefor; (4) that regardless of the statutes and the will, a husband is entitled to be reimbursed from his deceased wife’s estgte for her funeral expenses paid by him; (5) that the undertaker had a valid claim against the estate.of deceased, and the husband, as his assignee, has the rights of the undertaker, and therefore has a- valid claim, independent of all other considerations.

Most of the contentions of the parties to this suit are stated and leading authorities cited in 13 B. C. L., article “Husband and Wife,” sections 230, 247 and 248, and in 21 Cyc. 1449, and notes.

Cunningham v. Reardon, 98 Mass. 538, is based upon the proposition that the husband is liable not only for the necessary support of his wife, but also for her funeral expenses. Afterwards in Constantinides v. Walsh, 146 Mass. 281, it was held that under statutes making the funeral expenses of a deceased person a preferred charge upon the estate of such deceased, and under statutes establishing the independent position of married women with regard to their property, the liability of the wife’s estate is primary as between her estate and her husband, and that whether or not it was the husband’s legal duty to >see that his wife was buried he was entitled to recover against her estate his reasonable expenditures in that behalf; that if it was his legal duty to bury her, still her estate was primarily liable under the statutes referred to, and if it was not his legal duty, still a stranger could have recovered against her estate therefor; and that in paying such funeral expenses it was not to be presumed that the husband waived his legal rights and made a gift to the estate of his wife, in the absence of any evidence to that effect. This was followed without discussion in Morrissey v. Mulhern, 168 Mass. 412. In McCue v. Garvey, 14 Hun (21 N. Y.) 562, it was held that the funeral expenses of a dead person were primarily chargeable to that person’s estate; that though the husband was bound to bury his deceased wife, and was probably liable for the expenses of burial, still the estate of the deceased wife was finally liable therefor. In Freeman v. Coit, 27 Hun (34 N. Y.) 447, it was held that in that State, where the expenditures for the burial of the wife had been made by the husband, and the wife left a separate estate, the husband was entitled to be reimbursed therefor from such estate. In Pache v. Oppenheim, 93 N. Y. App. Div. 221, the common-law obligation of the husband to bury his wife was sustained, but it was held that under the anthorities in that State the estate left by the wife is primarily liable therefor, and the husband who has paid such reasonable expenses may recover from his wife’s estate. In McClellan v. Filson, 44 Ohio St. 184, the common-law duty of the husband to bury his wife was recognized, but it was held that the common-law right and power of the husband over his wife’s property had been almost entirely taken away by legislation (which legislation in Ohio was there stated, and is in many respects similar to our statutes relating to married women), and that as the reason for the rule which placed upon the husband the liability to pay Ms deceased wife’s funeral expenses had largely disappeared, the court was willing to see the rule itself disappear. In that case the executor had paid the funeral expenses and the husband had taken no part in employing the undertaker. The court disclaimed any purpose of deciding what was not before the court, and stated that what they did hold was that the executor had a right to pay these funeral expenses from the estate of the testatrix, and be allowed therefor in his accounts.

The following cases do not harmonize with the foregoing: In Waesch’s Estate, 166 Pa. St. 204, it was held that the liability of the husband for his wife’s funeral expenses, even though she has a separate estate, is too well settled to admit of argument; that the husband is primarily liable, and the wife’s estate is liable only if the husband is insolvent, and that, if any ■ balance remains for distribution, the funeral expenses which the husband should have paid should be deducted out of his distributive share. In Galloway v. McPherson’s Estate, 67 Mich. 546, it was held that where there was no showing but that the husband was able to pay his wife’s funeral expenses, it was his duty to do so, and the wife’s estate was not liable; and Sears v. Giddey, 41 Mich. 590, supports that position. In Gould v. Moulahan, 53 N. J. Eq. 341, it was held that payment of the wife’s funeral expenses devolved upon the husband, not by virtue of any interest he has in his wife’s property, but from the personal advantage to him that his wife be suitably buried; that while there was a primary obligation on the husband to pay said expenses, there was a secondary obligation upon her estate, and the existence of the primary obligation did not discharge the secondary obligation, and that where, as in that case, the husband was financially unable to pay said expenses, the wife’s estate is liable. In Stonesifer v. Shriver, 100 Md. 24, it was held that at common law the legal existence of the wife was merged in that of the husband, and he became entitled to all her personal estate, and as a consequence was bound to supply her with necessaries, and to bury her in a suitable manner; that statutes creating a wife’s-statutory estate do not absolve the husband from his common-law obligation to provide suitable burial for his wife, and that he is not entitled to any credit therefor in the settlement of. his administration of her estate. In Kenyon v. Brightwell, 120 Ga. 606, it was held that at common law the husband was bound to bury his deceased wife and to defray her funeral expenses, and that this rule prevails generally in this country except in a few States which have prescribed a different rule by statute; that this duty to pay the wife’s funeral expenses grows out of the husband’s obligation to provide her with necessaries of life, and out of his authority to direct where she shall be buried; that statutes creating separate estates of married women, while they deprive the husband of rights at common law, do not absolve him from his duties at common law; that this common-law- duty of the husband did not depend solely on the principle that marriage was a gift to the husband of the wife’s estate, but that it was an obligation on the husband to whom the wife brought no portion as well as on him who received a fortune; that it was a consequence of the merger of the- legal existence of the wife in that of the husband. A statute of that State required the husband to support and maintain his wife, and it was held this included the duty of burying her upon her death. In Smyley v. Reese, 53 Ala. 89, the husband was administrator of his deceased wife’s estate, and claimed credit for the funeral expenses paid by him. Credit was refused. It was held that the statutes creating separate estates of married women did not absolve him from the duties the common law imposed; that it was his duty to provide her with necessaries, and that this duty was not solely dependent upon the common-law rule that marriage was a gift to the husband of the wife’s estate; that it was a consequence of the merger of the legal existence of the wife in that of her husband; that the wife was subject to and dependent on her husband, and that from that subjection and dependence arose a duty to maintain her, and that if she had a separate estate she was not compelled to pay for her necessaries therefrom, and the husband is not not thereby relieved from liability for such necessaries; that these necessaries include her reasonable funeral expenses which the husband is bound to pay, and, if he does not provide them, the person volunteering to pay them for her can recover the amount from him; that the husband has an indisputable and paramount right to dispose of the body of his deceased wife by decent burial in a suitable place, and has no equity in his wife’s estate for such funeral expenses; that when the husband paid the funeral expenses of his wife he paid his own debt only and that he was not entitled to credit therefor in settlement of administration. In Bowen v. Daugherty, 168 N. C. 242, it was held that at common law the husband is liable for his wife’s funeral expenses, and that generally the estate of the wife is not liable, except where such claim is enforced on equitable principles, where the husband is insolvent. A statute in North Carolina authorized the wife to contract as if unmarried, with certain exceptions. It was held that her funeral expenses were an indebtedness of the husband, and there was no reason under the statute why that debt should be imputed to the wife, although if the husband was insolvent, and payment from him could not be enforced, an equity might arise in favor of the creditor to collect from the wife’s estate; but that except under such conditions the debt was that of the husband and enforceable against his estate.. In that case the wife did not leave sufficient personal estate to pay her funeral expenses and other debts, bnt did leave sufficient real estate to pay them, and the real estate of the wife was held not liable unless the husband was insolvent. Two opinions were filed, but both to the same effect. In Carpenter v. Hazelrigg, 103 Ky. 538, it was said that while the husband is bound in law to pay the funeral expenses of his wife,,, yet, if he fails to pay, her estate is liable. But it was held that, if the land she had devised to others was sold to pay these funeral expenses, her husband could be compelled to reimburse those to whom her estate passed. Brand’s Ex’r v. Brand, 109 Ky. 721, was an action by the husband to reach one-half of his deceased wife’s personal and one-third of her real estate. The executor, answering, set up that he had paid out of her estate the expenses of her last sickness and her funeral expenses, and that they should be retained by him out of whatever was otherwise payable to the husband. The statute provided that a husband should not be liable for his wife’s debts beyond the value of the property he received from her by virtue of the marriage, but that he should be liable for ' necessaries furnished after marriage. It was held that the executor was entitled to retain, out of the funds coming to the husband from the estate, the amount paid for the necessary expenses of the wife’s illness and burial. This "was so held notwithstanding that the will of deceased, a certified copy of which has been exhibited to us, appropriated $1,000 for her funeral expenses and a monument over her grave. In the case entitled In re Weringer’s Estate, 100 Cal. 345, it was held that at common law the husband was bound to bury his deceased wife and defray the necessary funeral expenses, and that this duty is involved in his obligation to maintain her while living, and that he has control of the body of his deceased wife, and must care for the same and select a proper place for interment, regardless of the wishes of her relatives. A like principle was applied in Mease v. Wagner, 1 McCord (S. C.) 247.

Section 70 of our Administration Act (J. & A. 119) provides that all demands against the estate of any testator or intestate shall be divided into classes in the manner there prescribed, and the first class includes funeral expenses. It is contended that by virtue of this statute the estate of the wife becomes liable and the husband is exonerated. In McClellan v. Filson, supra (Ohio), the decision was in part based upon a statute which provided the order in which debts of a deceased should be paid, first among which were the funeral expenses. The same is true of the decision in Constantinides v. Walsh, supra (Mass). In Buxton v. Barrett, 14 R. I. 40, where the question was whether the funeral expenses of the wife should be charged against her estate or charged to the husband only, the court held they were properly chargeable against her estate, under a statute which provided that the estate of every deceased person should be chargeable with the funeral expenses of such deceased; and the court held that this included married women, and that whether the husband was also liable was not material. In the case entitled In re Johnson, 15 R. I. 438, there had been a judgment against a husband for his deceased wife’s funeral expenses, but the husband was insolvent and the judgment was not satisfied, and there was an action by the administrator to sell the interest of the wife in certain real estate to pay those funeral expenses, and it was held that her estate was liable for those funeral expenses notwithstanding she left a husband, and that her liability had not been extinguished by an unpaid judgment against her husband. In Moulton v. Smith, 16 R. I. 126, the husband paid the funeral expenses and the suit was to reach the deceased wife’s personal estate in favor of the administrator of the husband’s estate, the husband having subsequently died, to recover said funeral expenses. It was held that the funeral expenses should be paid out of the wife’s estate because of the statute which made the estate of every deceased person chargeable with the funeral expenses so far as the estate was sufficient therefor.- In Schneider v. Breier’s Estate, 129 Wis. 446, which was a claim by the husband against his wife’s estate for her funeral expenses paid by him, the court cited the statute which provided the order in which the debts of deceased persons should be paid, the first of which was the necessary funeral expenses, and held that thereby the Legislature intended to include the estates of married women who left separate property, and that under this statute the estate of the wife was primarily liable for these expenses, and that the claim would be enforced against the wife’s estate without regard to the liability of the husband. On the other hands, in Kenyon v. Brightwell, supra (Ga.), where the question was as to the liability of the husband to defray his deceased’s funeral expenses, the statute provided the order in which the debts of a decedent should be paid, and the second item was funeral expense, and it was claimed that by this statute the common-law rule had been abrogated, and the estate of every decedent is liable for funeral expenses. It was held that this statute merely provided the priority to be observed in the payment of debts of a decedent, and that unless expressly made so by statute or by the provisions of the wife’s will, funeral expenses of a wife who leaves a husband surviving are not a debt of her estate. Another statute in that State bound the husband to support and maintain his wife, and it was held that this included the duty of burying her upon her death. In Bowen v. Daugherty, supra (N. C.), a statute provided the order in which claims should be paid in the administration of estates, and put funeral expenses in a certain class. It was held that this was only designed to recognize priorities among the creditors, and to establish the order of payment between claimants who had valid debts against the estate and was not intended to create a liability which did not otherwise exist.

Similar questions have been discussed by our Supreme Court. In Rea v. Durkee, 25 Ill. 503, in an action against a husband for goods furnished his wife when she was living, separate from him, it was held that the law imposed the duty upon a, husband of furnishing the wife with all articles necessary and suitable to his degree and condition in life; or, as said in another place, all the necessaries suitable to his position in society and his means. In Martin v. Robson, 65 Ill. 129, which was after the passage of the Married Women’s Acts of 1861 and 1869, it was held that since the husband no longer receives the wife’s estate he is not liable for her torts. The effect of those acts is there discussed at length. But it is there said that certain duties and obligations still exist, and after stating what obligations the wife still has to her husband, it is further said that the husband is still bound to protect and maintain his wife, and that these duties and obligations upon husband and wife are not the result of the arrangement of their property at common law, but of the contract of marriage and the relation thereby created. It is there said that by the marriage she became one of his family, and he was bound to provide her a home and necessaries from a principle of duty and justice, and that the duties of the wife while cohabiting with her husband form the consideration of his liability for these necessaries. In Douglas v. Gausman, 68 Ill. 170, in discussing the effect of the Married'Women’s Acts, it is said that that law has greatly enlarged the rights of married women, but has not, perhaps with a few exceptions, relieved the husbands from any of their marital duties, and that he is still left to support his wife so long as she remains with him and discharges her duties. In Bevier v. Galloway, 71 Ill. 517, a suit by a physician against a husband for medical services rendered to a wife who had left her husband without his knowledge or consent and was living apart from him without just cause, and where for those reasons he was held not liable, it was again stated that the law requires the husband to maintain his wife and furnish her with all necessaries suitable to his condition in life. In Phelps v. Phelps, 72 Ill. 545, the court speaks of the right of the wife to support during marriage. In Hackett v. Smelsley, 77 Ill. 109, which was a suit by a wife against certain persons for loss of her means of support by sale of liquor to her husband, thereby causing his intoxication, which cause of action arose after the Married Women’s Acts referred to, it was said: 1‘ From the earliest period of the law there has been a legal obligation on the husband to support his wife. No act of the Legislature of this State, when this alleged cause of action accrued, had ever abrogated such law. It has never been annulled by judicial construction, nor do we recognize in courts the right so to annul it.” And again: “A wife is being supported by her husband—is entitled to be so.” And again: “This right of support is not limited to the supplying of the bare necessaries of life, but embraces comforts, what is suitable to the wife’s situation and the husband’s condition in life.” In Mensinger v. O’Hara, 189 Ill. App. 48; it is held that a husband may maintain an action against an undertaker for an intentional mutilation of his deceased wife’s remains, and that seems to be based upon his right to the possession and control of the dead body for the purpose of giving it burial. We understand that the duty of the husband to support his wife and to furnish her with necessaries, etc., includes in that term the duty to give her remains suitable burial after her death. Nor do we understand that this duty is set aside by the provisions of section 4 of the Administration Act (J. & A. ft 52), giving an executor, before probate of will, authority to bury the deceased and pay necessary funeral expenses. Although the decisions above cited in Illinois do not expressly refer to funeral expenses, we are of opinion that they indicate that in the view of our Supreme Court the enactment of the Married Women’s Acts does not relieve the husband of the duty primarily cast upon him by the common law to give his wife’s remains suitable burial, and that the views of our courts are in harmony with the general line of authority above cited from other States. Section 21 of the chapter entitled “Wills,” in force July 1, 1827, Revised Laws of Illinois of 1833, begins as follows: “All demands against the estate of any testator or intestate shall be divided into classes in manner following, to-wit: 1st. All funeral and other expenses attending the last sickness shall compose the first class.” Exactly the same provision is embodied in section 115 on the subject of “Wills” in the Revised Statutes of 1845. The same language in substance is contained in section 70 of the Administration Act of 1872, and is continued in said section as it has since been amended (J. & A. 119). It follows that this classification of claims against estates, by which funeral expenses are provided to be paid as claims of the first class, has been in force in this State at least ever since July 1, 1827, and was therefore in force long before the Married Women’s Acts were adopted, and has been continued in force ever since without change. We are of opinion that the purpose should not be imputed to the Legislature to relieve the husband of his common-law liability to pay the funeral expenses of his deceased wife, by reason of this language, which has been continued in force in this State without change for about ninety years; but on the other hand, that these statutes relate only to the priority of claims as between different creditors of the estate of any deceased person, and were not intended in any way to relieve the husband of the primary liability which the common law cast upon him.

The will of Delia A. Atwood and the codicil thereto were in evidence. After certain special gifts, the fourth paragraph of the will charged upon the residue of her estate , the payment of her debts and funeral expenses and costs of administration. It is contended that by this will the husband was relieved of liability for said funeral expenses, regardless of the common-law duty resting upon the husband to pay the same. In Willeter v. Dobie, 2 Kay & Johnson 647, a case decided in the English high court of Chancery in 1856, where there was a similar provision, it was held that by her will she had charged her funeral expenses on the residue of her separate estate, and that her husband was entitled to repayment of the funeral expenses out of that residue. In Kenyon v. Brightwell, supra (Ga.), reference was made to a Maryland case holding that the wife may by will expressly provide for the payment of her funeral expenses out of her estate, and that conclusion was approved and held not applicable in a case where there was no such will. In Babbitt v. Morrison, 58 N. H. 419, it was held that under the statute enlarging the common-law rights of a married woman, she had power, to charge her separate estate with the payment of her husband’s debts. It would therefore seem that Mrs. Atwood had power to charge the payment of her funeral expenses upon her separate estate by her will, and she undertook to so charge them. But the executrix proved that the husband executed a renunciation of this will, prepared by his attorneys, and filed the same in the County Court in the estate within four months after his wife’s death. The court below refused to admit the renunciation in evidence, but its execution and filing were proved, and it was offered and is contained in the bill of exceptions, and as it was kept out on the objection of appellee we are of opinion that if it was competent evidence we should treat it as if it had been admitted. It is contended that Atwood did not in express terms renounce this provision for the payment of his wife’s funeral expenses out of her estate. This is a misapprehension of the language of the renunciation. It sets out in full the fourth provision of the will, and then proceeds to say that he does not accept such provision, and that he hereby renounces the said provision, etc. The statute, section 13 of chapter 41 of the Revised Statutes (J. & A. ft 4249), entitled “Dower,” provides that such a renunciation shall operate as a complete bar to any claim which said surviving husband may afterwards set up to any jointure, devise, testamentary provision or dower thus renounced. Atwood thereby renounced the testamentary provision by his wife that her funeral expenses should be paid out of her estate, and he takes in lieu thereof whatever the statutes give him. He cannot renounce the will and at the same time take any benefit under the provisions which he has renounced. Therefore this case stands here in the same position as if there had been no such testamentary provision in the will.

Gustin, the undertaker, charged this bill on his day book, where the items are given, to the husband under date of August 24, 1913, which was the day of the funeral. On the same day, on the same book, he credited the husband with payment therefor. On his ledger, which did not contain the items and obviously must have been made after the entries in the day book, he charged the total amount to the estate of Delia A. Atwood as of August 25th, and credited- the payment as having been made on August 25th instead of August 24th. There was no proof that this will was admitted to probate, or that defendant assumed the duties of executor, but those matters seem to be assumed, and we assume them to be true. There was no proof that Mrs. Atwood left any estate, except the language of her will purporting to dispose of property. There was no proof that the husband was insolvent. The claim was filed in the name of Gus-tin, ' and he signed the affidavit attached thereto. Atwood testified that he took the assignment from Gustin at the same time that he paid the bill, and that that was a part of his arrangement with Gus-tin. This payment was on August 24 or 25, 1913. The assignment bears the date of August 25th, but was not filed in the County Court until September 19, 1914, more than a year thereafter. The appeal bond by which Atwood removed the case to the Circuit Court recited, among other things, that Atwood procured this assignment from Gustin on September 19, 1914. If this assignment had been procured on August 25, 1913, it would seem to be probable that when this claim was filed in the Probate Court on November 10, 1913, it would either have been filed as the claim of Atwood, or as the claim of Ralph E. Gustin for the use of Hiram H. Atwood, but this was not done. Nothing appeared in the record of the County Court before us to show that Atwood was interested in the claim before it was disallowed, except the fact that this assignment was filed in the County Court more than a year after the filing of the claim. Atwood swears that he did not order the funeral goods and services of the undertaker, although he testified that to his personal knowledge each of those items were furnished by Gustin in the interment of his wife. Mrs. Mercy M. Henry, the only surviving sister of Mrs. Atwood, and who was with her for several weeks before her death and at the time of her death and at the funeral, testified that Atwood did make the arrangements with the undertaker for the funeral. No doubt if Atwood had not paid these funeral expenses Gustin would have had a lawful claim against her estate therefor, but under the authorities we have above cited, we conclude that if the estate had paid the claim it could have deducted it from the moneys going to Atwood from his wife’s estate on the ground that it was in this State his primary liability.

We are of opinion that we ought not to reverse and remand the case for a new trial merely to let in said renunciation, but that the renunciation and proof of its execution and filing being in the record, we should treat it as if it had been admitted. We therefore conclude that under the proofs in this case the husband could' not, by paying the bill and taking an assignment of the claim, put himself in the position of the undertaker, but that as this was his primary liability, he should be treated as having paid the same and as suing the estate therefor in his own name, and we hold that he cannot recover therefor. The judgment is therefore reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find that the claim here sued for was paid by the husband of Mrs. Atwood, and that thereafter this claim was prosecuted in the name of the undertaker for the use of said husband, and that said indebtedness was a primary liability of the husband and not of the wife’s estate, and that he having paid the same cannot recover therefor against the wife’s estate under the proofs in this case.


text:
    Annie Prettyman, Administratrix, Appellant, v. Milton S. Marcy et al., Appellees.
    Gen. No. 6,362.
    1. Sttpulations, § 23

      —what is effect of stipulations 'as to foreign law. Where it was stipulated hy the parties that the construction of the will in question was to be controlled by the laws of a foreign State and that the published reports and the statutes of such State were to-be considered in the decision as if they had been introduced in evidence, held that the court could not concede that parties to a suit in the State could cast upon any court the duty of searching" at its peril through the various statutes and decisions of another State to ascertain what the law is in such foreign State.
    2. Wills, § 264*—what words “die without lawful issue” as applied to remaindermen construed as meaning. Where, under the terms of a will which was stipulated to be controlled by the laws of New Jersey, the widow of the testator was given the use of the real estate so long as she remained a widow, or the proceeds thereof in case of sale, and if she married or died certain payments were to be made to persons named, and the residue was to be divided equally between a son and a daughter, and if either or both should die without lawful issue the portion which would have gone to the decedent should go to the surviving brother or sister, and the widow died, and said son died after the mother, and without issue, though he had issue who died before the testator’s death, and the main question was whether the words “die without lawful issue, though he had had issue who died before the testator’s death, without such issue before the death or remarriage of the widow, that is before the period of /distribution, held that under the law of such foreign State such provision meant that if either of the residuary beneficiaries died without lawful issue before the death or remarriage of the widow, the portion of the decedent should go to the surviving brother or sister, but that if they each survived the death or remarriage of the widow, they took the estate absolutely, one-half to each.
    3. Wills, § 227*—when expressed intent of testator governs in construction of will. Wihere, in the construction of a will, it was contended that tl^e fact that certain children had been blind from birth should have a bearing in construing the will to determine that no one but those two should have the property while either lived,
      held to interpret the will in such manner would be to make a will for the testator which he himself did not see fit to make, and that the will must he construed according to the intent expressed and not from an intent which the testator might have had in mind but did not express.
    4. Wills, § 441

      —when legatees do not consent that sum, paid to life tenant out of proceeds of sale of real estate he deducted from legacies. Where a will provided for fthe payment of certain legacies upon the death of the widow, the life tenant, or upon her remarriage, and further provided that the wife should have the interest on the proceeds of the property during her life in the event of sale of the real estate, as long as she remained a widow, and then contained a residuary disposition, and it was contended that because the legatees had agreed to the payment of a certain sum out of the proceeds of the sale of real estate to the widow, they had lost their right to he paid out of the balance, held that by consenting to such payment such legatees could not be considered as having permitted that amount to be paid from their legacies.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 19, 1917.
    Miles & Fuller, for appellant; A. D. Harrington, of counsel.
    Richard H. Radley, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On May 2, 1913, Mary Virginia Marcy, of Philadelphia, filed in the Circuit Court of Peoria county a bill in equity in her own right and as executrix of the last will of Walter E. Marcy, her deceased husband, against Milton S. Marcy, of Peoria, wherein she claimed that by virtue of the death and will of her deceased husband, and by a true construction of the will of R. Sumner Marcy, the father of her husband, she was entitled to a certain sum of $2,300 arising from the estate of B. Sumner Marcy, and in the hands of said Milton S. Marcy as a trustee, and she sought an account from said trustee, and that securities for said sum be turned over to her if safe, and, 'if not, that the sum represented thereby be paid to her in money. Milton S. Marcy answered the bill denying that she had any title or interest in said fund. The cause was referred to a master to take and report the proofs and his conclusions. He reported the proofs and reported substantially in favor of complainant, except as to four legacies of $100 each. Complainant filed exceptions in that matter, and defendant filed exceptions as to all the other matters in the report. The court overruled complainant’s exceptions and sustained defendant’s exceptions, and dismissed the bill for want of equity. Complainant removed the case to this court by appeal. We held that certain parties shown to be living were necessary parties to the determination of the controversy, and we therefore declined to pass upon the construction of the will involved, and remanded the cause with directions to complainant to bring in the additional parties or .that her bill be dismissed for want of necessary parties. [Marcy v. Marcy, 200 Ill. App. 273.] The cause was reinstated in the court below. By this time Mary Virginia Marcy was dead, and Annie Prettyman was administratrix de bonis non with the will annexed of the estate of Walter E. Marcy, deceased, and the bill was amended, and she was substituted as complainant, and she brought in the other necessary parties, and they appeared and answered, denying her rights, and the cause was again referred to the master. It was there stipulated that it should be heard and decided upon the evidence already in the record. The master made the same findings in favor of the complainant as before. Like objections were filed and disposed of in the same manner, and the bill was again dismissed for want of equity, and the complainant appeals.

The portions of the will of B. Sumner Marcy material to this controversy are as follows:

“Item: I give and bequeath to my wife Mary S. Marcy, the use and occupation of all my real estate, so long as she remains my widow, and if my executors at any time during the widowhood of my said wife, Mary S. Marcy, should think best to sell my real estate, I hereby authorize them to do so and the said executors to make good and sufficient deed of conveyance for the same to the purchaser or purchasers thereof, the amount that the house and lot I bought of Charles Shaw, situate in Cape May City, and the house and lot that is situate on the turnpike road to the steamboat landing, less the expenses of the selling of same, to be put out at interest, my wife, Mary S. Marcy, to have the interest on same as long as she remains my widow. But if my widow should marry, or at her death, then if my real estate shall not be sold, then in that case I order all my real estate to be sold by my surviving executor, or executors, at private or public sale as he or they shall think best, as the proceeds to go as hereinafter bequeathed.
*******
“Item: I give and bequeath to my son,'Milton S. Marcy, One Hundred Dollars, to him, his heirs and assigns forever.
“Item: I give and bequeath to my daughter Hetty 0. Miller, One Hundred Dollars, to her, her heirs and assigns forever.
“Item: I give and bequeath to my grandson Sumner M. Miller, One Hundred Dollars, and to my granddaughter Anna Miller, One Hundred Dollars, to them, their heirs and assigns forever, to be paid to them by my executors when they shall attain the age of eighteen years.
“Item: I give and „ bequeath the residue and remainder of my estate to be equally divided share and share alike between my son Walter E. Marcy and my daughter Lucy E. Marcy, and if either of the said Walter E. Marcy or Lucy E,. Marcy, or both should die without lawful issue, then I will and bequeath his or her share to be equally divided between his, her or their surviving brother and sister.”

R. Sumner Marcy lived and died in New Jersey. The real estate referred to in the will is in New Jersey. The will was probated in New Jersey. It was stipulated in this cause that the construction of this will is to be controlled by the laws of New Jersey, and that the published reports and the statutes of New Jersey are to be considered in the decision of this case as if they had been introduced in evidence. We do not concede that parties to a suit in this State can cast upon any court herein the duty of searching at its peril through the various statutes of another State and through its decisions to ascertain what the law is in that State. Here the evidence upon which this case is to be decided is not in the certificate of evidence, but we are expected to find it, with the aid of counsel in their briefs. But we have concluded to waive this matter and decide the case upon such decisions of the courts of New Jersey as seem to us controlling. Mary S. Marcy survived her husband, and after a time the real estate referred to in the foregoing clauses of the will was sold for $3,639.47. By agreement of the adult legatees and devisees, $639.47 thereof was paid to the widow, $3,000 thereof was placed in the hands of Milton S. Marcy, of Peoria, and by him invested, and he collected interest thereon and paid it to the widow, Mary S. Marcy, until her death, and thereafter paid said interest equally to Walter E. Marcy and Lucy E. Marcy, above named, until by a transaction between Walter E. Marcy and Lucy E. Marcy, the sister, Walter conveyed to Lucy certain real estate, and Lucy, in payment thereof, assigned to Walter $800 of her interest in said fund, and thereafter Milton paid Walter the income from $2,300 and paid Lucy the income from $700 until Walter died. Walter had had a child long before his father’s death, and before this will was made, but that child had died in Walter’s father’s lifetime, and Walter left no issue surviving. The main question is whether the words “die without lawful issue” in the last part of the will above named mean die without lawful issue at any time, or die without lawful issue before the death of his mother and the period of distribution.

The first New Jersey case to which our attention is called is Pennington v. Van Houten’s Ex’rs, decided by the chancellor in 8 N. J. Eq. 272, and by the court of errors in 8 N. J. Eq. 745. In a later New Jersey ease [Patterson v. Madden, 54 N. J. Ed. 714] the two rules laid down in the Van Houten case are thus stated by that court:

“By the decision in Pennington v. Van Houten, as I understand. it, two rules are established in the construction of wills containing limitation over by way of executory devise after the death of. the original devisee without issue, viz.:

“First, if land be devised to A. in fee and a subsequent clause in the will limits such land over to designated persons in case A. dies without issue, and A. so dies, and the specified devisees are in esse at his death, and there is no further event expressed in the will to which the limitation over can fairly be referred, then A. takes a vested fee which becomes divested at his death and vests in those to whom the estate is limited over.
“Second, where there is an event indicated in the will other than the death of the devisee to which the limitation over is referrable (for instance the distribution of the testator’s estate, or the postponement of the enjoyment of the property devised until the devisee reaches the age of twenty-one or until the exhaustion of a prior life" estate), such limitation over will he considered to refer to the happening of such event, or to the death of the devisee, according as the court may determine from the context of the will and the other provisions thereof that the limitation clause is set in opposition to the event specified, or is connected with the devise itself.”

The will of Abraham Van Houten, Sr., gave his wife certain property until his son, Abraham Van Houten, Jr., should arrive at the age of twenty-one years, and then gave his son the residue of his estate, with directions to the executors to manage, the estate and support said son until he arrived at twenty-one years of age. It contained this clause: “But if my said son, Abraham Van Houten, should die having no children, then my will is and I do dispose of my property in the following manner:” following which was an entirely different disposition of the property. The son Abraham became twenty-one years of age and afterwards died without having had a child. It was held that the true construction of this will was that the devise over was upon the condition of the son’s dying under twenty-one and without issue, and that when he arrived at the age of twenty-one he took the title relieved of the provision over. In Williamson v. Chamberlain, 10 N. J. Eq. 373; Baldwin v. Taylor, 37 N. J. Eq. 78; Denise’s Ex’rs v. Denise, 37 N. J. Eq. 163; Barrell v. Barrell, 38 N. J. Eq. 60; Bishop v. McClelland’s Ex’rs, 44 N. J. Eq. 450; Neilson v. Bishop, 45 N. J. Eq. 473; Dawson v. Schaefer, 52 N. J. Eq. 341; Patterson v. Madden, 54 N. J. Eq. 714.; Howell v. Gifford, 64 N. J. Eq. 180; and Security Trust Co. v. Lovett, 78 N. J. Eq. 445, this rule is restated and applied in many ways to wills in substance and spirit like the one now before us. In all these cases it was held that if the devisee or legatee survives the time of distribution lie takes the estate absolutely, and the gift over will take effect only in the event of the death of the first devisee or legatee before the period of distribution. The rule there is thus stated in 40 Cyc. 1505: “But where the disposition of the property which is devised over is preceded by a prior estate for life or years, then the general rule is that the death without issue refers to a death occurring during the period of the intervening estate, such as before the death of the life tenant, unless there are words in the will which show that the testator intended to refer to a death occurring before his decease, or at a later date than the termination of the particular estate.” These principles have been sustained in our own Supreme Court in Lachenmyer v. Gehlbach, 266 Ill. 11, and the case of Howell v. Gifford, supra, is there followed. It will be observed that these authorities follow the second of the propositions laid down in Pennington v. Van Houten’s Ex’rs, supra, and if they state the rule properly applicable to this case, then the complainant is entitled to a decree. Appellees contend that the case comes within the first of the propositions in the Van Houten case, and rely upon Rowe’s Ex’rs v. White, 16 N. J. Eq. 411; Ackerman’s Adm’rs v. Vreeland’s Ex’rs, 14 N. J. Eq. 23; Groves v. Cox, 40 N. J. Law 40; Wurts’ Ex’rs v. Page, 19 N. J. Eq. 365; Drummond’s Ex’r v. Drummond, 26 N. J. Eq. 234; McDowell v. Stiger, 58 N. J. Eq. 125.

We have reached the conclusion that the second rule laid down in Pennington v. Van Houten’s Ex’rs, is the one that controls the construction of the will in this case. Mary S. Marcy, the widow of B. Sumner Marcy, was given the use of the real estate so long as she remained his widow, or if the executors thought best to sell the real estate they could do so and put the proceeds out at interest, and pay the interest to his wife so long as she remained his widow. If the real estate was not sold but the widow married or died, then the executors were to sell the real estate and the proceeds were to go as thereinafter provided, namely, $100 each to two sons and $100 each to two- grandchildren, and the rest of the estate to be divided equally between his son Walter and his daughter Lucy, and if either or both should die without lawful issue, then to his, her or their surviving brother and sister. If that provision meant that if they should die at any time without lawful issue then it was to go to the surviving brother and sister that would mean that they each only took a life estate under this will, and the language is not suitable for the establishment of a life estate, and a life estate could have been much more easily created, and in such case the remainder of his estate would not be equally divided share and share alike between Walter and Lucy, as the will says. We think, therefore, in harmony with the cases cited under the second rule in the Van Houten case, that this provision means if Walter or Lucy die without lawful issue before the death or remarriage of the widow— that is, before the period of distribution arrived— then it should go over to their surviving brother and sister; but that if they each survived the death or remarriage of Mary S. Marcy, then they took the estate absolutely, one-half to Walter and one-half to Lucy. Walter and Lucy were blind from birth, and it seems to be supposed that on that account this will should have a different construction, in order to protect Lucy after her brother’s death. No doubt the testator might have made a different will, and he might have provided that no one but those two should have this property while either of the blind children were alive. But to interpret that into this will is to make a will for the testator which he did not see fit to make for himself. The will is to be construed according to the intent which the testator expressed therein and not from an intent which he may have had in his mind but did not express. Nice v. Nice, 275 Ill. 397, page 400.

The words in the last paragraph above quoted: “I give and bequeath the residue and remainder of my estate” means that the four preceding legacies of $100 each are charged upon the entire estate, and are to be paid before Walter and Lucy receive their shares. It is said that the legatees agreed that the widow might have said sum of $639.57, and therefore they lost their right to have their legacies paid out of the $3,000.

This cannot be wholly true if, as we understand it, the two grandchildren were not yet of age. They did not join in the deed. But we are of opinion that in any event these legacies were to be paid before the residue passed to Walter and Lucy, and that by consenting that Mary S. Marcy should be paid the sum just mentioned, they cannot be considered to have permitted that to be paid from their legacies.

The decree will therefore be reversed and the cause remanded with directions to reduce the estate to money and pay the costs of this case in the Circuit Court and any proper charges and expenses of the trustee therefrom, and to pay said legatees each $100, with interest from the date of the death of Mary S. Marcy, and from the residue pay complainant $800 more than one-half, and Lucy E. Marcy, who now by marriage has become Lucy E. Marcy Feltus, $800 less than one-half, and divide in the same proportion whatever income may have been accumulated during the pendency of this litigation.

Reversed and remanded with directions.

Mr. Presiding Justice Niehaus took no part.


text:
    C. F. Irwin, Appellee, v. J. M. Manley et al., Appellants.
    Gen. No. 6,408.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1748

      —when judgment affirmed for lack of evidence. In a suit in equity by which complainant sought to obtain a decree that certain premises were not subject to the lien of a judgment obtained by the defendants, where, under a prior Supreme Court decision, the only question left for the Appellate Court to pass upon was whether the defendants had an interest in the premises by virtue of an alleged agreement between themselves and the complainant, held that this was an affirmative defense upon which the defendants had the burden of proof, and as no proof of any such agreement was offered and there was none in the record, the decree must be affirmed.

      Appeal from the City Court of Elgin; the Hon. Frank E. Shopen, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Bill by C. F. Irwin, complainant, against J. M. Manley, B. H. Kramer and others, defendants, to "obtain a decree that a certain city lot was not subject to the lien of a judgment obtained by Manley and Kramer for attorneys’ fees against one James Sullivan, from the wife of whom, upon a decree of divorce awarding her such lot as her property, complainant purchased such lot under contract, and cross-bill by defendants seeking affirmative relief.
    From a decree for complainant defendants appealed to the Supreme Court, which, in Irwin v. Manley, 276 Ill. 353, transferred the case to the Appellate Court.
    J. M. Manley and R. H. Kramer, for appellants.
    Charles B. Hazlehurst and George D. Carbary, for appellee.

      See niinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Albert C. Taylor, Appellee, v. Burt Craig, Appellant.
    Gen. No. 6,311.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 326

      —when evidence properly excluded as not coming within matters specified in notice of special defense to action

      for purchase price. In an action to recover the price of an automobile, where the defendant pleaded the general issue and gave notice of special matter of defense, setting up that plaintiff had agreed to and did recover as payment for the automobile a one-half interest in certain notes and a certain automobile, and at the trial evidence that there had been an express warranty and a breach thereof was excluded, held that suche ruling was proper as the evidence offered did not come within the matters specified as a defense.

      Appeal from the Circuit Court of Henry county; the Hon. Emery C. Craves, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action in assumpsit by Albert 0. Taylor, plaintiff, against Burt Craig, defendant, to recover a balance alleged to be due for an automobile sold by plaintiff to defendant. From a judgment for plaintiff for $1,495, defendant appeals.
    Charles W. Espey and James H. Andrews, for appellant.
    Charles E. Sturtz and William C. Ewan, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

2. Pleading, § 161*—what is effect of giving notice of special defenses. Where notice of special defenses is given, verified by an affidavit of merits, the defendant is limited, in presenting his defense, to the matters set up in the notice and affidavit of merits.

3. Sai.es, § 330*—when instruction is erroneous as not hosed upon evidence. Where, in an action for the purchase price of an automobile, an instruction was given to the effect that interest might he allowed on the purchase price, less a certain item of credit, from the time the purchase price was unreasonably and vexatiously withheld to the time of the trial, held that such instruction was erroneous as there was no evidence upon which a finding of such delay could he based.

4. Interest, § 23*—when not allowed. Mere delay in the payment of an account, caused by the making of a defense which the defendant claims to have, does not authorize the allowance of interest.

5. Appeal and error, § 1659*—when error in allowing interest cured. Where interest is erroneously allowed and the amount so allowed can he definitely determined, the error can be cured by a remittitur.

6. Appeal and error, § 1802 —when case reversed and remanded. Where interest is erroneously allowed and the amount thereof is unascertainahle, the case should he reversed and remanded.


text:
    Martin Ringdahl, Defendant in Error, v. William O. Johnson, Receiver, Plaintiff in Error.
    Gen. No. 6,326.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 135

      —when question whether failure to loolc for approaching street car is contributory negligence is for jury. Failure to look for the approach of a street car at a crossing is not to be considered negligence as a matter of law and does not necessarily bar a recovery, and the question whether the plaintiff is guilty of contributory negligence is one for the jury.
    2. Street railroads, § 94*-—when traveler has right to assume that speed ordinance will be obeyed. Where an ordinance requires a street car approaching a street crossing to be under the complete control of the motorman as to speed, a traveler at the crossing has the right to assume that the ordinance would be obeyed.

      Error to the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action by Martin Ringdahl, plaintiff, against W. 0. Johnson, receiver of the Chicago & Milwaukee Electric Railroad Company, a corporation, defendant, to recover damages for personal injuries resulting from being struck by defendant’s street car. From a judgment for plaintiff for five hundred dollars, defendant brings error.
    Bull & Johnson and Charles H. King, for plaintiff in error.
    Bowen W. Schumacher, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, tame topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, Fame topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

3. Street railroads, § 135 —when question whether pedestrian crossing track is guilty of contributory negligence is for jury. In an action for personal injuries sustained while the plaintiff was about to cross a street car track in the business district of a town where the tracks of a steam railroad company were located about one hundred feet away, and where just before the plaintiff was struck by the car in question, which was going at the rate of twelve to fifteen miles an hour, his attention was suddenly directed to a bell ringing on the gate tower of the railroad, and he for an instant looked in that direction and did not see the street car, and where there was an ordinance requiring the street car to be under complete control of the motorman as it approached street crossings, held that the question as to whether the plaintiff was guilty of contributory negligence was one for the jury, and that .the judgment for plaintiff should be affirmed.


text:
    Eleanor Ceser, Defendant in Error, v. Herman Morehouse, Plaintiff in Error.
    Gen. No. 6,339.
    (Not to be reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action in trespass by Eleanor Ceser, plaintiff, against Hermán Morehouse, defendant, to recover damages for assault and battery and for an assault with intent to ravish plaintiff, alleged to have been committed by defendant upon plaintiff. From a judgment for plaintiff for $2,800, defendant brings error.
    John W. Dubbs, for plaintiff in error.
    Browne & Wiley and James N. Cummings, for defendant in error.

      Abstract of the Decision.
    Assault and battery, § 23

      —when verdict not disturbed on appeal. In an action to recover damages for assault and battery, where the plaintiff, a woman aged nineteen years, charged that the defendant had assaulted her at various times, under promise of marriage, and the plaintiff and defendant were the sole witnesses as to what actually occurred, and the jury found for the plaintiff, held that the verdict could not be considered so manifestly against the weight of the evidence as to justify a reversal on that ground.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.