author: Mr. Justice ThompsoN

text:
    Ralph Ayars, Trustee, Defendant in Error, v. Benjamin F. Doyle, Plaintiff in Error.
    1. Wills — when remainder vests. The law favors the vesting of estates. Whether a remainder vests upon the death of the testator or upon the death of the life tenant is to be determined according to the intent of such testator from a construction of his entire will. Held, under the terms of the will in this case, that the remainder in question did not vest until after the death of the life tenant; that an assignment by a usee prior to her death and prior to the death of the life tenant transferred no interest; that upon the death of such usee prior to the death of such life tenant without issue the interest of such usee became extinguished.
    2. Wills — when bequest charge upon real estate. Where the intention of the testator to that effect is clear a bequest is a charge upon his real estate. '
    Bill to construe will. Error to the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed in part and reversed in part and remanded.
    Opinion filed December 13, 1911.
    Chapee & Chew, Walter C. HeadeN and W. C. & . W. L. Kelley, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice ThompsoN

delivered tlie opinion of the court.

This is a bill filed to obtain a construction of the will of Ewing M. Doyle who died testate in March, 1902. His will was admitted to probate April 24, 1902, and letters testamentary were issued to complainant. The testator left surviving him Helen M. Doyle, his widow, and Benjamin F. Doyle, Elizabeth Hale, Alexander P. H. Doyle, Isabel Whitworth, G-eorge R. Doyle, James C. Doyle, Charles W. Doyle, Mary H. Doyle, William A. Doyle and Martin R. Doyle, his children and only heirs. The only clauses of the will necessary to be considered in determining the questions involved are the following’:—

“Item 2. I have this day conveyed to my wife, hielen M. Doyle, the east half of the northwest quarter of Section Thirty-four, Town Fourteen (14) North, Eange Two East of the 3rd P. M„ in lieu of dower in my real estate, and therefore I direct that she shall not have dower in my remaining real estate. Bnt I order and direct that my said wife shall receive all the income from the rents, issues and profits of the remaining part of any and all real estate of which I may die seized, during her natural life; and that said real estate shall not be sold or divided between my heirs until after the death of my wife Helen M. Doyle, but the said Helen M. Doyle shall keep all of my real estate in repair, and pav all taxes thereon, and all special assessments. and whatever governmental charges may be made.”
. “Item 4. I direct that mv executor hereinafter named, or his successor, .after the death of my wife, Helen M. Doyle, to sell my remaining real estate, to-wit: the east half of the southwest quarter and the west half of the southeast quarter, of section thirty-four (34), Township Fourteen (14) North, Eange two (2) East of the 3rd P. M. in Shelby county, at such time and upon such terms as he shall deem for the best interests of my estate and give him full power and authority to make, execute and deliver deeds therefor, but until the sale of such lands, the rents and profits thereof, shall be paid to and received by my wife, said Helen M. Doyle.”
“Item 6. I give, devise and bequeath to my son, George E. Doyle, the snm of Three Hundred Dollars ($300.00), less the amount of a certain promissory note signed by him, dated Dec. 25, 1894, for Twenty-Five Dollars ($25.00).”
“Item 7. I give, devise and bequeath to my daughter Mary H. Doyle, the sum of Two Hundred Dollars ($200.00).”
“Item 10. After the payment of the above legacies and bequests, and when my executor shall have sold my remaining real estate afte»r the death of my wife, I direct him to divide the proceeds equally between my children, Benjamin F. Doyle, Elizabeth Hale, Alexander P. H. Doyle, Isabel Whitworth, George B. Doyle, James C. T. Doyle, Charles W. Doyle, Mary II. Doyle, William A. Doyle and Martin B. Doyle.”
“Item 12. If at the death of my daughter Isabel Whitworth, the said real estate shall not have been sold, then I direct that her share of the same shall be equally divided among my remaining children or their descendants, the descendants of each child taking jointly the share of their parents and so I further direct that if at the time my real estate is sold, any of my children above named have departed this life leaving descendants, then the respective descendants shall take of my property the part which would have been received by their respective parents.”

Subsequent to the probate of the will, and before the death of the widow, Isabel Whitworth' died without leaving any children. After the d'eath of Isabel Whit-worth and before the death of the widow, Mary H. Doyle married Henry Porterwood, who before that was a widower with two children. On August 12,1904, Mary II. Doyle Porterwood made what is contended to be an assignment and sale to Martin B. Doyle of all her interest in the estate of her deceased father, Ewing M. Doyle, including the proceeds arising from the sale of any real estate 'to be thereafter sold by the executor. Subsequent to the making of this assignment and before the death of the widow, Helen M. Doyle, Mary H. Doyle Porterwood was murdered by her husband, leaving no children and her husband thereafter committed suicide leaving his two minor children by a former marriage.

Martin B. Doyle claims to be entitled under the said assignment to all that Mary II.. Doyle Porterwood would have been entitled to, if she had been living after the death of the widow, and had not made an assignment, being the one-ninth part of the proceeds of the real estate.

The children of Henry Porterwood claim to inherit through their father, Henry Porterwood, the portion of the estate that Mary H. Doyle Porterwood would have received had she survived her mother and not made an assignment. The other defendants claim that the bequest in the will to Mary H. Doyle Porterwood, by reason of her dying before her mother, descends to •the surviving children and to descendants of deceased children of the testator.

The court found that the children of Henry porter-wood are not entitled to any portion of the money derived from the sale of the real estate; that Martin E. Doyle is not entitled to any of the proceeds of the sale of the real estate by virtue of the assignment to him made by Mary H. Doyle Porterwood, and that it was the intention of the testator that after the death of his wife the said lands were to be sold by the executor, and the proceeds of such sale were to be divided equally among his children after- the sale and after the death of his wife, except in the event of the death óf said Isabel before the real estate was sold, her portion was to be equally divided among his remaining children, or their children, in the event any of the testator’s children died leaving a child or children, then such child or children should take the portion the parent would have received. A decree was entered giving Martin E. Doyle the one-eighth of the estate that he would take if the estate did not vest-in any of the heirs, until after the death of the widow, and depriving him of any interest by virtue of said assignment. Martin E. Doyle assigns for error that the court should have decreed to him two-ninths of the estate, being the one-ninth that he took as heir and one-ninth as assignee óf Mary II. Doyle Porterwood.

The bequest of $200 in item seven of the will to Mary H. Doyle has been paid; at least no question has* been raised concerning it. Tlie bequest of $300 in item six of the will to George E. Doyle has not been paid. Tbe court found that it was not the intention of the testator that this should be paid out of the proceeds of the real estate. George E. Doyle has assigned cross errors on this part of the decree.

The executor filed this bill to be instructed as to ■whom he should pay the money in his hands arising from the sale of real estate under the will after the death of the life tenant.

The shar£ of Mary II. Doyle Porterwood is claimed by Martin E..Doyle under an assignment executed by her under seal and duly acknowledged and delivered before the death of the life tenant. ITer share is also claimed by her step-children by inheritance through their father, her husband, who survived her. The other children and children of a deceased son of the testator contend that neither Martin E. Doyle takes anything by said assignment nor do the step-children take anything through their father. If the estate vested in Mary H. Doyle Porterwood at the death of her father, then she had the right to convey it. The instrument executed by her was a good and valid conveyance if she had anything to convey and hence there was nothing left for her step-children to inherit.

There are six clauses of the will that must be considered in coming to a conclusion as to who is entitled to this ninth share of the estate, namely the second, fourth, sixth, seventh, tenth and twelfth. Clause two gives the income and rents of the real estate to his” wife for life and directs that it “shall not be sold or divided between my heirs until after the death of my wife.” Clause four directs the executor after the death of his wife to sell the real estate at such time and upon such terms as he shall deem for the best interest of. the estate. Clause ten provides: “When my executor shall have sold my real estate after the death of my wife,.I direct him to divide the proceeds equally between my children” naming them. Clause twelve provides that if at the death of his daughter Isabel the real estate shall not have been sold then he directs that her share shall be equally divided among his remaining children or their descendants “and so I further direct that if at the time my real estate is sold, any of my children above named have departed this life leaving descendants then the respective descendants shall take of my property the part which would have been received by their respective parents.”

The sixth and seventh clauses give cash legacies to two of the children.

It is clear from the 12th clause of the will that it was the intention of the testator that should Isabel die before the real estate was sold, that her portion would pass to the remaining children or descendants of children.

The will gives a legacy of $200 to the daughter, Mary H. Doyle, and one of $300 to George H. Doyle less the amount of a note signed by him. The tenth clause provides that after the payment of the above legacies and “when my executor shall have sold my real estate after the death of my wife I direct him to divide the proceeds equally between my children.” While legacies are payable only out of personal estate unless the will otherwise provides, yet if the will directs the distribution of the proceeds of real estate after the payment of the legacies, then the legacies are a charge on the real estate. Here the will directs the distribution “after the payment of the above legacies.” The legacy to George E. Doyle has not been paid. It should have been ordered to be paid, less the amount of the note mentioned in the will, out of the real estate with interest at the legal rate annually on the amount remaining due from the time it was due and payable and the legacy of $200 to Mary H. Doyle, if it has not been paid, should be paid to her assignee.

The question involved under the assignments of error on tlie part of Martin B. Doyle is, did Mary H. .Doyle Porterwood take a vested interest in the real estate of her father upon his death, or only an interest contingent upon her surviving the death of the life tenant and the period of distribution fixed by the will. The law favors the vesting of estates at the earliest possible moment, and estates devised will vest in interest at the death of the testator, unless some later time for their vesting is clearly expressed by the words of the will or by necessary implication therefrom. “A contingent remainder is one limited to take effect either to an uncertain person or upon an uncertain event. It is limited by the instrument creating it either to a person not yet ascertained, or not in being, or so as to depend upon an event which may never happen. It is an estate which is not ready to come into possession at any moment when the prior estate may end. On the other hand, if the estate is at any time ready to come into possession, provided the prior estate should end, then it is a vested estate.” Carter v. Carter, 234 Ill. 507. In the case at bar the estate was not ready to come into possession at the moment the life tenant died. The will does not give to the children a remainder but only an interest in the residue. By the terms of the will the real estate ‘ ‘ shall not be sold or divided between my heirs until after the death of my wife,. Helen M. Doyle. ’ ’ The executor is directed thereafter to ‘ ‘at such time and upon such terms as he shall deem for the best interest óf my estate” sell my remaining real estate. He was then after the payment of the legacies to divide the proceeds equally between the named children. The will does not give to the children a remainder after the death of the widow, but only an interest in the residue contingent upon their surviving the conversion.

The only gift to the children contained in the will is in the direction to divide ‘ ‘ after the death of my wife, I direct him to divide the proceeds equally” etc. In such a gift it will not vest until the time so fixed for payment or distribution arrives. McCartney v. Osburn, 118 Ill. 403. Where the conversion of the property into money directed by the testator is not for the payment of the residuary bequest only, but for the payment of bequests, the purpose of the- conversion will not be accomplished until the legacies admitted to be valid are paid. In such case a devisee or residuary legatee cannot sell or convey a valid title to any part of the land directed to be sold by the executor nor can the interest of one of the devisees or residuary legatees be sold on execution. Baker v. Copenbarger, 15 Ill. 103; Crerar v. Williams, 145 Ill. 625; Dorsey v. Dodson, 203 Ill 32.

The twelfth, clause of the will contains no express provision as to what is to become of the interests of the children except Isabel, in case they should die leaving no descendants, and is almost identical with the provisions of the will construed in Jennings v. Jennings, 44 Ill. 488, where the children were described in the will by name, and where it was held the interest of a deceased child did not vest until the conversion. This construction has been since approved. Barnes v. Johnson, 233 Ill. 620; Ebey v. Adams, 135 Ill. 80; Strode v. McCormick, 158 Ill. 142.

In determining the question of where an interest in property devised by will vests, the intention of the testator must be ascertained from the reading of the whole will. By the terms of the will in controversy, it was the intention of the testator that his children should not have any interest that any child could convey, except subject to the contingency that such child should survive the time of the conversion. Ridgeway v. Underwood, 67 Ill. 419. The court properly decreed that plaintiff in error took no interest in the residue by virtue of the assignment made by Mary H. Doyle Porterwood, and that her step-children did not inherit anything from her through their father, but the court erred in not decreeing to plaintiff in error the $200 leg’acy to Mary H. Doyle Porterwood assigned to plaintiff in error, if the same has not been paid, and in not decreeing the payment of the legacy to G-eorge it. Doyle from the'proceeds of the real estate before distributing the -residue.

The decree is affirmed in part and reversed in part, and the cause is remanded with directions to the trial court to enter a decree in accordance with the views herein expressed.

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


source: Caselaw Access Project

license: Public Domain

text:
    W. D. Johnson, Administrator, Appellee, v. J. Wallace Johnson, Appellant.
    1. Pleading — what general issue admits. The averments of the declaration as to the possession and operation of the instrumentalities are mere matters of inducement unless they are denied by a special plea.
    2. Evidence — when considered notwithstanding inadmissible under pleadings. If evidence denying the operation of the instrumentality which caused the injury complained of is received without objection in the trial court, such evidence will be considered on review as a party is not permitted to try a case upon one theory in the lower court and seek to have the judgment of such lower court reviewed upon a different theory.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed December 13, 1911.
    Bracken- & Youisra and Barry & Morrissey, for appellant'.
    DeMahge, Gillespie & DeMaxge, for appellee.
   Mr. Justice ThompsoN

delivered the opinion of the court.

This is an action in case brought by W. D. Johnson, administrator of the estate of Fred Johnson, deceased, against J. Wallace Johnson, to recover damages for the death of deceased. The declaration contains three counts. The first count avers that on December 21, 1908, the defendant was in possession of an automobile; that he by his servant was running and operating said automobile along Main street in the city of Blooming-ton, at a speed greater than was reasonable having regard to the traffic, and use of said street, and in a manner dangerous to the life of said Fred Johnson, by reason whereof the intestate, while crossing said street in the exercise of due care and caution, was struck by said automobile and killed. The second count avers in addition to the averments of the first count, that the automobile was operated at a speed exceeding one mile in six minutes on Main street through a closely built up portion of said city. The third count contains the further averment that the automobile was so operated close to surreys and vehicles standing adjacent to the curb of said street. The only plea was the general issue.

The case was tried twice before a jury. The first jury disagreed; the second returned a verdict for plaintiff assessing the damages at $500, on which judgment was rendered. The defendant appeals.

The principal contention of appellant is that the automobile, which was not- operated by appellee himself or in his presence, was not operated at the time of the accident either by any employe or agent of appellant or by any one acting within the scope of such an agency.

The evidence shows that appellant is a farmer living on a farm near Bloomington; that his son Roy twenty-six years of age, resides with him; that Roy desired to procure the agency for the sale of the Kissel automobile; that the appellant and bis son went to Chicago to procure such agency for the son, but that there being an agent for that car in Bloomington, they could not get it and that the son did procure an agency for the Austin automobile conditional upon his obtaining a car for demonstration. The appellant bought a ninety horse power Austin car which was shipped to him and arrived in Bloomington, on December 21,1908. On that day appellant and his son took the automobile from a freight car and appellant placed it in charge of his son. Boy with other companions operated it on Main street, which is a north and south street, and about the city. On the afternoon of that day Boy Johnson and Bupert Bayburn, an experienced chauffeur, running the car and while the machine was being operated north on Main street by Bayburn, Boy Johnson occupying the seat by the side of the chauffeur, Fred Johnson, a boy ten years of age, engaged in selling newspapers, started across that street, near the center of a business block, just north of a surrey .standing on the east side of the street, and when he emerged from behind the surrey he was struck by the automobile and so injured that he died. Appellee offered evidence in the case in chief showing that appellant bought the machine, and some evidence tending to show that the machine was being operated for him at that time in order to test or work off the stiffness of the new machine.

The proof is by a clear preponderance of the evidence that appellant, while he expected that he and members of his family would ride in the machine at times, yet he bought it for his son to use as a demonstrating machine in running the agency for the sale of Austin automobiles; that he turned the machine over to his son; that at the time of the accident Boy had a number of his friends in the machine giving them a ride to show it to them; that appellant had no interest in the agency or the profits arising from any sales and that the party in the machine were at the instance of Eoy, taking a ride for pleasure without the knowledge of appellant.

The evidence offered by appellant clearly shows that appellant was not operating the machine, and that it was not being operated at the time of the accident by any agent of his. This evidence was all admitted without objection on the part of appellee and in contradiction to the claim of appellee that appellee’s evidence showed that Eoy was the agent of his father in running the automobile. The second instruction given at the request of the appellee told the jury that if they believed from a preponderance of the evidence that the defendant by his agent acting within the scope of his authority and in furtherance of the purposes, if any, for which it. appeared from the evidence the defendant entrusted him with the automobile, drove the automobile along the streets of Bloomington at a speed exceeding one mile in six minutes and in consequence thereof, Fred Johnson lost his life, then under the law plaintiff has made out a prima; facie case against defendant. The third and fourth are also of the same tenor. Instructions were also given on behalf of defendant concerning the same proposition.

Appellee now contends that in cases of this nature, the averment that the machine was operated by an agent of defendant is mere inducement, and can only he put in issue by a special plea and is admitted where the general issue is the only plea. That is the rule of law in this state, where the plaintiff has not in some manner waived the necessity of filing such special plea.

The general issue admits the operation and control of the automobile by appellant. Whatever the rule at common law, and the rule established by the earlier decisions in this state may he, the rule as now established by a long line of decisions is, that the general issue admits the operation and control of the instru-mentalities which caused the injury, and this is a matter stare decisis regardless of the original ruling in that regard. The averments of the declaration as to the possession and operation of the instrumentalities are mere matters of inducement unless they are denied by a special plea. McNulta v. Lockridge, 137 Ill. 270; Chicago Union Traction Co. v. Jerka, 227 Ill. 95; Pennsylvania Ry. Co. v. Chapman, 220 Ill. 428; Pell v. Joliet, Plainfield and Aurora R. R. Co., 238 Ill. 510; Winn v. C. C. C. & St. L. Ry. Co., 239 Ill. 132; Brunhild v. Chicago U. Tr. Co., 239 Ill. 621; Chicago City Ry. Co. v. Carroll, 206 Ill. 318; Gould v. Aurora, Elgin & Chicago Ry. Co., 141 Ill. App. 344; Carr v. U. S. Silica Co., 153 Ill. App. 511; Presley v. Kinlock-Bloomington Tel. Co., 158 Ill. App. 220.

The appellee in his declaration averred that the automobile was operated at the time of the accident by the servant of appellant. He offered proof on the trial in making out his case in chief tending to prove such averment. He made no objection to evidence offered by appellant on that question, and offered and had given instructions telling the jury that if they believed appellant had proved by a preponderance of the evidence that the appellant, by his agent, acting within the scope of his authority, drove the automobile then the law is, etc. To permit a change of theory in a court of appeal would be to make a court of justice a trap and a snare. Where both parties at the nisi prius trial pursue the same methods of proof, and ask instructions which lay down the same propositions, they will not be permitted to adopt a different theory, even though that theory is not justified by the pleadings. Braidwood v. Weiller, 89 Ill. 606; Millers Nat. Ins. Co. v. Jackson Co. Milling Co., 60 Ill. App. 224; C. C. C. & St. L. Ry. Co. v. Stephens, 74 Ill. App. 586; Lord v. Johnson, 120 Ill. App. 55. “The theory of the action, which was adopted by the trial court with the acquiescence of all the parties, will govern in the appellate court for the purpose of review, unless the de-mauds of public policy interfere with the application of that rule.” “Where both parties give to a pleading the same construction at the trial that construction will be adopted by the appellate court.” “Where a cause has been tried upon the theory * # that a particular issue is made by the pleadings * * * the appellate court will proceed on the same theory. ’ ’ 21 Encyc. of PI. & Pr. 664-666. Appellee having tried the case in the circuit court on the theory that the plea filed put in 'issue the question of agency, and that the burden was on him to sustain that fact, cannot be permitted to urge a different theory in this court.

The clear preponderance of the evidence showing that the automobile was not operated at the time of the accident by appellant or any employe or agent of his, the judgment cannot be sustained. It is therefore reversed with a finding of fact.

Reversed.

Finding of fact: The automobile that killed Fred Johnson was not being operated at the time .of the accident by defendant or by any of his agents or employes.


author: Me. Justice ThompsoN

text:
    Elmer E. Sebree, Appellee, v. D. W. Thomas, Appellant.
    1. Negotiable instruments — when check need not "be presented for payment. Where payment upon a check has been stopped presentment of payment is not essential to recovery.
    2. Instructions — when containing abstract proppsitions of law cannot be complained of. A party cannot complain that instructions containing abstract propositions of law were given at the instance of his adversary where he likewise has caused the court to give instructions containing abstract propositions of law.
    3. Instructions — approved form as to province of jury. An instruction upon this subject as follows approved:
    ‘"'The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and they are not bound to believe anything to be a fact, because a number of witnesses have stated it to be so, provided the jury believed from all the evidence that as to such matters such witness or witnesses are mistaken, or has or have knowingly testified falsely.”
    Action commenced before justice - of the peace. Appeal from the Oireuit Cotírt of Pulton county; the HoN. E. J. (íriek, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed December 13, 1911.
    Chipeepield & Chipeepield, for appellant.
    O. J. Boyeb, for appellee.
   Me. Justice ThompsoN

delivered the opinion of the court.

This action was begun before a police magistrate of the city of Canton, by Elmer E. Sebree against D. W. Thomas, to recover the amount of a check for $160 given by defendant to the plaintiff. The case was appealed to the circuit court, where on a trial the Jury returned a verdict in favor of the plaintiff for the amount of the check. Judgment was rendered on the verdict for the plaintiff, and the defendant appeals.

The evidence shows that appellee was the owner of a horse that appellant desired to purchase, and that appellant and Frank Rafferty went" to the farm of appel-lee to buy the horse which appellant understood appel-lee was fitting for market. They found appellee-in his bam and asked him if the horse was in shape to sell. Appellee led the horse out and priced it at $185 and finally offered to take $165. Appellant declined to pay the price and started away. They came back and offered $160 which appellee accepted, and appellant gave a check for that sum and took the horse away. There is a sharp conflict in the evidence as to what was said during the negotiations. Appellant and Rafferty testify that appellee said that he would guarantee the horse’s wind was g’ood; that the horse hacl had the distemper; that there was a good field and they could take him and ride and jump him but he would not let his, appellee’s, hoy ride him; appellant said he was not riding horses; that appellant said “If you are sure about his wind, I will lead the horse home with me, and will pay you for him and if his wind ain’t good I will send him back here,” and that they took the horse to town, a distance of three miles. They put a pair of shoes on him the same day, and after dinner they hitched the horse up and found he was wind broken. Appellant then stopped payment of the check and sent the horse back to the farm, but appellee declined to receive him. Rafferty corroborates appellant.

Appellee testified that when appellant first came, ap-pellee ran the horse out to the road and hack, appellant following the horse with a whip; and then Rafferty ran the horse to the road and back three or four times with appellant still following him with a whip; that appellant then drove away but came back and offered $160 which appellee accepted. Appellant then handed appellee the check and took the horse by the lead strap and got into his buggy; that appellant then said “Is this horse’s wind good” and appellee said “It is good as far as I know, ’ ’ that after that appellant wanted the boy to ride the horse and appellee said, “No, he wont ride him, I will hook him up, or take the old black horse in the barn and wind him for you,” that appellant replied “No, if he is all right when we get to the corner (about a quarter of a mile away) I will take him.”

Appellee contends that this all occurred after the sale had been made and the horse delivered to appellant ; he is corroborated by his son as to what occurred after appellant came back the second time.

Where the evidence is so conflicting, and so nearly equal as to whether there was a warranty or whether the appellant took the horse on his own judgment after seeing it tried, it became a question for the jury to decide what the fact was, and unless there is error in the instructions this court would not be justified in disturbing the verdict and judgment.

The check was delivered to the appellee in the forenoon of the day of its date. Early in the afternoon of that day appellant notified appellee that he had stopped payment of the check at the bank on which it was drawn, and that it would not be paid. Because of such notice appellee did not present the check for payment. Appellant now contends that because it was not presented for payment, that the maker is discharged— that no action can be maintained thereon without showing’ presentment and refusal to pay by the bank.

If presentment of a check will be of no benefit to the maker, failure to present will be excused. 5 Am. & Eng. Ency. of Law, 1046. The drawer of a check, by stopping payment at the bank, relieves the payee, as against himself, from any necessity of presentment and notice of non-payment. 5 Am. & Eng. Ency. of Law, 1049. The appellant by stopping payment relieved the appellee from the necessity of presenting the check.

The instructions on both sides consist of abstract propositions of law, mostly concerning the credibility of witnesses and the definition of a warranty. They were all applicable to the case, and while they were abstract propositions, they were not misleading. Appellant may not complain that the instructions given for the appellee were all abstract propositions, when he asked the same kind of instructions on the same questions. Special complaint is made concerning the sixth instruction given for the appellee which is:

“The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and they are not bound to believe anything to be a fact, because a number of witnesses have stated it to be so, provided the jury believe from all the evidence, that as to such matters such witness or witnesses are mistaken, or lias or have knowingly testified falsely.”

This instruction was passed upon and approved in Devaney v. Otis Elevator Co., 251 Ill. 28.

Finding no error in the case the judgment is affirmed.

Affirmed.


author: Mr. Justice Ti-iompsoN

text:
    A. L. Hoblit, Plaintiff in Error, v. Lula Sandmeyer et al., Defendants in Error.
    Administration of estates — when allowance of claim proper. Held, that the probate court in the allowance of claims against an estate is not governed by the technical rules of the common law and that where equitable relief is required the court will adopt equitable terms of procedure. Held, further, that it appearing that the claimant was equitably entitled to the amount claimed, that it was proper for the probate court to allow his claim against the estate of the deceased debtor.
    Contested claim in court of probate. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed December 13, 1911.

      Certiorari denied by -Supreme Court (making opinion final).
    BliNN & Covet and C. Everett Smith, for plaintiff in error.
    Beach & Trapp and KiNG & Miller, for défendant in error.
   Mr. Justice Ti-iompsoN

delivered the opinion of the court.

A. L. Hoblit in June, 1909, presented a claim in the probate court of Logan county against the estate of Frank Frorer, deceased. The claim was allowed in April, 1910, for the sum of $10,776.17." The executors appealed to the circuit court where, on a trial before a jury, the court at the close of the evidence for the claimant instructed a verdict in favor of the estate, on which judgment was rendered. The claimant prosecutes this writ of error to review that judgment.

The claim is based upon an instrument in the following language:

“$10,000. Lincoln, Ill., Oct. 8, 1907.
Six months after date, I promise to pay to the order of Prank Frorer at the First National Bank of Lincoln, Illinois, at its office Ten Thousand Dollars.
Value received, with interest at six per cent per an-num from date, and seven per cent per annum after due, interest payable semi-annually, and if judgment be confessed under the following power of attorney, *.y. .u. •JF “ft- ' .
Witness our hands and seals this 8th day of Oct. 1907.
Chas. A. Fisher & Co. (L. S.)
Chas. A. Fisher., (L. S.)
Bonds 1 to 10. — ”
It is endorsed: ‘£ Without recourse—
The First Nat’l Bank of Lincoln, Ill.,
By Frank Hoblit, Cashier,
Without recourse on us Pay to A. L. Hoblit or order.
J. W. Hoblit,
Samuel Sparks, Trustees.”

The defendant estate filed verified pleas denying both the execution and the assignment of the instrument by Frank Frorer.

The evidence shows that at the date of the instrument and for several years prior thereto, Frank Frorer was president, Frank Ploblit was cashier and they both were directors of the First National Bank of Lincoln, Illinois; that Frank Frorer was a member of a partnership known as “Chas. A. Fisher & Co.,” of which firm Charles A. Fisher was also a partner, and Frank Frorer and Frank Hoblit were interested as stockholders in a corporation known as the “Great Northern Excelsior Company.” Both the Chas. A. Fisher & Co. and the Excelsior Company were heavy borrowers from the bank of which Frorer and Hoblit were officers. In November, 1906, Frank Frorer and Frank Hoblit discounted a note for $25,000 due in sis months at the National Bank of Commerce of St. Lonis through the First National Bank of Lincoln. The National Bank of Commerce of St. Lonis placed the amount borrowed to the credit of the First National Bank of Lincoln, and the First National Bank of Lincoln placed the amount borrowed to the credit of “Frorer and Hoblit.” The sum of $25,000 so borrowed was checked out in the payment of various notes discounted at the National Bank of Lincoln principally by Chas. A. Fisher & Co. and the Excelsior Company. The note at the St. Louis Bank was renewed in May, and again in November, 1907, the last renewal becoming due on March 13, 1908. On March 13, 1908, Frorer and Hoblit executed a new note for $15,000 to the National Bank of Commerce, and that bank charged the balance due on the $25,000 note to the First National Bank of Lincoln. Prior to March, 1908, the Chas. A. Fisher & Go. partnership had become incorporated as the Chas. A. Fisher Co. Frank Frorer died June 8, 1908. Frank Hoblit continued to be cashier of the Lincoln Bank until July 8, 1909. The claimant contends that Frank Frorer in March, 1908, executed and delivered the note on which this claim is based to the First National Bank of Lincoln in payment of the balance of $10,000 due it on the note to the St. Louis Bank, which had been by that bank charged up to the Lincoln Bank and that he, claimant, bought the note after maturity. The contentions of the defendant are, (1) that the note was never delivered by Frorer to the Lincoln Bank, and (2) that even if it was delivered, that the note being made by a partnership in favor of a partner is invalid until endorsed by the payee.

The claimant has assigned error on the ruling of the court on the admission and rejection of evidence but has not made any argument concerning such assignment nor pointed out in what if any the errors consist.

There is some evidence tending to show that the note was delivered to the bank by Frorer in his lifetime. If that question was decisive of claimant’s right of recovery in the case then it should have been submitted to the jury.

The error assigned which is argued is that the court erred in directing a verdict for the estate, and that under the evidence a verdict and judgment should have been rendered against the defendant. If either contention of defendant is tenable then it will be unnecessary to discuss the other.

Upon the contention of the defendant that even if the note was delivered by Frorer to the bank, yet the note being made by a partnership, payable to the order of one of the partners, cannot be the basis of a valid claim in the hands of a third party until it has been endorsed by the payee, the defendant insists that it is analogous to a note made by a person payable to ki^ own order, which is an incomplete instrument until transferred by endorsement. Section 183 of the Negotiable Instruments Act, provides: “Where a note is drawn to the maker’s own order it is not complete until endorsed by him.” If the note had been made by Frorer alone payable to Eis own order then it would not be a claim against the estate of Frorer without his endorsement. A partner cannot sue a partnership at law on a note made to him by the partnership, but when he endorses such instrument to a third party the endorsee may maintain an action on it at law. Kipp v. McChesney, 66 Ill. 460. Section 49 of_the Negotiable Instruments Act, provides: that “Where the holder of an instrument payable to his order transfers it for value without endorsing it, the transferrer vests in the transferees such title as the transferrer had therein, and the transferee acquires in addition the right to enforce the instrument against one who signs for the accommodation of the transferrer and the right to have the endorsement of the transferrer if omitted by accident or mistake. ’ ’ There is no evidence or anything tending to prove that Frorer by mistake or accident neglected to endorse the instrument. While the instrument was not complete as a negotiable instrument in the hands of Frorer without his endorsement yet it was not a nullity. It was an instrument good in equity against the Chas. A. Fisher & Co. partnership and Chas. A. Fisher for whatever, if anything, Frorer was entitled to collect from the partnership when the note matured. A probate court in the allowance of claims against an estate is not governed by the technical rules of common law, but where equitable relief is required the court will adopt equitable forms of procedure. Thompson v. Black, 200 Ill. 465. The directors of the bank were required by tliejbank examiner to make good this obligation which if is contended was taken by the bank in payment of the $10,-000 Frorer owed the bank.

If Frorer transferred to the bank the obligation to himself of Fisher and of the partnership, of which he was a member, in payment of a sum Frorer owed the bank, we see no reason why in a court where equitable principles prevail, the bank or its transferee is not entitled to recover of the partnership or Fisher whatever, if anything, Frorer might in equity recover from the partnership or Fisher, but that alone would not entitle the bank to recover from Frorer. Frorer even in equity would not be made to do the useless thing of paying to himself. The note so far as Frorer is concerned could only be collected from the assets of the partnership or possibly from Fisher, the co-partner. The bank and its transferee stand in the place of Frorer. If Frorer had endorsed or guaranteed the note he would be liable on such guarantee or endorsement. If Frorer had received from the partnership or Fisher anything on this note then in equity the bank or its transferee might collect from Frorer’s estate whatever Frorer received, as money received by Frorer for the nse of the bank, bnt there is no proof that Frorer received anything after the making of the note. To find that Frorer’s estate was liable on this note, made by the partnership payable to his order, would be equivalent to holding that a maker of a note payable to his own order is liable on it to a transferee without his endorsement. The claim is not for what, if anything, Frorer owed the bank but is for the alleged promise in the note. We therefore hold that the court properly directed a verdict for the defendant and the judgment is affirmed.

Affirmed.

Mr. Justice Puterbaugh took no part in the decision of this case.


author: Per Curiam.

text:
    New Amsterdam Casualty Company, Appellant, v. William E. Salomon, Appellees.
    Gen. No. 15,842.
    Municipal Court — for what costs cannot he taxed. In cases of the first, second and third classes going to the Appellate Court from the Municipal Court in which judgments are recovered in the Appellate Court no amount whatever based upon the number of words in the original bill of exceptions can be taxed as costs against appellees or defendants in error.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1909.
    Motion granted.
    Opinion filed December 21, 1911.
    Bulkley, Gray & More, for appellant.
    Whitman & Horner, for appellee.
   Per Curiam.

This is a motion to retax costs in the above entitled cause, in which an order reversing the judgment of the Municipal Court of Chicago and remanding the cause was entered in this court on November 2,1911.

We think the motion must he granted. The right to costs is entirely statutory. 'It was unknown to the common law. Before the statute of June 15, 1887, entitled “An Act Concerning Fees and Costs,” the Revised Statutes concerning Costs and concérning Fees considered together had been construed by the Supreme Court as providing that a charge for the transcript of the record, including the transcript of the bill of exceptions, where the bill was necessary to show the errors assigned, was properly taxable as costs in favor of appellant and against appellee in the Appellate Court when an appeal had been taken to that court and the judgment reversed; and as also providing that the charge so to be taxed as costs in counties of the second and third class, should be, whether the clerk of the court below had made the transcript and received the fee or had taken the transcript from the appellant and merely certified it without change, ten cents for each hundred words it contained, ten cents for each hundred wqrds being the amount which the “Act concerning Fees and Salaries” of 1872 allowed clerks of the Circuit Courts in counties of the second class “for making-up a complete record of proceedings and judgment,” and in counties of the third class “for making and certifying a copy of any paper or record in any case or proceeding.” See Meacham v. Steele et al., 94 Ill. 593, and Worcester National Bank v. Cheney, 94 Ill. 430.

In 1887 the law in this respect was clarified by an Act which provided that the clerk of a Circuit Court must take a transcript so prepared by appellant if it was offered, and could then charge only three cents per hundred words for comparing the transcript with the original papers; and also provided that in such case the appellant, if he were successful, could recover as costs ten cents, as before, for each hundred words in the transcript. This was the Act of June 15, 1887, entitled “An Act concerning Fees and Costs.” The evident intention was to lessen the burden on the parties litigant and prevent the clerks of the Circuit Court from insisting on making copies 'themselves at a cost to the parties of ten cents for each hundred words.

It will be observed that there was no provision for recovery of costs or charges for the securing or preparing of an original bill of exceptions, but only for the transcript or copy thereof, which would in every case have been necessary except for the proviso to the same act. That proviso is:

“Provided, that the parties to such appeal or writ of error may by agreement have the original bill of exceptions or certificate of evidence, instead of a copy, incorporated in such transcript of the record without paying or being liable to pay any fees or costs therefor.”

From this proviso it is plain that it was not contemplated that the preparation of an original bill of exceptions should be made the basis of any cost recovery.

The practice of incorporating the original bills of exceptions in the record by agreement became naturally very common, and when the Municipal Court Act of May 18,1905, was passed, it was provided that in cases of the 1st, 2nd and 3rd classes the original bill of exceptions, in lieu of a certified copy thereof, should be inserted in the transcript of the record to be filed in the Appellate Court, and there was nothing said about costs or fees in connection therewith. The plain effect is, we think, that no recovery of costs can be had for it as a part of the record.

By amendment to the 56th Section, approved June 3, 1907, it was enacted that all costs not otherwise expressly provided for “shall be the same as the costs provided by law in cases in the Circuit' Court of Cook county, ’ ’ but this does not affect the question raised by this motion.

We see no warrant for taxing as costs against ap-pellees or defendants in error in cases of the first, second and third classes, coming to this court from the Municipal Court, and in which judgments are here recovered, any amount whatever based on the number of words in the original bill of exceptions. Ten cents for each hundred words were so erroneously taxed in the case at bar, and the motion to retax is granted.

This opinion has no reference to costs in fourth and fifth class cases, in which it is provided by section 23 of the Municipal Court Act as amended, thaFthe “expense of procuring” the stenographic reports provided for in that section “shall be taxed as a part of the costs in the Supreme or Appellate Court, as the case maybe.”

The execution heretofore issued in this cause is recalled.

Motion granted.


text:
    Frank Burley et al., Plaintiffs in Error, v. Royal League, Defendant in Error.
    Gen. No. 15,906.
    Appeals and errors — when affirmance by operation of law. If one justice does not participate and the other two cannot agree thq judgment will stand affirmed in the Appellate Court by operation of law.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed December 21, 1911.
    KretziNger, RooNey & KbetziNger, for plaintiffs in error.
    MaNN & Miller and Arthur J. DouovaN, for defendant in error.
   One of the justices of this court not being able to take part in the consideration of this case, and the other justices not being able to agree, the judgment of the Circuit Court is affirmed by operation of law.

Affirmed.


text:
    Martin Madson, Appellant, v. James W. Clark, Appellee.
    Gen. No. 15,959.

      Contempt — -what abates proceedings. A reversal of the decree tipon which contempt proceedings are predicated operates to abate the contempt proceedings.
    Appeal from the Superior Court of Cook county; the Hon. Baulin Q. Bale, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed December 21, 1911.
    J. Erb and JohN P. KoeiN, for appellant.
    Edwy LogaN Reeves, for appellee.
   Per Curiam.

This appeal is from an order of a chancellor in the Superior Court of Cook county denying leave to the appellant to file a petition praying that the appellee be attached and punished for contempt for violating a prohibitory injunction forming part of a final decree entered by said Superior Court in a suit by said appellant against appellee.

The final decree in question has been reversed by the Appellate Court (Branch C.), and there is no longer any contention that the contempt proceeding should be allowed to go on.

The order of the Superior Court is affirmed.

Affirmed.


author: Pee Curiam.

text:
    Martin Madson, Appellee, v. James W. Clark, Appellant.
    Gen. No. 17,143.

      Contempt — when conviction reversed. A conviction for violating a prohibitory injunction forming a part of the decree will be reversed where such decree has been reversed.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed December 21, 1911.
    Edwy LogaN Reeves- and Harvey Strickles, for appellant. ' •
    J. Erb, for appellee.
   Pee Curiam.

This is an appeal from an order of the Superior Court finding the appellant Clark guilty of and punishing him for a contempt of that court in violating the same prohibitory injunction forming part of the decree described in the opinion in cause number 15959 in this court, filed contemporaneously herewith, which decree has been reversed by the Appellate Court as stated in that opinion. (Ante, p. 441.)

As therein stated also, there is no longer any contention that contempt proceedings should be enforced or sustained, and the order of the Superior Court herein appealed from is therefore reversed.

Reversed.