text:
    John Willison, Appellee, v. The Dering Coal Company, Appellant.
    1. Master and servant—when doctrine of assumed, risk does not apply. The doctrine of assumed risk will not defeat a recovery by a servant where he was injured while in the performance of work which he was directed to do by the foreman of the master, such work not being a part of such servant’s general work and employemnt.
    2. Instructions—when cannot he complained of. A party cannot complain of the giving of an instruction containing an alleged vice common to an instruction given at his own instance.'
    3. Instructions—must not he argumentative. An instruction is properly refused which is argumentative in form.
    4. Instructions—when refusal of co -red will not reverse. It is not error to refuse a correct instruction if its contents is substantially contained in another instruction given.
    5. Instructions—when failure to give as to fellow-servant rule, not error. It is not error for the court to fail to instruct the jury upon the doctrine of fellow-servants where no instruction containing a correct statement of the law as to what constitutes fellow-servants was asked or tendered.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed June 3, 1910.

      O. M. Jones and Charles Troup, for appellant; Mas-tin '& Sherlock, of counsel.
    Keeslar & Gunn, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover for damages sustained by reason of injury to his hand while in the employ of appellant. Judgment was recovered below for $500; to reverse this judgment, appellant prosecutes this appeal.

Appellee was employed by appellant as a carpenter, working around and about the repair work of the mine owned by appellant. Appellant, at its mine, had a blacksmith shop with mechanical appliances for drilling iron, known as a press drill, operated by steam power. At the time of his in-^ jury appellee was working in connection with one Hinton. Hinton had charge of the blacksmith and repair shop. Hinton was doing some work which required an assistant. He called appellee to assist him in this work, which consisted of making a large clevis for use in the construction of a building. It became necessary to drill holes in the iron in the making of this clevis. A mechanical device, known as a press drill, was- used for this purpose and appellee was directed by Hinton to hold the iron, through which the holes were to be drilled; while the holes were being drilled the iron was twisted or wrenched from appellee’s control, caught his right hand and tore his right thumb from the hand.

Appellee charges in his declaration, which consisted of but one count, that this was no part of the work for which appellee was employed, that he was directed to do this work by Hinton and was working under his direction and control at the time, that Hinton was not a fellow servant of appellee and that appellee was not acquainted with this work, never been engaged in it, that it was work that was dangerous, liable to cause injury to the person not acquainted with its dangers, and that appellant failed to inform appellee of the dangers connected with the work he was then required to perform, and that it was not one of the risks assumed by appellee in his employment.

The grounds urged by appellant for reversal of this judgment are: First, that whatever dangers were connected with the work performed were open and visible and could have been seen by appellee as well as any other person; second, it was part of the assumed risk of appellee in his employment; third, the admission of improper evidence on the part of appellee, and fourth, the giving of erroneous instructions.

The evidence in this case discloses that Hinton was the person in charge of the construction work around the Dering coal mine. He had charge of the blacksmith shop and the construction work on the building and repair of buildings in and about the coal mine. He was directed to call upon appellee if he needed any assistance or help. Hinton called Willison to his assistance for the purpose of aiding him in doing this work. They were making a clevis and were attempting to bore two holes through the piece of iron about ten inches long. The making of the clevis necessitated drilling of these two holes; the drill used was a large steam drill with a plate or base in which there were holes or grooves, by means of which the metal, through which the holes were being drilled, might be held fast. Appellee was not informed of the use of these and the piece of metal was not made fast by Hinton, but appellee was directed by Hinton to hold the metal while he operated the drill. It was the first time that appellee was ever called upon to assist in operating this drill and he was not instructed in regard to its use or any dangers connected with its operation. He was employed generally about the mine above the ground; was a carpenter by trade and in attempting to hold this metal through which they were endeavoring to drill these holes, the drill caught in the iron some way and the piece of iron turned in such a manner that it caught appellee’s hand and his thumb was torn off.

The question as to whether or not it was negligence on the part of appellant to put appellee at this work without informing him of the nature thereof or the dangers connected therewith was one for the jury’s determination, as was also the question as to whether or not the risk in this employment was one of the assumed risks of appellee’s employment, as was also the question as to whether appellee could by inspection readily see and know the dangers connected with this employment. The jury by their verdict have found against appellant on these propositions.

The danger here is not one which would be readily seen by a person not familiar with the operation of this drill. It did not arise alone from the boring of the holes but was caused by the pressure on the drill being too great, thereby causing the icon drill to become bound or fastened in the metal in such a way as to turn the metal, and it was in the turning of this metal, by reason thereof, that appellee’s hand was injured. This pressure was controlled by Hinton, and it was an accident which was not liable to occur by the proper use of the drill hut was produced by too much pressure being placed upon it and appellee should have been informed to look out for the danger of this kind. United States Rolling Stock Co. v. Wilder, 116 Ill. 101; Shickle v. Harrison Iron Co., 212 Ill. 271.

The question of the improper evidence, which it is urged was admitted by the trial court over objection of appellant, was, that the court permitted appellee to testify that Hintonj after the injury, told one Ira Paxton to take appellee home and stay there and get appellee a doctor. We are unable to see how the answering of this question could, in any way, have prejudiced appellant, even if it was not part of the res gestee of the accident, it was proper to permit them to show that appellee was taken to his home and properly cared for by appellant as a circumstance showing whether Hinton had control over appellee and whether he was or was not merely a fellow servant. This in no way would create any liability or create any prejudice against appellant. It was not error ' to permit the answering of this question.

Upon the question of assumed risk, the work appellee was directed to perform by Hinton was not a part of the employment and general work of appellee. He was employed and engaged in the general work of assisting in construction and repair of buildings. This work called him to the blacksmith shop for the purpose of assisting in preparing a device to be used in the construction of the building and the question of whether it was an assumed risk was for the jury to determine and the jury was justified in finding that it was not a risk assumed by appellee.

The first instruction is, that given for the plaintiff, as follows:

“I. The court instructs the jury that if you believe, from the preponderance of the evidence, that the plaintiff has proven his case, as alleged in the declaration and the amendment thereof, and if you further believe that the risks and dangers incident to running such machine were not assumed by the plaintiff, and you further believe that the plaintiff did not contribute to his own injury by negligence on his own part, then and in that state of proof, if such a state of the proof exists herein, your verdict should be for the plaintiff.”

It is insisted that the declaration contains no averment that Hinton was a boss or foreman over appellee, and that under the rule that where the instruction directs a recovery upon proof of the averments in the plaintiff’s declaration, that the declaration must then contain all averments necessary to permit a recovery. While the rule of law is as contended by appellant it is not in position on this record to raise this question, for the reason that it submitted to the court and the court gave at its request the following instruction :

“The court instructs the jury that the plaintiff has alleged in his declaration that the defendant, though its foreman, who had charge of the drill in question, negligently and carelessly ordered and directed the plaintiff to assist in boring holes in an iron plate, with said drill, without first warning the plaintiff of the dangers incident to such work, and that, while obeying such order and having no knowledge or notice of the dangers attending the operation of the drill, said drill caught his hand and injured it.

“Ton are further instructed that the plaintiff is bound to prove each and all of these allegations by a preponderance of the evidence, and, unless he does prove each of these allegations by a preponderance of the evidence, then you should find for the defendant.”

On this instruction so given at appellant’s request the jury is told that the declaration contains the averments which it now seeks this court to hold are not alleged therein. The rule is well established that a party cannot complain of an instruction given when it has requested and had given one of like character. McKinnie v. Lane, 230 Ill. 544; C. & A. R. R. Co. v. Harrington, 192 Ill. 9. Even though the declaration in this cause did not contain the positive averment that Hinton was a foreman and had control over appellee with power and authority to direct his work and compel obedience to his orders, such fact is proven by the evidence in the case and appellant in its instruction having treated the declaration as containing this averment it cannot raise this question after a verdict.

The second instruction criticized by appellant and complained of in its argument is as follows:

“2. The court instructs the jury that if you believe, from the preponderance of the evidence, that at the time the injury in question occurred to the plaintiff, the plaintiff was in the employ of the defendant as a carpenter, and while so employed he received an injury which was occasioned by working on or about a machine or appliance used for drilling holes in iron, and that the plaintiff was unskilled in the use thereof, and had no knowledge with reference to the dangers thereof, and that while working on said machine he was under the supervision of another servant of the defendant who was superior in authority to the plaintiff, who then and there had knowledge of the dangers incident to running said machine, and if you further believe that such servant was not a fellow-servant of the plaintiff, and did not warn the plaintiff of the danger incident to working upon said machine, and that the plaintiff was injured while working upon said machine on account of not being warned as to the dangers incident to operating the same, and if you further believe that the defendant himself was in the exercise of ordinary care for Ms own safety, and did not assume the risks of dangers incident to operating said machine, that then and in that state of the proof, if such a state of proof exists herein, your verdict shouM be for the plaintiff.'"

This instruction correctly stated the law and covered the questions raised in this case and was properly given to the jury.

Appellant complains of the refusal to give instruction which was tendered by it designated as Ho. 10. This instruction is merely an argument to the jury upon the question which would have been proper for counsel to make but highly improper for the court to give the jury and it was properly refused.

The next instruction complained of as having been refused on behalf of appellant is that designated as Ho. 13. All the elements contained in this instruction were embodied in instruction Ho. 9 given on request of appellant.

Appellant complains that no instruction was given the jury defining fellow servants. Ho instruction containing a correct statement of the law as to what constitutes fellow servants was asked or tendered by appellant and the court was not required to give one of its own motion. Appellant requested instruction Ho. 12, which was refused; it contained only one of the elements constituting the relation of fellow servants and was properly refused by the court.

The jury in this case were fully warranted in returning the verdict which they did and there being no reversible error in the record, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    H. H. Atherton, Administrator, Appellee, v. Harry W. Hughes et al., Appellants.
    1. Administration or estates—when question of legal appointment of administrator cannot he raised. Ihe County Court having jurisdiction to appoint an administrator and not being a court of limited jurisdiction for that purpose, unless the record shows that the court for some reason did not have jurisdiction to make an appointment and such failure of jurisdiction is disclosed by the record, his appointment cannot be questioned.
    2. Administration of estates—what does not discharge administrator. The approval of the final report of an administrator does not operate to discharge him.
    3. Administration of estates—jurisdiction to appoint adminisistrator de bonis non. The fact that an estate may be declared settled and the final report of the administrator approved and the administrator discharged, does not deprive the County Court of its power to appoint an administrator de bonis non upon a proper showing that the estate was not settled, that the debts were still unpaid and assets were available out of which debts should be paid.
    4. Administration of estates—what does not affect rights of creditors. Upon the death of an ancestor the real estate descends to the heir with, the charge of all liability thereon. The heir does not acquire an absolute title and he cannot make any conveyance that will defeat the rights of the creditors of the ancestor in having the same sold for the payment of debts.
    5. Administration of estates—what not laches barring right to sell real estate to pay debts. If the real estate available represents the homestead of the widow and children of the deceased the creditors must wait until the extinguishment of such homestead estate before they may proceed to sell such real estate to pay their debts and it is not necessary for such creditors to take any steps to reach the homestead property although it may have increased in value.
    6. Administration of estates—jurisdiction with respect to allowance of claims. The County Court being a court of record and having jurisdiction of the matter the law presumes that it had complete jurisdiction to render judgment on claims presented until the contrary is shown, and the fact that no summons or entry of appearance may be on file, cannot overcome the presumption of jurisdiction.
    Petition to sell real estate to pay debts. Appeal from the Circuit Court of Fulton county; the Hon. E. J. Grier, Judge, presiding.
    Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed June 3, 1910.
    Marvin T. Robison, for appellants.
    Lucien Gray, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Petition was filed March 13, 1907, in the Circuit Court of Fulton county by appellee to sell real estate belonging to the estate of William Hughes, deceased, to pay debts.

William Hughes died intestate July 18, 1878, leaving Hannah Hughes, his widow and five children. On August 13, 1878, V. M. Grewell was appointed administrator of his estate.

The deceased died seized of the west half, southwest quarter, and the west half, northwest quarter, section 34, town 5 north, range 1, Fulton county.

Said administrator on December 29, 1879, filed his petition in the County Court of Fulton county to sell real estate to pay debts. The widow and children were made defendants; no dower or homestead was set off to the widow and children. The County Court ordered the administrator to sell sixty acres off the south end of the west half, southwest quarter of section 34; and all the west half, northwest quarter 34-5-1, leaving the balance of the land of which Hughes died seized undisposed of, being about twenty-three acres, then occupied by the widow and children as a homestead. That twenty-three acres is sought to be sold in this proceeding.

This land was encumbered by two mortgages, one to William H. Nance for $633, with interest, the other to Whitfield Button for $1,000, with interest. The total amount of claims presented, againse said estate within the two years amounted to $3,621.58. The notes, secured by the two mortgages above, were never presented as claims against the estate of the deceased in the County Court.

A claim of John Stracker was allowed October 3, 1878, for $728.43; of L. T. Frazier, November 26, 1879, for $21.75; John Lacey, November 26, 1879, for $523.42; John C. Hellyer, January 20, 1880, for $105.50 (this claim the Circuit Court, in this proceeding, reduced to $82.05) ; George Phippin, October 23, 1878, $102; George Phippin, another claim, August 19, 1880, $452.35. From the proceeds of the sale under that decree the administrator paid off the two mortgages on said real estate, paid the first class claims, and 12-¿% on the 7th class claims against said estate.

William Hughes for many years prior and up to the time of Ms death resided on the twenty-three acres in controversy with his family; after the death of William Hughes, his widow and children continuously occupied and resided on this twenty-three acres as their homestead until the youngest child became of age and until the death of Hannah Hughes on the ninth day of August, 1906.

At the time of the death of William Hughes and for some time thereafter the fair market value of the twenty-three acres was six hundred dollars; the widow and minor children had a homestead interest in it, and her dower in the estate was never assigned to her.

Upon the sale by Grewell, administrator, Hannah Hughes, the widow, purchased the west half, northwest quarter, section 34, lying immediately north of the twenty-three acres.

Upon the death of the widow, Hannah Hughes, Henry Chipman was appointed administrator of her estate, and on January 3, 1907, sold the 103 acres, which consisted of the twenty-three acres in controversy and the eighty bought at the administrator’s sale of her husband’s estate. At this sale by Chipman, thirty-five acres off the east side of the 103 acres was bought by Harry W. Hughes, a son of William Hughes; seven acres of the thirty-five bought by him is included in the twenty-three acres in controversy; the other sixty-eight acres wás bought by J. U. Hedrick, the husband of Laura E. Hedrick, a daughter of William Hughes. After this sale by Chipman deeds were made to the purchasers by the heirs of William Hughes, deceased. At the time of the sale by Chipman to W. H. Hughes and J. iST. Hedrick, the appellants in this case, the record title to the twenty-three acres in controversy was in the heirs of William Hughes, deceased, subject to whatever rights the creditors of William Hughes, deceased, might have therein.

The decree rendered by the Circuit Court of Eulton county found that the estate of William Hughes, deceased, had never been legally closed; that appellee is the duly qualified administrator de bonis non of the said estate and that the following persons have valid claims against said estate, now amounting to the following sums:

John Hellyer ......................$ 173.63

John Lacey Estate.................. 1014.85

T. L. Erazier...................... 45.55

John Steadier ..................... 2074.84

George Phippin .................... 1049.31

the total of $4,358.18, for the payment of which the twenty-three acres in controversy was ordered to be sold by the administrator de bonis non.

The decree further found that Grewell, administrator, had 'wrongfully paid out the sum of $349.34. This amount was paid by said administrator on claims presented to the County Court of Eulton county after the expiration of two years,' except $41.48 paid for taxes for the year 1879, and were not entitled to share in the proceeds of the estate, which had been inventoried by the administrator. The Circuit Court ordered this amount deducted from the above claims pro raía and this left the balance as above. The Circuit Court allowed the administrator, Grewell, credit for the taxes paid for the year in which William Hughes died,, but refused credit for the following year. In this there was no error.

From this decree of the Circuit Court of Fulton county appellants appeal to this court and ask a reversal of the decree for the following reasons:

First: Because appellee was not properly and legally appointed administrator de bonis non of said estate.

Second: That the creditors of said estate are guilty of laches in not sooner undertaking to enforce payment of their claims.

Third: That the claims against the estate above set forth were presented after adjustment day and were never allowed by the administrator.

Fourth: That the ’ payments by the administrator of these two mortgages without their having been presented and allowed in the County Court as claims against the estate, was a wrongful payment by him, and such payments were a waste of the funds of the estate and had they not been paid, the administrator had sufficient fund to pay the balance of the valid claims against the estate.

Upon the question attempted to be raised by appellants that appellee is not legally appointed administrator of the estate, the record discloses his appointment by the County Court of Fulton county, the County Court having jurisdiction to appoint an administrator and not being a court of limited jurisdiction for that purpose, unless the records show that the court for some reason did not have jurisdiction and such failure to obtain jurisdiction is disclosed by the record, his appointment cannot be questioned. The record in this case shows that, that court had jurisdiction, and its action therein could only be reviewed by appeal or writ of error in that proceeding.

Upon the question of laches the record of the County Court does not disclose a discharge of Grewell as administrator, but it is insisted that he filed what purported to be a final report, that the report was approved and the act of the court in approving that report discharged the administrator. The record discloses that at the time of this purported final report, the estate was not settled, there were assets belonging to the estate, but which were subject to the rights of homestead, and it would have been improper to have discharged the administrator under such conditions, but it is insisted that the effect of the order approving that report was a discharge. We cannot agree with this contention; when in fact the record fails to disclose a discharge, this court must presume that that court did its duty and did not discharge the administrator. Conceding, however, that the approval of the report did discharge him, this could not deprive the County Court of its power to appoint an administrator de bonis non upon a proper showing that the estate was not settled, that debts were still unpaid and assets were available out of which the debts should be paid.

Upon the death of an ancestor the real estate descends to

the heir with the charge of all liabilities of the ancestor resting thereon. The heir does not acquire an absolute title and he cannot make any conveyance that will defeat the rights of the creditors of the ancestor in having the same sold for the payment of debts. The fact that the conveyance of this twenty-three acres was made by the heirs does not in any way affect the rights of creditors therein. People v. Lanham, 189 Ill. 326.

After the death of Grewell, administrator, no steps could have been taken to reach the property encumbered by homestead until the discharge of the estate, and as soon as that estate was discharged or within a reasonable time thereafter, appellee was appointed administrator de bonis non and proceeded to finish the settlement of that estate.

It must be conceded that the estate of homestead must be extinguished and that the claimant must wait until that time before the property so encumbered can be sold to pay debts, and it was not necessary for the creditors to take any steps to reach the homestetad property although it may have increased in value. Hartman v. Schultz, 101 Ill. 437; The People of Illinois v. Lanham, 189 Ill. 326; Judd v. Ross, 146 Ill. 40.

The contention that the claims now urged against the estate were presented after the adjustment day and were not marked allowed by the administrator, is without merit. The record discloses that these claims were allowed by the County Court and judgments rendered against the estate for the amounts thereof. These judgments were rendered before the expiration of the two years allowed at that time for the presentation of claims under the statute then in force, but it is urged that the County Court had no jurisdiction to pass on these claims without an entry of appearance by the administrator or unless summons was issued and served on him and that neither such entry of appearance nor summons appears in the record. Upon this contention that court being a court of record and having jurisdiction of the subject-matter, the law presumes it had complete jurisdiction to render judgment on these claims until the contrary is shown and the fact that no summons or entry of appearance is now on file cannot overcome the presumption of jurisdiction. There is no attempt to otherwise show the court in entering these judgments did not have jurisdiction over the administrator and that court’s adjudication in that matter must he held to be final in this proceeding, as must also the adjudication in that court that there was a deficiency in the personal estate.

Ho question is raised concerning the correctness of the amount of these claims as found by the Circuit Court in its decree.

It is further urged that the former administrator received sufficient funds from the personal property and the sale of real estate to pay all the claims that were allowed against the estate that were entitled to share in the distribution of those funds, and that the administrator committed waste in paying the mortgage indebtedness without direction of the County Court. That these claims were valid and subsisting liens on the land is not questioned; they were entitled to share in the proceeds realized from the real estate and the payment of these claims by the administrator was' a proper payment. It is not necessary that claims should be filed and allowed against the estate before the administrator may pay them but in making payments of such claims he assumes the burden of being able to establish that they are valid and just claims against the estate and if paid within the time when claims may be presented to share in the proceeds of the estate then such payment is not wrongful, and in this case it being conceded that they were valid claims against the premises, the payment thereof by the administrator, Grewell, was a proper payment. That such is the law is fully determined by the Supreme Court of this state. Millard v. Harris, 119 Ill. 185. And there being no error in the granting of the decree entered by the Circuit Court in this proceeding, that decree is affirmed.

Affirmed.


text:
    Charles Schmitt, Appellee, v. Louis Boedecker, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Warranty—how question determined. Whether certain language claimed to have been employed constituted a warranty, is a question of law for the court to determine; whether such language was in fact employed is á question of fact for the jury to decide.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed June 4, 1910.
    Plantz & Lamet, and O’Harra & O’Harra, for appellant.
    William H. Hartzell and S. L. McCrory, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee purchased of appellant twenty-eight hogs. At the time of the sale of the hogs there was a question as to whether or not the hogs were diseased; that they were affected with some trouble is not disputed. Appellant designated them as what is known as sneezers and represented at.the time of the sale that it was caused by reason of inflammation in the head due to the recent ringing of the hogs’ noses. Appellee questioned at the time the condition of the hogs, and appellee contends that appellant assured him that the ailment was only temporary and that the hogs would he all light within a week, and with this assurance he accepted the hogs, paid part of the purchase price at the time of the purchase and the balance of the payment was made the following Saturday night, before the week’s time had expired.

Appellant insists that because the hogs were sneezing at the time of the purchase by appellee, he knew their condition, examined the hogs and took them without any warranty on the part of appellant. The hogs never recovered from the ailment. Appellee further contends that after the hogs had failed to recover he went to appellant and offered to return them, but appellant refused to receive them and denied all liability in regard thereto.

Appellee had a number of the hogs examined by a veterinary and they were killed by the veterinarian for the purpose of ascertaining the ailment. The head ivas found to be diseased to such an extent that the veterinary was not able to designate the cause or to effect a cure.

Appellee brought his action to recover the damages which he claimed by reason of the failure of the warranty alleged to have been made by appellant. The trial resulted in a verdict for appellee for the amount paid appellant for the hogs, $76.50, and it is to reverse that judgment that this appeal is prosecuted.

Appellant insists as a cause of reversal of the judgment that the evidence does not disclose a warranty by him, that the court admitted improper evidence as to the measure of damages in the case, and that the jury was not properly instructed by the court. The evidence is conflicting as to whether or not a warranty ivas made and the question was submitted to the jury by the court as to whether or not the appellee had sustained his allegation of warranty by the proof. Upon this question the jury found against appellant and unless the verdict is not supported by the evidence or the court can say that it is clearly against the manifest weight of the evidence, then the finding of the jury should not be disturbed by this court, provided there had been no error in the admission of evidence or in the instructions of the court that were prejudicial to appellant.

Upon the question of the admission of evidence, it goes solely to the question of the measure of damages. Upon appellee’s theory of the case and upon the evidence of appellee the record discloses that appellant told appellee that the hogs were all right and that they Avould be fully recovered within a week and that if they did not so recover, he would make it all right with him, and upon this theory the court admitted evidence as to the value of the hogs at the end of one week from the time of the purchase, and also the value of the hogs .at the time of the examination by the veterinary surgeon, as the evidence disclosed that they were suffering with the same ailment at the time of the examination by the veterinary as when appellee purchased them. The evidence that is complained of, was that at this time the hogs had no market value and could not have been sold upon the market, and were, in fact, of no value. The contention of appellant upon this question is that the correct measure of damages was the value of the hogs at the time of the sale and not one week later or at the time of the examination by the veterinary surgeon. The evidence discloses that there was no material difference in the hogs at either of these times, but that they had remained in the same condition, and that they were of no market value; and the rule is that if there was no market value and the hogs could not be sold upon the market, then the measure of damages was the actual value, and the evidence of appellee was that they were of no value, and this is not controverted; consequently it is immaterial and was of no prejudice to appellant, that evidence of their value one week after the purchase or a month after, at the time of the examination by the veterinary surgeon, as the damages proven and the rules contended for by appellant are substantially the same and there was no prejudicial error in the action of the court therein.

Appellant complains of the first instruction given on behalf of appellee, the complaint being that the court told the jury that if certain words were used in connection with the sale and the plaintiff relied thereon then the words so used amounted to a warranty, appellant insisting that it was error to direct the jury as a matter of law that the words amounted to a warranty, that the whole question of warranty was solely a question of fact to be determined by the jury from all the evidence; while the question whether a warranty was made by appellant was a question for the jury to determine it was proper for the court to tell the jury that if they believed from the evidence the words alleged to have been used were so used and that the appellee relied upon the statements so alleged to have been used, in making such purchase, then the words so alleged to have been used, if so used, amounted to a warranty. This instruction properly left the question of the making of alleged statements for the jury to determine from the evidence. The question whether the words amounted to a warranty if used as alleged by appellee was one of law for the court and it was not error to give the instruction.

Appellant also complains of the refusal of the twelfth instruction offered on his behalf. This instruction related to the question of the warranty alleged to have been made by the appellant. The questions involved in this instruction are fully covered by the instructions taken as a whole given on behalf of appellant and it was not error to refuse this instruction.

Appellant also complains of the refusal of instruction Ho. 11, offered by him; this instruction was based upon the measure of damages and in view of what we have heretofore said with regard to the measure of damages in this case the instruction was clearly bad.

We find no error in this record which would justify a reversal, and the judgment is afiirmed.

Affirmed.


text:
    L. M. Perry, Appellee, v. Charles J. Gehlbach, Conservator, Appellant.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed June 4, 1910.

      Charles J. Gehlbach and Peter Murphy, for appellant.
    S. L. Wallace, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action originally commenced before a justice of the peace by appellee against appellant as conservator of the estate of William Gehlbach. The amount sued for is $32. Trial was had by the Circuit Court without a jury, jury having been waived. The court found the issues for appellee and rendered judgment against appellant for the sum of $32 together with costs, judgment and costs to be paid in due course. From this judgment-the appeal is prosecuted by the conservator.

Upon the trial of this cause appellant admitted the claim of appellee and as a defense thereto insisted upon a set-off for the use of a horse by appellee belonging to William Gehlbach, ward of appellant. Appellee does not deny the use of the horse, but insists that the horse was only used occasionally while he had it and the feed and care of the horse while in his possession more than compensated for its use. The record discloses that the horse was loaned to appellee merely for temporary use and that appellant or his ward was at liberty to come and get the horse at any time; that appellee had no intention of retaining it, but that it was left in possession of appellee for about thirteen months and only occasionally used together with his other horse; that he cared for and maintained the horse during all of the time it was in his possession. The question whether the horse was so kept by appellee, together with the question as to whether or not the care of the horse, while so used by him, was equal to the value of its use during such time, were questions of fact for the determination of the trial court, and unless this court can say that the finding is manifestly against the weight of the evidence, the judgment ought not to be disturbed by this court. From the evidence as disclosed by this record, we would not be justified in so finding, but on the contrary, we are of the opinion that the finding of the trial court is correct. The judgment was properly rendered against appellant as conservator to be paid in due course of administration of the estate of his ward.

The questions in this case involved are purely questions of fact, and with a finding by the trial court against appellant, the amount involved did not justify the prosecution of this appeal; it is the duty of a conservator to protect and preserve the estate of his ward and not spend it in useless litigation.

Upon the propositions of law submitted to the court and the holding of the court thereon, criticised by appellant, we find that while the third and fourth propositions of law should have been held by the court, it committed no reversible error in refusing to so hold. The questions involved being purely questions of fact, appellant has not been injured by the court’s refusing to hold the propositions^ of law as submitted. The finding of the "court on the questions of fact has done'ample justice in this case and there being no reversible error in the record, the judgment is affirmed.

Affirmed.


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    Olive T. Gram, Guardian, Appellee, v. O’Gara Coal Company, Appellant.
    Administbation of estates—power of court to enforce bid. If a bid for property belonging to an estate in course of administration is made and accepted, the probate court has jurisdiction to order, a resale at the bidder’s risk if such bid is not paid and the purchase completed, but it has no power to compel a specific performance.
    Petition to sell, etc. Appeal from the County Court of Logan county; the Hon. Donald McCobmick, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Rehearing denied May 25, 1910.

      William S. Herreras and M. S. Whitley, for appellant.
    Peter Murphy, Guardian ad litem for minor appellees, and Olive T. Gram, Guardian, appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee filed her petition in County Court of Logan county, as guardian of Hallie E. Gram and others, minors, for an order of that court to sell the coal under the lands described in appellee’s petition, which belonged to her wards. Upon this petition a decree of sale was entered by the County Court of Logan county, December 3, 1906.

After advertising the sale as required by the terms of the decree, the coal under the said lands was struck off and sold to the O’Gara Coal Company, upon their bid, at the sum of $3,000. The appellant, O’Gara Coal Company, refused to comply with its bid and make payment of the amount; and the guardian reported to the County Court of Logan county the sale and the failure and refusal of appellant to complete its purchase. Upon this report being filed, a citation was issued against the appellant requiring it to appear before the County Court of Logan county, ¡November 25, 1907, to show cause why the premises should not be resold at the risk and expense of appellant. This citation was duly served on the 14th day of November, 1907, by the sheriff of Logan county. The appellant appeared in answer to such citation and entered motion to strike the petition of appellee from the files, which motion was overruled; and thereupon the county court of Logan county enterd an order directing a resale of said premises at the expense and risk of appellant.

Appellee readvertised the sale under this decree and attempted to make a sale after proper advertisements on the second day of May, 1908. There were no bidders at this sale and no offers received for the property, and thereafter on the 29th day of July, 1908, the appellant was served with notice which is as follows:

“To the O’Gara Coal Company and to M. S. Whitley and Baldwin & Stringer, its attorneys.

You are hereby notified that the above named Olive T. Gram, guardian, will, on August 10th, 1908, at 9 o’clock A. M., or as soon thereafter as counsel can be heard, move said court for a decree and judgment against the said O’Gara Coal Company for the amount of its bid at the sale heretofore made by said guardian on the 12th day of January, 1907, under and by virtue of the decree of sale in said cause, together with legal interest thereon.

Olive T. Gram, Guardian.

Received the notice of which the above is a true copy this 29th day of July, A. D. 1908.

Baldwin & Stringer,

for M. S. Whitley.”

In pursuance therewith at the August term, 1908, the County Court entered a decree1 directing the appellant to pay to the said Olive T. Gram, guardian, within twenty days from the date of that decree, $3,000, the amount of their bid with interest from the fourteenth day of October, 1907, at 5 per cent, and it is from that decree that this appeal is prosecuted.

The Probate Court in matters of this kind has equitable jurisdiction and powers for the purpose of carrying out and enforcing its decrees, but it had no power to compel a specific performance and thereby enforce a compliance with the bid made by appellant and compel it to accept the property. The court exceeded its authority in attempting to compel the appellant to accept and pay for this property under and by virtue of the decree which it rendered. It had no authority to enter such a decree and it cannot be sustained. . .

The court in its decree fixed the minimum amount at which a resale should be made in an attempt to hold the first bidder responsible for the loss on a resale. Such a decree is erroneous. The decree fixed the minimum price at $25 per acre. Had there been a bid at the resale of $24 per acre under the decree it could not be sold. If such a decree can be sustained, then the original bidder could be held liable for the full amount of his bid upon the theory there were no bids at the resale.

"Upon the-ordering of a sale of property by the guardian and a bid being made, and a failure to comply with the bid, the Probate Oourt had the power to direct and order a resale and upon proper notice to the bidder, to direct that the sale should be made at the bidder’s risk and expense, and upon, proper proceedings had, and resale of the property, the bidder would be liable for the difference between the amount realized at that sale and the former bid, but in this case there was no resale of the property, and the question of .the amount of damages in such conditions does not arise.

To attempt to compel the appellant to accept the property and make payment was, in effect, the entering of a decree of specific performance; this the Probate Oourt had no power to do.

The decree is reversed and the cause remanded.

Counsel for appellant in their argument in this case have made an unwarranted and unprofessional attack upon the trial court and we do not feel that we can let this pass without some notice being taken thereof. There certainly is no merit in the manner in which reference is made to the honorable judge presiding in the Probate Oourt and the counsel cannot expect this court to look with favor or even with tolerance upon the manner in which they have attempted to reflect upon the trial court. That court did what it believed to be its duty in rendering its decree herein and counsel in presenting their case before this court, should have confined themselves to the merits of the controversy involved, and we sincerely hope they will refrain from following such methods in the future.

Reversed and remanded.


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    Luther Hornbeek, Executor, Defendant in Error, v. Henry C. Hornbeek, Executor, et al., Plaintiffs in Error.
    1. Wills—hoto construed. The construction of a will must be ascertained from á consideration of its language as a whole.
    2. Administration op estates—when executor should defend. It is the duty of an executor to make every available defense to a claim presented against the estate of his testator, and this rule applies to claims predicated upon an obligation of suretyship assumed by such testator.
    3. Subrogation—when right to deny. A party who makes a wrongful payment is not entitled to subrogation and such a payment is voluntary.
    Bill to construe will. Error to the Circuit Court of Scott county; the Hori. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed in part, reversed in part and remanded.
    Opinion modified, rehearing denied June 30, 1910.
    J. M. Higgs, T. J. and J. O. Priest, and Bellatti, Barnes & Bellatti, for plaintiffs in error.
    J. A. Warren, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This was a bill filed by Luther Hornbeek, one of the executors of the last will and testatment of Silas Hornbeek, and the construction of the will of Silas Hornbeek as to the distribution of his estate, also for certain relief against his co-executor, Henry 0. Hornbeek. This writ of error is prosecuted to reverse the decree rendered upon hearing in the Scott Circuit Court. The will of Silas L. Hornbeek, deceased, is set forth in full in the bill, but the construction of this will is asked only as to paragraphs two, four, five and eight. Silas Hornbeek executed his will on the 27th day of August, 1890, and died April 15, 1893.

Paragraph two is as follows:

“I give and devise to my wife and my son Charles Hombeek as tenants in common the following described premises: The East half of the northeast quarter of Section Seven (7), the Northwest quarter of the southeast quarter of Section (7), and the southwest quarter of the northwest quarter of Section eight (8), all in Township Fourteen (14), north, and range Twelve (12), west of the 3rd P. M., Scott County, Illinois, for and during the period of their natural lives and the life of the survivor of them, the survivor enjoying the entire benefit of said premises during the period he or she survives the other; should my said son Charles at the time of his death leave a child or children or the descendants of a child or children him surviving, then it is further my will that, on the death of my wife and my son Charles that said east half of the northeast quarter of Section Seven (7), Township and Eange aforesaid, shall go in fee simple to said child or children or their descendants forever; and the other tracts (being two forty-acre tracts) be sold by my executors on such terms as they deem best and after payment of the necessary and proper expenses incurred in making said sale, they will distribute the proceeds thereof among my children, share and share alike, or should any of my children die before such time of distribution and leave heirs of their body them surviving, then such heirs of their body are to take the distributive share of said proceeds their parent would have taken if then living.

“Should any of my children before said time of distribution die leaving no issue them surviving or descendants of such issue, then such proceeds to go to my children then surviving and the descendants of those who may have died leaving heirs of their body them surviving and should my son Charles die leaving no heirs of his body him surviving, then said eighty-acre tract (i e, E{, NE Sec. 7, T 14, N E 12, W) is to be sold by my executors at the time of the sale of the two other tracts and the proceeds thereof to be distributed by my said executors in the same manner and upon the same terms and limitations as the proceeds of said other two parcels.”

Paragraph four is as follows:

“At my death it is my will and I hereby so direct that the following described premises and any other I may own at my death and are not specifically disposed of by me, be sold by my executors on such terms as may to them seem best for my estate, to-wit: . ' . . and after the payment. of all necessary expenses and charges of said sale, the proceeds thereof be disposed of as follows: 1st. ’ If any deficiency exists in the payment of my'debts, said executors pay such deficiency; 2nd—that they pay the special legacies hereinafter made by me in this will and then that they distribute the balance of said proceeds as follows: i. e., to my children then living and the child or children of any of my children that may then be dead and left such child or children them surviving, such child or children talcing between them, the share that their father or mother would 'have' taken if then living.”

By clause fifth testator devised-a specific parcel of land to his son Luther (defendant' in> error), and to the heirs of his body, with this further provision:

“Should my said son leave no child or children or the descendants of a child or children him surviving, then said tract of land to go to his surviving brothers and sisters, or in case of the death of any of my children before that time leaving descendants, such descendants to take the portion their parents would have taken if living.”

Paragraph eight is as follows:

“It is my will and hereby so direct that all the rest and residue of my estate go to and be equally divided among my children living at the time of my death; and the child or children or descendants of such child or children of any.of my children who may die before my demise, leaving a child or children or the descendants of such child or children them surviving who are living at the time of my demise, said child or children to take the portion that their parent would take if living at my death.”

By a codicil added on August 27, 1890, he modified some of the personal bequests in his will; he reduced a bequest to his granddaughter, Ollie Hay (Straight) Hazelrigg, and added the following \

“And I also further modify the provisions of the said will so that in the event my said grandchild, Ollie Hay Straight, should die before she should attain her majority, then she is not to take anything under the other provisions of said will, except she shall need something for her support, maintenance and education during her minority, in which case my executors shall pay her or for her a sum sufficient to support, maintain and educate her and should she live until she is of age, then she is to take the share provided for her under the provisions of said will except said $3,000, and this I declare to he a codicil of my said last will.”

The will was executed on the 27th day of August, 1890. His daughter, the mother of Ollie Hay (Straight) Hazelrigg, was dead at the time of the execution of this will and codicil.

The widow of Silas L. Hornheek died prior to the filing of this bill and his son, Charles Hornbeek, mentioned in the second clause of said will, died without leaving any issue of his body.

In a devise or bequest in a will made to the children of the testator the word, children, does not ordinarily include grandchildren and unless the language, of itself, is sufficient to show an intention to include the grandchildren, they cannot take-under the designation of children.

The question raised on the construction of the will is whether the grandchild, Ollie Hay (Straight) Hazelrigg, is entitled to share in the distribution of the funds arising from the property described in paragraphs two, four, five and eight.

These questions arise from the peculiar language used by the testator in these paragraphs, the controversy being, whether the language is such as will permit the grandchild to share in the distribution, or whether the language used refers only to such children as may die after the execution of the will, and the distribution be confined to children who are living at the time of the execution of the will, or to their descendants, or whether the language used includes all his children or their bodily heirs, whether dead at the time of the execution of the will or who might die thereafter, and leave heirs of their body surviving, and whether such grandchild will take the portion the parent would take, if living.

The construction of the language used in the direction of the distribution of the fund arising from these paragraphs, must be determined from a consideration of the entire will.

The language “should any of my children die before the time of the distribution,” under a strict grammatical construction, would ordinarily mean those who might die in the future; but the language used by the testator in paragraph two of the will, in which he directs the executors to distribute the proceeds thereof (meaning the premises contained in this paragraph) among his children, share and share alike, or should any of his children die before said time of distribution leaving no issue surviving or descendants of such issue, then the proceeds to go to his children then surviving and the descendants of those who may have died leaving heirs of their body them surviving, shows that the testator did not intend to confine the distribution to his children aloné, but that it was his intention that the grandchildren, if any there might be, should share in the distribution of this fund. His direction that children, whose parents might be dead, should take the portion that their parent would take, if living, included the grandchildren; and the express direction to the executors that if any of his children be dead at the time of distribution and die without leaving bodily heirs surviving, then the fund shall be distributed among those children surviving and to the bodily heirs of those who may be dead, is without any limitation or restriction as to the time of the death of the ancestor, and the direction to distribute the proceeds of this fund among his children, then surviving, share and share alike, and to the descendants of any child or children the share that the parent would take, if living, must be construed to include all grandchildren whose parents are dead, unless by the use of the word “should” it is to be confined to children who die after the testator, and whether testator meant this must be determined from the entire will and the language used in the various paragraphs. ¡Neither the language of this paragraph nor of the entire will, by any apt words, expresses a desire or intention that the grandchildren, whose parents are dead, should not share in the distribution of this fund, and to so hold will require a strict grammatical construction of the language used, and require a holding that by the use of the word “should” the testator meant only children who might die after the execution of the will.

Under paragraph four, the language which is as follows: After payment of the special legacies the executors will then “distribute the balance of the proceeds as follows: To my children then living and the child or children of any of my children that may then be dead and left such child or children them surviving, such child or children taking between them the share that their father or mother would have taken if then living,” it seems to us can leave no question but what the grandchild, Ollie May (Straight) Hazelrigg, is entitled to share in the distribution of this fund. The language is plain and explicit that the proceeds of that paragraph shall be divided among the children then living and that any that may then be dead and left child or children surviving, the child or children to take the share the father or mother would take, places no restriction, grammatical or otherwise as to the time of the death of the parent, and it can hardly be contended that the language does not include this grandchild. Counsel practically concede she is included in this paragraph.

Upon the question of the construction of paragraph five of this will, at the present time Luther Hornbeek is still living and unless he should die without leaving any children or descendants of child or children surviving him, there ivould be no cause for construction of this paragraph, but should he die leaving no child or children or descendants of child or children then under the provisions of this paragraph of the will the distribution under paragraph five would fall under the same rule as laid down herein regarding paragraphs two and four.

The language of the eighth paragraph is substantially the same as two, four and five. This paragraph provides that the residue of his estate be equally divided among his children living at the time of his death. If the paragraph ended here, and there was no other provision in it, then there could he no possible question but the distribution under this paragraph would be limited to the children surviving the testator and a grandchild could not be included therein, but by the further language of this paragraph he directs that “the child or children or descendants of such child or children of any of his children who may die before his demise, leaving a child or children or the descendants of such child or children them surviving, who are living at the time of my demise, said child or children to take the portion that their parent would take if then living,” by the language here used, providing that distribution shall be made to the “child or children of any of my children who may die before my demise, leaving a child or children or the descendants of a child or children them surviving” places no restriction upon the time of the death of the parent, unless it be found in the grammatical construction of the use of the language “of my children who may die before my demise,” and unless the strict grammatical use of this language must be held to control all of his grandchildren, whose parent died prior to the death of the testator and which grandchildren were living at the time of the death of the ancestor, must be included in this distribution. What has heretofore been said in regard to paragraph two has a like application under paragraph eight.

In the case of Arnold v. Alden, 173 Ill. 229, the court held in the construction of a will with language similar to that contained in this will that the grandchildren should be included in the distribution and upon that authority we hold that the language here used is broad enough to and does include the grandchild, Ollie May (Straight) Hazelrigg, in the distribution of the funds arising under this will.

The codicil to this will which contains this language “that in the event my said grandchild, Ollie May Straight, should die before she attain her majority, then she is not to take anything under the other provisions of said will ” clearly indicates that the testator intended that his granddaughter should, on condition she arrive at. her majority, be included in the distribution of the funds of his estate under some of the paragraphs of his will and especially so for the reason that the codicil in which this provision is contained eliminates from the will the clause containing the special bequest therein made to her of $3,000 and by the codicil provides a bequest of $2,000, and unless the language in those paragraphs in the will be such that she cannot be. included, then she must be permitted to share in the distribution thereunder.

The language of the testator is specific in the provisions that the heirs of the body of any child or children should take the portion that their parent would take, if living, shows an intention to recognize and provide that his grandchildren should share in the- distribution under those paragraphs, and we cannot construe it to mean only the children of the children who survive the testator or who died between the execution of the will and testator’s demise; therefore, Ollie May (Straight) Hazelrigg must he held to be entitled to share in the distribution under these paragraphs.

The decree rendered below found that Ollie May (Straight) Hazelrigg was entitled to share in the distribution of the proceeds under the will. It is correct and that part of the decree is hereby affirmed.

The other questions raised on this record arise from the fact that E. Sylvester Hornbeek on May 27, 1889, made and executed a promissory note for $674.61, due in five years, to Frost and Hubbard, payees, the note being signed by Silas Hornbeek, the testator, as surety. The last payment of interest endorsed.on this note was May 27, 1894; no interest was ever paid or authorized to he paid by E. S. Hornbeek.

This note became due May 27, 1894. On May 1, 1895, it was presented as a claim against the estate of Silas Hornbeek, deceased, and on June 5, 1895, a claim of $729.47 was allowed against the estate by Luther Hornbeek as executor. This note was nearly eleven months past due when it was presented against the estate as a claim. Ho action had ever been commenced to collect it from the principal maker, E; S. Hornbeek. Silas Hornbeek was only a surety and it was the duty of the executor to present every available defense to this note and prevent a judgment from being recovered against the testator’s estate if possible. This, the executor Luther Hornbeek did not do, but instead allowed the claim and consented to a judgment in favor of Frost and Hubbard, the payees. His co-executor, Henry Hornbeek, took no part in this.

This judgment was paid by Luther Hornbeek as executor on April 3, 1896, to Frost and Hubbard from the funds of the estate. On March 3, 1906, the county court, upon a hearing, ordered the executors to refund to the estate of Silas Hornbeek the amount paid to Frost and Hubbard on this judgment with interest, amounting to $896. 37, finding that the principal maker was and had been solvent and that no diligence was used to collect the note from E. S. Hornbeek and that the claim was wrongfully allowed against the estate. The amount $896.37, so held to have been wrongfully paid from the funds of the estate, was refunded by Luther Hornbeek on February 5, 1906, Henry Hornbeek, his co-executor, refusing to contribute. Luther Hornbeek contends that by reason of his payment to the estate under the order of the county court he should be subrogated to the rights of the estate of Silas Hornbeek the same as though the payment had been made by the estate as surety on said note and that he is entitled to a lien against the distributive share of E. S. Hornbeek in said estate and to be paid therefrom. The chancellor so found and granted the relief sought. Ho action was ever brought against E. Sylvester Hornbeek on this note, and no attempt to collect from him until the filing of this bill herein October 10, 1908, wherein Luther Hornbeek in his individual capacity asks to be subrogated to the rights of the estate of Silas Hornbeek. The estate of Silas Hornbeek has not paid this note as surety. The payment has been made by Luther Hornbeek from his personal funds by reason of an order of the county court in which said court found the payment as originally made from the funds of the estate, was wrongful, and directing the executor to repay the estate.

The payment by the executor in the first instance having been wrongful, and Luther Hornbeek having become personally liable to repay by reason of the wrongful payment, he is not entitled to subrogation.

Conceding, however, that subrogation is the proper remedy, there is nothing in this record to be subrogated to; the estate has not paid the note, and it has no judgment or claim against E. Sylvester Hornbeek. The county court having held the judgment was wrongfully allowed against the estate, the payment of the judgment by Luther Hornbeek must be held to have been a voluntary payment by him and for which he is not entitled to subrogation.

In his answer E. S. Hornbeek invokes the statute of limitations as against complainant Luther Hornbeek, the payment made by Luther Hornbeek having been more than a year after the original note was barred by the statute of limitations as against E. S. Hornbeek, and he not being a party to the judgment of Frost and Hubbard against the estate of Silas Hornbeek, nor a party to the proceedings had in the county court wherein the orders concerning this note were made, is not liound thereby. The statute of limitations was invoked as a bar, and the chancellor erred in not giving E. S. Hornbeek the benefit thereof.

That portion of the decree finding Luther Hornbeek entitled to be subrogated to the rights of the estate of Silas Hornbeek against E. S. Hornbeek and that he had a lien on the distributive share of E. S. Hornbeek in the estate of Silas Hornbeek, and is entitled to repayment therefrom, is erroneous and is reversed and the cause is remanded with directions to disallow the claim of Luther Hornbeek against E. S. Hornbeek and it is ordered that Luther Hornbeek pay one third of the costs in this court and that the two thirds be paid by the executors in due course.

Affirmed in part; reversed in part and remanded.