text:
    In re Estate of William Darley, Deceased. Objections of A. L. Hamilton et al., Appellees, to Final Report of Benjamin Darley, Administrator, Appellant.
    1. Insurance, § 837

      —when proceeds of life insurance policy are assets of the estate. The proceeds of a mutual life insurance policy paid to the administrator of the insured pursuant to the terms of the policy where the beneficiaries named have died before the assured, held to become assets of the estate and not to belong to the heirs of the insured.
    2. Insurance, § 838*—statute construed as to exemption of proceeds of policy from debts of assured. Section 25 of the Mutual Assessment Act of 1893, J. & A., j[ 6573, exempting benefit funds from attachment or other process to pay any debt of a policy holder or beneficiary, is designed to protect the society from legal process by creditors of its members and cannot be construed to exempt the proceeds of a policy from the debts of the assured after they have been paid to the administrator of the assured.
    3. Trial, § 293*—when propositions of law may not be submitted. Propositions of law cannot be presented on an appeal to the Circuit Court from an order of the County Court requiring the proceeds of an insurance policy to be inventoried and distributed as assets belonging to the estate.

      Appeal from the Circuit Court of Morgan, county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 2, 1914.

      Certiorari allowed by Supreme Court.
    Ed. D. Henry, for appellant.
    William: N. Hairgrove and Kirby, Wilson & Baldwin, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

William Darley in August, 1907, was a resident of Waverly, Hlinois. The Merchants’ Life Association of Burlington, Iowa, is a mutual assessment benevolent association, incorporated under the Laws of Iowa to do a life insurance business on the assessment plan, and was authorized to do business in Illinois, and maintained a general agency at Alton, Hlinois. In August, 1907, William Darley made application to the Merchants’ Life Association for a policy of insurance on his life. He was examined at Waverly, and a policy for $2,000 was issued on his life payable at his death to Mary Darley, his wife, as beneficiary. The policy was delivered to Darley at Waverly. Mary Darley, his wife, the beneficiary named in the certificate, died, and Mary Darley, his mother, was thereafter designated and made the beneficiary. She also died before the insured. Then, without again designating a beneficiary, the insured died leaving two minor children as his only heirs surviving him. A guardian was appointed and qualified for the children and is now acting as such guardian. William Darley was insolvent at the time of his death. William Darley, the father of the insured, was appointed administrator of the estate of the deceased and collected and receipted for the $2,000 paid on the policy of insurance. A number of claims were presented in the County Court and allowed against the estate; among these the claim of A. L. Hamilton, based on a judgment rendered against William Darley in May, 1912, was allowed in the sum of $4,236.70, and classified as a claim of the seventh class.

The administrator filed a final report in the estate in the County Court, showing that he had received $2,000 on the policy from the Merchants’ Life Association of Burlington, Iowa, and that the estate had no other funds, and stating that the fund received from the policy belonged to Winifred Darley and Carl B. Darley, minor heirs of the insured, and asking for an order from the court that he be directed to pay the proceeds of said policy to the guardian of said children and thereupon be discharged as such administrator. Notice of the hearing on this report was duly given to the creditors and all parties interested in the estate. Hamilton and another creditor of the estate appeared and filed objections to the report denying the right of the heirs to receive the proceeds of the insurance policy, and insisting that the $2,000 be inventoried and distributed as assets of the estate. The County Court sustained the objections to the report and ordered that the administrator inventory said money and pay the same out as assets of the estate on claims according to their class as provided by the statute. The administrator appealed from the order of the County Court to the Circuit Court where, on a hearing, a similar order was made and the administrator appeals from that order to this court.

The only question involved is whether the money collected on the insurance policy, or certificate, belongs to the children of the assured or is assets of the estate in the hands of the administrator.

The policy on the life of the insured, on which the Merchants’ Life Association paid the $2,000, provides: “In the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit then to be payable to the legal representatives of the deceased member.” “The words ‘Legal representatives/ in the commonly accepted sense, mean administrators or executors. What construction shall be given to the phrase ‘legal representatives, ’ depends upon the intention of the party using it. Warnecke v. Lembca, 71 Ill. 91. It was competent, under our law, for the intestate to have made the policy payable to his widow or to his heirs, to the exclusion of his creditors ; but this he did not do. He chose to make it payable to his ‘legal representatives,’ and, in this instance, the legal representative of the intestate is his administratrix. Had it been the intention the proceeds of the policy should go to the widow or heirs, to the exclusion of creditors, apt words no doubt would have been used to express that purpose; but no such intention is manifested. The term employed, ‘legal representatives,’ must be understood in its ordinary meaning, which is, administrators or executors, and cannot, by construction in this case, be held to include the widow, and heirs, to the exclusion of the administratrix.” People for use of Schuchert v. Phelps, 78 Ill. 147, citing other cases. To the same effect is Johnson v. Van Epps, 110 Ill. 552.

The Merchants’ Life Association is an Iowa corporation. Section XV of its charter provides: “No certificate of membership or policy shall be issued by this association to any person under the age of eighteen years nor over the age of fifty-five years, nor unless the beneficiary under such certificate shall be the husband, wife, relative, legal representative, heir or legatee of such insured member.” The Iowa Code, sec. 1789, also provides who may be beneficiaries and names as such, “the husband, wife, relative, legal representative, heir, creditor or legatee of the insured member.”

Appellant contends that because the policy was issued by a mutual assessment company and the statute of Illinois for the incorporation of such companies (Session Laws 1893, p. 128, sec. 25; Hurd’s St. 1913, p. 1455, J. & A. If 6573,) provides that the money or benefit rendered by any corporation authorized to do business under this act shall not be liable to attachment nor to be taken by any operation of law to pay any debt of a policy holder or beneficiary, that therefore the proceeds of this policy cannot be used to pay the debts of the assured. It is argued that this section of the statute has not been construed by the courts of this State. The courts have construed section 9 of the Fraternal Insurance Act of 1893, (J. & A. ff 6656), the language of which is almost identical with section 25 of the Mutual Assessment Act, and held that this section is only designed to protect the societies from legal process by creditors of their members. Martin v. Martin, 187 Ill. 200. The language of the Mutual Assessment Act is not subject to a different construction. There is no reason for giving the language of the policy a construction which would change the clear and usual construction given to the description of the beneficiary of the insured in the policy. That would be making a new contract. We are constrained to hold that the proceeds of the policy are funds in the hands of the administrator to be administered, the same as other assets belonging to the estate.

Propositions of law requested by appellant announcing the law as contended by him were marked refused. This holding is also assigned for error. This is a case where the parties were neither entitled to a trial by jury nor to present propositions of law. Schofield v. Thomas, 236 Ill. 417; Clifford v. Gridley, 113 Ill. App. 164.

The court, however held the law correctly in deciding the case. The order of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    John Richardson, Appellee, v. W. H. Johns, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 450

      —when competency of testimony not saved for review. The competency of a question asked of a witness and his answer thereto are not saved for review where the record shows no objection to the question.
    2. Witnesses, § 85*—when witness not incompetent to testify to signature. In an action on a promissory note where a witness was called to prove defendant’s signature on the note and testified that he knew defendant, that he had seen him write his signature and that he knew his signature, and it developed on his cross-examination that he had a note against the defendant which the latter denied making, held that the facts developed on cross-examination did not make the witness incompetent to testify to the signature, but only affected his credibility.
    Appeal from the Circuit Court of Coles county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by John Richardson against W. H. Johns on a promissory note for five hundred dollars purporting to be signed by defendant and others. The defendant filed a verified plea denying the execution of the note. A jury returned a verdict finding for plaintiff and a judgment was rendered on the finding. To reverse the judgment, defendant appeals.
    Charles C. Lee, for appellant.
    Marshall & Shuey, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    A. W. Askins, Administrator, Appellee, v. Homer Hott et al., Appellants.
    1. Infants, § 25

      —authority to stipulate for. No person has any authority to stipulate in behalf of a minor.
    2. Stipulations, § 2*—right to stipulate as to jurisdiction. A stipulation for the hearing of a petition by an administrator to sell real estate to pay debts in the Circuit Court, without a previous hearing in the County Court, held to be of doubtful efficacy.
    3. Appeal and error, § 1712*—when unargued assignments of error waived. An assignment of error relating to the jurisdiction of the trial court may not be considered when such question is not argued.
    4. Executors and administrators, § 380*—right of heirs to contest validity of allowed claims. On petition by an administrator to sell real estate to pay claims allowed the estate of a deceased person, the heirs may contest the validity of any claim that has been allowed.
    5. Bills and notes, § 298*—when giving of new note in lieu of old one operates as payment. Evidence held to show that the giving of a new note by a husband in lieu of one previously given by the husband and wife constituted payment of the old note, where it appeared the old note was stamped paid, that the new note contained indorsements as to the payment of interest and that the holder had recovered a judgment on the new note and attempted to collect it by execution and creditor’s bill.
    6. Costs, § 77*—when taxable against creditor of estate. Where an appeal from an order of the Circuit Court resulted from a wrongful allowance of a claim of a creditor against the estate of a deceased person, and the creditor was made a party to the proceeding, the costs of the appeal may be taxed against the creditor.
    Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed July 2, 1914.
    Statement by the Court. A. W. Asians, administrator of the estate of Mary Isabelle Hott, deceased, filed a petition in the County Court of Shelby county, on November 16, 1912, for an order to sell real estate to pay debts.

      The petition alleges that Mary Isahelle Hott died at Findlay, Illinois, in December, 1906; that petitioner was appointed administrator of the estate of the deceased July 8, 1908; that the deceased left no personal estate; that claims had been presented and allowed against the estate amounting, without interest, to $2,458.67 in favor of the First National Bank of Findlay and A. W. Askins, and estimates that the costs of closing up the estate exclusive of attorney’s fees will be $40. It alleges that the deceased was the owner of certain described real estate; that the said deceased left surviving her Homer Hott, her husband, having a dower interest in said real estate, and Eugene Hott, a minor child, the said Eugene Hott being under the age of fourteen years, and that the said Homer Hott had been appointed and had qualified as guardian for said minor, whereof in cqnsideration of the premises petitioner prays that the court may appoint some discreet person as guardian ad litem for said minor heir, to appear for and defend his interest.
    The petition further represents that the First National Bank of Findlay, Illinois and A. W. Askins are the two creditors whose claims have been filed and allowed, and prays that the court will order and direct your petitioner to sell the real estate according to law, or so much thereof as may be necessary to pay the debts of said intestate, and to make such further order herein as to the court may seem meet.
    Summons was issued and served on the Bank, Ask-ins, Homer Hott, Homer Hott guardian of Eugene Hott and Eugene Hott.
    Thereafter there was filed in the County Court a stipulation in the following words, omitting the title.
    “It is hereby stipulated by and between the parties hereto that in the above entitled matter all files relating to a probate of said claim upon the petition to sell land to pay debts, and all orders entered by the County Court in connection therewith and all files and orders entered in the matter of the estate of Maly Isabelle Hott be certified to the Circuit Court of Shelby county, and that said Circuit Court shall have full power to try all questions of law and fact arising in connection with said petition to sell land to pay debts the same as though said cause had been appealed to said court upon an order either allowing or denying said petition.
    Executed this 6th day of January, A. D. 1913.
    The First National Bank by Richardson & Whitaker, Attys.,
    A. W. Askins,
    A. W. Askins, Administrator of the estate of Mary I. Hott, Deceased, by Richardson & Whitaker,
    T. C. Dove.
    We hereby agree to the appointment of T. C. Dove, guardian ad litem.
    Richardson & Whitaker.”
    On January 7th the County Court entered an order certifying the cause to the Circuit Court for trial upon the issues and directing the clerk to transmit to the Circuit Court the original of all files with a transcript of the record.
    Homer Hott made no defense and the petition was taken as confessed against him personally and as guardian of the child. The same counsel signed the stipulation for the bank and the petitioner, although they did not file any answer on the part of the bank, and the petition was taken as confessed by the bank.
    T. C. Dove was appointed guardian ad litem to defend for Eugene Hott on January 6th, and filed an answer in the County Court, which sets up that the claim allowed in favor of the Bank of Findlay for $2,361.67 was on a $2,000 note, on which the deceased was a surety, which had been paid, and sets forth the facts which it alleged constituted the payment. It alleges that the surety was released and that the bank is estopped to claim that the note had not been paid, and that the claim was allowed by collusion between the creditor and the administrator. The answer does not deny that the claim allowed in favor of Askins, the administrator, in the sum of $57, is not just and offers to pay it.
    The Circuit Court upon a hearing of the same entered an order that the real estate described, or sufficient thereof to pay the two claims allowed and costs, be sold to pay the same. The minor appeals from that order.
    F. R. Dove and W. C. & T. M. Headen, for appellants.
    Whitaker, Ward & Pugh and E. A. Richardson, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is assigned for error that the Circuit Court did not have jurisdiction of this cause. No person has any authority to stipulate in behalf of a minor. The stipulation made is peculiar and of doubtful efficacy, for the reason that an appeal would not lie from the County Court to the Circuit Court. Since, however, nor argument is made concerning the question of jurisdiction this court will not express any opinion on that assignment.

The evidence shows that Mary Isabelle Hott died December 18,1906, leaving surviving, Homer Hott, her husband, and the child, Eugene Hott, who was less than a month old at the mother’s death.

The claim of the Bank of Findlay is based on a note for $2,000 dated February 10, 1906, due six months after date, signed by Homer Hott and Isabelle Hott, the proceeds of which were placed to the credit of Homer Hott, who was a business man in Findlay. The note is stamped across its face, “Paid Aug. 10, ’06. 1st Ntl. Bnk. ’ ’ The claim was sworn to by J. E. Dazey, cashier of the bank before C. E. Coventry, who is a notary public and assistant cashier of the bank. Besides this note stamped paid there is attached to the claim what purports to be a copy of another note of the same date apparently signed by the same makers for $2,000 due on demand. The bank does not claim that it ever had a note for $2,000 due on demand against the Hotts. Coventry, who was a witness for the defendant, testified that the cashier of the bank undertook to make a copy of the note that was due in six months, but made a mistake, and the erroneous copy was attached to the claim. Coventry also testified that on August 10,1906, Homer Hott went to the bank and paid the interest on the note dated February 10, 1906, and executed and delivered to the bank a new note dated August 10,1906, for the $2,000 due in six months, and that the original note for $2,000 was stamped paid and surrendered to Hott. On cross-examination he testified that Hott said his wife would come in and sign the new note, but that she did not do so. All these notes are judgment notes. On March 11, 1908, a judgment by confession against Homer Hott was entered in the office of the Circuit clerk for $2,270 on the note dated August 10, 1906. The original note of date August 10, 1906, signed by Homer Hott alone, is attached to the declaration and is indorsed, “Feb. 18, 1907, Interest paid to date.” “August 28, 1907, interest paid to date.” The day after the judgment was entered against Hott in favor of the bank, an execution was issued on it and returned the same day “no property found.” On March 13, 1908, a creditor’s bill based on this judgment was filed against Homer Hott and Eugene Hott to set aside a deed executed by Homer Hott to his wife, dated September 17, 1906. The grounds for setting aside the deed, which conveys the same property that it is sought to sell to pay the debts, are that the deed was not delivered in the lifetime of Mary Isabelle Hott; that there was no consideration for it and that it was made for the purpose of defrauding creditors. Homer Hott made no defense against the creditor’s bill but relatives of the child undertook to defend for him. The answer filed by Eugene Hott to the creditor’s bill sets up that the land was purchased with the money of Mary Isabelle Hott and that Homer Hott had no interest in the land, but only had the naked legal title, which he had agreed to convey to his wife. The creditor’s bill was heard by the court in July, 1908, and a decree was entered dismissing the bill for want of equity.

After the creditor’s bill was disposed of, A. W. As-kins, who is vice-president of the bank and is the physician who attended Mrs. Hott in her last illness, for which services he has a bill against the estate, was appointed administrator of her estate. The claim of bank against her estate was allowed on the original note dated February 10, 1906, which had been surrendered to Hott, and for which the note dated August 10, 1906, had been given and accepted by the bank and on which it had indorsed interest paid in February and August, 1907, and afterwards entered judgment. It also appears from the evidence that the grandmother of Eugene Hott and the guardian ad litem, had offered to pay the claim of Asians for medical services.

When it is sought to sell the real estate of a deceased person the heirs may contest the validity of any claim that has been allowed. The allowance of the claim is only prima facie evidence against the heirs of a debt due from the estate, so far as the realty is concerned. (Noe v. Moutray, 170 Ill. 169), and while the giving of one promissory note in lieu of another does not necessarily operate as a payment, the intention or understanding of the parties can be determined either from the express contract of the parties or from the facts and circumstances attending the transaction. Belleville Sav. Bank v. Bornman, 124 Ill. 200. Where a subsequent promissory note is given for-the same consideration as a former one, it is a question of fact for the determination of the jury whether the former note is thereby satisfied. If the subsequent note was executed and accepted by the respective parties for that purpose, the satisfaction is complete. Belleville Sav. Bank v. Bornman, supra; Morrison v. Smith, 81 Ill. 221; Jansen v. Grimshaw, 125 Ill. 468. The Negotiable Instrument Act of 1907, par. 3, sec. 118 (J. & A. H 7758), also provides that negotiable instruments are discharged, “By the intentional cancellation thereof by the holder.”

The evidence shows very clearly that the bank in August, 1906, took a new note signed by Homer Hott, alone, in payment of the note dated February 10, 1906, stamped the latter note as paid and surrendered it to Homer Hott, the principal maker; that the bank treated the old note as paid for two years after its surrender, that it entered judgment on the new note in March, 1908, issued an execution thereon and prosecuted a creditor’s bill to a final decree on that judgment, and that that judgment is still in full force and effect against Homer Hott. The evidence shows clearly and conclusively that the note signed by Mary Isabelle Hott was satisfied and paid by the taking of the note signed by Homer Hott, alone, on August 10, 1906. The evidence of Coventry that Hott said his wife would come in and sign the new note is overcome by the facts that he stamped the old note paid, and delivered it to Hott, that a judgment was entered in favor of the bank on the new note, which it still holds uncanceled, and that an unsuccessful attempt was made to collect that judgment by an execution and a creditor’s bill.

It was error to decree the real estate of the deceased to be sold to pay the claim of the bank, but it was proper, for a court having jurisdiction of the parties, to order sufficient thereof sold to pay the claim of As-kins unless the money to pay that claim and costs should be paid into court. The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion. This appeal having resulted from the wrongful allowance of the claim in favor of the bank, and the bank being a party to the proceeding, the costs of this appeal will be taxed against the First National Bank of Findlay.

Reversed and remanded with directions.


text:
    Granite City National Bank, v. Annie B. Cross (Appellee), Commonwealth Trust Company (Appellant), Third National Bank, American Trust Company et al.
    " 1. Usury, § 5

      —when note is usurious. Where a note executed and made payable in Missouri exacted the highest rate of interest allowed in such State, and was given for a loan under an arrangement whereby the payee received bonds of the face value of $10,000 as a bonus for making the loan, held that the exaction of the bonus was a shift or device to evade the law against usury.
    2. Usury, § 22*—what law governs. A note which is usurious under the laws of the State where it was executed and made payable is usurious in Illinois.
    3. Usury, § 75*—when usury paid may he deducted from principal. In an action to foreclose a trust deed given on Illinois real estate to secure a note which, under the laws of another State where it was executed and made payable was usurious by reason of exacting the highest rate of interest and an additional bonus, held that the court properly applied the value of the usurious bonus and the payments made on the interest in reduction of the principal of the note.
    Appeal from the Circuit Court of Jersey county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 2, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. In the early part of 1911, certain officers and bondholders of the Alton, Jacksonville & Peoria Railway Company began negotiations with the Commonwealth Trust Company of St. Louis, hereinafter called the Trust Company, with the object of inducing the Trust Company to purchase a block of bonds of the Eailway Company. The Trust Company, after an investigation of the affairs of the Eailway Company, refused to make the purchase. The negotiations were continued and finally resulted in a proposal in writing made on May 5, 1911, by Annie B. Cross by E. M. Davis, her attorney in fact, E. M. Davis, A. J. Davis and C. H. Segar to the Trust Company stating that the Eailway Company had completed and was operating its line from Alton to Godfrey and was constructing an extension to Jerseyville; that the Eailway Company had executed a mortgage securing an issue of $600,000 first mortgage five per cent, bonds; that $470,000 of said bonds had been issued and sold and $130,000 of said bonds remained to be issued; that Annie B. Cross and her associates were the holders and owners of a majority of the stock of the Eailway Company and of $100,000 of the bonds issued; that the Eailway Company was desirous of selling the $130,000 of bonds to be issued and needs about $75,000 for the purpose stated, and we desire to assist it in procuring funds; that if the Trust Company “will purchase from said Eailway Company $83,250 par value of the above described bonds within ten days from the date hereof, at not less than ninety per cent, of their face value, we agree to purchase from you, on your request, such portion of said bonds as you may designate, not to exceed $73,250 face value, and will pay therefor at the rate of 102.287 per cent, of the face value of bonds so purchased by us; payment therefor to be made within one year from the date of said purchase, * * * with interest thereon at the rate of 8 per cent, per annum, payable monthly. * * * Said note to be secured by the pledge of at least $140,000 par value of the bonds of said Eailway Company.”
    On May 6, 1911, the Eailway Company delivered $83,250 of said bonds to the Trust Company and the Trust Company paid therefor, at the rate of 90 cents, the sum of $74,925, which was placed to the credit of the Railway Company. On the same day the Trust Company notified Mrs. Cross and her associates that it had purchased the said bonds and had elected to sell $73,250 par value of said bonds for $74,925 in accordance with the terms of the proposal and that she was to look to the Railway Company for the interest accrued and to accrue on the bonds. On May 9, 1911, Mrs. Cross and her associates executed and delivered a note dated St. Louis, May 6,1911, for $74,925, payable to the Trust Company one year after date with interest at the rate of eight per cent, per annum payable monthly. The $73,250 of bonds which had been purchased by Mrs. Cross and associates, with enough other bonds of the issue to make up $140,000 of bonds, were also delivered to the Trust Company as collateral security to the said note. Interest was paid on this note to August 6, 1911, amounting to $1,498.50.
    On September 18, 19.11, the Railway Company went into the hands of a receiver. Default was made in the payment of interest on the note, and the collateral bonds were sold on November 4, 1911, for $50,000, which sum was credited on the note.
    On the day the receiver was appointed, Annie B. Cross, to further secure the note to the Trust Company and other creditors who held notes against her, executed and delivered a trust deed on certain real estate in Jersey county to the Illinois State Trust Company of Bast St. Louis. The trust deed provided that if the notes secured by it were not paid, and more than nine months elapsed, or the property should be sold for taxes, the trustee might proceed to foreclose the trust deed. Default was made in the provisions of the trust deed, and the Granite City National Bank, the holder of one of the notes secured by the trust deed, filed a bill to foreclose it and to procure the appointment of a receiver to take charge of the mortgaged premises. The defendants to the bill either entered their appearance or were served with summons. Mrs. Cross entered her appearance and filed an answer substantially admitting the allegations of the bill, and a decree of foreclosure was entered, which provided that the question of the rights and interests of the parties to the cause in the funds produced by the sale of the mortgaged premises be reserved for a later decree, and that the cause be again referred to the master to report the proof of the various parties in support of their claims and their right to share in the proceeds with the privilege to any party to present evidence and proof in opposition to any of the claims of the parties to the suit. Thereafter the original counsel for Mrs. Cross withdrew from the case; other counsel appeared for her, and leave was granted her to file an amended answer, which was filed setting up that at the time of the transactions she was not advised of and did not know anything about the nature of the transactions, and that when the trust deed was prepared and executed she was not consulted, and when she executed it she personally knew nothing about the transactions represented by the notes; that all the business had been done by Edgar M. Davis as attorney in fact for her. The answer sets up that in addition to the interest specified in the $74,925 note there was delivered to the Trust Company $10,000 of said bonds as a bonus or commission; that the note was executed and made payable in St. Louis, Missouri; that under the laws of Missouri said note is usurious; that chapter 62 of the Revised Statutes of Missouri of 1909 provides that parties may agree in writing for interest at not to exceed eight per cent, per annum; that any person who shall directly or indirectly take more than eight per cent, interest may be sued for any sum paid in excess of the legal rate; that all sums paid in excess of the legal rate shall be credited on the principal debt; that by the law of Missouri, in actions for the enforcement of liens on personal property pledged to secure an indebtedness, if it appear that usurious interest has been exacted, such lien, pledge or mortgage shall be void. Exceptions by the Trust Company to the answer of Mrs. Cross were overruled.
    On the hearing the court held that the Trust Company had received $10,000 of the bonds as a bonus or commission for making the $74,925 loan and that the said note was usurious, and refused to allow any interest and charged the Trust Company with $3,571.47, the value of the $10,000 of bonds and all payments made on interest as payments on the principal. The Trust Company appeals from the decree and assigns error on the findings of the court on the question of usury and the crediting of the sum found to be usury and all interest paid on the principal of the debf.
    Fordyce, Holliday & White and J. V. E. Marsh, for appellant.
    Hamilton & Hamilton, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The only questions raised on this appeal are whether the loan for which the note for $74,925 was taken was or not usurious, and if it was, then what law applies and governs the remedy in the proceeding to collect the note in this State.

The note was given and made payable in the State of Missouri. The law of the State where the contract is made governs as to whether or not the transaction is usurious. Mineral Point R. Co. v. Barron, 83 Ill. 365; Burchard v. Dunbar, 82 Ill. 450. The statute of Missouri provides that the taking of interest either directly or indirectly at more than eight per cent, per annum is usury.

There is no controversy over the facts. The appellant contends that the transaction was a sale of bonds by the Trust Company to Mrs. Cross and associates. The Trust Company refused to buy the bonds. Mrs. Cross and her son-in-law, E. M. Davis, were interested in the extension of the railway that issued the bonds. After the Trust Company had refused to buy the bonds, negotiations were continued in reference to procuring a loan with which to continue the railway construction. W. V. Delahunt, the trust officer of the Trust Company, dictated the proposal signed by Mrs. Cross and the reply of the Trust Company to the proposal. The note signed by Mrs. Cross was for the same amount that the Trust Company paid for the $83,250 of bonds, and the Trust Company transferred $73,250 of the bonds to Mrs. Cross and took her note for the same amount of money that the Trust Company paid for the $83,250 of bonds. The Trust Company retained $10,000 of the bonds as' a bonus for making the loan to Mrs. Cross and associates. Mrs. Cross’ proposal simply was that the Trust Company should buy the bonds at ninety cents and sell sufficient of them to her at 102.287 per cent to make up the sum the Company paid for the bonds and take the note of Mrs. Cross for the amount paid, drawing eight per cent, interest, and keep the $10,000 of bonds taken from the Railway Company. Delahunt testified that the Trust Company would not have had anything to do with the bonds except for Mrs. Cross’ proposal to take the bonds and leave the Trust Company with the $10,000 of bonds. The only money that changed hands was the deposit of the amount of the note to the credit of the Railway Company. As was said in Ferguson v. Sutphen, 8 Ill. 547 (567): “The law looks at the nature and substance of a transaction, and not to the color or form which the parties in their ingenuity have given it. No imaginable act or contrivance to cover up or conceal the usury will avail the parties. They will not be permitted successfully to evade the provisions of the statute by any conceivable scheme or expedient. The courts will follow them through all their shifts and devices, and ascertain the true character and design of the transaction. And if upon such investigation it appears that there was in substance a loan at an illegal rate of interest, no matter what form or shape the contract has been made to assume, it will be declared usurious, and the proper remedy applied.”

“The form of the agreement is immaterial, since any shift or device by which illegal interest is arranged to be received or paid is usurious.” Kreibohm v. Ycmcey, 154 Mo. 67. The transaction as shown by the undisputed facts was a shift or device to evade the law against usury. The note was usurious under the law of the State where it was made and was payable, and being usurious in Missouri must be held to be usurious in Illinois. Sherman v. Gassett, 9 Ill. 521.

The law of the forum governs as to the mode and extent of the remedy. Burchard v. Dunbar, supra; McCoy v. Griswold, 114 Ill. App. 556. The statute of this State provides that where a contract is usurious only the principal sum shall be recoverable. It is also the rule in this State that where a note is usurious all payments made on interest on the note will be applied on the principal. Woolley v. Alexander, 99 Ill. 188; Cobe v. Guyer, 237 Ill. 568. The trial court correctly applied the value of the usurious bonus and the payments made on the interest in reduction of the principal of the note. There is no error in the case and the decree is aErmed.

Affirmed.


author: Mr. Presedirg Justice Thompson

text:
    George E. Luce, Appellee, v. E. P. Armstrong, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 2, 1914.

      Abstract of the Decision.
    1. Appeal and ebkob, § 990

      —when ruling on motion not presented for review. A ruling on a motion to suppress depositions is not presented for review, where the bill does not contain any such motion or exception to the ruling thereon; that the motion and ruling thereon are in the record and the clerk has written an exception to the ruling does not save the question for review.
    2. Appeal and ebbor, § 788*—necessity of hill of exceptions. A bill of exceptions is necessary to present for review rulings on motions and anything outside of the proper common-law record.
    3. Sales, § 65*—contract construed as to place of weighing and grading. Where a buyer made a proposition under which hay was sold to him to pay a certain price per ton for timothy “your track,” held that the hay when placed on the cars at the place of shipment was delivered .to the buyer there, and any difference between the weight of the hay at the place of shipment and destination was at the risk of the buyer and that he could not insist that he bought the hay to be weighed and graded according to custom at destination.
    4. Sales, § 330*—when instruction not misleading. In an action for the price of a shipment of hay, where the proposition of defendant under which the hay was sold to him was to pay a certain sum per ton for timothy “your track,” the giving of an instruction omitting the word “timothy” in describing the hay, and using the letters “F.O.B.” instead of the words “your track,” held not misleading.

      Statement of the Case.
    Action by George E. Luce against E. P. Armstrong to recover a balance claimed to be due for some bay shipped by plaintiff from Hope, North Dakota, to defendant at Bloomington, Illinois. The suit was originally brought before a justice of the peace, where plaintiff had judgment, and on appeal to the Circuit Court the jury returned a verdict for plaintiff for $151.75. To reverse the judgment rendered on the verdict defendant appeals.
    Murray & Morrissey, for appellant.
    Walker R Flirt, for appellee.

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

   Mr. Presedirg Justice Thompson

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    The People of the Village of Moweaqua for use of I. H. Johnson, Appellees, v. W. A. Morgan et al., Appellants.
    1. Appeal and ebbob, § 1431

      —when refusal to require security for costs harmless. Refusal of court to require a plaintiff to file security for costs, held harmless where the judgment was rendered in his favor.
    2. Oebiciai, bonds, § 19*—liability on village marshal’s bond. A person unlawfully arrested and beaten by a village marshal may recover on the latter’s official bond given under section 75, ch. 24, Hurd’s R. S., J. & A. If 1347, where the act was done in his official capacity by virtue of his office.
    Appeal from the Circuit Court of Cnelby county; the Hon. James C. McBride, Judge, presiding. £ yard in this court at the October term, 1913.
    Affirmed.
    Opinioin filed July 2, 1914.
    Chapee & Chew, S. ‘ Clapper and George B. Bhoals, for appellants.
    George T. Wallace, fappellee.

      See Illinois Notes Digest, Yols. X topic and section number. X“*, and Cumulative Quarterly, same

   Mr. Justice Eldredge

livered the opinion of the court.

This is a suit in debt a.ties of the bond given b; liceman of the Village o: H. Johnson, and it is alie; the night of November 1 liceman under color and unlawfully and without hist the principal and sure-V. A. Morgan as night poloweaqua for the use of I. d in the declaration that on 1909, Morgan, as such poy virtue of said office, did asonable or proper cause and without warrant arrest said Johnson forcibly and unlawfully, took him to the jail of said Village and incarcerated him therein, and without any reasonable cause or provocation brutally, maliciously and unlawfully struck and beat him with a club and broke the large bone of his right leg. The penalty of the bond was five hundred dollars. The jury returned a verdict assessing damages in the sum of $250, on which verdict judgment was rendered; to reverse which this appeal is prosecuted.

It is first urged that the trial court erred in refusing to require the beneficiary plaintiff to file security for costs. If there was any error in said action it worked no injury to the defendants, as judgment has been rendered in favor of the plaintiff. Beal v. Pratt, 67 Ill. App. 483.

It is next contended that no recovery can be had on the bond of the village marshal by a third person as beneficiary plaintiff for acts of this character because the statute does not specifically prescribe such liabilities. Section 75 of chapter 24, Hurd’s E. S. (J. & A. If 1347), provides: “All officers of any city or village, whether elected or appointed, shall, before entering upon the duties of their respective offices, take and subscribe the following oath or affirmation: * * * And all such officers, except aldermen and trustees, shall, before entering upon the duties of their respective offices, execute a bond with security, to be approved by the city council or board of trustees, payable to the city- or village, in such penal sum as may, by resolution or ordinance, be directed, conditioned for the faithful performance of the duties of the office and the payment of all moneys received by such officer, according to law and the ordinances of said city or village.”

Official acts in the performance of the duties of an office do not mean simply the lawful acts of the officer holding that office, but include all acts done in his official capacity under color and by virtue of said office. Campbell v. People, 154 Ill. 595. The object of requiring official bonds is to obtain indemnity against the use of an official position for wrongful acts done under color of the office. Greenberg v. People, 225 Ill. 174. The bond of a city treasurer is governed by the above section of the statute, which includes all city and village officers, and in the case of City of East St. Louis v. Flannigan, 26 Ill. App. 449, it was held that the sureties of the treasurer’s bond were liable to a third person damaged through the unlawful acts of the treasurer done in his official capacity by virtue of his office. The same‘rule must be applied to the case of a village marshal.

There was no harmful error in the giving or refusing of the instructions, and as the evidence tends fairly to support the verdict, the judgment is affirmed.

Affirmed.


author: Mb. Justice Eldbedge

text:
    Emma F. Dickinson et al., Appellants, v. Franklin W. Ridgely, Executor et al., Appellees.
    1. Descent and distribution, § 9

      —what law governs. The right of succession to the personal estate of a deceased person, whether he leaves a will or dies intestate, depends on the law of his domicile.
    2. Wills, § 224*—law governing construction as to right of succession to personal estate. The construction of a will as to the right of succession to personal property must be determined according to the law of the State in which the testator was domiciled at the time of his death.
    3. Wills, § 495*—when lapsed legacies do not fall in residuum. Though as a general rule lapsed legacies will sink into the residuum where there is a general residuary clause sufficient to embrace it in its terms, there is an exception to the rule in cases where the testator gives legacies to the same persons who are provided for under the residuary clause.

      4. Wills, § 494*—when lapsed legacies become intestate property. Where a will gave legacies to the same persons who were made beneficiaries under the residuary clause and the residuary clause provided for a distribution of the residue of the estate and lapsed legacies and one of the legatees died before the testatrix, held that the legacy and also the residuary legacy of such deceased legatee lapsed and became intestate property.
    5. Judgment. § 576*—conclusiveness of foreign judgments. Foreign judgments are conclusive in this State only when the proceedings in which they were rendered show that the court had jurisdiction of both the subject-matter and the parties.
    6. Judgment, § 577*—right of courts of this State to inquire into jurisdiction of court entering foreign judgment. Courts of this State may inquire into the proceedings, judgments and decrees of a court of another State to determine if that court had jurisdiction of the subject-matter and of the parties.
    7. Executors and administrators, § 564*—law governing distribution on ancillary administration. The distribution of personal assets in the hands of an ancillary administrator or executor must-be made according to the laws of the decedent’s domicile.
    8. Judgment, § 577*—when foreign judgment void for want of jurisdiction to mate it. Where the Probate Court in another State on an ancillary administration of an estate of a decedent, who was a resident of this State made an order of distribution contrary to the laws of succession in this State, held that it acted without authority and that the order was not conclusive on the courts in this State.
    9. Judgment, § 577*—when foreign judgment void and not conclusive for failure of record to show jurisdiction of parties. An order of distribution by a Probate Court of another State made on an ancillary administration, held void and not conclusive on the courts of this State for the reason that the record did not show service of notice upon the persons interested in the estate.
    10. Executors and administrators, § 563*—nature of ancillary administration. An ancillary administration is but auxiliary to the principal administration and is subordinate thereto.
    11. Executors and administrators, § 583

      —when erroneous distribution on ancillary administration may be corrected on final distribution of principal estate. Where on an ancillary administraton the Probate Court of another state makes an order of distribution of the personal estate whereby the distributees receive a larger share than they are entitled to, such error in the distribution may be corrected on the final distribution of the principal estate by requiring such distributees to account for the excess over their proper shares, where the executor of the principal estate has made no distribution and has sufficient funds in his hands to rectify the error.
    Appeal from the Circuit Court of Menard county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed July 2, 1914.

      Certiorari allowed by Supreme Court.
    Julian H. Haul and Smoot & Laning, for appellants.
    Watkins & Golden and J. C. Hammond, for appellees.

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

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

   Mb. Justice Eldbedge

delivered the opinion of the court.

This is a bill in chancery to construe the third and fifth clauses of the will of Elizabeth S. Lee, deceased. The will was executed April 14,1909. The first clause directs that all the debts of the testatrix be paid, the second provides for a number of specific legacies, the fourth devises the home of the testatrix and the sixth appoints Franklin Ridgely executor of the will. The third and fifth clauses are as follows:

“Third. I give and bequeath all my money on deposit in the savings banks in the State of Massachusetts, together with the savings bank books representing such deposits, one-half to my brother, Calvin S. Loomis, of Whately, Massachusetts, the other half to be equally divided between the children of my deceased sister, Sarah A. Belden, late of Hatfield, Massachusetts, the descendants of a deceased child to take the parent’s share, and I appoint my nephew, Daniel W. Wells, as ancillary executor of this will in the State of Massachusetts.”
“Fifth. All the rest and residue of my estate, both real and personal, and any lapsed legacies, I give, devise and bequeath as follows: One equal part thereof to my brother, Calvin S. Loomis of Whately, Massackusetts, or in case of Ms death to his descendants, according to the laws of descent of the State of Illinois; and the other one equal part thereof to he divided equally among the children of my deceased sister, said Sarah A. Belden, the descendants of a deceased child to take the parental share.”

Elizabeth S. Lee, the testatrix, was a resident of Athens, Menard county, Illinois, and died October 28, 1911, at said place. She left an estate of about $60,-000, which consisted chiefly of personal property; $20,000 of this amount was money on deposit in savings banks in the State of Massachusetts and the balance of the property was situated in the State of Illinois. Franklin W. Bidgely qualified as the executor of her will in Illinois and Daniel W. Wells as ancillary executor in Massachusetts, and both are now acting as such executors.

Testatrix left no descendants, brothers or sisters, father or mother, but left surviving her as her only heirs at law numerous nephews and nieces, who were children of deceased brothers and sisters. At the time the will was made she had one brother living, Calvin S. Loomis, who died on April 10, 1911, over six months prior to the death of the testatrix.

On August 24,1912, the said DaMel W. Wells, ancillary executor, filed his petition in the Probate Court of Hampshire county, Massachusetts, stating that there was a balance in his hands to be distributed and that three-fourths of said balance was to be distributed according to the will; that Calvin S. Loomis having died in the lifetime of the testatrix, leaving no descendants, one-fonrth of the net estate was intestate estate; that by the third clause of said will one-half of the property in Massachusetts was bequeathed to be divided equally between the children of Sarah A. Belden; that by the fifth clause of the will another share, to wit, one-one fourth of the estate in his hands, was in like manner to be divided equally among the children of Sarah A. Belden, and that the last and remaining one-fourth was intestate estate, and other persons were heirs beside the children of said Sarah A. Belden; that petitioner had upwards of $18,000 in his hands and that $2,000 was sufficient reserve for debts and expenses; that $12,000 could properly be distributed to the children and descendants of Sarah A. Belden, and praying for distribution of said amount. Franklin Bidgely, the Illinois executor, filed his objection to the granting of said petition on the ground, among others, that the legacies of Calvin S. Loomis having lapsed, the succession to the property embraced therein should be determined by the laws of the State of Illinois; that a large part of the lapsed legacies became intestate property and that the persons entitled thereto were not residents of Massachusetts, and that the efficient and economical administration of the estate required that after the payment of the debts of the testatrix the balance should be turned over to him to be distributed in accordance with the laws of the State of Illinois. His objections were overruled and a distribution ordered in accordance with the prayer of the petition. None of the complainants, appellants here, appeared at said hearing and no appeal was taken from the order of said court.

The bill avers that the distribution of the Massachusetts estate was wrongfully made; that $4,000 of the money distributed under the order of the Probate Court of Hampshire county to the descendants of Sarah A. Belden as testate property bequeathed to them by clause 5 is not testate property, but, on the contrary, is intestate property and should be distributed to the heirs at law of Elizabeth S. Lee; that Franklin Bidgely, executor, has $40,000 in his possession; that complainants have requested him to pay to them out of the money in his hands for distribution such sums, respectively, as they have been deprived of by the wrongful distribution made by said Wells, but said Bidgely has refused so to do; that there is a dispute as to how the said funds bequeathed to Calvin S. Loomis by clause 3 in said will should be distributed; prays for the construction of said will in so far as the same is sought to be construed, and that the respective rights of the complainants in and to the lapsed legacies may be determined; that said Bidgely be directed to pay complainants out of the fund belonging to the estate of Elizabeth S. Lee such sums as may be found necessary in order that complainants may receive their respective shares of said lapsed legacies.

The answer of the Belden children avers that the distribution of the Massachusetts property was correct and that the Probate Court of Massachusetts having determined the proper distribution of the property in that State that the same cannot be reversed by the courts of this State. The answer of Franklin W. Bidgely, executor, admits there is a dispute as to how said fund bequeathed to said Calvin S. Loomis should be distributed and prays for direction and instruction of the court. The answer of Daniel W. Wells, ancillary executor, avers that the Probate Court of Hampshire county, Massachusetts, had exclusive jurisdiction and control of his actions in the premises and of the fund in his possession, and the Circuit Court of Menard county has no jurisdiction in regard to the matter. Complainants filed replications to the answers.

On the hearing, the decree of the Circuit Court found that both the specific and residuary legacies to Calvin S. Loomis lapsed and became intestate estate, but that the Probate Court of Hampshire county, Massachusetts, had power to make a distribution of the assets in that State, and that all parties in interest had due notice of said proceeding in said court, and that said order was an appealable order under the laws of Massachusetts; that the Illinois executor appeared and took part therein, and did not appeal from said order; that by virtue of the portion of the Federal eonstitu„tion, which declares that full faith and credit shall he given in each State to the judicial proceedings of every other State, the order of the Massachusetts court is binding upon the Circuit.Court, and that its construction of the law, so far as the same relates to the distribution of the Massachusetts funds, cannot be questioned by the courts of this State. It then decrees a distribution in accordance with said findings.

Appellants assigned error to that part of the decree holding that the Circuit Court of Menard county was bound by the order of distribution of the- Probate Court of Hampshire county, Massachusetts, and in refusing to decree that their respective share in the Massachusetts funds be made up to them out of the funds in the hands of the Illinois executor.

Appellees have filed cross-errors to that part of the decree finding that both the specific and residuary legacies lapsed and became intestate estate of Elizabeth S. Lee, and to the distribution of the lapsed legacy under the fifth clause of the will as intestate estate.

The situs of personal property is the domicile of the owner, and on the death of the owner the law governing its distribution is that of his domicile at the time of his death. Cooper v. Beers, 143 Ill. 25; Davis v. Upson, 230 Ill. 327. The right of succession to the personal estate of a deceased person, whether he leaves a will or dies intestate, depends upon the law of his domicile. Rackemann v. Taylor, 204 Mass. 394; Osburn v. McCartney, 121 Ill. 408. There can be no controversy over the proposition that the construction of this will as to the rights of succession to the personal property bequeathed under the third and fifth clauses thereof must be determined according to the law of this State, the domicile of the testatrix at the time of her death.

By the third clause the testatrix bequeathed one-half of the money on deposit in the banks of Massachusetts to her brother, Calvin S. Loomis, and the other half to the children of a deceased sister, Sarah A. Belden. By the death of Loomis before the death of the testatrix his legacy under this clause lapsed. The fifth or residuary clause bequeaths one-half of all the rest and residue of the estate, and any lapsed legacies, to said Loomis or his descendants, and the other half thereof to the said children of Sarah A. Belden, or their descendants. This residuary legacy to Loomis also lapsed. It will be noticed that the legatees under the residuary clause are the same legatees named in the third clause. In determining the rights to the succession of the property included in these lapsed legacies it is necessary to consider the third and fifth clauses in connection with each other.

The general rule is well settled in this State that if a legacy lapses, and there is a general residuary clause sufficient to embrace it in its terms, it will sink into the residuum, and all lapsed legacies of personal property go into a general residuary fund. Crawford v. Mound Grove Cemetery Ass’n, 218 Ill. 399; Dorsey v. Dodson, 203 Ill. 32; Mills v. Newberry, 112 Ill. 123. To this general rule, however, there is an exception in cases where the testator gives legacies to the same persons who are provided for under the residuary clause, in which event the lapsed legacy does not fall into the residuum because it would in effect be construing that the intention of the testator was to bequeath to one who died a portion of the residue happening in consequence of his own death.

In the case of Dorsey v. Dodson, supra, the will there under consideration gave a specific legacy of $5,000 to Henrietta Dorsey. By the nineteenth section of that will the executor was directed to sell the residue of the real estate and turn over the proceeds to John J. Green, Henrietta Dorsey and Fanny Knapp, to be equally divided between them, share and share alike. The twentieth clause' gave all the residue of the personal estate to said John J. Green, Henrietta Dorsey and Fanny Knapp. Henrietta Dorsey died in the lifetime of the testator. The facts in that case in all substantial respects are similar to those in the case at bar. The Supreme Court in deciding the effect of the lapsing of the legacies to Henrietta Dorsey, said: “The other question in the case relates to the legacy of $5,000 to Henrietta Dorsey. The general rule is, that if a legacy lapses, and there is a general residuary clause sufficient to embrace it in its terms, it will sink into the residuum. This is based entirely upon the presumed intention of the testator' that the residuary clause shall include everything not effectually devised or disposed of. Upon the failure of a particular intent to give a legacy to some person the courts give effect to the general intent manifested by the residuary clause, presuming that the testator prefers the residuary legatee to every one except the particular legatee. But where a testator gives legacies to several persons and then provides for a division of the residue between the same persons the rule and the reason for it fail. The rule in such case is stated in Schouler on Wills (3d Ed. sec. 519) as follows: ‘Where legacies are given to several legatees and the residue is bequeathed to the same legatees, it follows that the residue will not include a lapsed legacy to one of them.’ To hold, in such a case, that the testator intended the lapsed legacy to fall into the residuum, was said in Craighead v. Given, 10 S. & R. 351, to hold that the testator intended to bequeath to one who died a portion of the residue happening in consequence of his own death— a construction which could never be supported. Where a testator gives specific legacies to several legatees and gives the residue to them as tenants in common, if each one receives his share of the residue over and above the specific legacies he receives exactly what the testator intended to give him. Having given to each specific sums and a specific share of the excess over the total of such sums, the proportion of those who live is not to be enlarged by a lapsed legacy. It is not to be inferred that the testator intended that a lapsed legacy to one should fall into the residue, so that the survivors should receive a different and increased proportion of the testator’s estate. (Green v. Pertwee, 5 Hare, 248; Silcox v. Nelson, 24 Ga. 84; Lombard v. Boyden, 5 Allen, 249; Lloyd v. Lloyd, 4 Beav. 231.) Not only did the specific legacy to Henrietta Dorsey lapse, but her share of the residuary estate also lapsed, and to carry the lapsed legacy to her forward into the residuum would be to add one-third of it to another lapsed legacy to her and augment the shares of Fanny Knapp and the estate of John J. Green with the remaining two-thirds, contrary to the rule of law in such cases. It will be seen that the same rule would apply as to the share of Henrietta Dorsey in the proceeds of the real estate under the nineteenth clause, and for the same reason it could not go into the residue. The testator gave the proceeds to her and her brother and sister in equal shares, and could not have intended, in case of her death, that her share should pass to her and the same brother and sister under the twentieth clause. The provisions of the will for Henrietta Dorsey all lapsed, and under its terms became intestate estate, to be distributed, as such, under the Statute of Descent.” The rule announced in the above case was approved and followed in Crawford v. Mound Grove Cemetery Ass’n, supra.

The controlling principle announced in these cases is that the law will never hold that a testator intended to bequeath to one who died a portion of the residue happening in consequence of his own death. But it is submitted by counsel for appellee that the words in the residuary clause, “and any lapsed legacies,” distinguished this case from those above cited. To this proposition we cannot agree. These words give no other or different meaning to this clause than that which the law itself would give if they had not been used. They add no force to the intention of the testatrix, nor do they make it more certain, nor can they have any effect in changing the reason for the rule as announced in said cases. It is apparent, therefore, that the lapsed legacy to Loomis under the third clause became intestate property to be distributed according to the laws of descent of this State and did not descend into the residuary clause. The residuary legacy to Loomis under the fifth clause also lapsed and became intestate property to be distributed according to the laws of descent of this State. It follows that the construction of the effect of these lapsed legacies by the chancellor in the decree was - correct.

It remains to be considered whether it was error in the decree to hold that the order of distribution entered in the ancillary estate in Massachusetts by the Probate Court of Hampshire county is conclusive on the courts of this State, by virtue of section 1, art. LV, of the Constitution of the United States, which provides that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. Foreign judgments are only conclusive in this State when the proceedings in the cases in which the judgments are rendered show that the courts which rendered them had jurisdiction of both the subject-matter and the parties. Zepp v. Sager, 70 Ill. 223; Tucker v. People, 122 Ill. 583. Since the case of Thompson v. Whitman, 18 Wall. 457, the Supreme Court of the United States has repeatedly held that the record of a judgment rendered in another State might be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be annulled, notwithstanding it may recite that they did exist; that want of jurisdiction may be shown either as to the subject-matter or the person. Simmons v. Saul, 138 U. S. 439; Reynolds v. Stockton, 140 U. S. 254; National Exchange Bank of Tiffin v. Wiley, 195 U. S. 257; and the same rule obtains in Massachusetts, Gilman v. Gilman, 126 Mass. 26. Courts of this State may inquire into the proceedings, judgments and decrees of a court of another State to determine if that court had jurisdiction in the subject-matter and of the parties, and the judgments and decrees rendered by a court without such jurisdiction are void, and have no binding effect upon the party aggrieved. Field v. Field, 215 Ill. 496; Forsyth v. Barnes, 228 Ill. 326; Forrest v. Fey, 218 Ill. 165.

As a general proposition, the law is that the distribution of personal assets in the hands of an ancillary administrator or executor must be made according to the laws of the decedent’s domicile. 13 A. & E. Encyc. of Law, page 940. And this is the rule not only in this State, but in the State of Massachusetts. Backemann v. Taylor, 204 Mass, 394; Osburn v. McCartney, 121 Ill. 408. Section 1 of chapter 143 of the Revised Laws of Massachusetts provides that in the ancillary administration of the estates of persons who are residents of other States, the estate found there, after the payment of the debts, shall be disposed of according to the last will, if he left any; otherwise, his real property shall descend according to the laws of Massachusetts, and his personal property shall be distributed and disposed of according to the laws of the State of which he was a resident. Section 2 of said Act provides that distribution may be made by the ancillary executor of that State, or in the discretion of the court the estate may be transmitted to the executor or administrator in the State of which the deceased was an inhabitant, to be there disposed of according to the laws thereof. In the construction of this statute by the Supreme Court of Massachusetts, that court held in the case of Rackemann v. Taylor, supra: “Every part of the chapter recognized the law of the domicile of the deceased person as controlling in all matters pertaining to the succession to his property. If the Probate Court should assume, to distribute and dispose of the personal estate according to his last will, and if there was a question of construction of the will upon which the courts of the different States differed, the Probate Court would be bound by the construction of the courts in the State of his domicile.” And it further held: “It is a familiar rule of law that the right of succession to the estate of a deceased person, whether he leaves a will or dies intestate, depends upon the law of his domicile. The settlement of his estate and the disposition of his property are to be made in accordance with the law of that place. * * * But such probate of a will or such administration of an intestate estate is always nearly ancillary. It is not for the purpose of establishing rights of succession, whether under a will or otherwise. Those are to be established in the courts of the State or country where the deceased person had his domicile.” The Probate Court of Hampshire county had jurisdiction to make a distribution, but when it proceeded to make a distribution contrary to the laws of succession of this State it acted without authority, and its order making such distribution is not conclusive upon the courts of this State.

By section 21 of chapter 141 of the Revised Laws of Massachusetts it is provided that if the Probate Court finds that a partial distribution of the personal property of an- estate can without detriment be made to the persons thereto, it may, subject to the rights of creditors and after notice, order such partial distribution to be made. We do not find from an. examination of the laws introduced in evidence that there is any provision as to what such notice shall consist of, or how it shall be made. The record of the proceedings of said Probate Court show an order was entered citing all persons interested to show cause on the fifth day of November, A. D. 1912, why said application of the ancillary administrator for distribution should not be allowed, and further ordered that said administrator serve said citation by publishing the same, once in each week, for three consecutive weeks in a certain newspaper and by mailing post paid a copy thereof to each person interested in the estate fourteen days before said date. The proof of service of this citation is as follows: “I have served the foregoing citation as therein ordered by publication in Daily Hampshire Gazette, Sept. 3, 9 and 16, and by mailing post paid a copy thereof to each and every one of the persons interested in áaid estate. Sept. 4, 1912. (Signed) John C. Hammond.” This is sworn to by said Hammond. Who said Hammond is does not appear. The persons to whom the citation was mailed do not appear, nor does it appear who the persons were that said Hammond considered interested in the estate. It must be conceded that there should be proof at least that the order of the court directing notice had been complied with. Even though publication was made in the newspaper, if process was not served or notice given as required by the order, the court did not acquire jurisdiction of the parties and the order of distribution was void. Goudy v. Hall, 30 Ill. 109; Forrest v. Fey, 218 Ill. 165. The affidavit of said Hammond was wholly insufficient to prove service of said citation. While the order of distribution itself states: “All persons interested in the matter of said petition having had due notice of said petition, etc.,” this cannot cure the defective service where the record itself does not show that notice was given as required by law. Jurisdiction does not attach where it is shown that the facts upon which the court acted were insufficient to support the finding of jurisdiction, and the recital on the face of the order that due notice was given makes no difference. Whitney v. Porter, 23 Ill. 445; Hemmer v. Wolfer, 124 Ill. 435; Forrest v. Fey, su,pra. While it is true that the Illinois executor appeared and objected to the entering of the order of distribution yet he, by so doing, could not confer jurisdiction on said Probate Court over the persons interested in the estate. He was not a beneficiary under the will, nor had any interest thereunder except to faithfully discharge the duties of his trust as executor. No action of his could submit the persons of appellants to the jurisdiction of that court. The proof of service of the citation was insufficient to give said court jurisdiction of the persons of appellants.

But even if the facts established the jurisdiction of said Probate Court over the persons of appellants, the order of said court was hut an error of law, and ancillary administration is but auxiliary to the principal administration and is subordinate thereto. 1 Bouvier Law Diet. The estate of the testatrix,was an entity; she did not leave two estates. An error made in the distribution of personal assets in an ancillary administration can be corrected in the distribution of the principal estate. Appellees having received a larger share than they were entitled to by the order of distribution made by the Probate Court of Massachusetts, in equity and good conscience should he required to account for the excess.over their proper shares in the final distribution of the principal estate. The executor of the principal estate has made no distribution and has sufficient funds in his hands to rectify the error made, ánd we can see no good reason why the court should not order this to be done, so as to give to each party interested that portion of the entire estate to which he is entitled. Ramsay v. Ramsay, 196 Ill. 179.

The decree of the Circuit Court must therefore be reversed and the cause remanded with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded with directions,


text:
    S. J. Danskin, Administrator, Appellant, v. Margaret A. Denny and John J. Denny, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bills and notes, § 441

      —when finding as to execution sustained by the evidence. In an action on a promissory note where pleas were filed, with an affidavit denying the execution of the note, held that a verdict for defendant on conflicting evidence as to the execution of the note would not be disturbed on the ground that the clear preponderance of the evidence showed that defendants signed the note.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by S. J. Danskin, administrator with the will annexed of Karl D. Danskin, deceased, against Margaret A. Denny and John J. Denny, on a promissory note for the principal sum of thirty-three hundred dollars, dated at Hillsboro, NT. D., purporting to be executed by defendants and made payable to Brown-, Danskin Company. Plaintiff sues as administrator of the assignee of the note. Defendants filed several pleas including the general issue, with an affidavit denying the execution of the note. The jury returned a verdict in favor of defendants and judgment was rendered on the .verdict. To reverse the judgment, plaintiff appeals.
    B. O. Willard, W. St. J. Wines and Clayton J. Barber, for appellant.
    E. L. Chapin, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Scholfield Mr. Presiding Justice Thompson

text:
    W. R. Curran, Trustee, et al., Appellees, v. Ella E. Southgate et al., Appellants.
    1. Mortgages, § 587

      —when rule requiring sale in inverse order of alienation inapplicable. The rule requiring a sale of mortgaged premises in the inverse order of alienation does not apply where the deed of the mortgagor conveying the first parcel of the mortgaged premises recited that the land was sold subject to the mortgage, which the grantee “agrees to pay as a part of the purchase price,” and the person seeking to invoke the rule had taken from a subsequent grantee a mortgage on such parcel with notice that it was charged with the payment of the whole of the mortgage.
    2. Appear and error, § 972*—when objections to master’s findings not saved for review. Objections to the findings of a master cannot be raised on appeal where no objection or exception was taken to the master’s report.
    Thompson, P. J., took no part in the consideration of this case.
    Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 2, 1914.
    Harvey H. Atherton, for appellants.
    Evans & Evans, for appellees.

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

   Mr. Justice Scholfield

delivered the opinion of the court.

On May 3, 1913, W. B. Curran, trustee, filed his bill in the Circuit Court of Fulton county for the foreclosing of a trust deed on about 700 acres of land in said county, as described in the bill. The trust deed was given by W. A. Phillips, who was then the owner of the 700 acres, on February 19, 1910, to W. B. Cur-ran, trustee, for the legal holder of notes, for the sum of $16,000, due five years after date with interest at six per cent, per annum. There is no dispute as to this trust deed being a valid prior lien on all the 700 acres, or of the amount due thereon, or of the right of the original complainants to foreclosure of the same. The contest is as to what part of the land should be sold first.

November 26, 1910, W. A. Phillips sold 240 acres of land so owned by him to one Frank Netlerville, which deed recited: “This land is sold subject to a mortgage of $16,000, with accrued interest and taxes which the said Frank Netlerville agrees to pay as part of the purchase price.” On April 4, 1911, Netlerville sold this land to Harry C. Eowe, which deed contained a like recitation. Eowe conveyed to Olive C. Dimon and Theodore H. Dimon on same date, and on May 18, 1911, they conveyed to John Loughrey and Theodore H. Dimon, and these last named grantees conveyed to Fulton County Coal and Power Company, a corporation, on May 20,1911, which company is now the owner of the 240 acre tract subject to the incumbrance against it. All these conveyances were made subject to the $16,000 mortgage.

On June 1,1911, the Fulton County Coal and Power Company executed a trust deed to the Chicago Title & Trust Company, trustee, for said 240 acres, to secure the payment of $150,000 in bonds issued of that date, which bonds were in the sum of $500 each due thirty years after date with interest at six per cent, payable semiannually, which trust deed was made subject to mortgage of $16,000. The appellant, Ella E. South-gate, is the holder and legal owner of 281 of said bonds of the value of $140,500, and has no other security for the same than the 240 acre tract of land, and no part of same has been paid. Appellant and Chicago Title and Trust Company were not made parties to the original bill, but obtained leave of court to plead and filed an answer and cross-bill setting up their interest and asking that the 450 acre tract of land be sold first to satisfy the Curran mortgage.

On March 1, 1911, W. A. Phillips sold and conveyed the remainder of said 700 acre tract of land, being about 450 acres, to one Thomas H. Lackland, which deed contained the following recitation: “This land is sold subject to all conditions of a certain mortgage for $16,000 held by W. E. Curran, as trustee, of Pekin, Illinois. Having formerly owned another tract of land near this, containing 240 acres, this said 240 acres being also covered by the mortgage referred to above, and by the terms of the deed to the purchaser of the 240 acre tract, they agreed to pay the said $16,000 as a part of the purchase price.” June 16,1911, Lack-land conveyed said lands to John B. King and Thomas B. Lewis, which conveyance was made subject to $16,-000 mortgage.

King and Lewis were made parties defendant, and filed answer and cross-bill, claiming that the 240 acre tract should pay all of the $16,000 mortgage, and asked that it be sold first to satisfy same. On July 1, 1912, John B. King conveyed, by warranty deed, the 450 acres to one J. H. White, but now claims it was in fact given as a mortgage, and on October 25, 1913, being long after suit was started, White, by quitclaim deed, conveyed back to Elng. On September 7, 1912, King conveyed same land by warranty deed to one John Winsor, but now claims it was also given as a mortgage. Winsor on May 20, 1913, and after the commencement of suit, conveyed by quitclaim deed to Herbert Powell, who on October 24, 1913, filed declaration of trust that he held title to secure payment of $75,000 from John.B. King and' Thomas B. Lewis.

The contention of appellant, Ella E. Southgate, is that, under the doctrine of marshaling of securities, the original complainants, having a lien on the whole 700 acre tract while she only has lien on 240 acres, should be required to satisfy their mortgage first out of the 450 acre tract. The contention of John B. King is that, because of the recitations made in deeds of conveyance by W. A. Phillips, the original owner of the whole tract, the 240 acre tract became liable for the payment of the whole of the mortgage first.

The contention of appellant cannot be sustained. The equitable rule of marshaling securities, whereby the lands mortgaged are required to be sold in the inverse order of alienation, will never be applied where the parties, by an agreement in their deed, have charged a mortgage upon land in a different manner. Moore v. Shurtleff, 128 Ill. 375.

It is clear from the recitations in the deed from Phillips to Netlerville for the 240 acres that they intended to and did charge that land with the payment of the whole of the mortgage of $16,000, and that Netlerville took the land subject to the payment of the mortgage. The subsequent grantees of Netlerville took subject to the mortgage and with full knowledge and notice of the equities imposed upon him with regard to the payment of same. The appellant having taken the bonds with notice that the land which secured their payment was charged with the payment of the mortgage cannot have the rule of inverse order applied.

No objection or exception having been taken to the master’s report that King and Lewis were the owners of the property, that question cannot now be raised in this court. The decree of the Circuit Court was clearly right, and is affirmed.

Affirmed.

Mr. Presiding Justice Thompson

took no part in the consideration of this case.


author: Per Curiam.

text:
    James H. Wallace et al., Appellees, v. Modern Woodmen of America et al., Appellants.
    Insurance, § 712

      —what essential to validity of amendment of articles of association of benefit society. To constitute a valid amendment of the articles of association of a beneficial association organized under the Act of 1893 relating to “Fraternal Beneficiary Societies,” the record of the proceedings of the association must show a substantial compliance with section 7% of the Act, J. & A. 1i 6654, which provides that articles may be changed in the manner prescribed by the rules of the association, and where the record of the proceedings does not show the adoption of an amendment by the number of votes required by its rules, there is no valid amendment.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robebt B. Shirley, Judge, presiding. Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Truman Plantz, George W. Miller, Nelson C. Pratt, Charles J. Scofield, Sidney S. Breese and Northcott & Orr, for appellants.
    E. S. Smith, for appellees.

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

   Per Curiam.

This is a bill for an injunction to restrain appellant and its officers from putting into effect a certain by-law claimed to have been adopted by the Head Camp of the Modern Woodmen of America at an adjourned meeting held in Chicago in January, 1912.

The Modern Woodmen of America is a fraternal beneficiary society having a lodge system with a ritualistic form of work, and was incorporated in 1884. The general purpose and object of the association has been determined in the following cases: Bastian v. Modern Woodmen of America, 166 Ill. 595, and Park v. Modern Woodmen of America, 181 Ill. 214, and need not be further stated herein.

The injunction is sought on the ground that said by-law is unreasonable and void and that under the law fraternal beneficiary associations are only authorized to levy assessments for the purpose of providing a sufficient surplus to reasonably provide for the emergency of suddenly increased death losses, and on the further ground that neither said by-law nor the change in the articles of the association authorizing and validating said by-law were legally adopted. The chancellor in the court below held that said by-law was unreasonable and void and granted a perpetual injunct tion against its enforcement.

Prior to the alleged adoption of the disputed bylaw, the articles of association provided that the funds for the payment of death losses were to be realized from assessments on surviving members. Each member when he joined the association paid a certain rate according to his age at that time, and assessments were laid from time to time, as needed, to pay the death losses and expenses. The number of these assessments averaged from eight to ten a year.

The new by-law materially and radically changed the plan of insurance that had theretofore existed in said association, and at the time of its alleged adoption the articles of association of appellant contained no provision authorizing the adoption of a by-law providing for the plan therein embraced, and it was sought to validate said by-law by changing the articles of association so as to authorize it.

The new plan provided that one assessment each month should thereafter be laid regardless of the necessity therefor and also for a step-rate system of amounts to be paid as assessments. The step-rate system is one by which the member pays each year or group of years according to the actual cost of the society of the protection furnished him, and thus increases each year or group of years as age increases, as distinguished from the level rate by which the member pays more than the actual cost in the earlier years and less than the actual cost in the later years. The new by-law provided:

“Benefit Plan 1. Prom and after January 1, 1913, every beneficial member, heretofore or hereafter adopted, failing to elect prior to J anuary 1,1913, some other benefit plan, as herein authorized, and whose certificate is dated prior to May 1, 1912, shall be liable for, and shall during each and every calendar month during his life pay death benefit assessments, to be determined by his attained age, at his nearest birthday, on said January 1,1913, in accordance with the following table of Whole Life Level Assessment Bates.”

Here follows a table of rates for attained ages from eighteen to fifty-four and over, ranging from 75 cents per $1,000 at eighteen years to $3 per $1,000 at the age or fifty-four and over, payable monthly. This plan further furnishes an option whereby a member whose assessment rate exceeds $2 per $1,000 may pay $2 per $1,000 assessment in cash and have the remainder of his rate compounded annually charged as a lien against his certificate, but which he may discharge by payment during his lifetime.

This plan is compulsory unless the member elects to accept one of five other options. - These options are based upon the step-rate system. As an illustration, option plan 4 provides that the member who had not passed his forty-fifth birthday January 1, 1913, who might elect prior to January 1, 1913, so to do, could surrender his old certificate and procure one for a term expiring on his fiftieth birthday, upon a rate to be paid at his attained age, according to the table set forth in this plan. This provided for term protection to age fifty.

The principal object and purpose of these changes is to provide for a larger surplus, and the effect is to greatly increase the rates of assessments. The increase in some cases amount to five hundred per cent. At the time the by-law was adopted the association had a surplus of over $9,000,000. The evidence shows that the proposed change in rates would produce an accumulation or surplus of from $15,000,000 to $20,000,000 a year and that in ten years there would be created thereby a surplus of at least $150,000,000. The evidence does not show that there was any immediate necessity for such a large surplus, but on the contrary it was shown that the association was in a flourishing condition and under the present system of rates had accumulated a surplus of over $9,000,000, as above stated.

Section 5 of the articles of association prior to the alleged change therein provided, among other things, as follows:

“The funds for the payment.of death losses or accident indemnity are to be realized from assessments on surviving members. The funds for the payment of the ordinary expenses of doing the business are to be realized by assessments on its members, thus creating a ‘General Fund.’ The funds collected to pay death losses or accident indemnity is known as the ‘Benefit Fund’ and can be appropriated for no other purpose. The Local Camps shall be subordinate to and shall report to the Head Camp. The Head Camp shall pay all losses from the benefit fund collected from the surviving members of the Fraternity by the proper officers of the Local Camps and shall have same forwarded to the Head Camp and by its officers disbursed.”

The Head Camp recognized the fact that the plan provided by the new by-law could not be sustained under the above section of the articles of association, and proceeded to change said section by leaving out the word “surviving” and having it read as follows:

“The funds for the payment of death losses shall be created and maintained by assessments on the members and by interest on or other accretions to said fund and shall be known as the benefit fund.”

The validity of the by-law, in so far as its adoption is concerned, depends upon whether the change in the articles of association was legally made.

Section 7% of the Act in regard to the organization and management of fraternal beneficiary societies, in force 1893 (J. & A. ft 6654), adopted by the association, provides as follows: “Any corporation, association or society organized under the provisions of this act, amended by this section, may change its articles of association in the manner prescribed by its own rules, etc.” One of the fundamental laws of the association was that the articles of said association might be changed at any session of the Head Camp by resolution duly designating and setting forth the change sought to be made, and the affirmative vote of two-thirds of the members of such Head Camp should be necessary to the adoption of such resolution. The record of the proceedings of the Head Camp shows that the resolution for the change in the articles of association was put to a viva voce vote and an announcement made that it was unanimously adopted. The record does not affirmatively show how many members of the Head Camp were present when the vote was taken, but it does affirmatively show that a number were not present at that time. There is nothing in the record of said proceedings to show that two-thirds of the members of the Head Camp voted in favor of said resolution or that there was a quorum of said Head Camp present and flat two-thirds of the quorum voted for said resolr. on. The resolution might have been voted for uñar usly by those present and yet not have received tl jquisite two-thirds vote in the affirmative. While undoubtedly true that in the passage of an ame. " or in abrogation or repeal of ordinary by-law, • . association or corporation that a majority vc ‘ those entitled to vote thereon will be sufficient hat ordinarily the law will presume that a ma were present and that said by-law was legally p yet such rule and presumption cannot obtain as to the adoption of resolutions changing the articles of association. The latter embraced the powers, rights and privileges granted by the sovereign power of the State and can only be changed in the manner provided by the sovereignty which grants them. The statute provided that the articles of association of appellant could be changed in the manner provided by its own rule, which was by an affirmative vote of two-thirds of the delegates of the Head Camp, and while the courts do not look with favor upon mere technical objections in such cases and endeavor to carry out the will of the members although informally or irregularly expressed, yet there must be a substantial compliance with the law. It was immaterial what manner or method of vote was adopted, or how the vote was announced or recorded, provided that the record shows that there was an affirmative vote of two-thirds of the delegates of the Head Camp. Bastian v. Modern Woodmen of America, supra. The question whether the presumption would be that this resolution was regularly adopted in collateral proceedings is not involved, as this is a direct proceeding by the members of the association itself challenging the legality of its adoption, and unless the articles of association were lawfully changed then the by-law in question would have no effect-. Where the statute prescribes the manner in which the articles of association of a corporation of this character may be changed, the records of the association must show a substantial compliance with such requirements. The records of the proceedings in regard to the adoption of this resolution failing to show its adoption in the manner required, and as there was no provision in the articles of association then in force authorizing the adoption of said by-law, said by-law necessarily becomes void and inoperative.

The decree of the Circuit Court will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    The People of the State of Illinois, Defendant in Error, v. Thomas H. Jones, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Hamilton county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed July 28, 1914.
    Statement of the Case.
    Complaint by the People of the State of Illinois against Thomas H. Jones, charging the defendant with “the criminal offense of trespass by wilfully entering and passing over an improved field, after being expressly forbidden so to do by A. J. Mangis, the owner of said field.” Defendant was found guilty before a justice of the peace, and on appeal to the Circuit Court the jury returned a verdict of guilty and assessed a fine of five dollars. A motion for a new trial was overruled and the court entered judgment against defendant for the amount of the fine and costs. To reverse the judgment, defendant prosecutes a writ of error.

      Abstract of the Decision.
    1. Tbespass, § 64

      —when person not guilty of statutory offense of trespass. On prosecution a person charged with the criminal offense of trespass on the improved field of another under Criminal Code, ch. 38, § 266, Hurd’s R. S., J. & A., If 3958, held that the defendant was not expressly forbidden to enter upon the premises as required by statute, where the owner posted a notice on the premises addressed to the defendant and the highway commissioners telling them “to stay off his possession there, and not to come there to make a road,” but defendant never saw the notice, and another time when the defendant went to the owner and asked him about fencing the land the owner answered that he had nothing to say and that he wanted him to keep off his premises.
    2. Tbespass, § 64*—propriety of proceeding to try title to land. The title to land cannot properly be tried in a suit for the criminal offense of trespass.
    D. J. Underwood, H. Anderson and J. W. Jones, for plaintiff in error.
    J. H. Lane, for defendant in error; A. M. Wilson, of counsel.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


author: Me. Presiding Justice Higbee

text:
    Paul Kuhn et al., trading as Paul Kuhn and Company, Appellants, v. Pulaski County Mill and Elevator Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.

      Abstract of the Decision.
    1. Principal and agent, § 105

      —when corporation not liable on contract of assumed agent. Where a corporation engaged in buying and selling grain leased its property to others who carried on the same kind of business and made a sale of a shipment of wheat through a correspondence in which they used the letter head of the corporation signed by one of them as agent, held in an action by the purchaser against the corporation to recover back an overpayment made, for the reason that wheat was not up to the grade agreed to be furnished, that the evidence was insufficient to show any liability on the part of the defendant, there being no evidence to show that the defendant authorized the sellers to use its name or had knowledge of its use until after the transaction and no proof of any act of omission or commission on the part of defendant to render it liable.
    2. Principal and agent, § 237*—proof of agency. The mere showing that one assumed to act as agent is not sufficient to estab,-. lish an agency, nor can the agency be proved by an act of th§ supposed agent which was neither expressly nor impliedly authorized by the alleged principal.

      Statement of the Case.
    Action by Paul Kuhn and Elizabeth A. Kuhn, trading as Paul Kuhn and Company, against Pulaski County Mill and Elevator Company to recover a sum claimed to be due as an overcharge in a sale to plaintiffs of certain wheat which was not up to the grade contracted for. The suit was originally commenced before a justice of the peace where plaintiff had judgment for $176.10, but on appeal to the Circuit Court the cause was tried by the court with a jury and the issues were found for the defendant and judgment was entered against plaintiffs for costs. To reverse the judgment, plaintiffs appeal.
    Feed Hood, for appellants.
    Charles L. Rice, for appellee.

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

   Me. Presiding Justice Higbee

delivered the opinion of the court.

3. Principal and agent, § 225*—burden of proving authority. One attempting to take advantage of the act of one claiming to be an agent has the burden of showing his authority.