text:
    Burton A. Hitchcock, Executor, Appellee, v. Board of Home Missions of the Presbyterian Church, etc., et al., Appellees. Jefferson J. Greene and Langford R. Green, Appellants.
    Gen. No. 5,626.
    1. Charities—statute of uses. The statute of charitable uses is in force in this state.
    2. Charities—when gift does not fail. Under the statute of charitable uses, a gift to charity does not fail for want of a definitely named person or corporation to execute the gift.
    3. Charities—extrinsic evidence as to donee. Whenever there is a mistake or uncertainty as to the name of the person or body intended to take a charity, extrinsic evidence may be introduced to show who was intended.
    4. Charities—designation of donee. Where a gift was made by will to “Home Missions and Foreign Missions,” the court properly held that the Board of Home Missions of the Presbyterian Church and the like Board of Foreign Missions took under the will where the evidence, although somewhat contradictory, tended to show that the donor was a member and a supporter of the Presbyterian Church, that she was actively engaged in Presbyterian Church Missions, and largely supported such Home and Foreign Missions.
    5. Charities—designation of donee. Where a gift is made by will “for the education of poor children,” a finding by the court, that it was intended for the children of the Troy Asylum, is supported by evidence which tends to show that the donor on her long visits to said asylum manifested great interest in the education of the children therein, that some of her relatives were officers of the institution, that she had planned to erect a building for the smaller children at the asylum (this, however, was subsequent to the date of the will), and there is practically no evidence as to her interest in other poor children.
    6. Charities—directions to trustees. Where the court appoints a person as trustee of a charity fund created by will, the decree should define and determine the powers and duties of such trustee, and in what way, in what vicinity, and to what extent per year said fund should be expended, where no directions whatever are giviin by the donor.
    7. Wills—construction. When “between” is used with reference to a gift to three or more parties, it has the meaning of “among.”

      8. "Wills—construction. A gift “to be equally divided between Home Missions, and Foreign Missions, and for education of poor children,” should be divided in three equal parts for. the three bodies mentioned.
    9. Wills—residuary clause. Where a clause in a will disposes of certain articles of personal property, and concludes by giving “the rest of my things, beds, bedding, silver, furniture, whatever it may be,” etc., such clause does not embrace all the personal estate, but only articles similar to those disposed of by such clause where there is a prior residuary clause, and a decree construing the will should be so limited.
    10. Wills—costs of till to construe. Where a will is so ambiguous that it is necessary to apply to a court of equity for its construction, the cost of the litigation, including solicitor’s fees, must be borne by the estate, and the general residue is the primary fund for their payment.
    Bill to construe will. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Wobthington, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 15, 1912.
    Judson Starr & Winslow Evans, for appellants.
    Frank T. Miller, for appellee.
    Jack, Irwin, Jack & Miles, for Board of Home & Foreign Missions.
    John S. Stevens and William H. Stead, Attorney-General, for Charity for Boor Children.
    Luther C. Hinckle, for Troy Orphan Asylum.
    Charles C. Dutch, Guardian ad litem for Edna Greene, et al.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Mrs. Bhebe Bose, a resident of Dunlap, in Beoria county, died a widow and without descendants, leaving a will which was admitted to probate. The will was in her own handwriting. She had apparently copied it, evidently with changes, from a previous will drawn by some other person. Her executor filed a bill and an amended and supplemental bill, hereinafter called the bill, to construe the 22nd and 23rd clauses thereof, which were as follows:

“Twenty second. It is my will after what I have named be satisfied what left be equally divided between Home Missions and Foreign Missions and for education of poor children.

“Twenty third. I will divese and bequeath to my Brother Jefferson J. Greene children first Abigal Clark my hair wreath and Bracelets second Hettie. Stine my best diamond ring third Sarah May Seelye my other diamond ring. I think equally as much of you but if you survive your Parent you are well provided for is my reasons for so doing. The rest of my juelry to be devide among the rest of the nieces the best it can be with the exception of my watch and chain my will that Wyatt Greene have that The rest of my things, beds beding silver furniture whatever it may he devided amongst all the nieces the best it can be.”

All parties in interest were either original defendants or intervened and became defendants and most of them answered. The Board of Home Missions of the Presbyterian Church in the United States of America and the like Board of Foreign Missions each claimed- one-third of the residue under said 22nd clause. Certain missionary societies of the Methodist Episcopal Church made claims to share in this fund. The Troy Orphan Asylum, at Troy, New York, claimed the portion given for the education of poor children. The Attorney-General claimed that the gift for the education of poor children was definite and should be administered by a trustee. The heirs at law claimed that the 22nd clause was invalid and that the residue was intestate estate and passed to them. Certain nieces claimed that the 22nd clause was invalid, and that, to prevent intestacy, the 23rd clause should be construed to give them the residue. The cause went to the master, who took and reported the evidence and his conclusion that the clause in question should be construed to give one-third of the residue to that body known as the Board of Home Missions of the Presbyterian Church in the United States of America, one-third to the Board of Foreign Missions of the Presbyterian Church in the United States of America, and one-third to be used for the education of poor children under a trustee to be appointed and supervised by the court. The court overruled all exceptions by the heirs at law and nieces and most other exceptions, but by its decree directed one-fourth of the residue to be paid to said Presbyterian Board of Home Missions, one-fourth to the Presbyterian Board of Foreign Missions, and one-half to a trustee to be appointed by the court and to be devoted to the education of poor children under the supervision of the court. From that decree Jefferson J. Greene and Langford B. Greene, two brothers of deceased, appealed to the Supreme Court, and various other parties assigned cross errors. The Supreme Court transferred the record to this court. Hitchcock v. Greene, 252 Ill. 519. The amount involved exceeded $100,000.

The statute of 43 Elizabeth, chapter 4, commonly called the statute of charitable uses, is in force in this state. Heuser v. Harris, 42 Ill. 425; Hunt v. Fowler, 121 Ill. 269; Grand Prairie Seminary v. Morgan, 171 Ill. 444; Hoeffer v. Clogan, 171 Ill. 462. This statute is set out in 3 Starr & Curtis, 4047-9 and an abstract of it is given in 2 Perry on Trusts, 4th Ed. sec. 692, note 2. Many other uses, not within the strict letter of that statute, but which come within its spirit, equity and analogy, are treated by the courts as charitable uses. In every state of the Union where that statute is in force, a gift to charity is never allowed to fail for want of a person or, corporation, definitely named, to execute the gift. Language in a will may be so indefinite as to the person to take, where the gift is intended to be to a person, that it will be held invalid, but it will not be permitted to fail where the gift is intended for a charity. The term “missions” has a definite meaning, which has often been expressed by the courts. It is thus defined in Domestic and Foreign Missionary Society’s Appeal, 30 Pa. St. 425:

“The word ‘mission’ is well understood in common language. For more than forty years the different American churches have been engaged in establishing and maintaining missions in various parts of the heathen world. Hardly a religious denomination exists which is not employed in one or more such benevolent enterprises. The purpose is to civilize, christianize and educate the natives of those countries where the missions are established. This is accomplished by preaching, oral instruction and by schools. In the work, persons sent out by the churches in this country, as well as native assistants, are employed and they are supported and controlled by the churches at home. The whole machinery of the work at the selected spot in a foreign land is called a mission. It is, in fine, a Christian school.” •

To the like effect are Bruere v. Cook, 63 N. J. Eq. 624; Bulkeley v. Worthington Ecclesiastical Society, 78 Conn. 526, 534. A gift for a religious purpose is a gift to a charity. French v. Calkins, 252 Ill. 243, 258, A gift to the poor is also a charity. Heuser v. Harris, supra; Hunt v. Fowler, supra; Grand Prairie Seminary v. Morgan, supra; Kemmerer v. Kemmerer, 233 Ill. 327.

Wherever there is a mistake or an uncertainty as to the name of the person or body intended to take a charity, every claimant of the fund has the right to require that the court called upon to construe the language used shall, by extrinsic evidence, place itself in the position of the testator or donor, the meaning of whose language the court is called upon to declare. The gift here in question is claimed to be void because it is to a purpose and not to a trustee or a corporate body. In Woman’s Union Missionary Society v. Mead, 131 Ill. 338, besides various incorrect and insufficient descriptions of donees of charities, was one gift to “the fund for disabled ministers of the Presbyterian Church.” This, by its terms was a gift to a purpose and not to a trustee or a corporate body. It was there determined that that particular gift should be paid to “The Presbyterian Board of Belief for disabled ministers and the widows and orphans of ■ deceased ministers.” In establishing a rule which admitted evidence which led to that conclusion, the court said:

“It was unquestionably competent for these various claimants to prove their corporate existence, and the objects and purposes for which they were organized; the knowledge, if any, which testatrix had of them, and her feelings and relations towards them; the name or "names by which she or others were accustomed to designate them; that no other corporations, associations or societies corresponding to the name or description given in the will existed at the time it was executed; her family, church and social relations—in short, every fact and circumstance surrounding her and these claimants, which would aid the court in reaching a conclusion as to her motives and purposes in using the names or descriptions in question. If such evidence makes it clear that these claimants were intended by testatrix to' be made the objects of her bounty, then it must be held that she has expressed her intention with sufficient certainty.”

Many cases are cited in that opinion which sustain the rule there established. A similar question was discussed in Gilmer v. Stone, 120 U. S. 586. The court there said:

“It is agreed in the case that the Baptist, Methodist, Episcopal, and other churches, like the Presbyterian Church in the United States of America, have boards of home and foreign missions; consequently, it is contended, the eleventh clause of the will is void for uncertainty as to the donee and the purposes of the gift. In this view we do not concur. It is undoubtedly the rule, iti respect to the testamentary disposition of property, real and personal, that uncertainty either as to the subject or object of a devise will be fatal to its validity. But that rule has no application here; for, if there were no other fact in the case than that there are numerous boards which may be generally described by the words, the ‘board of foreign missions,’ and ‘the board of home missions,’ the devise in the eleventh clause would not fail. With respect to charities, gifts may be good which, with respect to individuals, would be void; ‘and where there are two charities of the same name the legacy will be divided between them, if it cannot be ascertained which was the intended object.’ ”

After stating that there were certain gifts to the Presbyterian Church in the will, the court said:

“And there was extrinsic evidence to the following effect: that the testator had been for many years a member and ruling elder of the Irish Grove Presbyterian Church, one of the local congregations of the Presbyterian Church in the United States of America; that collections were annually taken up in that congregation for the various boards of that church, including its Boards of Foreign and Home Missions; that while it was announced from the pulpit that collections would be taken for the Board of Foreign Missions or the Board of Home Missions, without, in words, naming the Presbyterian Church, all such collections, with the knowledge and assent of the church session, of which the testator was an active and zealous member, were, without exception, sent to the officers of the Presbyterian Boards of Foreign and Home Missions in New York City, and regular reports thereof made to the session; that the testator took especial interest in the work of those particular Boards and uniformly contributed thereto; and that he did not, so far as his pastor or associates in the church session knew, make contributions to the societies of any other church, except to the Bible Society which was sustained by several religious organizations. Of the competency of this evidence there can be no doubt. The purpose of it was to place the court, as far as possible, in the situation in which the testator stood, and thus bring the words employed by him into contact with the circumstances attending the execution of the will. Such proof does not contradict the terms of that instrument, nor tend to wrest the words of the testator from their natural operation. It serves only to identify the institutions described by him as ‘the Board of Foreign and the Board of Home Missions;’ and thus the court is enabled to avail itself of the light which the circumstances in which the testator was placed at the time he made the will would throw upon his intentions.”

This rule has the support of many other cases and text books. See 3 Elliott on Evidence, sec. 2225; Tilton v. American Bible Society, 60 N. H. 377; Button v. American Tract Society, 23 Vt. 336; Faulkner v. National Sailors’ Home, 155 Mass. 458; Bristol v. Ontario Orphan Asylum, 60 Conn. 472; Goodwin v. New Church Board of Publication, 160 Ill. App. 483.

Upon the question of the intention of the testatrix in the use of the words concerning home missions and foreign missions in the 22nd clause of her will, the evidence tended to establish the following facts. Mrs. Rose had lived for many years in the village of Dunlap. It contained a Presbyterian, a Methodist and a Roman Catholic Church. She had been a member of the Presbyterian Church in Dunlap, known as the Prospect Church, for more than forty years and was its principal supporter and was actively interested in all its charitable works. She was an earnest supporter of the home and foreign missions of the Presbyterian Church. Three collections were taken each year in the Prospect Church for foreign missions and two for home missions, each after previous notice from the pulpit. She gave from $5.00 to $10.00 at each of those collections, and this was regarded as a large contribution in that village. If she was unable to be present when the collection was taken, she sent the money afterwards. She did not name as executor any relative, but instead, Burton A. Hitchcock, who was one of the elders of that church who took those collections. More than thirty years before her death, the women of the Prospect Church organized themselves into a woman’s society of the Presbyterian Church. Mrs. Eose was a charter member of that society and remained a member till her death. Contributions to the cause of home missions and of foreign missions of the Presbyterian Church were made at each monthly meeting and at an annual meeting, and Mrs. Eose was the most liberal contributor. These contributions were forwarded, respectively, to the Board of Home Missions and to the Board of Foreign Missions of the Presbyterian Church of the United States of America. She also went a number of times as a delegate to annual meetings of the Home and Foreign Missionary bodies of the Presbyterian Churches of the Northwest. She attended one meeting of the General Assembly of the Presbyterian Church at Los Angeles, California, and other like meetings at Winona Lake, Indiana. In these meetings the Home Missions and the Foreign Missions of the Presbyterian Church were prominent subjects of consideration and discussion. All her contributions to Home and Foreign Missions of the Presbyterian Church were made through the respective boards which had charge of those missions. It was proven and not contradicted that, among the membership of the Prospect Church at Dunlap, when contributions to home or foreign missions were spoken of, the names of the respective boards were not expressed in the announcements, but that whenever the words “foreign missions” were used, it meant and was always understood to mean, the Board of Foreign Missions of the Presbyterian Church, and the words “home missions” were understood to mean the Board of Home Missions of the Presbyterian Church. There was evidence introduced by the heirs at law, that Mrs. Eose had frequently contributed to the Methodist Church at Dunlap, and had conferred with a pastor of that church as to the methods of that church in expending money for missions and for a certain training school for teachers in Chicago, and that she attended the Methodist Church when there were no services at the Presbyterian Church, and that she was assisting a Methodist young woman who had gone as a foreign missionary, but we think this does not detract from the force of the evidence above stated. We think it clear from this evidence that by the language used by Mrs. Bose in the 22nd clause of her will, she meant to give to the Board of Home Missions of the Presbyterian Church in America and to the like Board of Foreign Missions. Their charters were put in evidence. It is clear from the evidence and from authorities above cited that the missionary work of the different denominations is performed by boards which are corporate bodies, devoted to particular branches of the work, some to home missions and some to foreign missions; and that wherever the statute of 43 Elizabeth, chapter 4, is in force, a gift to home missions of a particular denomination will be construed to be a gift to the Board of Home Missions of that particular denomination, and the same of a gift to foreign missions, and that the gift will not he allowed to fail because the legal corporate name of the hoard was not stated. The court below therefore properly held that the missionary bodies in question took under the 22nd clause.

The decree directed the payment of one-half of the residue to a trustee to be appointed by the court below in this or in a supplemental proceeding, to he devoted by said trustee to the education of poor children, under the supervision and control of the court below. No trustee has yet been appointed, but it seems to be supposed that some resident of Peoria county is to be appointed and the money is to be there expended. The heirs at law claim this as intestate estate. The nieces claim it under the 23rd clause of the will. The authorities of the Troy Orphan Asylum at Troy, New York, claim the fund should he paid to them. The proof shows that Mrs. Bose manifested no special interest in the education of poor children in Peoria county. There was no institution devoted to that purpose in Dunlap, where she lived, nor does there seem to have been any necessity therefor. There was a Home for the Friendless in Peoria, which she visited but once in a long lifetime. She manifested no interest in the Bradley Polytechnic School in Peoria. A charitable work was being done among the families of flatboat-men along the Illinois River. This was not specially in the direction of the education of children, and she visited it but once. A lady in charge of that work complained to Mrs. Rose that she had spent more than she could afford, under a promise by a man in Peoria to reimburse her, which promise had not been kept, and Mrs. Rose afterwards sent her $40. This is the sum of all she did in many years concerning the education of poor children in Peoria County or in Illinois.

The Troy Orphan Asylum, of Troy, New York, was founded by charity about eighty years before the evidence was taken. Mrs. Rose and her husband had the same relatives at Troy, New York. Their ancestors were among the founders of the Troy Orphan Asylum, and other relatives contributed liberally thereto after it was founded. It was in part conducted as a charitable institution and was dependent upon gifts, and it received some aid from municipal bodies. There was oral proof that its work was the care and education of poor children, and a statute defined its corporate objects as “the relief, support and education of orphan and destitute children.” Another statute provided a method by which it could receive destitute children who were not orphans. The children it took were poor, and they were educated at the asylum. A second cousin of Mrs. Rose, and of her husband also, was treasurer, purchasing agent, house accountant, and general manager of the Troy Orphan' Asylum for many years and at the time of the taking of the proofs herein, and she lived within a few feet of the asylum grounds. Another relative was vice president of the institution. This will was executed on May 5, 1888. The husband of Mrs. Rose, from whom she derived most of this property, had been raised within one-half mile of this asylum. Mrs. Eose had been raised in the western part of-the state of New York, and the first part of her married life was spent at Pittsfield, Massachusetts, and afterwards they moved to.Peoria county. The evidence shows at least six visits by Mrs. Eose to her second cousin, the manager of the institution, three of them before 1885, one immediately after the execution of this will in 1888, another in 1898, another in 1901. She spent about six months there on each of those visits. She endowed a bed there in memory of her husband and another in her own name. She visited the asylum substantially every day during these stays with her relative, and took a great interest in its work, including the educational part. She was accustomed to speak of the inmates of the Troy Orphan Asylum as her children. She took part in selecting the articles which were bought with a gift by another person of about $11,000 to the asylum. She discussed the subject of herself furnishing $40,000 with which to erect a building for the smaller children. She planned that this building should be erected upon land which had been obtained by the asylum from some of her own relatives. She finally concluded that $50,000 would be required to do what she wished to do. Under her solicitation the president caused an architect to prepare plans for the building, for which the asylum paid $500. The president died before the proofs were taken in this case and we are deprived of the information he might have given as to what Mrs. Eose said or did which induced him to incur this expense. When she left Troy the last time in 1901, she had agreed upon the plans and the place where the building was to be erected, and told the authorities at the asylum that she had made provisions so that the work would be done. When she was smitten with her fatal illness in the spring of 1904, she had arrangements all made to start for Troy again in a few days. During these six visits of approximately six months each, to the immediate vicinity of the asylum, three of which were before she drafted this will and three afterwards, she manifested in many ways great interest in the asylum and in the education and care of the poor children who were its inmates. If Mrs. Rose had any poor children in mind who should share her bounty, the evidence makes it clear that it must have been the poor children in the Troy Orphan Asylum. There are many facts and circumstances in evidence showing her interest in those poor children of the Troy Orphan Asylum, and substantially no evidence showing her interest in any other poor children. She told her friends that she was going to give her property to home and foreign missions and to a school for orphan children. We conclude that, if the court below had appointed a trustee to take this fund under this will, and to invest it, and to expend the net income arising therefrom for the education of poor children through the Board of Trustees of the Troy Orphan Asylum, it would have been in accordance with the desire and purpose of Mrs. Rose upon this subject. The bill prayed for the appointment of a trustee, and this decree should make the appointment while all parties in interest are before the court. The bill also averred (record pp. 101, 102) that “said decree should define and determine the powers and duties of such trustee, and in what way, in what vicinity, and to what extent per year said fund should be expended.” These requests should be complied with in the decree. This was not done.

The court so disposed of the residue under the 22nd clause of the will as to divide one-half equally between the Home Missionary Society and the Foreign Missionary Society of the Presbyterian Church, and to devote one-half to the education of poor children, this distribution being based apparently upon the meaning of the word “between.” Three parties are named here and not two, for the Board of Home Missions and the Board of Foreign Missions are entirely distinct bodies. When “between” is used with reference to more than two it has the meaning of “among.” Words and Phrases Judicially Defined, 767, 768. We are. of the opinion that the fund should have been divided into three equal parts. The decree construed the words “the rest of my things” in, the 23rd clause of the will, to refer “exclusively to the beds, bedding, silver, furniture and personal effects of said testatrix and to no other part of her estate.” The expression “and personal effects of said testatrix” is too broad as it would • embrace all her personal estate, including the fund in dispute. Those words should be made to read “and other like personal effects of said testatrix.” As so modified, we concur in that construction of the 23rd clause, both under the rule for the construction of instruments, known as “ e jus dem, generis,” which we think applicable to those words in the 23rd clause, and also because the 22nd clause is plainly the residuary clause of the will.

The court made certain allowances for the solicitors for the different parties. Such fees were allowed as costs in Lombard v. Witbeck, 173 Ill. 413; Ingraham v. Ingraham, 169 Ill. 432; and Woman’s Union Missionary Society v. Mead, supra. In Ingraham v. Ingraham, supra, it was held that where a testator has expressed his intention so ambiguously that it is necessary to apply to a court of equity for a construction of the will, the costs of the litigation, including solicitor’s fees, must be borne by the estate, and that the general residue is the primary fund for their payment. The court below refused to make an allowance to the solicitor for the Troy Orphan Asylum. In view of our conclusions on that subject, we are of opinion that a reasonable allowance should be made to him.

So far as the decree finds the Board of Home Missions and the Board of Foreign Missions of the Presbyterian Church and a trustee to be appointed for the education of poor children entitled to this fund, and so far as it directs solicitor’s fees and other costs to be paid therefrom, the decree is affirmed. In other respects it is reversed and remanded, with directions to the court below to enter another decree and therein to appoint, under an adequate bond, a trustee to receive and invest the fund for the education of poor children; to divide the residue of the estate equally between the Presbyterian Board of Home Missions, the Presbyterian Board of Foreign Missions and the said trustee of the fund for the education of poor children; and to retain control of said fund for the education of poor children and to cause it to be securely invested in interest bearing securities, and the net income thereof to be expended for the education of poor children through the Board of Trustees of the Troy Orphan Asylum at Troy, New York; and to allow a reasonable solicitor’s fee to the solicitor for the Troy Orphan Asylum; and generally to enter a decree in conformity with this opinion.

Affirmed in part, reversed in part, and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Ernest C. Ladd et al., Plaintiffs in Error, v. John H. Ladd, Defendant in Error.
    Gen. No. 5,632.
    1. Account—review. A decree of accounting in conformity to a master’s report will be sustained, where the brief of the complainants does not point out any errors, nor discuss the details of the accounting.
    2. Mortgages—redemption. Where mortgagors file a bill asking the court to ascertain the total amount expended on the premises by the mortgagee, and to fix a single time for payment, declaring that they were ready to pay, they. cannot thereafter object to a decree requiring the total amount to be paid at one time, though the finding of the master showed that the agreement between the mortgagors and mortgagee was to repay the amount in monthly instalments, particularly where' it further appears that the mortgagee had been obliged to expend three or four times more than the agreement called for.

      3. Mortgages—redemption. Where complainants file a bill to have defendant declared mortgagee of premises to which he holds a deed, and ask for an accounting and reconveyance, and no cross-bill is filed by defendant, the court on finding the sum required to redeem should not fix a time for payment and order a sale on default, but should provide that in case payment is not made, defendant should be entitled to a further decree barring complainants of all equity of redemption, and dismissing the bill.
    Bill in equity. Error to the Circuit Court of Henry county; the Hon. Frank: D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed in part, reversed in part and re-, manded with directions.
    Opinion filed October 15, 1912.
    Sturtz & Ewan and John T. Cummings, for plaintiffs in error.
    Anderson & Andrews, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Ernest C. Ladd and Grace L. Ladd, brother and sister, filed an amended bill in equity, hereinafter called the bill, against John H. Ladd, their uncle. They alleged that Ernest had a contract for a deed of one, and Grace L. Ladd of another, of two adjoining lots, upon which they had made payments; that they bought them for the purpose of building thereon a dwelling house for their home; that they made a verbal arrangement with John H. Ladd by which he was to pay the rest of the consideration agreed to be paid for said lots and should pay such part as they could not pay of the cost of a dwelling house to be.built thereon, and that they should repay him at the rate of $50 per month without interest, and that they should cause the title to be conveyed to him as security for such repayment; that he paid the residue due to the hold-' ers of the title and complainants caused the title to be conveyed to him, pursuant to said verbal agreement; and that they erected a house thereon and took possession thereof, and that he paid a part of the bills for the same and has refused to account to them for the amount which he expended; and they asked that he be compelled to account and that the amount due him be ascertained; and they offered to pay the same. The bill further stated that defendant had brought an ejectment suit against complainants for these premises, and it sought an injunction to restrain the prosecution of that suit, and such injunction was granted. John H. Ladd .answered, admitting that he had made such payments and that the title had been conveyed to him, but denying that it was conveyed as security; and alleging that he owned the fee and had agreed to sell the same to them upon their paying him all that he had expended, in instalments of $75.00 per month, with lawful interest. The cause was referred to a master, who took the proofs and stated the account between the parties. Much immaterial testimony was •taken, for complainants introduced proof to show how much money they had put into the property and payments which passed through the hands of their father, Charles K. Ladd, now deceased, which was wholly unnecessary, as the only material question, after finding the contract, was to determine how much John H. Ladd had advanced. The master found and reported that complainants were to repay defendant all moneys advanced by him at the rate of $75 per month, with lawful interest, and that the deed to him of said lots was a mortgage to secure that indebtedness. The master did not report the amount so advanced by defendant in one single sum, but, combining his report, its effect seems to have been to determine that there was due from complainants to defendant, including interest to June 10, 1910, the total sum of $12,137.69. Objections were filed to said report by complainants and the same were overruled, and they stood as exceptions thereto before the court and they were overruled, and on November 22, 1910, there was a decree finding due from complainants to defendant $12,410.08. How that exact result was reached does not readily appear from the report, but, although the brief of complainants here states that the amount is too high, it does not point out any error nor discuss the details of the accounting, and we therefore treat the amount of the decree as correct. The decree ordered that complainants pay said sum to defendant within 90 days with interest at 5% thereon from the date of the decree, and that, in default of such payment, the master sell the premises as is usual in case of foreclosure of mortgages. The court continued the injunction in force for 90 days. Complainants and defendant (of whose entire claim $1,392.60 had been rejected by the master) each obtained orders for an appeal from said decree, which appeals were not perfected. After the expiration of the 90 days the master sold said premises to defendant for $10,500, and the report of said sale was approved by the court on March 22, 1911 (though the abstract does not so show), and defendant then moved the court for a deficiency decreé. On March 31st, the defendant obtained leave to file an amended answer to conform to the proofs, and filed an amended answer, in which he asserted that the deed in question was a mortgage and that complainants were indebted to him, and asked that if a balance should be found due, the court fix a day for the payment of the balance; that in default of such payment by such time, the premises described in the bill be sold to satisfy the amount found due; that, if said premises should not sell for enough to pay the amount found due, he might have a deficiency decree against the complainants. Thereupon on March 31, 1911, the court again approved the sale and rendered a deficiency decree for defendant against complainants for $2,337.90, with execution therefor. This is a writ of error sued out by complainants to review those proceedings.

Complainants contend that as the master found that this debt was to be paid at the rate of $75 per month, with interest at the legal rate, and as there was no contract that the whole sum should become due upon failure to pay any instalment, it follows that it was error for the court to require its payment within 90 days. We are of opinion that complainants have waived the right to pay this debt in monthly instalments. The bill asked an accounting of the moneys expended by defendant upon the unpaid purchase price of said lots and upon the construction of said house, and stated that complainants were ready and willing and offered to pay defendant what should appear to be due him. The bill prayed that upon the ascertainment of the amount so expended by defendant “a time may be fixed for the payment of such sum so ascertained in accordance with said verbal agreement and that upon the payment of said sum by the complainants to the defendant at that time, the defendant may be decreed by the decree of this court to convey said premises to the complainants. ’ ’ This was not a prayer that they be permitted to redeem by paying $50 per month or $75 per month for many years to come and that thereafter a deed be made to them. This bill asked the court to ascertain the total amount which defendant had expended upon these lots and to fix a single time when complainants should pay it, and they offered and declared themselves ready to pay it at such time as the court should fix, and they asked for a reconveyance then. This is inconsistent with their present claim that they should be given a long series of years in which to pay. Moreover, their offer in the bill to pay at once was one to which defendant was equitably entitled, for, when he agreed to accept monthly payments, it is clear that it was intended that the cost of the house should not exceed $3,500, and the subsequent large increase in its cost was occasioned by complainants and not by defendant.

This was a simple bill to redeem, without any special circumstances calling for the application of any unusual rule of law. The main question is, what is the proper provision in a decree granting redemption on a bill to redeem, if complainant fails to pay within the reasonable time fixed by the court? Harper v. Ely, 70 Ill. 581, was held to be a bill to redeem, and the court affirmed a decree that in default of payment the bill be dismissed. Decker v. Patton, 120 Ill. 464, holds that the proper decree in such case is that in default of payment within the time fixed by the court, defendant will be entitled, as of course, to a further and final order dismissing the bill. In Bremer v. C. & C. Canal & Dock Co., 127 Ill. 464, it was held (on page 491) that the cross-bills on which the decree was based were in effect bills to redeem, and that the decree should have provided that in default of payment within the time fixed the cross-bills be dismissed; and it was there held that under a bill to redeem, the complainant must be prepared to pay at once and is not entitled to the statutory period of redemption. In De Walsh v. Braman, 160 Ill. 415, the court directed a decree that defendants convey to complainant on complainants paying defendants the sum found due within a reasonable time to be fixed in the decree, and that if such payment be not made, the bill be dismissed and complainant be barred from asserting any further relief in the subject-matter of the controversy. In O’Connell v. O’Conor, 191 Ill. 215, it was held that the bill should be dismissed, if payment was not made within the time limited. In Carpenter v. Plagge, 93 Ill. App. 445, we held that the ordinary decree allowing a redemption was that, if payment was not made within the reasonable time fixed by the court, the complainants should be barred from thereafter seeking any further relief concerning the subject-matter of the controversy; and in the same case on appeal in 192 Ill. 82, it was said that the ordinary decree was that, in default of payment within the time specified, the bill be dismissed; but, as the creditor had there filed a cross-bill to foreclose, it was held there should have been a decree for the sale of the premises if payment was not made. In Henderson v. Kibbie, 211 Ill. 556, it was held that the decree allowing redemption should provide that if payment be not made the bill be dismissed. This rule has the sanction of other courts. In Sherwood v. Hooper, 1 Barb, Ch. 650, it was held that, if complainant in a bill to redeem failed to pay within the time fixed, he should be barred of all claim and equity of redemption in the premises. In Quin v. Brittain, Hoffman’s Ch. 353, it was held that that case should be treated as a bill to redeem, and that, if the amount found due was not paid, there should be a decree of dismissal, and that that would be equivalent to a foreclosure. In Perine v. Dunn, 4 Johns, Ch. 140, where many cases are cited, it was held that the usual decree on a bill to redeem is that, if complainant fail to pay, the bill be dismissed, and that such a dismissal bars the equity of redemption because it can be pleaded in bar of a new bill to redeem. In Stevens v. Miner, 110 Mass. 57, it was held that the English form of a decree in a suit to redeem is that the bill be dismissed unless the plaintiff pay a certain sum within a certain time, and if payment be not made, and if the provision that the bill be dismissed has been omitted, a final order dismissing the bill will be granted as of course; that when a mortgagor obtains a decree of redemption, his right is thereby defined and no other or different right remains to him; and that upon his failure to comply with the terms of the decree for redemption, a decree follows which terminates the suit and cuts off the right to redeem. This decision is partly based on a statute, but is in harmony with the rule otherwise announced. These views are sustained in 2 Jones on Mortgages, sections 1106, 1107, 1108, where it is also said that it is irregular to decree a sale of the lands when the bill to redeem contains no prayer for a sale and the mortgagee has not filed a cross-bill. There are some cases which deviate from the rule above stated, but in each there will be found some special conditions which take the case out of the ordinary rule. Among such cases are Hollingsworth v. Koon, 117 Ill. 514, which was specially distinguished in Decker v. Patton, supra, as not a bill to redeem, and Carpenter v. Plagge, supra, where the creditor filed a cross-bill to foreclose. In the case at bar defendant did not file a cross-bill. The court therefore erred in directing a sale in case of nonpayment, and erred in the subsequent proceedings. There are other reasons why the court should not have permitted defendant, at a later term and after the sale had been made and approved, to file another sworn answer, contradicting his first sworn answer, and should not have granted defendant a deficiency decree. These matters do not need to be discussed, as they necessarily fall with the reversal of the decree for the sale of the property.

After the expiration of the 90 days, during which the injunction against the ejectment suit was continued in force, John H. Ladd proceeded with that suit and had a judgment against Ernest C. and Grace L. Ladd for the recovery of the premises, which was affirmed in Ladd v. Ladd, 252 Ill. 43.

So far as the decree approves the master’s report upon the accounting, it is affirmed. In all other respects the original decree is reversed and the decree approving the sale and the deficiency decree are each reversed, and the cause is remanded with directions to the court below to ascertain the interest on the amounts found by the master in his report upon the accounting from the date to which he computed the interest, and add that to the sums found by the master, and to enter a decree permitting complainants to redeem within ninety days from that date by paying the total sum, with interest from the date of that decree and the costs in the Circuit Court (except the costs made after November 22, 1910), and that, if such payment be made defendant convey the premises to complainants, and that if redemption be not so made, defendant be entitled to a further decree, barring complainants from all equity of redemption and dismissing the bill.

Affirmed in part, reversed in part and remanded with directions.


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    C. L. Roberts, Appellee, v. Estate of Henry L. Roberts, Deceased. Lura E. Bend, Appellant.
    Gen. No. 5,635.
    Executors and administrators—claim, for personal services. A son to avoid limitations running against his claim against his father’s estate for personal services, relied on a memorandum found in his father’s effects, admitting money was owing to the son, and made prima facie proof of his claim and the genuineness of the memorandum. The writing was not a memorandum of an ascertained debt, but at most was made by deceased for his own use, and items supposed to be credits were not explained. Evidence that the son had no agreement was not contradicted, and there was evidence that the memorandum was dot in the father’s handwriting. The son had not made payment for farm products received from his father. He made no claim during his father’s lifetime and waited until a year after letters had been issued to file his claim. Held, a verdict for the son could not be sustained, and the cause should be submitted to another jury.
    Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Trusdell, Smith & Leech, for appellant; Adam G. Cliffe, of counsel.
    Charlesi F. Preston, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Henry L. Roberts died May 30, 1910, leaving surviving four children, Crawford Leroy Roberts, usually called “Roy;” Lura E. Bend; Blanche, now Mrs. Ferkins, and Etta Roberts. Appellee was appointed administrator, and on the last day of the year thereafter filed a claim against the estate. The County Court appointed Harry Edwards to defend the estate and he consented to the allowance of the claim, and it was allowed as of the seventh class in the sum of $872.18. Mrs. Bend appealed from that allowance to the Circuit Court, where there was a jury trial and a verdict and a judgment allowing* the claim for the same amount, and from that judgment Mrs. Bend prosecutes this appeal. The transcript from the County Court to the Circuit Court did not include a copy of the claim, and it is not in the record before us, and we have no means of knowing exactly the basis of the claim. Appellee was married in January, 1905. TTis father was a farmer, and appellee lived with his father and worked for him on the farm till appellee married at the age of about 30 years. Appellee produced proof that he so worked for his father, and that his father once told a neighbor that he got Boy for $25 per month. If this is a claim for those services, rendered before he was married and based upon this oral proof only, then the statute of limitations was a defense. Plaintiff, however, produced a page, which was originally blank for memoranda in a patent medicine memorandum book, the first written line of which is assumed to read as follows: “Owe Boy Money $982.00.” Underneath are six other items, the first of which has the date “1907.” At the bottom under a straight line is the amount “$726.82.” The sum of the other items taken from the $982.00 leaves $726.82, which was written in blue pencil. Etta Boberts testified for appellee that during her father’s last illness, she found this memorandum book in a locked drawer among her father’s private papers and that all of the writing was in her father’s hand, except the “$726.82,” which her brother wrote there when she showed the page to him after her father’s death. She further testified that she let appellee take it for a little time, but with that exception it had been in her possession ever since her father died. Appellant introduced evidence tending to show that the word “Boy” in said quoted sentence was written in much heavier pencil marks than the rest. She also produced proof that in a conversation with appellee the latter said he had stayed at home and worked hard a good many years and had had no agreement with his father for wages; that his father gave him money when he asked for it; that he had never had any settlement with his father; and that he did not have any book account. This was proved by several witnesses and concerned a conversation after the death of his father, and he was a competent witness as to that conversation and did not testify concerning it; and this was after he had seen the memorandum in question and he did not then mention it there. At a later conversation his sister Etta showed the book to Mrs. Bend. Appellant also proved that after appellee married, he ran a livery stable in a village near his father’s farm and that appellee’s teams hauled many loads of corn, oats and hay from his father’s farm to appellee’s livery stable, but the amount or value thereof appellant was not able to show. Appellant also proved that their father owned a farm worth about $25,000 above the incumbrance upon it. The memorandnm above quoted was not anything given by the father to appellee to evidence a debt. If, as appellee said, he had never had a settlement with his father, this was not a memorandum of any debt which had been ascertained between them. At most, it was merely a memorandum made by deceased for his own use. It was not shown that any other accounts were kept in this book. It was not shown that the items underneath the $982.00 were payments by appellee to his father. They might just as well have been still further indebtedness which deceased set down as owing his son. Appellee did not show that any such payments had been made by him. If deceased owed appellee that sum of money when appellee left him in January, 1905, it is strange, in view of his father’s financial means, that he should not have sought payment from his father or a note during the five years and more while his father lived. If he bought hay and grain of his father thereafter, its value would naturally be applied upon this debt. He did not show that he ever paid his father for the hay or grain. If he did not, then this claim is unjust. He knew of this memorandum shortly after his father died. He waited till the last day of the year after letters were issued before he filed his claim. Mrs. Bend had seen this memorandum but an instant till it was produced at the trial in the Circuit Court. After the verdict the court permitted her counsel to have the memorandum photographed and enlarged, and thereupon appellant argued that the showing made by the photograph and enlargement required a new trial. It is claimed that the photograph shows that the entire line is not in the handwriting of the same person and that a part of it has been altered.

Upon a consideration of the entire evidence, we are of opinion that the case ought to be submitted to another jury. Claims against estates of deceased persons need to be scrutinized with care. The circumstances above set out throw great doubt upon the genuineness of this memorandum and, but for the memorandum, the Statute of Limitations would be a defense to any services rendered by appellee for his father before he left him in January, 1905. .

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


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    Bardwell D. Phenix, Appellant, v. Mary Hallcock, Appellee.
    Gen. No. 5,641.
    1. Appeals and errors—presumptions on omission of fact from hill of exceptions. Where it is uncertain whether a conversation regarding alleged unpaid rent was before or after a payment of subsequently accrued rent, and the date of the check paying the subsequent rent was known to the landlord and the trial court, and omitted from the bill of exceptions, it will be assumed on appeal, in support of an instruction to the effect that accepting payment of rent without comment raises a presumption that prior rent has been paid, that the conversation was after the payment of the subsequent rent.
    2. Landlord and tenant—presumption as to payment of rent. Where a husband leased premises, payments by his widow of rent for three half-year terms without any claim being made that there was any unpaid rent, will raise a presumption that rent for six preceding half-year terms, when the husband was alive, was paid by him.
    3. Landlord and tenant—evidence of payment of rent. A landlord accepted rent for three half-year terms from the widow of a lessor, without any claim that prior rent for six half-year terms had not been paid by her husband, but testified that the prior rent was not paid and no one testified it was paid. It was shown that deceased paid the rent to the landlord or to his brother by check, and that the check was charged to the account of the deceased on the books of a bank and credited to the landlord. Those books were in control of the landlord and were not produced, the brother was not called as a witness, and a claim for the rent was not filed against the husband’s estate. Held, a verdict for the widow should be sustained.
    Appeal from the Circuit Court of Stark county; the Hon. N. E. Worthingham, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    James H. Bennick and M. L. Hat, for appellant.
    V. Gr. Fuller, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Beginning with November 1, 1899, John H. Hallcock occupied a certain dwelling house as the tenant of appellant under an oral lease at a rental of $135 per annum, payable semi-annually. Mary Hallcock, the appellee, was his wife and lived with him on said premises from that date till his death, March 18, 1909, and thereafter till the trial of this suit. ■ She paid the rent of the premises to appellant from November 1, 1908, that is, she paid the rent for the half year in which her husband died and from that time on. On May 18, 1911, appellant sued appellee to recover the rent accruing from November 1, 1905, to November 1, 1908. He filed a declaration containing the common counts and a special count, charging her as the wife of John H. Hallcock, living with him on said premises during all of that period. She filed the general issue, and a special plea averring that before the commencement of this suit she brought a suit against the Phenix Banking Company, of which appellant was a member, and that this suit was settled and the Phenix Banking Company paid her a certain sum, and that in that settlement she allowed the Phenix Banking Company and the plaintiff a certain sum in satisfaction of the claim here sued for. To this appellant replied, denying that this indebtedness was satisfied in that settlement. On a jury trial there was a verdict for appellee, a motion for a new trial was denied, she had judgment, and plaintiff below appeals. Appellant testified to the letting and to the occupancy by appellee with her husband and that this rent had not been paid for the years mentioned. Appellee testified that it had been paid, but this was excluded because she based this on what her husband told her. She proved that there was administration upon the estate of her husband and that there was $200 or $300 more of that estate than enough to pay all preferred claims, and that appellant did not file this claim for rent against her husband’s estate. She proved that when she paid the rent the first time, which was from November 1, 1908, to May 1, 1910, appellant said nothing to her about there being rent unpaid from November 1, 1905, to November 1, 1908. In Decker v. Livingston, 15 Johns. 479 it is held that a receipt for rent arising at a subsequent period is presumptive evidence that all rent previously accruing had been paid, and that this presumption arises from the improbability that the former rent remained unpaid when rent is specifically received for a subsequent period. In Davis v. Tyler, 18 Johns. 490, it is held that if one gives an acquittance under seal for rent, he is estopped to demand rent due at a previous date, but if the acquittance is not under seal, it is evidence merely. In Brewer v. Knapp, 18 Mass. 332, it is held that payment of a subsequent quarter’s rent will be considered prima facie evidence of the payment for all former quarters. In Ottens v. Fred Krug Brewing Co., 58 Neb. 331, it is held that a receipt for rent covering a particular month affords presumptive evidence that rent previously accruing has been paid. Patterson v. O’Hara, 2 E. D. Smith 58. At either one or two interviews appellant and appellee did have a conversation about this supposed unpaid rent, and it does not appear with absolute certainty whether those interviews were before or after the time when appellee paid appellant the rent from November 1, 1908, to May 1, 1910. The check by which it was paid was in court and was in the hands of the witness and of counsel, and its date was known to court and counsel, but it seems to have been omitted from the bill of exceptions. The court gave an instruction in accordance with the rule of law above quoted, and, as appellant did not have the date of • the check stated in his bill of exceptions, we must assume in support of the instruction that this conversation or these conversations were after she paid the rent. At that time or times appellant told her the back rent was unpaid, and she told him it was paid, and produced to him the stub of a check drawn by her husband on appellant’s bank, and appellant told her- that that was her husband’s handwriting but the rent had not been paid. At what was perhaps another time appellant told appellee that he did not see how he could afford to lose that rent, and she replied that she did not see how she could afford to pay it when her husband told her it was paid. She afterwards sued the Banking Company, which was a firm of which appellant was one of the members, for $1,600 and they paid her $1,200 in settlement and she sought to show that this rent was adjusted in that settlement, but was unable to get that fact in evidence because she could not prove that appellant took part in or agreed to that settlement. It was shown that deceased paid the rent at the bank to appellant or to his brother, another member of the banking firm, by check, and that when so paid the check was charged to the account of the deceased on the books of the bank and credited to appellant. Those books were in control of appellant and were not produced.

Appellant insists that, as he testified that this rent was not paid and no one testified that it was paid, the verdict therefore must be set aside. The jury were the judges of the truth of appellant’s testimony. It was very unusual that a landlord should allow six semi-annual payments of rent to go unpaid. It was very unusual that he should accept payment from the widow for the current six months and for the next two half-year terms and say nothing to her about the preceding six half-year terms, which he now alleges were unpaid. It was unusual that he should not file a claim against her husband’s estate, her husband being the only one with whom he had a contract for the payment of rent. The presumption aforesaid makes for appellee. The jury may have seen that in the demeanor of appellant when testifying that caused them to doubt the correctness of his testimony. The trial .court has approved the verdict. The stub in question, though purporting to be set out in the bill of exceptions, is not contained therein, but the evidence about it indicates that it appeared to show the payment of the last rent prior to November 1, 1908, or more than that, and that appellant acknowledged that the stub was of that purport and was in the handwriting of deceased. He failed to produce the books of the bank in his possession, which would have shown all rent paid by deceased. As appellant admitted that his brother collected the rent several times from deceased, appellant’s statement that this rent had not been paid only meant that it had not been paid to him, and that, from what the books showed or his brother told him, he concluded that it had not been paid to his brother. Appellant did not call his brother as a witness. Under all these circumstances we do not feel authorized to reverse the judgment.

The judgment is therefore affirmed.

Affirmed.


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    Mollie Gorza, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,649.
    1. Cabbiers—pleading. An allegation in a declaration that the defendant caused the car to be started without notice to the plaintiff, implies the averment that the car had stopped before she alighted.
    2. Carriers—evidence. In a suit to recover for personal injuries sustained by a fall while getting off a street car, a verdict for the plaintiff will not be disturbed, where her testimony shows that the car started just as she was getting off, and where she was contradicted by only one witness who stated that she did not wait for the car to stop.

      3. Evidence—admissions. In a personal injury suit, admissions as to how the injury occurred, made at the time of the injury and at the hospital, should not he excluded from the evidence.

      4. Appeals and erboks—harmless error. Where certain admis-, sions are wrongfully excluded from the evidence, it is not reversible error unless it be shown what such admissions were, and that they were material.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Pinkney & McBoberts, for appellant.
    Clarence W. Heyl and Shelton P. McGrath, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee was seriously injured in alighting from a street car operated by appellant, and brought this suit against appellant to recover damages for such injuries. The declaration charged that she was a passenger for hire; that she notified the conductor of the car to cause the car to be stopped, and, as she was in the act of alighting and in the exercise of due care for her own safety, appellant caused the car to be started without notice to appellee and it jerked and she was thrown from the step of the car to the ground and injured. There was no express averment that the car had stopped before she alighted, but that is implied. She had a verdict and a judgment for $1,200, from which defendant below appeals.

The conductor and the motorman had left the employ of appellant, and appellant proved that it was unable to find them in order to procure their testimony. There were passengers inside the car, but they did not know how the accident happened. The testimony material to.the circumstances of the injury was that of appellee in her own behalf, and of a witness for appellant who stood on the rear of the rear vestibule. According to the testimony of appellee, she saw that she was reaching her destination and notified the conductor and the car slowed down, and she took upon her left arm an infant grandchild and a bundle and went to the rear platform and the car stopped and she started to step off and the car jerked and threw her down upon the brick pavement. She admitted on cross-examination that, just as she started down, the conductor said: “Be careful.” , The witness for appellant before mentioned testified that appellee did not wait for the car to stop, and that, as she started to get off, the conductor said to her: “Just a moment, please, and the car will stop here,” and that before the car stopped she got off backwards and the car went about ten feet further before it stopped. We do not see that there is any other testimony in the record from which we can determine which of these witnesses gave a correct account of the accident. The jury believed appellee and the trial judge approved that verdict. We find nothing which would warrant us in saying that they should have found the other way. It is manifest from the evidence that the damages awarded are not excessive.

By several witnesses appellant showed that appellee made statements at the time, and afterwards at the Home of the Friendless, and afterwards at a hospital, as to how the accident happened. Appellant then asked these witnesses to state what appellee said, and an objection was made by appellee’s counsel that those statements were not a part of the res gestes, and that they were not proper impeaching questions because appellee had not been interrogated upon the subject of such statements by her. Hie court sustained those objections and held the evidence incompetent. This ruling was incorrect. It is always competent to prove against a party to the suit his admissions or statements material to the issue, even .though it is not for the purpose of impeaching him and though he has not previously been examined in regard to it. Such admission need not be a part of the res gestee. Brown v. Calumet River Ry. Co., 125 Ill. 600; Jones on Evidence, 2nd Ed., sec. 236. But it does not follow that reversible error was committed. Appellant made no offer to prove what answers he expected to obtain in response to these questions, except that a's to one witness he said he sought to prove declarations against appellee’s interest. If he had stated what answers he expected from these several witnesses, it may be that it would have appeared that the statements were immaterial or unimportant, or favorable to appellee and therefore valueless to appellant. The bill of exceptions is the pleading of appellant and appellant must make it appear that it was injured by the refusal to permit these answers. What appellant claims the answers would be must be made to appear before it can be determined that appellant was injured by the rejection of the testimony. Ittner Brick Co. v. Ashby, 198 Ill. 562; McLeod v. Andrews & Johnson Co., 116 Ill. App. 646.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


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    Mary M. Strasburger, Appellee, v. Ezra G. Hoffman, Administrator, Appellant.
    Gen. No. 5,653.
    1. Advancement—definition. An advancement is the giving by a party to a child or heir, by way of anticipation, the whole or a part of what it is supposed the donee will be entitled to on the death of the donor.
    2. Evidence—where witness translates language of memorándum. Where a German memorandum is introduced in evidence to determine whether certain gifts were advancements, testimony by a witness, translating the language therein, that he did not find the word “advancement,” or a German word meaning “advancement,” is properly excluded.
    3. Advancement—evidence. Where a memorandum shows that gifts were made as part of the inheritance, this is sufficient to show that they were intended as advancements.
    4. Advancement—oral evidence. Oral evidence cannot be introduced to show that gifts were intended as advancements.
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    S. W. Bartlett and Mark C. Keller, for appellant.
    Henry C. Warner, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee filed a petition in the County Court of Lee county in the estate of her father, Henry Hoffman, deceased, for an order requiring the administrator to charge an advancement of $4,000 against each of her six brothers, George, Henry, Philip, Stephen, Julius and Ezra. She appealed to the Circuit Court from an order denying her petition. On a trial in the Circuit Court $4,000 was ordered charged against each ‘of said sons as an advancement. The administrator, who was also one of said sons, has appealed to this court.

Section 4 of Chapter 39 of the Revised Statutes, entitled “Descent,” enacts that any real or personal estate, given by an intestate in his lifetime as an advancement to any child shall be treated as a part of the intestate’s estate, as regards division thereof among his issue, and shall be taken by such child towards his share of the intestate’s estate. Section 7 of said chapter provides that “no gift or grant shall be deemed to have been made in advancement unless so expressed in writing or charged in writing by the intestate as an advancement, or acknowledged in writing by the child or other descendant.” Henry Hoffman died intestate. He wrote the German language. He kept a book in his own handwriting in German in which he stated as to each son the details of a conveyance to such son of certain real estate which he there described and at a price he there named, and in each of said entries were certain words which appellee contends show that $4,000 of the purchase price of such land was given to such son as an advancement, and which words appellant contends do not constitute an advancement. Appellee had translations made and testified to by four witnesses, and appellant produced one witness who testified to his translation. The witnesses differ slightly in the form and order of the words, but not in those material to this case. As given by the first witness, the entry as to Julius, after giving the date and a description of the real estate conveyed to him and the total purchase price of $11,880, then said: “Four thousand of this he retains as share of the inheritance, and $7,880.00 at five per cent.” The paragraph relating to Julius then goes on to give the details of payments made by him thereon. As to Ezra, after the details of the lands conveyed to him and the acreage and price per acre and the total of ' $12,150, the entry proceeds thus: “Four thousand is to be deducted as a share of the inheritance; Eight thousand one hundred and fifty dollars he has to pay with six per cent interest from April 1st, 1891.” The entry in relation to Stephen shows the price and various payments by Stephen and then the following: “August 1, 1895, Steve’s account closed. After the interest and the taxes for 1893 and 1894 are deducted and everything that I have loaned him and that he has paid me to date and everything is accounted for, he still owes me on the farm $4,523.00. Four Thousand he has received as a share of the inheritance.” Then follow further entries as to payments by Stephen. As to Philip the entry, after giving date and description and amount of $9,090.00, proceeds thus: “Of this I gave him Four thousand Dollars as a share of the inheritance. Balance he has to pay me with six per cent interest.” In a like entry as to George, showing a conveyance for $10,000, this follows: “Of this I gave him four thousand dollars as a share of the inheritance. The balance he has to pay me with six per cent interest. ’ ’ In a like entry as to Henry, showing conveyance of a farm for $10,800, it proceeds thus: “Of this I gave him four thousand Dollars as a share of the inheritance. The balance he has to pay me with six per cent interest.” Under several of these entries is a statement of a later date that he gave such son $1,000 as a gift which was to be deducted from the purchase price.

It will be observed that the word “advancement” was not used by any witness in his translation, and one witness for appellant testified that he did not find the word “advancement” or a German word meaning “advancement” upon the various pages of this book from which he had read. The court sustained an objection to this on the ground that the witness had translated the language and it was not for him to determine its meaning. An advancement is the giving by a party to a child or heir by way of anticipation the whole or a part of what it is supposed the donee will be entitled to on the death of the party making it. Wallace v. Reddick, 119 Ill. 151; Gary v. Newton, 201 Ill. 170. We are of opinion that it was not essential that the deceased should have used the word “advancement” in these written entries in order to create an advancement, expressed in writing by the intestate, but it is sufficient if he used other words equivalent in meaning thereto. We are of opinion that the words used clearly showed that of the purchase price of the lands severally conveyed to each of these six sons, he gave that son $4,000 and expressly stated in writing that it was to be a part of the sum which such son would inherit from his estate. It is apparent that the intestate understood the distinction and meant to express it when, as to several of such sons, he stated later, underneath the former entries, that he had given such son a present of $1,000 of the consideration.

Appellant showed that the deceased had conveyed a farm to appellee and that he had given $1,000 to each of her eight children, and that he had intended to give her a certain note for $3,000, which she did not receive. Nowhere were these gifts charged by deceased in writing as an advancement, or acknowledged in writing by appellee as an advancement. A letter by deceased to appellee, in evidence, shows that he intended that she should have more of his estate than any of his sons. The reasons for this are not shown and are immaterial. It is clear from Elliott v. Western Coal & Mining Co., 243 Ill. 614, Young v. Young, 204 Ill. 430, and Wilkinson v. Thomas, 128 Ill. 363, that under the statute above quoted appellant could not introduce oral evidence to show that any of the gifts of deceased to appellee were intended as advancements.

The order is affirmed.

Affirmed.


text:
    William F. Kraft and John W. Kraft, Appellants, v. George D. Greenough, Appellee.
    Gen. No. 5,654.
    1. Fbatid—evidence. Defendant is not shown to have been a party to a conspiracy to defraud, concerning the value and location of land, where he took no part in the making of the contract involved, and made no statements concerning the location and quality of the land, and was not present when anything was said or done after the fraudulent contract was signed and the price paid, though he was informed that the plaintiff had “signed up” and took the money from his partner, and sent a draft therefor to the person who held the title, and later urged the plaintiff not to repudiate the' contract because of alleged insufficiency of title “or we will make you trouble.”
    2. Partnership—liability for copartner's fraud. An innocent partner is liable for fraud of his copartner, committed in the course of partnership business, though he has no knowledge thereof.
    3. Partnership—when liable for partner's fraud. Where partners are real estate brokers, fraud practiced on a purchaser by .one partner, as to the location and quality of land, is practiced in the transaction of partnership business, and the copartner is liable though innocent of fraud and deceit.
    4. Witnesses—who not competent as to conversations of deceased partner. Under R. S. c. 51, § 4, on an action against a surviving partner for fraud and deceit of his copartner, the plaintiffs are not competent witnesses as to conversations of the deceased, when the surviving partner was absent.
    Action in case for conspiracy to defraud. Appeal from the Circuit Court of Whitside county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    William H. Allen and McMahon & Rogers, for appellants.
    Carl E. Sheldon and A. A. Woleersperger, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellants sued appellee in an action on the case charging a conspiracy between Carl C. Young of Kansas City, Missouri, J. W. Rush of Tulia, Texas, and Frank Galt and appellee of Sterling, Illinois, the two latter being partners as real estate brokers under the firm name of Greenough and Galt; and charging that these conspirators cheated and defrauded appellants in a certain Texas land deal, in which appellants paid Greenough and Galt $590 and because of which land deal appellants spent large sums in defending themselves in an action of assump sit brought against them by Young to enforce provisions of the contract between themselves and Young, growing out of said deal. The declaration was very long. It set out in detail the conspiracy, deceit and fraud. Appellee filed the general issue, and there was a jury trial. Appellants attempted to prove the deceit and fraud by conversations with Galt and by proof that the statements he made were false. Galt had died before this suit was begun. Evidence of his statements was admitted over the objection of appellee, but at the close of all the evidence the court excluded all statements by Galt not made in the presence of appellee, and directed a verdict for appellee. A motion for a new trial was denied and appellee had judgment and plaintiffs below appeal.

For the purpose of this decision it will be necessary to state but briefly the proof tending to show fraud and deceit. Appellants were farmers. Galt went with William Kraft on a trip to the Panhandle of Texas, to see land there for the sale of which Greenough and Galt were agents at Sterling. They stopped at Kansas City and saw Young; and McNeil, a man in the employ of Young, went with William and Galt to the Panhandle where they examined various tracts of land, and William concluded that he and his brother would buy a certain tract of 303 acres near Tulia and near a railroad. They returned to Kansas City and there obtained from Young a written option to purchase said land at a certain price within ten days, and then returned to Illinois. The next day Galt visited the Krafts and told them he had a better thing for them; that he wanted them to purchase a certain tract of 743 acres, and he produced a contract therefor and asked them to sign it. It is evident that, without the knowledge of Kraft, Galt got this contract-from Young when they stopped at Kansas City on their way back from Texas. The price named was $15 per acre. Galt assured them that this was an exceptional bargain ; that the land could be sold the following spring for $20.00 per acre; that the soil was the same as that which they had seen; that the land was about the same distance from Tulia and in the same direction therefrom as the land they had previously selected, and about the same distance from a railroad, and he told them certain apparent falsehoods as to how there came to be that particular number of acres in the tract. Appellants signed the contract. Soon thereafter they went to the office of Greenough and Galt and signed a duplicate of the contract, and paid $500 thereon and obtained the receipt of Greenough and Galt therefor. Shortly after that Galt sent for them to come to the office of Greenough and Galt because of an alleged mistake in the papers. They executed new papers. It turned out that this land was much further from Tulia than Galt represented and in an opposite direction; that it was extremely poor land and was far from a railroad; that it was land that had not been originally described by the block number by which they bought it, but that it was made up of lands taken from other blocks because they overran; that it was partly in one county and partly in another, and that in one of the counties there was nothing of record to show that there was any such land in existence; and that for these and for other reasons it was worth not over one-half what they agreed to pay. Appellants had required Galt to write upon the original contract a guaranty as to the character of the soil. The new contract was made in triplicate, but Galt wrote this guaranty only on the copy given to appellants and deceived them into believing it was on all the copies. Afterwards they refused to take the land. Young sued them under the contract and was defeated. Galt was dead and Young and Bush were not within the state, and appellants therefore sued appellee only. For the purposes of this decision it will be considered that Galt was guilty of deceit and fraud and that Young and Bush may have been parties thereto. The facts tending to show that Young and Bush were parties to the fraud are omitted.

Appellants contend that the proof shows that appellee was a party to the fraud. The proof is clear that appellee took no part in the making of the contract and made no statements concerning the quality or location of the land and was not present when anything was said or done after the second contract was signed, the $500 paid and the receipt of Greenough. and Galt given therefor. After the contract had been signed and the money had been paid, appellee came into the office and Galt told him, in the presence of the Krafts, that the latter had “signed up” for the big piece of land, and appellee said he was glad to hear it and that he hoped that it would make them money. Thereafter, on that day, Galt handed the $500 to appellee and asked him to go and get a draft for that amount, and appellee did so and it was sent to Rush, who held the title which Young was to obtain to answer his contract. At a later date, appellants saw both appellee and Galt in their office and told them that they were not going to take the land because they did not think the title good, and appellee urged them not to lose their money and told them to go ahead and close the deal “or we will make you trouble.” When Young, who was a nonresident, sued appellants, Galt and appellee signed the necessary bond for costs; and afterwards appellee told appellants that the suit was brought without his knowledge, and they then told him that he had signed the bond for costs,' and he made no reply. Afterwards and after Galt’s death John Kraft told Greenough that he guessed they would have to hold him for the money they paid out on tjhis contract and Greenough replied that he did not see how they could look to him for the money for he did not get any of it, but Rush got it, and John replied that they held the receipt of Greenough and Galt for the money and did not deal with Rush. Appellee then asked them not to do anything till he could see the attorney who was settling Galt’s estate, and later he told appellants that he had seen said attorney, and he said to let them go ahead. At the time Galt made these representations to the Krafts he and appellee were partners. They never received anything out of this transaction, but, if there had been a profit in it, appellee expected to have a share thereof. We are unable to find in this evidence enough so that the jury could reasonably find that appellee was a party to a conspiracy to defraud appellants, as charged in the declaration, or that he was personally guilty of any deceit. His statement that if they did not carry out the contract Greenough and Galt would make them trouble might reasonably be understood to mean merely that they would enforce the contract, and there is nothing to show that he then knew that any deception had been practiced upon them as to the character of the land. According to their own testimony, what appellants were then complaining of was not the character or location of the land, but that they feared the title was not good. As Young was a nonresident and was required to give security for costs in beginning a suit against appellants, it was natural that he should call upon Greenough and Galt, his agents, to furnish that security. We are unable to see that the proof convicts appellee of the charges of fraud and deceit made against him in the declaration.

It is, however, the law that an innocent partner is liable for a fraud committed by his copartner in the course of the partnership business, though such innocent partner has no knowledge thereof. Wolf v. Mills, 56 Ill. 360; Loomis v. Barker, 69 Ill. 360; Schwabacker v. Riddle, 84 Ill. 517; Durant v. Rogers, 87 Ill. 508; Tenney v. Foote, 95 Ill. 99; Castle v. Bullard, 23 How. (U. S.) 172; Stockwell v. U. S., 13 Wall. 531; Alling v. U. S., 114 U. S. 562; Lothrop v. Adams, 133 Mass. 471; Page v. Citizens Banking Co., 111 Ga. 73, and 51 L. R. A. 463, and an extensive note thereto; 1 Bates on Partnership sec. 472. This deceit and fraud by Galt was in the transaction of the partnership business, and, if proven by competent testimony, would create a liability against appellee, although he was innocent of the fraud and deceit. All of the incriminating statements and conversations by Galt were proven only by the testimony of the two appellants. Under section 4 of chapter 51 of the Revised Statutes, relating to Evidence and Depositions, they were not competent witnesses against the surviving partner to testify to any such conversation by the deceased partner, where the surviving partner was not present. Appellants answer this by saying that they are not suing appellee as a surviving partner. The answer to this must be that if they do not depend upon the partnership relation, they have no sufficient evidence to show that appellee was guilty of any fraud and deceit, or was a party to any conspiracy, and therefore the declarations of his alleged co conspirator Galt were not competent against appellee. If they seek to hold appellee by virtue of the partnership relation, then under the statute their testimony as to statements by Galt in the absence of appellee was not competent to bind appellee. The court therefore properly excluded their testimony as to statements made when appellee was not present, and with that evidence excluded the court properly directed a verdict for appellee.

The judgment is therefore affirmed.

Affirmed.


text:
    Lillian Walters, Plaintiff in Error, v. City of Ottawa, Defendant in Error.
    Gen. No. 5,656.
    1. Appeals and errors—record. The record of a former case, between the same parties, can only be embodied in the record by being pleaded or offered in evidence.
    2. Statute oe limitations—pendency of aotion. Where action was brought against a city for personal injuries caused by alleged defects iú a sidewalk, but the declaration did not state a cause of action, and an amended declaration was filed after the expiration of the time allowed by the statute of limitations, the time did not expire during the pending of such suit, within the meaning of the Limitation Act, § 25, allowing suit within one year in certain cases where the statute runs during pending of suit.
    3. Statute oe limitations—limitation act § 25, construed. The Limitation Act, § 25, providing that in certain eases where suit is brought within the required time, and the time expires during pendency thereof, the plaintiff on reversal, nonsuit, etc., may commence a new action within one year thereafter, does not mean that a new action may be commenced within one year of judgment, etc., if the original declaration did not state a cause of action, but it applies to defects by which a party is defeated as stated therein.
    Action in case for personal injuries. Error to the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Browne & Wiley, for plaintiff in error.
    Rector 0. Hitt and Butters & Armstrong, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The first six pages of the record before us do not relate to the present suit but contain fragments of a record of a former case between the same parties. That record could only be embodied in the present record upon which errors are assigned by being pleaded or offered in evidence, and the clerk improperly attached said six pages. The record we are to consider begins on page seven. Lillian Walters the plaintiff claimed to have been injured on August 28, 1906, by stepping into a hole in a cinder sidewalk maintained by the city of Ottawa upon one of its streets. She brought this suit on April 21, 1910, against the city to recover damages for her injuries and filed a proper declaration. Defendant was summoned and filed a plea of the general issue, which was afterwards withdrawn and a plea of the statute of limitations filed. On October 10, 1911, plaintiff filed a special replication to said plea of the statute of limitations, to which special replication the court sustained a demurrer. Defendant, by leave of court, filed two additional pleas on December 4,1911, to which additional pleas plaintiff filed a special replication. A demurrer to this was sustained. Plaintiff abided by her said special replications and the court dismissed the suit at the cost of the plaintiff who has brought this writ of error to review said judgment. The judgment is not in proper form. It should have been that plaintiff take nothing by her suit and that defendant go hence without day. Upon the oral argument in this court it was agreed that neither side would raise any question as to the form of the judgment and that so much of the 4th assignment of error as relates to the dismissal of the suit should be treated as waived.

The pleas and special replications are very lengthy and we avoid stating them by saying that .they were sufficient to raise the question hereafter discussed. We will state only an outline of the situation presented. Within the time fixed by law after plaintiff was injured she duly notified the officers of the city, as required by statute, and afterwards, on September 20, 1906, she began an action against defendant to recover damages for said injuries and filed therein a declaration which contained no averment whatever of any notice to the city. Defendant pleaded the general issue and, after the lapse of one year withdrew that plea by leave of court and demurred to the declaration and that demurrer was sustained. She then filed an amended declaration by leave of court in which she properly averred the statutory notice to the city. To this defendant filed the general issue and a plea of the statute of limitations. A demurrer to thb latter plea was sustained. The cause was tried and plaintiff had a verdict and a judgment for damages. That judgment was affirmed by this court in Walters v. City of Ottawa, 144 Ill. App. 379. We granted a certificate of importance and an appeal to the Supreme Court where, on April 23, 1909, the judgment was reversed and the cause was remanded to the Circuit Court with directions to overrule the demurrer to the plea of the statute of limitations. A rehearing was denied in that cause on June 16, 1909. Walters v. City of Ottawa, 240 Ill. 259. It appears from the pleadings in the present cause that thereafter plaintiff asked the Supreme Court to set aside its judgment and order reversing and remanding the cause and instead thereof, to enter a final order reversing the judgments of the circuit and appellate courts but without remanding, and that that motion was granted and such a judgment was entered in the Supreme Court on April 20, 1910. It is alleged that while said cause was pending in the Supreme Court plaintiff had brought another action against the defendant to recover damages for the same injuries and filed therein a proper declaration, averring statutory notice to the city; that, on April 21, 1910, the day after said final order in the Supreme Court at the hour of 1:30 p. m. plaintiff dismissed that second suit, and at the hour of 2:40 p. m. of the same day began the present suit. Paragraph 25 of the limitation act (Hurd’s Bev. Stat. of 1911, p. 1495,) is as follows:

“In any of the actions specified in any of the sections of said act, if judgment shall be given for the plaintiff and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”

Plaintiff contends that under said section she could lawfully bring and maintain an action for the injuries so sustained by her on August 28, 1906, at any time within one year after the final disposition of said cause by the Supreme Court on April 20,1910, and relies upon McAndrews v. C. L. S. & E. Ry. Co., 162 Fed. Rep. 856, which appears to support her position. She also argues that this position was supported by Hinchliff v. Rudnik, 212 Ill. 569. A perusal of the opinion of the Supreme Court in Hinchliff v. Rudnik and Walters v. City of Ottawa will disclose a clear distinction between the two cases. In the former the original declaration stated a cause of action, but defectively, and it was held that after the period of the statute additional counts could be filed stating that cause of action effectively. In Walters v. City of Ottawa it is held plainly and repeatedly that the original declaration did not state any cause of action at all, and that a cause of action was first stated when, after the statute of limitations had run, the amended declaration was filed. To the same effect are Erford v. City of Peoria, 229 Ill. 546; Ouimette v. City of Chicago, 242 Ill. 501; Prouty v. City of Chicago, 250 Ill. 222; Langguth v. Village of Glencoe, 253 Ill. 505. It was held in the latter case that where a declaration fails to state a cause of action, the beginning of the suit does not stop the running of a statute of limitations, in favor of additional counts thereafter filed therein which do state a cause of action; but so far as such counts are concerned the suit will be regarded as begun at the time when they are filed. If the Supreme Court had held in the Walters case, supra, that the original declaration defectively stated a good • cause of action, the Hinchliff case would be in point. But the Supreme Court held that the original declaration in the Walters case did not state any cause of action. Plaintiff was injured on August 28, 1906, and the counts which did state a cause of action were filed more than one year and three months thereafter. That, therefore, was the time when she first began her suit upon the cause of action stated in the present declaration. Her cause Of action was already barred by the statute of limitations when she filed her amended declaration and thereby first began this suit on this cause of action. The time limited for bringing such action did not expire “during the pendency of such suit,” but it expired before the suit was begun, within the meaning of the decisions of our Supreme Court above cited. Whatever meaning may be attributed to said paragraph 25 of the limitation act, we are of opinion that it does not mean what is here contended. If plaintiff’s position here is correct, then an injured party might wait five or ten years before bringing any suit for recovering damages therefor, and, when a plea of the statute of limitations was interposed and sustained and he was defeated in his action on account thereof, he could then within one year after final judgment that his cause of action was barred by the statute of limitations, bring and maintain a new suit for the same cause of action. We are of opinion such is not the purpose of the statute, but that it applies to defects by which a party is defeated in the manner stated in that statute after he has, within the time prescribed by statute, begun a suit for that cause of action. We are therefore of opinion that the court did not err in sustaining the demurrer to plaintiffs special replications.

Defendant also contends that the last judgment entered by the Supreme Court on the motion of plaintiff was a final judgment and bars the plaintiff from bringing another suit regardless of the statute of limitations, but we consider it unnecessary to discuss that question. We also treat the beginning and dismissal of the second suit as immaterial.

For the reasons stated the judgment of the court below is affirmed.

Affirmed.