text:
    C. W. Cochran Lumber Company, Defendant in Error, v. Consolidated Adjustment Company, Plaintiff in Error.
    Gen. No. 21,479.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge-, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1916.
    Statement of the Case.
    Action by C. W. Cochran Lumber Company, a corporation, plaintiff, against the Consolidated Adjustment Company, a corporation, defendant, to recover a balance due on the defendant’s guaranty to collect a certain proportion of claims submitted to it by the plaintiff for collection. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Part of the contract sued upon, which was in writing and signed by the defendant alone, was as follows :
    “This certifies that C.- W. Cochran Lumber Co., client, of Meridian, Miss, has paid to the Consolidated Adjustment Company, of Chicago, $98.64 for which, together with commissions according to commission rates printed below, to be paid by said client, the Consolidated Adjustment Company agrees to give to said client a three years’ service from the date hereof, in the prosecution and adjustment of claims aggregating $2157.37, to be listed for adjustment under terms -of this contract.
    Gtjarawty.
    “The Consolidated Adjustment Company guarantees that it will recover in cash, or secure net settlement, from the claims of said client at least $502.23, or to refund the full initial fee paid, reserving the right to cancel the contract, refund said initial fee and surrender all claims listed -hereunder at any time within sis months from date; or will continue the service under this contract beyond the term above mentioned and until the minimum salvage amount, hereinafter estimated, shall have been so recovered, without additional compensation except commissions, as hereinafter specified, on adjustments effected.
    Aggregate amount of claims contracted for ....................$2157.37
    Minimum salvage amount estimated on said claims.................. 1004.46
    Amount of guaranty.............. 502.23 net
    Judgm’ts-Bonds-Claims ini (-Total $- Acc ’ts-1ST otes-Controversy]
    (Classification of claims necessary only when loan is desired.)
    Lost Debtor Bankrupt and 1 m Claims-Outlawed Claims] 0 a..........
    (No Guaranty on this class of claims)
    Commission Bates :
    On adjustment, of over $100.............10 per cent.
    On adjustment of over $25 to $100 inclusive ................................15 per cent.
    On adjustment of $25 or less............25 per cent.
    On current claims not exceeding 12 months
    » past due............................ 7 per cent.
    (Minimum fee 50 cents)
    The Consolidated Adjustment Company further agrees at all times to confide its process within the limits of the law, and the said client agrees to immediately report all payments and to promptly remit commissions thereon.
    Beeeived of C. W. Cochran Lumber Company Ninety eight & 64/100 Dollars, as payment in full on a full three year $2157.37 contract, from November 3rd, 1910 to November 3rd, 1913.
    Consolidated Adjustment Company, By Chas. F. Perkins.
    Dated November 3rd, 1910.”
    Plaintiff admitted that the defendant had collected on the claims in question $172.52, and that the defendant had turned over to the plaintiff, after deducting the defendant’s commission of $17.25, the sum of $155.27. The difference between $502.23, the amount of the guaranty mentioned in the writing signed by the defendant and $155.27, the net amount received by the plaintiff, is the amount for which the judgment was entered, that is $346.96.
    On October 1,1913, almost three years after the date of the contract, the defendant wrote to the plaintiff the following letter, in part, as follows:
    “In our prosecution of the claims you have submitted for our service under a certain printed form of contract, we find that we will not be able to realize the full amount stipulated on the claims filed to date. This is due to the fact that some of the claims filed with us were against persons who were not to be found at nor traced from the addresses given us; others outlawed or discharged in bankruptcy.
    “We, therefore, inform you of our election to continue to give you our services as collectors beyond the three year period mentioned in the contract, and in accordance with its terms our service will be employed in your behalf, without additional costs except commissions on moneys collected for you. * * *”
    The writings above set forth and the admissions as to the amounts paid and received, and a written statement of the claims, constitute all the evidence in the case. The record, however, showed that the defendant offered to prove that a report was made to the plaintiff that the correct addresses of five of the debtors, against whom were claims aggregating $1,557.84, could not be found.
    Delavan B. Cole, for plaintiff in error; Auelor J. Petit, of counsel.
    Harry A. Biossat, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 371 —when burden is on defendant to prove extent of his promise. In an action on a promise in writing signed by the defendant only, wherein it acknowledged the receipt of money paid it by the plaintiff, in consideration of which it guarantied the collection of a certain proportion of claims submitted to it by the plaintiff, certain classes of claims being excepted, or to continue the service beyond the period named in the writing for certain commissions on accounts actually collected, or to return the accounts and fee paid, held that the burden of proof that the claims submitted by the plaintiff did not come within the excepted classes was not on the plaintiff but that the burden of proof that they did come within such classes was on the defendant.

2. Contracts, § 377*1—when evidence not admissible to show plaintiff’s claim not covered by defendant’s promise. In an action on a written promise signed by the' defendant only, whereby it guarantied the collection of a certain amount net on claims submitted to it by the plaintiff for collection, followed by a statement consisting, in poart, of blanks not filled out, to the effect that certain named classes of claims were excepted from the guaranty, held that inasmuch as there was no way of determining how such guarantied amount was computed with reference to the claims submitted, the defendant was not entitled to prove that part of the claims submitted fell within the classes covered by such exceptions, the defendant having offered no proof in explanation of the word “guaranty.”


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Bernhard Schipersky and Roman Schipersky, Appellants, v. Gustav Gartner et al., Appellees.
    Gen. No. 21,857.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action to foreclose a mortgage by Bernhard Schipersky and Roman Schipersky, complainants, against Gutav Gartner and others, defendants, in which one claiming title to the notes secured by the mortgage filed an intervening petition. From a decree dismissing the bill and granting other relief, the complainants appeal.
    Walter Truc and James S. Wright, for appellants.
    William McKinley, for appellees; C. W. Armstrong, of counsel.
    Edward J. Green, for appellee Aronowski.
    Abstract of the Decision.
    1. Appeal and ebbob, -§ 1399

      —when master’s findings of fact will not he disturbed on appeal. In an equity suit where the testimony is conflicting and contradictory, requiring the master to pass on the credibility of witnesses, his finding of facts will not be reversed unless clearly and palpably .contrary to the weight of the evidence.
    2. Mobtgages, § 503*—when evidence justifies dismissal of hill to foreclose. On a bill to foreclose a mortgage by assignees of notes secured thereby, who elected to foreclose in accordance with the terms of the mortgage on nonpayment of interest due on one of the notes, such notes having been assigned to the complainants by the deceased mortgagee in her lifetime, an intervening petition having been filed by the husband of the mortgagee, claiming to be the legal owner of the notes, where the evidence satisfactorily showed that the money loaned on the mortgage was that of the intervening petitioner, a decree dismissing the bill for want of equity, canceling the assignments and transfer of the notes to the complainant, declaring the intervening petitioner the legal and equitable owner of the notes and ordering the complainant to transfer them to him, held, proper.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Appeal and ebbor, § 1488 —when admission of improper evidence 5y master not ground for reversal. In an equity suit, held that the defendant’s objection that improper evidence was heard by the master need not he considered where the defendant’s objection to such evidence was sustained by the master and he reported that he had not considered it in reaching his conclusions and there was evidence apart therefrom sufficient to warrant his conclusions and findings of fact.


text:
    Earl Steward and Fred Steward, Appellees, v. Jacob Weisenmayer et al., Appellants.
    Gen. No. 21,947.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action by Earl Steward and Fred Steward, plaintiffs, against Jacob Weisenmayer and others, defendants, on a promissory note made by the defendants payable to the plaintiffs. From a judgment for plaintiffs, defendants appeal.

      The evidence showed that plaintiffs and two others were the officers of a corporation, and comprised its board of directors and all of its stockholders; that the corporation owned a patent and duly executed an assignment of it to four persons, three of whom were makers of said note; that the consideration named was $15,000, of which $5,000 was paid at the time of the assignment; that an understanding was reached between the directors as such at a regular meeting (who comprised all the stockholders) that the balance of $10,000 should be divided between them according to their respective shareholdings, of which plaintiffs held two-thirds; that the note in question was given and taken for their pro rata interest with a clear understanding by all parties, including, all the stockholders aforesaid and the makers of the note, that it was in part payment of such consideration.
    John Foster and William Schulze, for appellants; J. Henry Kraft, of counsel.
    Sheriff, Dent, Dobyns & Freeman, for appellees.
    Abstract of the Decision.
    1. Bills and notes, § 50

      —when acquisition of corporate assets sufficient consideration for notes to stockholders. In an action by payees on a promissory note made and given by the defendants and another in payment of the purchase price of a patent owned by a corporation, in which payees were stockholders', it having been agreed at a regular meeting of the corporation, at which all the directors and stockholders were present, that the patent should be sold to the purchasers t and that the note sued on should be received by the payees in payment of their pro rata interest in the patent as such shareholders, held that the defendant could not defend on the ground of want of consideration, nor a second recovery be had for the patent by the corporation.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Bills and notes, § 50 —what consideration sufficient. In an action on a promissory note by payees against the maker, held that want of consideration was no defense, although some of the makers were not'direct beneficiaries of the consideration for which the note was given, it not being necessary that the consideration should have passed to them from the payees, and that if there was a valuable consideration passing to them from the other makers, or any one else, by reason of which they executed the note, that would be sufficient to sustain it.


text:
    Max Goldenberg, Appellee, v. E. A. Myers, Appellant.
    Gen. No. 21,963.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action by Max G-oldenberg, plaintiff, against E. A. Myers, defendant, on a written guaranty for the payment of rent under a lease. From a judgment for plaintiff, defendant appeals.
    Calhoun, Lyford & Sheean and Mountz & Brinkerhoff, for appellant.
    Eben F. Bunyan, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Guaranty, § 35 —who has burden of proving notice to guarantor of nonpayment of rent. In an action for rent due under a lease against one who, hy indorsement on the lease, had guarantied payment upon condition that notice of nonpayment by the lessee should be given him within ten days after nonpayment, held that the receipt of such notice by the defendant was a condition precedent to recovery, and that the burden of proof that it was so received by him was on the plaintiff.

2. Guaranty, § 325*—when proof of notice to guarantor of rent insufficient. In an action against one who had guarantied payment under a lease, provided that notice of failure of the lessee to pay be given the guarantor within ten days after such failure, held that mere proof of mailing such notice within ten days without proof that the defendant had received it within that period was insufficient to sustain a judgment for the plaintiff.


text:
    Chicago Daily News Company, Appellee, v. Jackson & Semmelmeyer, Corporation, Appellant.
    Gen. No. 21,994.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard' in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action in assumpsit by the Chicago Daily News Company, a corporation, plaintiff, against Jackson & Semmelmeyer, a corporation, defendant, .to recover for an advertisement published by plaintiff for defendant. From an order denying a motion to vacate a judgment for plaintiff, defendant appeals.
    Fred D. Jackson, for appellant.

      John J. Symes, for appellee.
    Abstract of the Decision.
    Judgment, § 277

      —when denial of motion to vacate is proper. Where notice to place a cause on the short-cause calendar was given by plaintiff to defendant and filed with the clerk on Friday, May 28th, and the cause was heard and judgment entered against defendant, Tuesday, June 8th, eleven days thereafter, although the, rules of court designated Monday as the day of the week on which such cases were set for trial and Thursday, eleven days before such Monday, as the day on which service of the notice to place on such calendar should be filed, and defendant filed a motion to vacate such judgment accompanied by an affidavit based on the statement that it believed that because of the giving of such notice on Friday instead of on Thursday his cause would not be heard before Monday, June 14th, plaintiff did not resist such motion and the court suggested that it should be allowed, but defendant, for some undisclosed reason, withdrew the motion, pursuant to which an order, of the withdrawal was entered and execution on the judgment issued, the court did not abuse its discretion in denying a second motion to vacate such judgment made on the following day, where no additional grounds were assigned and no explanation given for defendant’s change of attitude.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Village of La Grange, Illinois, Appellee, v. Indiana Harbor Belt Railroad Company, Appellant.
    Gen. No. 22,009.
    (Not to be reported in full,)
    Appeal from the Circuit Court of Cook county; the Hon. Chables H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action before a police magistrate by the Village of La Grange, Illinois, plaintiff, against Indiana Harbor Belt Bailroad Company, defendant, to recover for the violation of a city ordinance. From an order of the Circuit Court of Cook county dismissing for want of jurisdiction an appeal thereto from the judgment of such magistrate, defendant appeals.

      Glennon, Cart, Walker & Howe, for appellant.
    Frederick L. Goff, for appellee.
    Abstract of the Decision.
    Appeal and bbbob, § 1295

      —when presumed that Circuit Court did not err in dismissing appeal from police magistrate. On appeal from an order of the Circuit Court dismissing for want of jurisdiction an appeal thereto from the judgment of a police magistrate, in an action by a village against a railroad company to recover for the violation of an ordinance of the village, it must be presumed, where there is nothing in the record to indicate that such case was a quasi criminal case so as to deprive the Circuit Court of jurisdiction, that such court did not err in dismissing the appeal.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Stephen L. Chuipek, Administrator, Appellant, v. Northwestern Yeast Company, Appellee.
    Gen. No. 21,873.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action by Stephen L. Chuipek, administrator of the estate of Luke Chuipek, deceased, plaintiff, against the Northwestern Yeast Company, a corporation, defendant, to recover for damages for death of deceased alleged to have been caused by the negligence of defendant, by whom deceased was. employed. From a judgment for defendant upon a directed verdict, plaintiff appeals.
    At the time of his death, plaintiff’s intestate was in the employ of the defendant. His duty was to descend into a corn bin for the purpose of sweeping the walls thereof while the grain was being withdrawn, and while thus employed he became submerged in the grain and death ensued.
    The bin in question was one of a series of adjoining bins contained in a large building, all of which were used as receptacles for shelled com. The grain was withdrawn therefrom through an opening at the bottom, whence, by means of a conveyor, it was carried to the mill. These bins were cylindrical in shape, about eighty-five feet high and twenty feet in diameter. There were two openings, each about two feet square, at the top of each bin; also a spout leading from the upper conveyor, by means of which the bins were filled.
    While the grain was being withdrawn therefrom, the plaintiff’s intestate descended into the bin to sweep the walls for the purpose of removing an injurious germinating dust which frequently adhered thereto. In the performance of this duty he walked around the surface of the com. When the bottom of the bin was opened, the conveyor placed in operation and the corn being withdrawn, it caused a depression of some eight or ten feet to form in the middle of the corn surfac'e. Plaintiff’s intestate was therefore-required to keep to the outer edge of the com in order not to be drawn into the cavity thus formed. A rope was attached to the back of a harness or belt worn by the plaintiff’s intestate and extended up and through a pulley block fastened to a beam in the ceiling and thence to the opening in the bin, where it was tied.
    While the plaintiff’s intestate was working in the bin, another man, named Tony, stayed at the top to slacken the rope as required, and to render any other necessary assistance to the plaintiff’s intestate which occasion demanded, while in the performance of this work.
    The accident in question occurred on a Sunday evening. The man at the top of the bin heard plaintiff’s intestate call, ‘ ‘ Stop the com, ’ ’ and observed him submerged therein to a point about four inches below his arm pits, and vainly tried to pull him out by the' rope, after which he tied up the rope and called for assistance. The-foreman, who had started upstairs when he heard the shouts of Tony, went down into the basement and stopped the machinery, after which the two went to the top of the bin and descended into it and talked with plaintiff’s intestate, who by that time had become submerged to his chin. The foreman then summoned the fireman and engineer of the building, after which it was deemed advisable to again start the conveyor and let the grain out slowly, while two of them held the rope which was attached to the belt worn by plaintiff’s intestate. This also proved unavailing, whereupon the conveyor was again stopped and the city fire department summoned. Throug'h the combined efforts of defendant’s servants and the members of the city fire department, the body of plaintiff’s intestate was extricated, but not until death had intervened.
    Brothers & Brothers and Cruice & Langille, for appellant.
    Brundage, Landon & Holt, for appellee.
    Abstract of the Decision.
    1. Master and servant, § 685

      —when evidence is insufficient to show negligence in failing to inclose or guard corn bin or provide emergency signals. In. an action to recover for the death of a deceased employee caused by becoming submerged in shelled corn in a cylindrical bin while engaged in walking on the surface of the corn and sweeping the walls during the operation of removing the corn from an opening in the bottom of the bin by machinery, evidence held insufficient to show negligence of the master in failing to inclose or otherwise guard the bin or to provide emergency signals.
    2. Master and servant, § 693*—when evidence is insufficient to show negligence in failing to maintain servants at top of corn bin. In an action for the death of an employee caused by becoming submerged in shelled corn in a cylindrical bin while engaged in walking on the surface of the corn and sweeping the walls of the bin during the operation of removing the corn from an opening in the bottom of the bin by machinery, evidence held insufficient to show negligence in failing to maintain servants at the top of the bin where it appeared that one of defendant’s servants was stationed there and was performing his duties at the time of the accident, that one servant for such purpose had always been sufficient and there was no evidence that the life of plaintiff’s intestate could have been saved if more than one servant had been assigned to the duties at the top of such bin.
    3. Master and servant, § 685*—when evidence is insufficient to show negligence in restarting conveyor while employee is partially

      submerged in grain in corn bin. In an action for the death of an employee due to becoming submerged in shelled corn in a cylindrical bin while engaged in walking on the surface of the corn and sweeping the walls of the bin during the operation of removing the corn from an opening in the bottom of the bin by means of a conveyor operated by machinery, evidence held insufficient to show negligence in restarting the conveyor after deceased had already become partially submerged in the grain, where it appeared that efforts of defendant’s servants to extricate deceased by means of a rope and pulley attached to his belt had been ineffectual.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice McGoorty

text:
    Anton M. Furman et al., Appellees, v. Michael Wieczorkowski, Appellant.
    Gen. No. 21,930.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Action "by Anton W. Furman and Alex Wisniewski, and Mary Maday, as sole devisee and legatee under the last will and testament of Henry Maday, deceased, plaintiffs, against Michael Wieczorkowski, defendant, to recover for rent due under a lease. From an order overruling a motion of defendant to vacate a judgment by confession, defendant appeals.
    A. S. Lakey, for appellant.
    John Early, for appellees.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 204 —when entry of for sum larger than claimed in declaration is improper. The entry of a judgment for a larger sum than that claimed in the declaration is error.

2. Judgment, § 88*—when appeal lies to review the overruling of a motion to vacate a judgment by confession. Where a defendant by his attorney in fact, duly authorized, confesses judgment and releases all errors, an appeal or writ of error will not lie to review the judgment itself, but will lie to review the overruling of a motion to vacate the judgment.

3. Appeal and error, § 360*—when variance between damages claimed in declaration and in the cognovit is waived. Any error committed in entering a judgment in an action for rent due to variance between damages claimed in the declaration and in the cognovit is waived where the power of attorney to confess judgment is contained in the lease and authorizes the waiving of all errors and the cognovit expressly releases all errors.

4. Partnership—when members signing lease are individually bound. Where a lease purports to be to a copartnership but is signed by the partners individually, it becomes their individual lease.

5. Descent and distribution, § 45*—who is entitled to rent accruing after death of owner of demised premises. Rent accruing after the death of the owner of demised premises is a chattel real, and goes to the heir or devisee of said deceased owner, and not to his administrator or executor.

6. Landlord and tenant, § 279*-—when wrongful act of landlord does not debar him from recovery of rent. The wrongful act of á landlord does not debar him from the recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession either actually or constructively, or the premises rendered useless.

7. Landlord and tenant, § 262*—what does not constitute constructive eviction. There is no constructive eviction of a tenant where he remains in possession of the premises nearly six months after acts complained of.

8. Judgment, § 81*—what defendant seehing to vacate judgment by confession must show. A defendant seeking to vacate a judgment by confession must make a clear showing that he has a defense to the action.

9. ’ Judgment, § 82*—how affidavit in support of motion to vacate judgment by confession construed. Affidavits in support of a motion to vacate a judgment by confession must be construed most strongly against the defendant.

10. Appeal and error, § 1380 -—when denial of motion to vacate judgment 6y confession is conclusive. A motion to vacate a judgment entered by confession is addressed to the sound legal discretion of the trial court, whose action in denying it will not be reviewed unless it appears that it has been abused.


author: Mr. Justice McG-oorty

text:
    John J. Struple, Appellee, v. Frank P. Bishop, Appellant.
    Gen. No. 21,944.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David P. Matchett, Judge, presiding. Heard in the. Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 30, 1916.
    Statement of the Case.
    Proceeding by John J. Strnple, applicant, against Frank P. Bishop, respondent, for compensation under the Workmen’s Compensation Act. From a judgment of the Circuit Court quashing a writ of certiorari sued out by respondent and dismissing his petition, respondent appeals.
    On July 21, 1913, John J. Strnple, while in the employ of defendant, and in the course of his employment, received injuries as a result of a fall from a ladder. Strnple claimed that as a result of said accident he lost the sight of his left eye. Defendant contended that Struple’s eye was injured long prior to said accident and was practically in the same condition as it had been for a great many years. There was evidence introduced before the Committee on Arbitration and again before the Industrial Board by the parties, tending to support their respective contentions, and the Industrial Board found, inter alia, that the condition of Struple’s eye was the result of said injury, and that under the terms of the Workmen’s Compensation Act he had totally lost the use thereof, and awarded him as compensation therefor $10.80 per week for a period’ of one hundred weeks.
    John A. Bloomingston, for appellant.
    J. W. Darcy and M. Levy, for appellee.
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 13

      —when decision of Industrial Accident Board may not he reviewed. It is not within the province of the court on certiorari to review a decision of the Industrial Accident Board, or to pass upon the weight or sufficiency of evidence, hut it must be determined whether there is any competent or legal evidence to support the decision of such board.
    2. Workmen’s Compensation Act, § 13*—what is effect of decision of Industrial Board. A decision of the Industrial Board in absence of fraud, if it acts within its powers, is conclusive upon the court.
    3. Workmen’s Compensation Act, § 12*—when evidence tends to show causal connection hettoeen accident and loss of eye. In a proceeding for compensation by an employee for the loss of an eye under the Workmen’s Compensation Act, evidence held to tend to show causal connection between the accident and the blindness of the eye where there was evidence tending to show that the vision in such eye was good before the accident; that in falling from a ladder from a height of fourteen or fifteen feet his head came in contact with the roof of a shed before descending to the ground; that the second day thereafter he experienced intense pain above the left eye and the left side of his head, and ten or fifteen days thereafter lost the sight of his left eye; that he had had no trouble ■with such eye prior to the injury in question, and expert evidence tended to show that there could be a loss of sight of the eye from such an accident.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.


author: Mr. Presiding Justice Thompson

text:
    Ida Henderson and Hazel Ross, Defendants in Error, v. Jesse K. Cadwalader et al., Plaintiffs in Error.
    1. Remainders, § 1

      —when remainder is contingent. A contingent remainder is one limited to take effect either to an uncertain person or upon an uncertain event.
    2. Remainders, § 1*—when remainder is vested. Whenever the person who is to succeed to an estate in remainder is in being and is ascertained, and the event, which by express limitation will terminate the precedent estate, is certain to happen, the remainder is vested.
    3. Remainders, § 6*—what is nature of uncertainty malting remainder contingent. The uncertainty which distinguishes a contingent from a vested remainder is not the uncertainty whether the remainderman will live to enjoy the estate, but whether he will ever have the right to such enjoyment.
    4. Wills, § 226*—how construed. In construing a will, it is the duty of the court to ascertain the intention of the testator as expressed in the instrument, and to so construe it as to give effect to that intention, if it can be done without violating any established V rule of law or public policy.
    5. Wills, § 379*—how construed as to vesting of estates. The law favors the vesting of estates, and will construe the terms of a will as creating a vested estate if possible.

      6. Conversion, § !

      •—-what is equitable conversion. Equitable conversion is a constructive alteration in the nature of property by which in equity real estate is regarded as personalty or personal estate as realty.
    7/ Wills, § 323*—when direction to sell real estate works equitable conversion. Where a testator devised real estate to his wife with instructions to his executors to sell it on the wife’s death and distribute the proceeds in specified portions to his named children and grandchildren, without making any provision as to distribution in case of the death of any of such beneficiaries prior to that of the wife, and with power in the executors to sell the real estate, held that on the death of the testator there was an equitable conversion of the real estate into personalty, that the shares of the legatees thereupon vested in them so that the shares of legatees who died after the death of the testator and before the death of the wife should, on the latter’s death, be distributed as intestate personalty to the personal representatives of such legatees where not otherwise provided by the will.
    Error to the Circuit Court of Jersey county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Fred A. Du Had way, P. M. Hamilton and W. J. Chapman, for plaintiffs in error.
    Thomas F. Ferns and Sumner & Reardon, for defendants in error.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Ida Henderson and Hazel Ross filed a bill in chancery against Jesse K. Cadwalader and Joseph Gr. Marston, executors of the last will of John Cadwalader, deceased, and others, being all the parties interested in said will, praying for a construction of the will.

John Cadwalader died November 30, 1880, leaving a will which was admitted to probate in the County Court of Jersey county December 20, 1880. Jesse K. Cadwalader and Joseph Gr. Marston were nominated executors and duly qualified. The controversy arises over what is the proper construction to be given to the second paragraph of the will. The second and fourth paragraphs are as follows:

“Second—After the payment of such funeral penses and debts, I give, devise and bequeath unto my beloved wife, Mary Cadwalader, the farm on which I now reside, being the East Half of the North-West Quarter of Section No. Thirteen, and the West Half of the Northeast Quarter of Section No. Thirteen, all in Township No. Seven North, Bange No. Twelve, West of the Third Principal Meridian in the County of Jersey and State of Illinois, and the Northeast Quarter of the Southwest Quarter of Section No. Seventeen in Township No. Seven, North, Bange No. Eleven, West of the Third Principal Meridian in said County and State, to have and to hold the same during her natural life; also all the personal property by me owned at the time of my decease, after having disposed of a sufficient amount to pay and discharge the expenses and debts aforesaid. And at the death of my said wife I order and direct my said executors to sell at public or private sale, as they may deem most advantageous, the said real estate above described,—and divide the proceeds as follows:—To my daughter, Buth Noble, one-sixth. To my son, Jesse K. Cadwalader, one-sixth. To my daughter, Adaline Marston, one-sixth. To my daughter, Mary A. Terry, one-sixth. To my daughter, Nancy Henderson, one-sixth. And the remaining one-sixth to be disposed of as follows: Two Hundred Dollars of the same to be paid to my son, Eli B. Cadwalader in cash, and the remainder to be loaned out at the best rate of interest by my said executors and the interest of the amount so loaned to be paid annually to my said son, Eli B. Cadwalader by my said executors during the life of said Eli B. Cadwalader, and at the death of the said Eli B. Cadwalader the amount so loaned, together with the interest that may be due or accrued at the time of the death of the said Eli B. Cadwalader, to be distributed as follows: One Hundred Dollars to be paid to Elmer E. Cadwalader, son of the said Eli B. Cadwalader, and One Hundred Dollars to be paid to Calvin Cadwalader, son of the said Eli B. Cadwalader, and One Hundred Dollars to be paid to Eva L. Cadwalader, daughter of the said Eli B. Cadwalader, and the remainder to be distributed equally between the sisters and brothers of the said Eli B. Cadwalader, and if any of the sisters or brothers of the said Eli B. Cadwalader shall die before the said Eli B. Cadwalader, the portion that the deceased sister or brother would have received if living shall be paid to the heirs of such deceased sister or brother:—”
“Fourth—I order, direct and empower my said executors to sell the whole or any part of the said real estate mentioned in this my last will and testament for cash or on time or for part cash and part on time as they may think best. And I hereby authorize and empower my said executors to execute and deliver deed or deeds of conveyance for any or all of the aforesaid mentioned real estate to the purchaser or purchasers thereof. ’ ’

The testator left surviving- him Mary Cadwalader, his widow, Jesse K. Cadwalader and Eli B. Cadwalader, his sons, and Ruth Noble, Adaline Marston, Mary A. Terry and Nancy Henderson, his daughters.

Nancy Henderson, one of the legatees, died December 25,1885, leaving surviving- her, her husband Frank Henderson and a daughter Addie, who was a little child. Addie died May 26, 1886, leaving her father, Frank Henderson, surviving her. Thereafter Frank Henderson married Ida Henderson and to this marriage was born one child, Hazel. Frank Henderson died December 28, 1892, leaving surviving him his widow Ida Henderson and his daughter Hazel, now Hazel Ross, who are the complainants.

Eli B. Cadwalader, the legatee, whose legacy was given in trust as appears from the latter part of the second paragraph of the will, died intestate in 1900, leaving surviving him Maggie Cadwalader, his widow, and Elmer E. Cadwalader, Calvin C. Cadwalader, Eva L. Steed, Frank Cadwalader, Lena Cadwalader, May Cadwalader and Ruth Cadwalader, his children. Maggie Cadwalader died October 30, 1914; she was the third wife of Eli B. Cadwalader and the mother of his children, Frank, Lena, May and Ruth.

Adaline Marston, one of the legatees mentioned in the will, died intestate May 11, 1908, leaving no child or descendants surviving her, but only her husband Joseph Gr. Marston, and her mother Mary Cadwalader, her brother Jesse K. Cadwalader, and her sisters Ruth Noble and Mary A. Terry, and the children of Eli B. Cadwalader, her deceased brother.

Mary Cadwalader, the widow of John Cadwalader, the mother of all his children and the life tenant of his estate, died January 8, 1914.

The complainants contend that by the direction in the will to the executors to sell the real estate and divide the proceeds there was an equitable conversion of the real estate a>t the death of the testator, and that the interests of the beneficiaries vested at the death of the testator, the possession only being postponed until the death of the life tenant; that such interests being vested, the bequest to Adaline Marston became vested at her death in her husband Joseph Gf. Marston; that the bequest to Nancy Henderson, by her death, became vested in her husband Frank Henderson and her daughter Addie, and by the death of Addie, all the bequest to Nancy became vested in Frank Henderson, and by his death the bequest to Nancy Henderson became vested in his surviving widow and daughter, the complainants. The contention of defendants is that the legacies to Frank Henderson and Adaline Marston were not vested in them respectively at the time of their respective deaths, and that Ida Henderson, Hazel Ross and Joseph Gf. Marston are not entitled to share in the proceeds of the real estate described in the will.

The chancellor entered, a decree finding the facts as stated; that Mary Cadwalader took a life estate in the said real estate; that under the clause in the will directing the executors to sell the real estate and distribute it after the death of Mary Cadwalader, the real estate will in equity he considered as converted at the time of the death of the testator; that Jesse K. Cadwalader, Adaline Marston, Mary A. Terry, Nancy Henderson and Ruth Noble each became vested with an undivided one-sixth interest in the proceeds of the sale of said real estate, hut with their respective rights of enjoyment postponed until after the termination of the life estate of Mary Cadwalader; that Adaline Marston having died leaving no children, the one-sixth interest vested in her vested in her surviving husband, Joseph G-. Marston; that Nancy Henderson having died, the one-sixth interest invested in her, descended to Frank Henderson, her surviving husband, and her child Addie Henderson, and Addie Henderson having died in infancy, the part that descended to her from her mother became vested in Frank Henderson, and at his death the sixth originally vested in Nancy Henderson descended to Ida Henderson, the surviving widow of Frank Henderson, and Hazel Ross, his child; that Eli B. Cadwalader became vested with an interest to the extent of $200 in the remaining one-sixth of said proceeds of sale, his enjoyment thereof being postponed until after the death of Mary Cadwalader; that the $200 vested in Eli B. Cadwalader, the possession of which was postponed until after the death of Mary Cadwalader by the death of Eli B. Cadwalader, descended to his surviving widow and children, ope-third to his surviving widow, Maggie Cadwalader, who was his third wife and the mother of his four youngest children, and she having died while a widow, her interest descended to her children and should be paid to them share and share alike; that the legacies of the $100 each to be paid to Calvin Cadwalader, to Elmer E. Cadwalader and Eva L. Cadwalader were vested interests subject to the life interests of Mary Cadwalader and Eli B. Cadwalader and should be paid to them, and that the remainder of the sixth, the use of which was bequeathed to Eli for his life, should be distributed to Jesse' K. Cadwalader, Mary A. Terry, Buth Noble and Joseph G-. Marston, one-fifth each, and to Ida Henderson and Hazel Boss together, one-fifth, one-third thereof to Ida Henderson and two-thirds to Hazel Boss.

Jesse K. Cadwalader, individually and as executor, and Ruth Noble and Mary A. Terry have sued out a writ of error to review that decree.

The will of the testator gives to his wife the farm “to have and to hold the same during her natural life” and directs his executors at her death, “to sell at public or private sale, as they may deem most advantageous, the said real estate above described,—and divide the proceeds as follows:—To my daughter, Ruth Noble, one-sixth” with similar provisions in behalf of Nancy Henderson and Adaline Marston, each of whom died before the life tenant. If under the will the sixth interests given to Nancy Henderson and Ada-line Marston vested at the death of the testator, then plaintiffs in error have no interest in such bequests, while if they did not vest until the death of the life tenant and the sale, that is, that their right to enjoy the legacies is contingent upon their survival beyond the time of conversion, as the will contains no provisions concerning these bequests in the event of the death of the donees, they became intestate estate. The will does not devise the real estate to the executors in trust but only gave them a power of sale. "Where executors are given power to sell and convey real estate, they take a fee by implication for ‘1 the purpose of the trust. ’ ’ (Mc Cartney v. Osburn, 118 Ill. 403.) Neither does the will in terms give the remainder in the land after the death of the life tenant to the children of the testator until after it has been converted. It only gives to the legatees each a one-sixth interest in the proceeds.

The contention of plaintiffs in error is that the bequests to Mrs. Henderson and. Mrs. Marston are contingent upon them surviving the conversion of the r'eal estate by the executors. “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. * * * Whenever the person who is to succeed to the estate in remainder is in being and is ascertained, and the event which by express limitation will terminate the precedent estate is certain to happen, the remainder is vested. The uncertainty which distinguishes the contingent from the vested remainder is not the uncertainty whether the remainder-man will live to enjoy the estate, but whether he will ever have the right to such enjoyment.” Carter v. Carter, 234 Ill. 507; Lachenmyer v. Gehlbach, 266 Ill. 11; Harvard College v. Balch, 171 Ill. 275.

It is argued on behalf of defendants in error that where by the terms of a will there is a direction that real property be sold and the proceeds divided there is in such cases an equitable conversion of the real property into money, and that such conversion is regarded as having taken place at the death of the testator.

In the construction of wills it is the duty of courts to ascertain the intention of the testator as expressed in the instrument, and to so construe the will as to give effect to that intention, if it can be done without violating any established rule of law or public policy. “It is also well settled that the law favors the vesting of estates," and will construe the terms of a will as ereating a vested estate if possible.” (Ducker v. Burnham, 146 Ill. 9; Scofield v. Olcott, 120 Ill. 362.) “It must be presumed that the testatrix intended by her will to dispose of her entire interest in the property, and not to die intestate as to any part of it. So strong is this presumption, that it has sometimes been said, with some extravagance, perhaps, that it wiH justify almost any construction of a will which will defeat intestacy as to a part of the estate. (2 Redfield on Wills, 235; Higgins v. Dwen, 100 Ill. 554; Hayward v. Loper, 147 id. 41.) Again, the law favors the vesting of estates rather than that the title shall be in abeyance, and it was said in Scofield v. Olcott, 120 Ill. 362 (on p. 374): ‘It has long been a settled rule of construction, in the courts of England and America, that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very dear words manifested an intention that they should be contingent on a future event.’ ” (Hawkins v. Bohling, 168 Ill. 214.) “It is not the uncertainty of enjoyment in the future, but the uncertainty of the right to that enjoyment which makes the difference between a vested and contingent interest.” (Temple v. Scott, 143 Ill. 290; Hawkins v. Bohling, supra.) Another rule applied in the construction of wills is what is known as the doctrine of equitable conversion. Equitable conversion is defined as “a constructive alteration in the nature of property by which in equity real estate is regarded as personalty or personal estate as realty. It grows out of the old equitable maxim that ‘Equity regards that as done which ought to be done. ’ It has been adopted for the purpose of executing trusts, and it is essential to the application of the doctrine that the property should be subject to a trust or imperative direction for conversion and such conversion is regarded as having taken place at the death of the testator.”, Greenwood v. Greenwood, 178 Ill. 387; Glover v. Condell, 163 Ill. 566; Carper v. Crowl, 149 Ill. 465; Darst v. Swearingen, 224 Ill. 229; Ebey v. Adams, 135 Ill. 80; English v. Cooper, 183 Ill. 203; Starr v. Willoughby, 218 Ill. 485.

In Hawkins v. Bohling, 168 Ill. 214, there was a devise of real estate and other property to a trustee to apply the rents and profits to the support of the husband of the testatrix with the right to sell the real estate and put the proceeds at interest, and at the death of the husband to sell the real estate remaining unsold and divide the proceeds between two named legatees. It was contended that the interest of the legatees was not vested but contingent. Mr. Justice Carter in the opinion states: “To this point it is sufficient to reply, that it appears by the will that the payment or distribution was postponed for the convenience of the estate,—that is, to let in the prior interest given to the husband,—and was not postponed for reasons personal to the legatee, and that in such cases the interest will vest on the death of the testator. Had it been postponed until Mrs. Craig should have arrived at a certain age, or until the happening of some event personal to herself which might never happen, a different construction might be required.” Citing Scofield v. Olcott, 120 Ill. 362. The same rule was held in Knight v. Pottgieser, 176 Ill. 368.

In Beaver v. Ross, 140 Iowa 154, 20 L. R. A. (N. S.) 65, a bequest, identical with those to defendants in error, was held to be vested so that the bequest could be assigned in the lifetime of the life tenant, and such assignment was held valid against a garnishment of the executor after the conversion. In the note to Beaver v. Ross are cited Fairly v. Kline, 3 N. J. L. 755; Miller’s Ex’r v. Sageser, 30 Ky. L. Rep. 837; Cropley v. Cooper, 19 Wall. (U. S.) 174; Wintermute v. Snyder, 3 N. J. Eq. 493; Bunce v. Vander Grift, 8 Paige (N. Y.) 37; Fisher v. Banta, 66 N. Y. 468; Smith v. McCrary, 38 N. C. 204; Collier v. Grimesey, 36 Ohio St. 17; In re Parkinson’s Appeal, 32 Pa. St. 455;, Green v. Davidson, 4 Baxt. (Term.) 488, and Nelson v. Nelson, 36 Ind. App. 331, 75 N. E. 679; with other citations that hold that legacies similar to those to Mrs. Henderson and Mrs. Marston, on the death of the legatee in ,the lifetime of the life tenant, vest in the personal representatives of the deceased legatees. See also, Red-man v. Hubbard, 140 Ky. 71, 37 L. R. A. (N. S.) 728, and note.

The will of the testator having directed that the real estate sold after the death of the wife of the testator and one-sixth of the proceeds paid to Adaline Marston and one-sixth to Nancy Henderson, the said legacies became vested in said legatees at the death of the testator, and Adaline Marston and Nancy Henderson having died before the life tenant, the trial court correctly decreed that said interests be paid to the personal representatives of said deceased legatees.

The legacy of $200 to be paid to Eli B. Cadwalader from the sixth, the remainder of which was to be loaned out and the interest paid to him during his lifetime, was a legacy vested in Eli B. Cadwalader, and he having died before the time of payment arrived, should be paid to his personal representative. Carper v. Crowl, 149 Ill. 465, and authorities therein cited; Lachenmyer v. Gehlbach, 266 Ill. 11. The court properly decreed how this legacy should be distributed in the event of it not being required for the payment of debts of the legatee.

The remainder of the sixth, that was to be invested and the income paid to Eli during his life, is directed to be distributed at his death $100 to each of three named children and the remainder between the sisters and brother of said Eli, “and if any of the sisters or brothers of the said Eli B. Cadwalader shall die before the said Eli B. Cadwalader, the portion that the deceased sister or brother would have received if living shall be paid to the heirs of. such deceased sister or brother. ’ ’ The clause simply created a second life estate between the death of the testator and the time of distribution. The principal involved is the same as where a single life estate intervenes. Cropley v. Cooper, 19 Wall. (U. S.) 167. Under the terms of the will and the authorities cited, the interest of the brothers and sisters of Eli, in the remainder of the sixth of which he had the life use, vested in the brothers and sisters, and on the death of any of them the share vested in each brother or sister vested in their representatives. There is no error in the decree and it is affirmed.

Affirmed.


author: Mr. Presidirg Justice Thompsor

text:
    John E. Murray, Appellee, v. Vandalia Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court a* the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by John E. Murray, .plaintiff, against the Vandalia Railroad Company, defendant, for damages to the plaintiff’s real estate alleged to have been caused by the construction of a freight house and freight terminals adjacent thereto. From a judgment for plaintiff for- $487.25, defendant appeals.
    The declaration averred that the defendant changed the grade of its premises so as to divert water upon the premises of .plaintiff, and had created a nuisance adjacent to the property of the plaintiff, and that cinders, soot, ashes and clouds of smoke were thrown on plaintiff’s premises and into his house by the defendant, and the trees, shrubbery and grass killed and the house rendered substantially uninhabitable and the market value greatly depreciated.
    Gutter, Ewirg, McCullough & Wiermar, for appellant.
    Whitley & Fitzgerald, for appellee.
    Abstract of the Decision.
    1. Damages,' § 172

      —when evidence as to damage is inadmissible. In an action for damages, evidence as to improper elements of damage or as to proper elements not declared upon in the declaration is inadmissible.
    2. Damages, § 240*—when admission of improper evidence is reversible error. In an action for damages to real estate, where the evidence as to the amount of depreciation was in sharp conflict so that the Appellate Court could not say how much the plaintiff should recover, held that the admission of evidence as to elements of damage not declared on was reversible error.
    3. Tbtal, § 43*—when instruction as to effect of view of premises is correct. In an action on the case for damages for the depreciation of real estate, alleged to have resulted from wrongful acts of the defendant, where the jury were by consent of both parties allowed to view the premises, an instruction that the view was not evidence but was allowed for the purpose of helping the jury to understand the evidence detailed by the witnesses and that the jury should not consider any facts bearing on the merits of the controversy derived from such view, held correct.
    4. Action on the case, § 8*—when action does not lie for injury to realty. In an action on the case, an owner of premises cannot recover for damages thereto, alleged to have been caused by the emission of smolce and ashes from locomotives standing on an adjacent railroad track, unless the smoke and ashes were thrown upon the premises.

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

   Mr. Presidirg Justice Thompsor

delivered the opinion of the court.


text:
    Margaret Bennett, Appellee, v. Emery E. Bennett, Executor of the Estate of Alvin Bennett, Deceased, Appellant.
    1. Wills, § 324

      —when equitable conversion of real estate directed to be sold takes place. A direction in a will to sell real estate and distribute the proceeds among the beneficiaries, where the time of conversion is not limited to a future time, fixes the time of conversion as at the date of the testator’s death, and the doctrine of equitable conversion applies.
    2. Conversion, § 1*—what is equitable conversion. Equitable conversion is a constructive alteration in the nature of property by which real estate is regarded as personalty, or personal estate as realty.
    3. Wills, § 321*—what is effect of direction to sell realty. Where there is an imperative direction in a will for the conversion of real estate into personalty, that will he regarded as done which ought to be done.
    4. Wills, § 231*-—how will is construed. In construing a will the intention of the testator must be gathered from the language of the will viewed, in case of ambiguity, in the light of the situation of the testator, and the circumstances surrounding him at the time it was executed.
    5. Wills, § 323*—when direction to sell realty works equitable conversion. Where a will directed that the executor pay to the testator’s wife such portion of the estate as would be legally due her under the laws of the State, that all the real estate he sold by the executor and, after the payment to the wife of her due portion, the remainder be sold and distributed among certain legatees, held that the direction to sell worked an equitable conversion of the real estate and that the widow was entitled to one-third of the proceeds of the sale of the real estate, that remained after the payment of her widow’s award and of the debts and expenses of administration, and not' a homestead and dower in the real estate.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Wilson & Schmiedeskamp and Carl E. Epler, for appellant.

      Finley Carrott and Samuel Woods, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The will of Alvin Bennett, executed in 1912 and admitted to prohate in 1915, provided:

(1) That all his debts be paid by his executor.
“ (2) It is my will and I hereby direct my executor to pay to my wife, Margaret Bennett, the part or portion of my estate which may be legally due her by virtue of her rights under and in conformity to the laws of the State of Illinois.
(3) It is my will that the remainder of my personal property be sold by my executor either by private or public sale as he may deem to the best interest of my estate in the manner and form that my executor may designate.
“ (4) It is my will and I hereby direct my executor to sell at public sale according to the laws of the State of Illinois, any and all of the real estate of which I may die seized, for cash in hand to the highest and best bidder.
“ (5) After the payment of all my just debts and the payment of what money may be due my wife, Margaret Bennett, as her part or portion of my estate, and the payment of all costs connected with the settlement of my estate, it is my wish that the remainder be divided as follows: ’ ’

The sixth paragraph gives a legacy of $500 to a daughter. The seventh directs that the remainder of the estate be divided among his surviving sons and daughters, share and share equally, and the ninth appoints Emery E. Bennett executo-r.

The testator left surviving him his widow, Margaret Bennett, and eight children. The widow was his third wife and was not the mother of any of his children. An award of $750 was set off to the widow. The personal property of the deceased amounted to about $1,400. His real estate was sold by the executor for $21,357.20. After the payment of the widow’s award, debts and costs of administration, there remained for distribution under the will $18,489.84.

The question involved in.this appeal is whether the widow takes one-third of the proceeds of the sale of the real estate that remains after the payment of the widow’s award, the debts and expenses of administration, or her homestead and dower rights. From the judgment in the Probate Court an appeal was prosecuted to the Circuit Court where it was adjudged that the widow receive one-third of the proceeds of the real estate remaining after the payment of the debts and costs of administration. The executor appeals to this court.

The will directs the executor to pay the debts of the testator, then that the executor pay the widow the part or portion of the estate that may be legally due her under the laws of Illinois. It then directs that the executor sell the remainder of his personal property and all his real estate and then repeats “after the payment of all my just debts and the payment of what money may be due my wife, Margaret Bennett, as her part or portion of my estate,” that a legacy be paid to his daughter Olive and the remainder be divided among his children equally.

The entire estate is directed to be converted into cash for distribution amongst his wife and children. A direction to sell real estate and distribute the proceeds among the beneficiaries, where the time of conversion is not limited to a future time, fixes the time of conversion as at the date of the testator’s death, and the doctrine of equitable conversion applies. Equitable conversion is defined as a constructive alteration in the nature of property by which real estate is regarded as personalty, or personal estate as realty. "Where there is an imperative direction for a conversion, that will be regarded as done which ought to be done. Haward v. Peavey, 128 Ill. 430; Lash v. Lash, 209 Ill. 595; Greenwood v. Greenwood, 178 Ill. 387.

The intention of the testator must be gathered from the language of the will viewed, in case of ambiguity, in the light of the situation of the testator, and the circumstances surrounding him at -the • time it was executed. The testator had a homestead and other real estate. He imperatively directs all his real estate be sold for cash to the highest bidder, and that the remainder of the proceeds, after the payment of his debts and what may be due his wife, is to be distributed amongst his ■ children. The real estate is directed to be sold for the purpose of paying the widow her portion of the proceeds and of distributing the remainder among his children. If the contention of appellant that the widow was only to have homestead and dower in the real estate is the proper construction to be given to the will, then all she is entitled to is that one-third of the real estate be set off to her for life as her dower, or if that cannot be done without damage to the whole, then that a jury be impaneled to assess the yearly value of her dower, although, in the event that dower could not be allotted to her in kind, she might consent in case of a sale that it be sold disencumbered of dower and to take the present value of her dower in cash. The widow must take primarily under the will and not under the statute, otherwise the executor could not have sold the interest she would have taken had there not been a will. The will does not give to the widow either any of his real estate or the cash value of any interest in his real estate. The executor is directed to pay to the wife the portion of the estate that may be legally due her, and is directed to pay that portion in money after its conversion.

The provision of the first paragraph that all the just debts of the testator be paid, followed by the direction in the fourth paragraph that all the real estate be sold for cash to the highest bidder, in connection with the direction in the fifth paragraph that “after the payment of all my just debts and the payment of what money may be due my wife,” would appear to limit the bequest to the widow to what the law gives her in the proceeds of the sale of the real estate after its conversion, that remained after the payment of the testator’s debts.

The sale of a widow’s dower interest in real estate cannot be made unless there is a provision in a will making an allowance to her in lieu of dower. The will in controversy directs the entire estate to be converted into money and that the executor pay the widow from the proceeds thereof, after the payment of debts, the part which may be legally due her under the law of Illinois. If she was to take only her homestead and dower under the statute and not under the will, then his debts would not affect her rights as under the statute she would be entitled to one-third of his real estate over and above the homestead. The trial court correctly construed the will of the testator, the judgment is therefore affirmed.

Affirmed.


text:
    William Johnson, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    (Not to he reported in full.)
    ■Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by William Johnson, plaintiff, against the Chicago & Alton Eailroad Company, defendant, for personal injuries. From a judgment for $5,500 in favor of plaintiff, defendant appeals. On a former trial a judgment for plaintiff for $5,000 was reversed and the case remanded. See Johnson v. Chicago & A. R. Co., 193 Ill. App. 632.
    The plaintiff alleged that while driving his team along the public highway, servants of the defendant negligently rolled a large timber from a pile onto the highway close to the plaintiff’s horse, allowed steam to escape with great noise from a steam box by the side of the highway and unloaded crushed stone so as to cause a large cloud of dust to arise, which acts caused the plaintiff’s horses to become frightened and run away, throwing the plaintiff from the wagon and causing him to be severely injured.
    Winston, Payne, Strawn & Shaw, Edward Doocy and William Mumford, for appellant; Silas H. Strawn and Charles J. McFadden, of counsel.
    W. E. Williams, A. Clay Williams and Paul F. Grots, for appellee.

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

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Trial, § 170 —what defects demurrer to evidence does not extend to. A demurrer to evidence is not applicable to defects in pleadings as such a demurrer does not extend to them.

2. Trial, § 212*—how defect in declaration cannot he reached. A defect in a declaration cannot he reached by a request for a peremptory instruction.

3. Roads and bridges, § 237*—when declaration states cause of action for personal injuries. A declaration in an action for personai injuries averring that the defendant negligently unloaded pulverized stone along and upon the line of a public highway so that dust arose and enveloped the plaintiff’s horses, thereby frightening them, held to state a good cause of action though somewhat defective.

4. Railroads, § 567*—when allegation that railroad allowed steam to escape does not state cause of action. In an action against a railroad company for personal injuries sustained by the driver of a wagon on a public highway, an averment that the defendant negligently permitted steam to escape on its right of way near the highway without averring that the steam interfered with the plaintiff’s horses, held not to state a cause of action without the further averment that such negligence was reckless or wilful.

5. Trial, § 110*—when motion to exclude evidence is properly denied. A motion to exclude evidence held properly denied where the motion asked for the exclusion of both proper and improper evidence.

6. Trial, § 213*—when instruction intended to withdraw count from jury is improper in form. A requested instruction "to find the defendant not guilty” on certain named counts claimed not to state causes of action, held properly refused as erroneous in form, since, if the contention of the defendant was valid) the instruction should only have told the jury that there could not he a verdict against the defendant under such allegations and the evidence in support of them, and that such counts were excluded from-'their consideration.

7. Trial, § 216*—when refusal to direct a verdict is proper. It is not error to refuse an instruction directing a verdict when the declaration contains one good count and there is evidence sustaining that count.

8. Appeal and error, § 162%*—^when error in admission of evidence is cured hy instruction to disregard. In an action for personal injuries sustained by the driver of a team resulting in his being thrown from the wagon as the result of the alleged negligence of the employees of the defendant in throwing a timber into the highway from a pile lying along the side thereof, thus frightening the plaintiff’s horses and causing them to run away, testimony of a witness not present on the scene of the accident at the time it occurred, that ten minutes after the accident he found a timber lying in the middle of the road at the place of the accident, which testimony was introduced on a rebuttal of the defendant’s evidence that its employees had not rolled a timber into the road, held not prejudicial though there was no evidence that there had been no change in the condition of the timber from the time the horses drove by until the witness saw it in the road, where the testimony was later excluded and the jury instructed not to consider it.

9. Roads and bridges, § 239 —when evidence that team never ran away with plaintiff is inadmissible. In an action for personal injuries sustained by the driver of a team as the result of the negligent act of the defendant’s servants in causing the plaintiffs horses to become frightened and run away, testimony of the plaintiff that up to the day of the accident the team never ran away with him, held immaterial but its admission harmless.

10. Damages, § 179*—when admission of physician’s testimony proper as to permanency of injuries. In an action for personal injuries, the admission of testimony of a doctor, who had been called to attend the plaintiff after the accident, that the plaintiffs injuries were permanent, held proper.

11. Roads and bridges, § 239*—when evidence does not show contributory negligence on part of driver of team. In an action for personal injuries sustained by the driver of a team on a public highway, alleged to have resulted from the negligent acts of the defendant’s servants causing the plaintiff’s horses to become frightened and run away, evidence held' to justify a finding that the plaintiff was not guilty of contributory negligence consisting, as claimed, in driving fractious horses or, in using defective harness.

12. Roads and bridges, § 239*—when evidence shows negligent acts causing horses to run away. In an action for personal injuries to the driver of a team on a public highway alleged to have been caused by defendant’s servants throwing a timber into the highway near the plaintiff’s horses as they passed, causing them to become frightened and to run away, evidence held .to justify a finding that the defendant’s servants were negligent.

13. Continuance, § 17*—when refusal to grant is proper. A continuance dr postponement will not be granted for the purpose of obtaining a witness to impeach one who has already testified.

14. Damaoes, § 124 -—when verdict for personal injuries not excessive. A verdict for $5,500 rendered in favor of a farmer, a strong, healthy man, for personal injuries consisting of a badly broken leg and bruises which rendered him a cripple for life, held not excessive.


text:
    Charles L. English et al., Appellees, v. Palmer National Bank of Danville, Illinois, Appellant.
    1. Principal and surety, § 89*—what is not a defense to bill by sureties on official bond against depositary of public funds. Where a bank in which a defaulting county treasurer has deposited county funds, knowing the character of the funds, allowed the treasurer to withdraw certain sums therefrom for the payment of his individual obligations and for his personal use, on a bill in equity, filed by the sureties on the treasurer’s official bond, against the bank, praying that it be decreed and held to be a trustee to hold such funds impressed with a trust in favor of the complainants, to the extent that they had been compelled to make good the default of the treasurer, it was held that the defendant’s claim that the complainants were officers of certain banks which had agreed to indemnify the complainants in case of loss by reason of their becoming sureties on the bond, would, though true, be no defense to the suit.
    2. Principal and surety, § 83*—what is extent of right of sureties to subrogation. The equities of sureties extend to all the rights of creditors respecting the debts which the sureties pay, and sureties are considered subrogated to all the rights, remedies and securities of the creditors as to any fund, lien or equity which the creditor may have against any person or property on account of the debt.
    3. Official bonds, § 40*—when depositary of public funds liable to sureties malting misappropriation good. A bank having received payment of notes and overdrafts, made by a county treasurer in his individual and personal accounts, from funds belonging to the county deposited in the bank to the order of the treasurer as treasurer, held accountable, for money so misappropriated with the knowledge of the bank, to sureties on the treasurer’s official bond who had made good to the county the amount of the treasurer's misappropriation.
    Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    J. B. Mann, Edwin Winter and J. C. Woodbury, for appellant.
    Bindley, Penwell & Bindley and Reariok & Meeks, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a bill in equity filed in the Circuit Court of Vermilion county on April 13, 1911, by C. B. English, B. D. Glass, M. E. King, J. Gr. Cannon, E. X. BeSeure and C. V. McClenathan against the Palmer National Bank of Danville, Illinois, M. J. Wolford, C. U. Feldcamp and Hardy H. Whitlock. It alleges that in December, 1906, Whitlock became county treasurer of Vermilion county, and that the complainants with the defendants Wolford and Feldcamp became sureties on the official bond of said Whitlock as such county treasurer in the sum of $300,000; that Whitlock served as county treasurer the full term for which he was elected, and at the close of said term it was discovered that he was .a defaulter as such treasurer in the sum of $37,522.34, which deficiency the said sureties on his bond were compelled to make good to the county of Vermilion, each surety paying to the said county $4,690.29; that at the time of said default said Whit-lock was and still is insolvent, and a petition is now pending for the purpose of having said Whitlock declared a bankrupt, and that his assets are not sufficient to pay ten cents on the dollar on his liabilities; that said Whitlock as county treasurer deposited certain moneys of the county of Vermilion in the Palmer National Bank, a corporation duly incorporated under the laws of the United States, which said funds were deposited in his official capacity and were impressed with a trust in favor of said county and said deposit was known to the Palmer National Bank to be a trust fund; that during his term of office said Whitlock drew certain checks against said trust fund in favor of said Palmer National Bank in payment of his personal obligations to said bank and certain other checks for deposit to his individual account and said Palmer National Bank received said checks in payment of the obligations of said Whitlock and permitted said transfers of said trust funds to the individual account of said Whitlock, then and there knowing that the same were misappropriations of said county funds. The bill sets forth each of said checks in detail.

The bill further alleges that the securities, having made good the default of said official, are subrogated to the rights of the obligee in said official bond against the bank which received said trust funds with notice of their misappropriation, and that defendants Wolford and Feldcamp decline to join complainants in prosecuting this suit. The prayer in the bill is that the defendant bank be decreed and held to be a trustee and to hold said funds impressed with a trust in favor of the sureties to the extent they have been compelled to make good the default of said treasurer.

The defendants Feldcamp, Wolford and Whitlock were defaulted. An answer was filed by the defendant bank denying the allegations of the bill. The cause was referred to a special master, who reported the evidence with his findings. It was then heard by the court on exceptions to the master’s report and a decree entered which sets forth a full and complete finding of facts from the evidence. It finds from the evidence the facts as alleged in detail: that the bank knowing the trust character of the deposits by Whit-lock, county treasurer, received and applied to the payment of Whitlock’s individual obligations to or overdrafts on said bank, the proceeds of checks amounting to $9,644.10, and permitted him to draw for his own personal use $616.64, a total of $10,260.74, which with legal interest from the filing of the bill amounts to $12,659.15; that the sureties have made good the loss to the county and are entitled to be subrogated to the rights of the county; that Whitlock is insolvent and has conveyed all his property to a trustee; that the sureties will receive no reimbursement other than the fair cash value of the real estate conveyed to'the trustee, which value is far less than the amount of the default less the amount found due from the defendant bank, and a decree is entered against the bank for $9,494.34, being six-eighths of .said sum.

The record clearly shows that Whitlock was a defaulter as county treasurer and that each of his sureties advanced $4,690.29 to make up the defalcation when Whitlock turned the office over to his successor. The master and the chancellor both found from the evidence that the Palmer National Bank received from Whitlock certain funds which were deposited to his account as county treasurer; that the Palmer National Bank knew that said deposit account was a county fund and that Whitlock used $9,644.10 of said county’s money in paying his personal overdrafts and notes to that bank and that he drew out for his individual use $616.64, and the bank depository had full knowledge of the misappropriation at the time it honored his cheeks drawn for his own use and to pay his notes held by it.

Appellant does not appear to contend that on these findings the appellees are not entitled to recover from the appellant the amount so misappropriated with its knowledge. The contention of appellant is that appellees were the managing officers of three other banks, that had agreed with appellant to furnish the bond for the county treasurer and that the defalcation was paid by the other banks and not by the appellees, or' that appellees, if they ever paid the defalcation, had been reimbursed by their respective banks and that appellees had become sureties at the request of the banks, and therefore cannot have any standing in a court of equity, for the reason banks may not become sureties or guarantors. The evidence shows that the checks that made .up the defalcation were signed by the appellees. The appellees were the sureties. Even if the banks had made ultra vires contracts with the appellees to reimburse them in case of loss, that is no concern of appellant. If the suit is for the benefit of the banks and the suit is for the use of the banks, they are not parties to the record.

If it be a fact that the banks had agreed to indemnify the appellees for executing the bond for the county treasurer, and that such a contract made by a National Bank would be ultra vires such fact would not furnish a reason why the appellant should be permitted to wrongfully misappropriate the moneys of the county at the expense of the sureties of the county treasurer. Voltz v. National Bank of Illinois, 158 Ill. 532; American Exp. Co. v. Haggard, 37 Ill. 465. If it be a fact that appellees became sureties npon the bond of the county treasurer on the promise of the banks to reimburse them, if they should thereby suffer any loss, yet that could not be urged as a defense on behalf of the sureties, when they are called upon to make good the defalcation of their principal.

The master and the chancellor both found that appellant knowingly permitted the county treasurer to pay his debts to it from the trust fund and to appropriate county funds for his private use. We see no reason to disagree with the facts as found from the evidence by the trial court. •

The equities of sureties extend to all the rights of the creditors respecting the debt which the sureties pay, and sureties are considered subrogated to all the rights, remedies and securities of the creditors, as to any fund, lien or equity which the creditor may have against any person on property on account of the debt. Lochenmeyer v. Fogarty, 112 Ill. 572; (Rice v. Rice, 108 Ill. 199; 37 Cyc. 415; Northern Trust Co. v. First Nat. Bank of Buffalo, 25 N. D. 74, 140 N. W. 705; United States Fidelity & Guaranty Co. v. Union Bank & Trust Co., 228 Fed. 448.) The appellant having received payment of notes and overdrafts made by the county treasurer in his individual and personal account from funds belonging to the county, deposited to the order of Whitlock as county treasurer, must account for the moneys thus misappropriated with the knowledge of appellant. The decree is affirmed.

Affirmed.


text:
    F. A. Barber, Appellant, v. E. A. W. Keiser et al., Executors, Appellees.
    Executors and administrators, § 269

      —when foreign judgment not admissible in support of claim against estate. Where an executor appointed in this State has, in accordance with the directions in the will, prosecuted a suit in a foreign State without taking out ancillary letters of administration in that State, and the defendant in a cross action has recovered a judgment against the executor, a transcript of that judgment is not admissible in evidence in support of a claim filed thereon by the defendant against the estate of the deceased in this State.

      Appeal from the Circuit Court of Macoupin county; the Hon. Non-mas L. Jones, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Alexander H. Bell, for appellant.
    L. M. Harlan and Peebles & Peebles, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

P. A. Barber filed a claim for $37,502 in the County Court of Macoupin county against the estate of C. J. Keiser, deceased. The executors of the estate objected to its allowance. In the County Court, judgment was rendered against the claimant. An appeal was taken from that judgment to the Circuit Court. On a hearing in the Circuit Court without a jury, judgment was rendered disallowing the claim and against claimant for costs. Claimant prosecutes this appeal.

The will of C. J. Keiser of the Village of Mount Olive, Macoupin county, Illinois, and an order of the County Court of Macoupin county made November 7, 1915, admitting it to probate, with a record that E. A. W. Keiser and A. H. Keiser, who are nominated executors in the will, had qualified as executors, were admitted in evidence. The will states that the duties imposed on the executors will be onerous, and gives them “full power and authority to do every act necessary to carry my wishes into execution.” It devises and bequeaths to the executors all his estate, whether situate in the State of Illinois or in some other State, in trust with full power and authority to sell and convey, to lease or mortgage any of his real estate and to carry on his banking business, and directs that his debts be paid from the proceeds and the balance be distributed as directed, etc. It contains the statements that: “My said executors are to have the right and authority to carry on, settle, adjust, prosecute any action in any court of competent jurisdiction, which may now be pending, and in which I have any interest, or they may institute or carry on any such action, in any court of any state or territory, as I might do, and with full power, as I would have for the purpose of procuring any of my property or caring for any of my rights. My said executors shall have full power and authority to make any adjustment of any matter pending, or litigation in which I have any interest at the time of my death. * * * In order that all of the pending matters which are in my mind at the date of the execution of this will and which I desire my executors to care for and conduct for me, as I would do if personally present, I have now pending in the Appellate Court of the State of Illinois, * * * and I have a case in the Circuit Court of Macoupin county, * * * I have a suit pending in the State of Texas and I may have other litigation before my decease, but I mention these only to evidence the fact that I desire my said executors to have authority to dispose of the same in the same manner, and upon the use of the same discretion that I might use if in charge of the matter in person, * * The will also states that Mr. Harlan, an attorney at Mount Olive, had been the attorney of the testator for several years and requests that he be the attorney of the executors.

E. A. W. Keiser, a witness examined on behalf of appellant, testified that he resides in Macoupin county; that he is the son of C. J. Keiser and is one of the executors of his will; that his father at the time of his death had litigation pending at San Antonio, Texas; that about a month after his father’s death, and after he had qualified as one of the executors of his father’s estate, he went to San Antonio to look after that litigation, taking with him Mr. Harlan, his Illinois lawyer, and they consulted with the lawyer in Texas, who had represented his father, and instructed him to look after the interests of the estate in that litigation, and that there was no administration of the estate of C. J. Keiser at any other place than in Macoupin county, Illinois.

The appellant also offered in evidence a transcript of a judgment of the 45th Judicial District, Bexar county, Texas, in the case of J. H. Holmes et al. v. F. A. Barber et al. The transcript shows that J. H. Holmes and C. J. Kiser began a suit in Bexar county, Texas, on July 26, 1911, against F. A. Barber and C. S. Hunter to recover $37,275 damages alleged to have been sustained by plaintiffs through fraud and deceit practiced by defendants on plaintiffs in a real estate trade, and to have certain notes executed by plaintiffs in the real estate trade canceled; that the defendants answered the pleading of plaintiffs and Barber filed a cross complaint on the promissory notes executed by the plaintiffs; that in February, 1913, the case was tried before a jury and a verdict returned on special issues; that the court on motion of plaintiffs set aside the verdict and granted a new trial; that in January, 1914, Holmes suggested to the Texas court the death of plaintiff, Keiser, and that he had left a will that had been admitted to probate in Illinois, and that E. A. W. Keiser and A. H. Keiser had'qualified as executors; that thereupon by leave of court an amended and supplemental petition was filed in which the executors of C. J. Keiser were made parties plaintiffs; that the case was thereafter again tried by a jury and a verdict returned against Holmes and the executors, on which judgment was rendered, wherein it is adjudged that the defendant Hunter recover his costs and that “defendant F. A. Barber do have and recover from said plaintiffs, J. H. Holmes and E. A. W. Keiser and A. H. Keiser as executors of the last will of C. J. Keiser, ¡deceased, jointly and severally the full sum of i$42,179.33, together with interest thereon,” and costs. The judgment also recites that it is rendered on notes executed by plaintiff Holmes and O. J. Keiser to defendant Barber that reserve a vendor’s lien on certain lands in Hidalgo county, Texas, which is. adjudged to be foreclosed, and the land is ordered to be sold and the proceeds applied on the said judgment, and if. said lands do not sell for sufficient to pay the said judgment that defendant Barber have execution for the de-: fieiency. The court sustained an objection to the admission of the transcript in evidence.

The appellant also requested the court to hold prop-~ ositions of law: (1) That under the will of C. J. Keiser it was the duty of the executors named in the will to take charge of and prosecute to a conclusion the litigation pending at San Antonio, Texas, at the time" of the execution of the will, and that the executors and the estate of C. J. Keiser are bound by the result of such litigation. (2) That the judgment rendered against the executors of the will of C. J. Keiser, the transcript of which is offered in evidence, is a valid and binding judgment as against the estate of C. J. Keiser. These the court marked refused, and marked held propositions submitted by appellees stating: (1) That the transcript of the judgment of the court in Texas offered in evidence is not prima facie .evidence of any liability in favor of claimant against the estate of C. J. Keiser and cannot be made the basis of any recovery. (2) That a judgment of the State of Texas against an executor who derives his authority by virtue of the laws of Illinois, who voluntarily entered his appearance in the action in which such judgment was rendered, cannot be enforced in Illinois against the estate represented by such executor.

The only question presented for review is whether or not the transcript of the judgment of the Texas Court, to which an objection was sustained, is competent and prima facie evidence against the estate of C. J. Keiser in Illinois.

In the United States, the general rule is that letters testamentary or of administration have no legal force or effect beyond the territorial limits of the State by which they are granted, and while the authority of an executor is derived primarily from the will, it is not complete until he has received letters testamentary from a court of competent jurisdiction. (11 R. C. L. 432; 1 Woerner on Administration, sec. 158.) At common law, an executor derives his office solely from the will and not from the probate, which is only evidence of his right (11 Am. & Eng. Eneyc. of Law 744), and a foreign executor may without taking out letters of ancillary administration sue in his own name on a judgment obtained by him in another jurisdiction (11 R. C. L. 449); and in Illinois section 42 of the Admin-' istration Act (J. & A. ¶ 91) permits a foreign executor to sue on production of his authenticated letters. There is nothing in the record showing that there is any law or statute in Texas authorizing foreign executors either to sue or be sued in that State without first having had letters testamentary issued in that State. •

The testator, C. J. Keiser, endeavored in his will to empower his executors to prosecute the litigation begun by him in Texas. The question presented for review is not whether an executor can prosecute a suit in a foreign State, but is the converse of that proposition, namely, when an., executor has prosecuted a suit in a foreign State and the defendant in the foreign State, in a cross action, has recovered a judgment against the executor in the suit prosecuted by the executor, is the transcript of that judgment admissible in evidence in support of a claim filed thereon in the State that granted letters testamentary. The Supreme Court of Illinois has held that, “the surrogate court of New York had no power to render a judgment against an executrix appointed in Illinois,” and that a judgment rendered in the State of New York against an executor appointed and acting in Illinois is of no force-in Illinois, and courts of this State cannot allow such judgment as a claim against the estate in Illinois upon the filing of a transcript, as such a judgment is not even prima facie evidence of indebtedness. Elting v. First Nat. Bank of Biggsville, 173 Ill. 368; Judy v. Kelley, 11 Ill. 211; Rosenthal v. Renick, 44 Ill. 202; McGarvey v. Darnall, 134 Ill. 367; Strauss v. Phillips, 189 Ill. 21; Hedenberg v. Hedenberg, 46 Conn. 30; Brown v. Fletcher’s Estate, 146 Mich. 401,15 L. R. A. (N. S.) 632, and note, affirmed in 210 U. S. 86; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966; Braithwaite v. Harvey, 14 Mont. 208, 27 L. R. A. 101, and note; 2 Schouler on Wills, sec. 1164; 23 Cyc. 1592.

In Judy v. Kelley, supra, suit was begun in the foreign State and service had on the defendant in his lifetime. In Brown v. Fletcher’s Estate, supra, it was held that a stipulation in an arbitration agreement in a pending action, by which defendant binds his legal representatives to abide by the award, will not empower the court upon his death to revive the action against his legal representatives, so as to bind his executors and estate in another jurisdiction, and there is no such privity between a foreign administrator as to whom an action pending in a foreign jurisdiction against the testator at the time of his death is lawfully revived, and the domiciliary executors and the estate, as will make a subsequent decree therein binding upon the latter.

While a judgment against an executor in a foreign State, where letters testamentary have been issued, may be prima facie evidence of a claim, yet no case has been cited, and we have not found any authority permitting an executor to be sued as executor in a State, where letters testamentary had not been granted to him.

In the case at bar the testator began the suit to cancel the notes on which judgment was rendered, the transcript of which was offered in evidence. The defendants by cross action asked for judgment on the notes sought to be canceled. Although the testator directed his executors to prosecute the suit begun by him in a foreign State, yet to have rendered the judgment of any validity against the estate of the deceased, the executors should have been required to take out ancillary letters in Texas. We are of the opinion that ■the judgment, if it can have any validity whatever, can only bind assets of the estate that were in Texas, and under the rule announced in Elting v. First Nat. Bank of Biggsville, supra, it is not even prima facie evidence of a claim in this State. The judgment is therefore affirmed.

Affirmed.