author: Mr. Justice Taylor

text:
    George Budleman, Appellee, v. American Insurance Company, Appellant.
    Gen. No. 25,019.
    1. Insurance, § 72

      —what constitutes change in interest in property. The execution of a contract of sale of insured premises whereunder the owner is to convey such premises when the other party shall make a certain number of payments provided for in the contract does not constitute a "change * * * in the interest” in the property within the meaning of a provision in the policy rendering it void in the case of change in the interest even though by such contract the owner has parted with an equitable interest, but the word “interest” as used in the provision is to be construed as meaning the same as title.
    2. Insurance, § 120*—how contract is construed. A policy of insurance is construed in favor of the insured, as against the insurer.
    3. Insurance, § 254*—when provision of policy as to change in ownership is violated. Where an executory contract of sale of insured premises has been made and possession delivered to the purchaser without the consent or knowledge of the insurer, a provision in the policy that it shall be void if any change takes pla.ce in the possession of the property is violated. •
    Appeal from the Municipal Court of Chicago; the Hon. Hucur J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and judgment entered here.
    Opinion filed June 2, 1920.
    Rehearing denied June 17, 1920.
    Seymuur Edgerton, for appellant.
    M. M. Jacobs, for appellee.

      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.

On September 27, 1917, the plaintiff brought suit against the defendant upon-a policy of fire insurance, and on November 23, 1918, recovered judgment—the cause being tried without a jury—in the sum of $688.02. This appeal is taken therefrom.

The evidence offered at the trial is contained in an agreed statement of facts and there is therefore no conflict in the evidence.

As stated by counsel for the defendant, the questions in issue are questions of law, and were presented to the trial court in two propositions of law which were there offered on behalf of the defendant, both of which that court refused. If either of the two propositions is decided in favor of the defendant it will necessitate a reversal of the judgment.

The two propositions of law which were presented to and refused by the trial court are as follows:

(1) “The court holds as a proposition of law that the policy of insurance sued on became null and void prior to the happening of the fire, by reason of a change of possession of the subject of insurance.”

(2) “The court holds as a proposition of law that the policy of insurance sued on became null and void prior to the fire, by reason of a change in the interest of G-eorge Budleman, the assured, in and to the subject of insurance.” '

The facts agreed upon and which are pertinent to the issue here are substantially as follows: That on March 3, 1914, the plaintiff owned the premises in question, No. 3919 Nottingham Ave., Chicago, and on that date insured them against loss or damage by fire, in an amount not exceeding $1,700, in the defendant company; that on January 30, 1915, the plaintiff and his wife made a written contract with one Lyuba and Kotitz and Volinka Kotitz, his wife, which agreement provided that if the Kotitzes shall make payments provided for in the contract the plaintiff and his wife shall convey the property in fee simple and by warranty deed to them; that the premises are subject to two trust deeds securing sums of $1,200 and $500, respectively, and which are to be assumed by the purchaser when the deed is delivered; that the Kotitzes shall pay in all $2,400, $100 down and $2,300 in monthly payments of $10 or more each month until $1,000 has been paid on the principal necessary to get the warranty deed, and pay interest at the rate of 6 per cent on the amount from time to time unpaid, and to pay all taxes and assessments levied after the year 1914; that if the Kotitzes fail in performance, the contract, at the option of the plaintiff and his wife, shall be forfeited and the Kotitzes shall then forfeit all payments made by them and the plaintiff and his. wife shall have the right to re-enter and take possession; that there was indorsed on the back of the contract nineteen payments made between March 1, 1915, and October 30, 1915, and after the execution and delivery of the contract the plaintiff delivered the premises, in said contract described, to the Kotitzes and they entered into and upon the same, “and from said date up to October 30, 1916, the time of the fire which damaged the dwelling house on said premises lived in said dwelling house”; that on October 30, 1916, the dwelling house on the premises, then covered with a policy of insurance, was damaged by fire; that the defendant had no knowledge of the contract nor that the Kotitzes had entered into and upon the premises and were living in the house, until after the happening of the fire, and never consented thereto in writing indorsed on said policy or otherwise; that on June 24, 1916, the Kotitzes insured the premises in the Aetna Insurance Company for $1,500, which insurance was in full force at the time of the fire.

The agreed statement of facts further sets forth that the loss payable by the defendant, if the plaintiff is right in his contention, is the sum of $632.57.

The provision of the policy which it is necessary to interpret and apply to the facts is as follows:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants, without increase of hazard), whether by le: gal process or judgment or by voluntary act of the insured, or otherwise.”

The question, therefore, arises, did the contract of sale made by the plaintiff and his wife January 30, 1915, with Kotitz and his wife—which provided that if the Kotitzes should make the payments provided for then the plaintiff and his wife would convey the property in fee simple to them—constitute a change “in the interest '* * * of the subject of insurance,” etc. Of course, when the contract just referred to was made it was an executory contract made up of mutual promises, the Kotitzes having promised to make certain payments in the future and the plaintiff and his wife having promised that when those payments were made they would convey the property by deed. At the time of the loss the contract was in part executed because the Kotitzes had made a number of payments pursuant to its terms, nevertheless, although then in part executed as far as the Kotitzes were concerned, it still remained an executory contract and not even in equity could it be considered that the equitable-title was in the Kotitzes. Practically considered, however, although the contract was executory and the payments had not all been made, it must be admitted that the Kotitzes did have equitably an interest in the property and to that extent the interest of the plaintiff and his wife in the property would be lessened, and, therefore, changed. The courts, however, have been inclined to hold that, although the vendor may have parted with an equitable interest, still, as he retains the legal title and the risk of the property remains with that title and the contract was personal with him, the loss or destruction of the property falling upon the owner of the legal title, the meaning of the word “interest” as in the provision here under consideration means the same as title. National Fire Ins. Co. v. Three States Lumber Co., 217 Ill. 115; Phenix Ins. Co. v. Caldwell, 187 Ill. 73; McRae v. McRae, 78 Md. 270; Cottingham v. Fireman’s Fund Ins. Co., 90 Ky. 439; Trumbull v. Portage County Mut. Ins. Co., 12 Ohio St. 305; Browning v. Home Ins. Co., 71 N. Y. 508. Not a dissimilar situation was presented to the court in National Fire Ins. Co. v. Three States Lumber Co., supra, and there it is stated that the vendor in an executory contract of sale is still ‘ ‘ sole and unconditional owner. ’ ’

An examination of the paragraph in question in the instant case shows that the words therein are not scientifically put together. If “any change * * * take place in the interest * *. * of the subject of insurance, ’ ’ means what ? Of course, the context must be considered. But, even then, we are left with an ambiguity, and, in making a construction under such circumstances, we must, under the law, be less strict upon the insured than the insurer.

Of course, if it were a matter of new impression we might quite plausibly hold that the execution of the contract of sale created a change in interest, but, as it is, the law of Illinois seems to be settled definitely to the contrary. (

There remains, then, the question, was the obligation on the insured, not to permit any change to take place in the possession of the property insured, violated? The words are, “This entire policy * * * shall be void * * * if any change * * * take place in the * * * possession of the subject of insurance (except change of occupants, without increase of hazard), * * * by voluntary act of the insured, or otherwise.” What do the words “except change of occupants, without increase of hazard” import?

In Bicharás on Insurance (3rd Ed.) 349, referring to the so-called “Alienation Cláuse,” there is the following :

“But where the executory vendee has deviated from the usual practice and has, in addition to his executory contract and pending its fulfilment, taken actual possession and control of the property, by the better authority the policy is held avoided, despite the phrase in the policy allowing a mere change of occupants without increase of hazard. ’ ’

Many cases, in other jurisdictions than ours, support that statement of the law. Brighton Beach Racing Ass’n v. Home Ins. Co., 99 N. Y. Supp. 219. In the latter case the court said, having before it for consideration the identical^provision here relied upon: “It follows that the right to enforce the policy of insurance terminated with the execution of the contract and the surrender of possession of the insured building, without the knowledge or consent of the respondent, and the judgment must be affirmed, with costs.” Grunauer v. Westchester Fire Ins. Co., 72 N. J. Law 289. In Finkbohner v. Glens Falls Ins. Co., 6 Cal. App. 379, where the court considers the same clause as the one involved in the instant case, there occurs the following language:

“No case has been cited by respondent where the vendee entered into possession under such a contract of sale and a fire occurred under similar circumstances as we have here in which it has been held that the policy was not forfeited. *******

“It is of no importance that the learned trial judge found that there was no increase of the risk from the change of possession. It is obvious that such a finding is material only where possession is held by a tenant of the insured. Assuming as a matter of fact that Martin is just as careful and conscientious as Finkbohner and that the danger of fire was actually not increased in consequence of Martin’s possession of the property, yet the law applies a general standard to all similar cases and constrains ns to hold that the insured, having lost his pecuniary interest in the protection of the property, the risk was thereby increased, and under the express terms of the policy the insurer is relieved of liability. To hold otherwise would be for us to declare that the parties are not to be bound by the terms of their agreement.”

Brickell v. Atlas Assurance Co., 10 Cal. App. 17. In the latter case. the court stated that as the contract was a personal one it must be assumed that the personal character of the party whose property had been insured was an important factor in moving the insurance company to assume the risk and that it had the right, as it was its duty to other policyholders, to satisfy itself against assuming an improvident hazard. Thus, it appears, that it has been generally held that, where an executory contract of sale has been made and possession delivered to the vendee without the consent or knowledge of the insurance company, the provision in the insurance contract that it should be void if any change took place in the possession of the property, has been violated.

It seems to be a case of new impression in' this State. In Phenix Ins. Co. v. Caldwell, 187 Ill. 73, the court merely held that as the change of possession was not pleaded as a defense, although some evidence was introduced on that subject, the insurance company was not entitled “to the benefit of that proof as a defense, nor to have the jury instructed upon the effecb of the change of possession under the provision of the.policy in suit.” In that case the so-called “Alienation Clause ’ ’ did not contain the words ‘ except change of occupants, without increase of hazard.”

The theory of the cases in which it has been held that the policy was forfeited seems to be that, as the insured, after having made the executory contract, allowed the vendee to occupy the premises, he has lost, to some extent at least, his pecuniary interest in the protection of the property, arid the risk of the insurer has been to that extent increased. To the extent that the pecuniary interest of the insured has decreased, to that extent has his pecuniary interest in the preservation of the property decreased, and as his pecuniary interest in the preservation of the property has decreased the hazard of the insurer has increased. That reasoning, we think, is persuasive, and so we feel constrained to hold that the provisions of the policy were violated and the policy thereby rendered void. The judgment of the trial court, therefore, is reversed and judgment entered here for the defendant.

Reversed cmd judgment entered here.

Mr. Presiding Justice Thomson and Mr. Justice 0 ’Connor concur.


source: Caselaw Access Project

license: Public Domain

text:
    James Peterson, Appellee, v. Iris Theatre Company and John Powers, Appellants.
    Gen. No. 25,133.
    1. Set-off and recoupment, § 31

      —when statement of is insufficient. A statement of set-off attempting to set up in defendant’s favor a claim based on a non-negotiable chose in action of a third person which does not under oath allege that defendant is the actual bona fide owner of the chose in action, nor how and where he acquired title thereto, is insufficient under section 18 of the Practice Act (J. & A. f 8555).
    2. Set-off and recoupment, § 28*—how assignee . must plead chose in action 6y way of set-off. As without the authority conferred by section 18 of the Practice Act (J. & A. 8555), the assignee of a non-negotiable chose in action cannot sue thereon in his own name, in order that he may plead such chose in action by way of set-off he must' state his right of set-off in accordance with the requirements bf that provision.

      3. Set-off and becoupment, § 40

      —what is effect of non-negotiahle chose in action as evidence. A non-negotiable chose in action has no greater evidentiary value in a cause of action by way of set-ofi than in an original suit.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed June 2, 1920.
    Lawrence C. Traeger, for appellants.
    Blum, Wolesohn & Blum, for appellee.

      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 Taylor

delivered the opinion of the court.

This is a suit upon an appeal bond in which the plaintiff is obligee and the Iris Theatre Company, defendant, is principal obligor, and John Powers, defendant, is surety.

On June 15, 1917, the plaintiff having recovered a judgment against the Iris Theatre Company in the sum of $760.41, an appeal was taken to this court and the appeal bond, here sued upon, was given. That judgment was affirmed by this court. Peterson v. Iris Theatre Co., 212 Ill. App. 660.

The present claim of the plaintiff, upon the appeal bond, is for principal, interest and costs, amounting in all to $819.97. To the statement of claims setting up the foregoing indebtedness, the defendant, John Powers, on December 9, 1920, filed an affidavit of merits, and, on December 17, 1918, a claim for a set-off in the sum of $901.60. On January 2, 1919, the set-off was stricken from the files and on January 9, 1919, the affidavit of merits was stricken. On January 14, 1919, an amended affidavit in the names of both defendants was filed. It sets up, substantially, the following:

The claim of the defendants is that on March 8,1912, one Garvey leased to Refakes certain premises in Chicago; and on the same day Refakes sublet these premises to one Scott for 5 years from May 1, 1912, at $300 per month, payable in advance on the first day of every month; that said Scott deposited $720 as security for payment of said rent as provided in the lease; that by the terms of the sublease Refakes agreed to apply said $720 (together with interest thereon at 6 per cent) on and to the last 3 months’ rent of the term. On May 1, 1913, Refakes assigned and transferred all his right, title and interest in his lease to the plaintiff, Peterson, turning over to Peterson the $720, said Peterson assuming and agreeing to be bound by the obligations of Refakes respecting the deposit of $720. Peterson collected the rents from Scott and otherwise performed the obligations and exercised the rights of Refakes under the lease until December 1, 1917, when he, Peterson, abandóned the premises and forfeited all right thereto for failure to pay Garvey the rent due as provided by the lease between Garvey and Refakes and which obligation Peterson had assumed as above, set forth. By reason of such abandonment and forfeiture the sublease to Scott and all rights of said Scott to possession terminated and Peterson refused to apply the money deposited as aforesaid by Scott (with interest thereon at 6 per cent) to the payment of the last 3 months’ rent of the term as provided by the sublease and by the terms of the assignment between Refakes and Péterson; that as a result Peterson became liable to Scott in the amount of $720 and interest thereon from March 8, 1912, a,t 6 per cent. On Mayl, 1918, Scott for a valuable consideration, assigned and transferred to John Powers and Iris Theatre Company, the defendants, all his right, claim and interest to the sum of money then due and owing by Peterson to Scott; that Peterson became liable to pay to the defendants the sum of $720, with interest, in all, $901.60; that the defendants are entitled to recoup on the ground that the claim of the plaintiff grows out of the same transaction.

On January 21, 1919, that amended affidavit of merits being stricken and a motion of the defendants for leave to file instanter a statement of set-off containing substantially what was set forth in the affidavit of merits, being refused, the defendants elected to stand, and the trial judge then entered judgment for the plaintiff in the sum of $819.97. This appeal is therefrom.

The defendants contend (1) that the trial court erred in sustaining the motion 'to strike the amended affidavit of merits, and (2) in denying the motion of the defendant for leave to file an amended statement of set-off.

(1) As to the amended affidavit of merits: The amended affidavit of merits does not in any way deny the execution of the appeal bond upon which this suit was brought. It purports to set- up a right to recoup the damages claimed to have been suffered by Scott on account of the alleged breach of plaintiff’s contract pertaining to the application of the deposit. But, in recoupment, one may set off any claim for liquidated or unliquidated damages if they arise out of the .same transaction as the plaintiff’s cause of action. Here the plaintiff sued upon an appeal bond. The matter involved was the success or failure of the appeal. The defendants ’ claim does not bear in any way upon that cause of action. In Keegan v. Kinnare, 123 Ill. 280, the suit was on an appeal bond, and the defendants offered to show that when the writ of possession was executed, the principal in the bond being the tenant, was wrongfully prevented from taking from the premises certain property which she claimed; and that she was, therefore, entitled to recoup the damages thus sustained. The court held, however, that even though she had sustained such damages, they did not arise .out of the transaction which the appeal bond involved.- The court there said:

“What possible connection is there here between the conduct of the officer, or the heir-at-law, (Frank Kinnare being then dead), in executing the writ of possession, and the subject-matter of this bond? The subject-matter of this bond is the prosecution of an appeal from the judgment of the superior court to the Appellate Court. It does not look beyond the affirmance or the reversal of that judgment. It is to secure the appellee against loss by reason of the prosecution of that appeal, and liability was fixed by the judgment of affirmance.” Congress Const. Co. v. Interior Bldg. Co., 86 Ill. App. 199; Lyon v. Bryant, 54 Ill. App. 331; Barker v. Turnbull, 51 Ill. App. 226; Kingman v. Draper, 14 Ill. App. 577, is not in point.

(2) Did the court err in denying the defendant’s motion for leave to file the amended statement- of set-off? In the instant case, the amended set-off, which it was sought to file, did not, according to section 18 of the Practice Act (chapter 110, Eev. St., J. & A. U 8555) state a cause of action. A set-off is in the nature of a distinct cause of action by the defendant against the plaintiff. In setting it up, such averments must be made as by themselves constitute a sufficient statement of a cause of action. In the instant case, the amended set-off was in the names of the defendants, and the claim being originally that of Scott was a non-negotiable chose in action. Section 18 of the Practice Act (J. & A. ft 8555), provides as follows:

“The assignee and equitable and bona fide owner of any chose in action not negotiable heretofore or hereafter assigned, may sue thereon in his own name, and he shall in his pleading on oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title; but in such suit there shall be allowed all just set-offs, discounts and defenses, not only against the plaintiff, but also against the assignor or assignors, before notice of such assignment shall he given to the defendant.”

The amended statement of set-off does not under oath allege that the defendants are “the actual bona fide” owners thereof; nor does it state “how "and where” they acquired title to the chose in action. As, without the statute, the owner of a non-negotiable chose in action could not sue thereon in his own name, it is reasonable that in undertaking to state a cause of action in the nature of a set-off, the requirements of section 18 should he complied with. A non-negotiable chose in action has no greater evidentiary value in a cause of action by way of set-off than in an original suit. Leemon v. Grand Crossing Tack Co., 187 Ill. App. 247; Lepman & Heggie v. Chicago, R. I. & P. Ry. Co., 195 Ill. App. 370; Illinois Midland Ry. Co. v. Farmers State Bank of Newark, 200 Ill. App. 591; Fingado v. Wilson Braiding & Embroidering Co., 205 Ill. App. 267.

We are of the opinion that the trial court did not err in refusing to allow the amended set-off to be filed.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Pbesiding Justice Thomson and Mr. Justice O’Connob concur.


author: Mr. Presiding Justice Holdom

text:
    In the Matter of the Estate of Harold Nelson Virden. Robert G. Moore, Guardian, Appellee, v. State Bank of Chicago, Guardian, Appellant.
    Gen. No. 25,910.
    1. Set-off and recoupment, § 18

      —when breach of contract is not available. In an action to recover on appeal bond, defendant cannot set up a right to recoup damages claimed to have been suffered by a third person, who had assigned such claim to defendant, by reason of plaintiff’s breach of a contract regarding the application of a deposit made by such person with another to secure the payment of rent under a lease, which leased premises and deposit had been transferred to plaintiff.
    2. Set-off and recoupment, § 2*—what is nature of set-off. A set-off is in the nature of a distinct action by the defendant against the plaintiff, and, setting it up, such averments must be made as by themselves constitute a sufficient statement of a cause of action.
    3. Guardian and ward, § 86*—when appeal is tried de novo. On an appeal to the circuit court by the guardian of a minor’s estate from an order of the probate court approving an account rendered to it by the guardian of the minor’s person, showing a claim by such guardian against the estate, the trial is de novo and the circuit court should require proof of the correctness of every item of the account, particularly when the account is challenged by the guardian of the estate.
    4. Guardian and ward, § 86*—who has burden of proof on review of account. On an appeal to the circuit court from an order approving an account rendered by the guardian of a minor’s perfeon against his ward’s estate, the burden is on the guardian to establish by proof payments made by him on the ward’s account.
    5. Guardian and ward, § 64*—-hoto court may enforce payment of claim. The probate court has jurisdiction to adjust a claim of the guardian of a minor’s person against the ward’s estate, and to order that the amount due him be paid to him by the guardian of the estate, where both guardians are within such court’s jurisdiction and subject to its order and direction, and while such court cannot enter a judgment against the guardian of the estate or enforce the order by execution, the payment can be coerced by a proceeding for contempt for disobedience thereof, or such court may remove the guardian of the estate for his refusal to obey.

      Appeal from the Circuit Court of Cook county; the Hon. J. P. MoGoobty, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed June 28, 1920.
    Chytraus, Healy & Frost and John Peter Barnes, for appellant.
    James A. Donnelly, for Malcolm MacLeod, Conservator.

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

   Mr. Presiding Justice Holdom

delivered the, opinion of the court.

This is a controversy between the guardian of the person and the guardian of the estate of Harold Nelson Virden, a minor. Robert G. Moore is the guardian of the person of said minor and the State Bank of Chicago is the guardian of his estate. Moore, as guardian of the person of the minor, rendered to the probate court an account between himself and the" minor, in which it appeared that Moore had a claim against his ward’s estate in the sum of $1,250. The account was approved and the probate court entered an order upon the State Bank of Chicago as guardian of the estate of the Virden minor that it pay to Robert G. Moore, on the 15th of January, 1916, the amount of $1,250 found due by the account.

From this order the State Bank took an appeal to the circuit court, where, under the statute, the cause was heard de novo. Upon the hearing in the circuit court the only evidence proffered by Moore was the account filed in the probate court, together with the order of the probate court appealed from. The bank put in evidence the objections filed by it to the foregoing account, a petition and an account filed by Moore in the probate court and the order entered on said petition. The State Bank filed numerous objections to the Moore account, virtually challenging every item of it. There was no oral evidence offered by either party.

It was the contention of the bank in the circuit court as well as here that the law 'required Moore to prove by evidence in the circuit court every item of his account. Counsel for Moore proceed upon the theory that the account and order entered thereon in the probate court made a prima facie case. This seems to be the view of the matter which the trial judge took and a judgment was entered accordingly to the same purport and effect as that entered in the probate court.

From this judgment the bank took an appeal to the Supreme Court on the contention that the construction of section 20 of article VI of the Constitution was involved. Moore v. State Bank of Chicago, 291 Ill. 373. On this subject the Supreme Court said:

“The provision of the Constitution referred to provides that, when established, probate courts shall have original jurisdiction ‘of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts.’ The legislature, in providing for the establishment of probate courts, conferred jurisdiction on them in exactly the same language as the Constitution. (Hurd’s Rev. St. 1917, ch. 37, par. 220 [J. & A. 3263].) The question is therefore one of statutory rather than constitutional construction, and that question has, in effect, been passed upon in Kingsbury v. Powers, 131 Ill. 182.”

The Supreme Court being of the opinion that the appeal should have come to this court, transferred the cause.

The circuit court erred in not requiring Moore to prove the items of his account. The trial was de novo, the circuit court judge sat in the matter in the same manner as did the probate judge, and it was the duty of the court to require proof of the correctness of every item of the account, particularly when the same was challenged by the bank. The burden was upon Moore to establish by proof payments made by him on account of his ward. Standish v. Musgrove, 223 Ill. 500; 21 Cyc. 163; Wylie v. Bushnell, 277 Ill. 484; Kingsbury v. Powers, 131 Ill. 182.

On a new trial Moore will be put to the proof of all the items of his account.

It is contended further that the probate court has no jurisdiction to adjust the claim of Moore as guardian of the person and to order that the amount due him as such guardian be paid by the bank as guardian of the estate of the minor out of the estate in its hands as such guardian.

We think the argument of counsel proceeds upon erroneous premises. A stranger to the ward’s estate might be relegated to his remedy at law, but not so, we think, where both the guardians of the person and estate being separate are within the jurisdiction of the probate court and subject to its order and direction. While it is true the probate court could not enter a judgment against the guardian of the estate, it still might enter an order that it pay out of his estate the amount found due to Moore as guardian of the person of the minor. While the order could not be enforced by an execution, the payment could be coerced in a summary way in a proceeding for contempt for disobedience of such order, or the court might for such refusal remove the guardian'and appoint another in its place.

The probate court "'had jurisdiction of both the guardians and complete control of their actions. There is no valid reason why the court should not order money due to a guardian of the person of a minor to be paid by the guardian of his estate. Both guardians must settle their accounts in the probate court and that court had jurisdiction to adjust such accounts at any time, and to make such orders in relation thereto as in the interests of the ward might seem necessary. The probate court also had jurisdiction of the person of both guardians and of the ward and of the estate of the ward in the hands of the bank. In Winch v. Tobin, 107 Ill. 212, the Supreme Court helcL to the widest powers of the probate court in the matter of the estates of minors, holding that the sale of the real estate of a minor at guardian’s sale was within the power'of the court to order as a “probate matter” within the meaning of the Constitution, sec. 20, art. VI, the court saying: “We may suppose the terms, ‘all probate matters,’ in the Constitution, to be used in their broadest and most general sense. ’ ’

For the errors indicated the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with the views herein ex-. pressed. '

Reversed and remanded.

Mr. Justices Deveb and McSurely concur.


author: Mr. Presiding Justice McSurely

text:
    A. L. Young Machinery Company, Appellant, v. Lee Loader & Body Company, Appellee.
    Gen. No. 25,835.
    Sales, § 124

      —when seller is relieved from making delivery within reasonable time. A manufacturer who was unable, by reason of orders given by the United States Government for certain of its product, to comply with the provisions of a contract with another for the manufacture and delivery of certain goods, held to be relieved from the ordinary rule of reasonable time for deliveries after sale, by virtue of the clause of the latter contract calling shipment in certain quantities except as prevented “through acts uncontrollable by said manufacturer,” and of the provisions of the National Defense Act of June 3, 1916, and the purchaser under the private contract was not entitled to cancel it on account of the delay in deliveries so caused.
    Appeal from the Municipal Court of Chicago; the Hon. Bebnabd P. Babasa, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    H. H. McCormick, for appellant.
    William A. Jennings, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing suit for the return of $500 and certain expenses advanced on account of a contract of purchase of goods manufactured by defendant, was, upon trial by the court, adjudged to take nothing. By this appeal plaintiff seeks a reversal, but we hold that the finding of the court was proper.

Defendant is engaged in the business of manufacturing motor trucks and trailers at Chicago, Illinois, while plaintiff is engaged in selling such goods at San Francisco, California. January 12, 1918, the parties entered into a contract called a distributers’ contract', whereby plaintiff was given the exclusive right to sell defendant’s goods in California at certain prices and terms. It was provided that thirty-five trucks were to be bought by plaintiff during the year, to be shipped in certain quantities except as prevented 11 through acts uncontrollable by said manufacturer.” May 2, 1918, plaintiff mailed an- order with $500 on account for certain of the trucks and defendant began forthwith to manufacture them. At the time this order was received the defendant had an order from the United States G-overnment for certain of its trailers and merchandise, and a large amount of the material used in filling the government order was of the same kind used in filling defendant’s order. There is testimony that at this time defendant proceeded with both the government order and plaintiff’s order and that it could have handled both orders without delay if it had not been for a subsequent modification in its order made by the United States Government; that this modification required the total capacity of defendant’s plant for about a month-beginning about the middle of May, and that by reason of this defendant was not able to proceed promptly with plaintiff’s order. Under date of June 15 plaintiff both by telegram-and letter canceled its order and demanded the return of the $500 advanced. The evidence tends to show that at this time 91 per cent of the order had been completed and shipment could have been.made within 4 days after the order of cancellation. In reply defendant telegraphed plaintiff, urging it to withdraw cancellation, but plaintiff refused. Defendant produced evidence that after the order had been canceled it became necessary to remodel the trailers manufactured for this order so that they might be resold, and that the expense of this was more than $500.

Defendant’s position is that its delay in making deliveries to plaintiff was caused by an act uncontrollable by it and therefore is excusable under the provisions of the contract above referred to, and that, furthermore, under the terms of the National Defense Act of June 3, 1916 (vol. 9, Fed. Statutes), the order of the United States Government took precedence over all other contracts including that with the plaintiff. Section 120 of the National Defense Act empowers the President of the United States to place an order with a corporation for such product or material as may be required and compliance with such orders is obligatory' on the corporation and takes precedence over all other orders and contracts theretofore placed with such corporation. Failure to comply with these provisions is deemed a felony and subject to punishment. The effect of this provision was under consideration in Moore & Tierney v. Roxford Knitting Co., 250 Fed. 278. It was there held that if a manufacturer voluntarily seeking profit solicited a contract from the government, he could not claim release from other contractual obligations by the terms of this act. If, however, the government placed the order with the manufacturer or did that which could be considered as mandatory, the manufacturer was bound to fill the government order and was relieved from compliance with other contracts in so far as their performance was prevented by the work necessary to fill the order from the United States Government. In Hite v. Cincinnati, I. & W. R. Co., 284 Ill. 297, it was held that the contracts of individuals must give way to the requirements of the government, and to the same effect is Morgan v. Cook, 213 Ill. App. 172.

Applying the conclusions in these cases to the instant facts, we hold that the defendant was relieved from the ordinary rule of reasonable time for deliveries after sale. Nothing convincing appears to disprove the testimony that the delay in making plaintiff’s shipment was caused by the mandatory order by the United States Government requiring the full capacity of defendant’s plant. Under such circumstances defendant was relieved from its ordinary obligations with respect to deliveries under contract and cannot be held liable therefor. f

It is not successfully disputed that by reason of the cancellation of plaintiff’s order defendant suffered an expense in a larger amount than the sum advanced on the sale. As the delay cannot be lawfully charged against the defendant, the plaintiff was not lawfully entitled to cancel its order; having done so, and refusing to renew the same, it must be liable for any damages suffered by the defendant caused there,by.'

We see no convincing reason to disagree with the judgment of the trial court and it is affirmed.

Affirmed.

Mr. Justices Holdom and Deveb concur.


author: Mr. Justice Dever

text:
    George M. Marks, Plaintiff, v. Donald J. O’Donnell et al., Defendants. George Martin, Appellant, v. John Guskay et al., Appellees.
    Gen. No. 25,916.
    1. Mortgages, § 524

      —when court may vacate order approving receiver's report. Even though the term at which it was entered has ended, a court may vacate its order approving the final report of a receiver appointed to collect profits in proceedings to foreclose a trust deed and open up its decree if, on hearing, it is found that the receiver procured the court’s approval by fraudulently failing to serve proper notice on one of the defendants to the foreclosure of the making of the motion.
    2. Mortgages, § 520*—what are duties of receiver to foreclose trust deed. Under the rules of the circuit court of Cook county, it is the duty of a receiver appointed in proceedings to foreclose a trust deed to serve due notice upon a defendant to such proceeding of the motion to have the receiver’s final report approved.
    3. Receivers, § 48*—when report of receiver may he modified. A court has power to compel a receiver appointed by it to modify his report at a term subsequent to that at which he was discharged.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed June 28, 1920.
    Simon P. Gary and C. L. Cassiday, for appellant.
    John H. Dally, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.

July 1, 1915, George Martin, appellant, was appointed receiver to collect the rents and profits, etc., issuing out of certain real estate, in proceedings to foreclose a trust deed, and he served 'as such until discharged by an order of court September 26, 1918.

March 31, 1919, a motion was entered to vacate the order of September 26, 1918, approving the receiver’s final report and discharging him as such. This motion was allowed April 21, 1919, and time was given for filing objections to the report and account. Objections which were subsequently filed were allowed and a decree was entered which found that “said final report was false and fraudulent; and that credits or claims for expenditures are made which never were paid by said receiver.” The decree recited the specific facts and the items upon which the chancellor, based his conclusion that the receiver had been guilty of fraud, and it stated that he, the receiver, had in his possession $737.21 belonging to the trust in his charge, and it ordered and decreed that the receiver pay this sum to the clerk of the court within 2 days from the date of the order of the decree, June 13,1919. September 15, 1919, a motion made by the receiver to vacate the order of June 13, 1919, was denied and the receiver brings the case to this court by appeal.

The evidence introduced upon the hearing of the cause is not included in the abstract of record, but the decree appealed from specifically recites' facts which, if true, show that the receiver was guilty of fraud as found in the decree. In deciding the point made that the court had no jurisdiction after the term to vacate its order of September 26, 1918, approving the final report and account of the receiver, it should be borne in mind that the decree entered does not find against one of the parties to the litigation; it finds, in express terms, the receiver, an officer df the court, guilty tif a violation of his duty as such. Usually a judgment or decree of a court becomes binding upon parties thereto as well as upon the court after the term has elapsed at which the judgment or decree has been entered. There are, however, some statutory and common-law exceptions to this general rule, as for instance, where a sheriff has made a false return, advantage may be taken thereof before judgment by plea to the jurisdiction of the court, and after judgment and during the term by motion to vacate the judgment; but where the false return has been brought about by fraudulent conduct of the plaintiff, the judgment may be vacated by motion or on petition filed in the cause, after the term has elapsed. Chapman v. North American Life Ins. Co., 292 Ill. 179.

We have no doubt of the power of the court to open up its decree, if on hearing it was found that the receiver had procured the approval of the court of his report by fraudulently failing to serve proper notice upon appellee of the making of the motion. Guskay’s affidavit alleges that he was one of the defendants to the foreclosure proceedings and that he had never received any notice of the application for the approval of the receiver’s final account and report on September 26, 1918, and the receiver now asserts, in effect, that as a result of such conduct on his part the court has lost jurisdiction over him in the proceedings and is unable to compel him to so modify his final report as to make it speak the truth. It was incumbent upon the receiver, under the rules of the circuit court of Cook county, to serve due notice upon Guskay of the motion to have the final report approved'. Means v. Means, 42 Ill. 50. Appellee is not a stranger to the proceedings. Rosenberg v. Stern, 177 Ill. 437.

In the case of Wright v. Simpson, 200 Ill. 56, it was held that an order of the probate court obtained by fraud upon and without notice to an interested party may be set aside upon a petition at a subsequent term. In its opinion the Supreme Court said:

“Again, ‘courts of justice have power, on due proceedings had, to set aside or vacate their judgments and decrees, whenever it appears that an innocent party, without notice, has been aggrieved by a judgment or decree obtained against him without his knowledge, by the fraud of the other party. Nor is the principle limited in its operation to courts which proceed according to the course of the common law.’ * * * It is undoubtedly true that a decree pr judgment, standing unreversed arid in force, cannot be called in question or impeached in a collateral proceeding, but the filing of the petition here is not an attempt to avoid the effect of a judgment in a proceeding purely collateral. A judgment, obtained by fraud at a former term of the court, can be re-examined and set aside at a subsequent term of the court by the party aggrieved by the fraud. (Edson v. Edson, 108 Mass. 590.) Upon proof of fraud or collusion in the procurement of a judgment such judgment may be vacated at any time. (Freeman on Judgments, sec. 99.) As was said in Pease v. Roberts, supra [16 Ill. App. 634], a court may ‘protect its own dignity and prevent itself from being made an instrument in the hands of a designing man to accomplish a wrong. ’ ”

The issues presented to the chancellor for decision concern only the conduct of the receiver in the administration of his office. The rights of irinocent third parties are in no sense affected by the decree appealed from, and aside from authority one is impressed by the apparent soundness of the conclusion reached in the case of Wright v. Simpson, supra, that the trial court was not powerless in the presence of palpable fraud to correct an order of the court procured by the wrongful conduct of its own officer.

In the present proceeding the charge is made that the receiver has been guilty of fraud, first, in failing to give appellee notice of the application to the court for the approval of the final report and account, and, second, in making false and fraudulent reports of his expenditures as such receiver. The chancellor set aside the order approving the receiver’s report on a finding based upon affidavits which showed that the order was entered without notice to appellee, an interested party to the suit. The abstract of record filed here fails to show the service of such notice upon appellee. We are unable to determine from the abstract of record whether the proceedings for the foreclosure of the trust deed are pending in the trial court, but in any event it is our opinion that the court had power to compel the receiver, at a term subsequent to that of his discharge, to modify his report.

The decree of the circuit court of Cook county will be affirmed.

Affirmed.

" Mr. Presiding Justice Holdom and Mr. Justice McSurely concur. .


author: Mr. Presiding Justice Taylor

text:
    Donald Lamont, Plaintiff in Error, v. S. R. Moss Cigar Company and F. L. Koehn, Defendants in Error.
    Gen. No. 24,936.
    1. Corporations, § 754

      —when foreign corporation is not immune from process. That a foreign corporation is engaged in interstate commerce and, therefore, does not need a license from the State to do business therein does not give it immunity from the service of process issued by a court of the State.
    2. Corporations, § 709*—when foreign corporation is doing business in State. In an action- against a foreign corporation which pleads to the jurisdiction, asserting that it never did business in the State and that the person served as its alleged agent was not a representative capable of being served, uncontradicted evidence that the corporation’s product was being exploited in the State and large sales of its ■ product were being made there; that the efforts in this regard were being made by the agent served, whom it paid a salary and commissions; that the corporation paid the agent’s stenographer and home-office expenses, in part at least; that it furnished him stationery expressly announcing that he was its representative; that, in several instances, the agent collected delinquent accounts for it; that he made allowances to jobbers for advertising to advertise the corporation’s product purchased through him; that another person employed by jt in the State was undqr such agent’s direction and was engaged in “missionary work” for the sale of such product; that the goods sold to retailers in the State by these means would be sent to the jobber in the' State and the “missionary” would also get paid for his services, it was held that the corporation was doing business in the State and that service upon such agent was sufficient to confer jurisdiction.
    3. Conspiracy, § 14

      —when evidence is insufficient to show conspiracy. In an action to recover for damages alleged to have been sustained through the conspiracy of defendants to deprive plaintiff of the benefits of a certain contract, to deprive him of commissions and of his good name, reputation and credit in the trade and to prevent him from securing orders, through causing him to be discharged and through circulating false and defamatory reports and stating that he was of unsound mind, evidence examined and held insufficient to establish a prima facie case, and that a verdict was properly directed for defendants.
    Error to the Superior Court of Cook county; the Hon. Marcus A. Kavanagh and the Hon. Oscar Hebel, Judges, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed in part, reversed in part and remanded.
    Opinion filed July 7, 1920.
    Francis E. Hinckley and Bangs, Frankhouser & Colby, for plaintiff in error.
    Ringer & Wilhartz, for defendant in error S. R. Moss Cigar Co.; Orville R. Seiter, of counsel.

      Sce Illinois Notes Digest, Vole, XI to XV, and Cumulative Quarterly, same topic and section number.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The plaintiff brought suit against the defendants, S. R. Moss Cigar Company and F. L. Koehn, claiming that they conspired to deprive him of the benefit of a certain contract; to deprive him of certain commissions; to deprive him of his good name, credit and reputation in the cigar trade; to prevent him from securing additional customers or orders for any other cigar concern; that they caused him to be discharged; and circulated in the cigar trade and generally, untrue, malicious and defamatory reports intending to disgrace him and maliciously intending to prevent him from securing any other employment in the cigar business or his selling cigars to any of those with whom he had formerly dealt; that they circulated among cigar dealers with whom he had dealt, a report that he was of unsound mind and was no longer responsible nor fit to do business. The foregoing was recited in the so-called tenth count of the declaration. Subsequently, an amended count was filed, reciting, substantially, the contents of the tenth count, and adding a recitation of certain specific acts.

Koehn pleaded the general issue, and S. B. Moss Cigar Company pleaded that it was a Pennsylvania corporation; that it never did business in the State of Illinois; that it had no officer or agent in this State, and that William H. Orr, upon whom, as its alleged agent, service was had, was not such a representative as was capable of being served; and that, as a result", the court did not obtain jurisdiction. There was a replication to the plea to the jurisdiction. There was a trial by jury as to the special plea, and a verdict for the S. B. Moss Cigar Company, upon an instruction, from the trial judge, to find for that defendant.

We are of the opinion that the plea of the defendant, S. B. Moss Cigar Company, to the jurisdiction was .not sustained. The evidence of Orr, who was employed by that company as salesman for the City of Chicago, conclusively shows that the S. B. Moss Cigar Company did business in Chicago in the year 1915. With that company Orr had a written contract. He had a drawing account of $250 per month, and, in addition, traveling expenses, both paid by it. The S. B. Moss Cigar Company was a cigar manufacturing company, located at Lancaster, Pennsylvania. Orr sold cigars for it, both to wholesalers and retailers in Chicago; to such firms as E. Hoffman & Company, Nathan Fox, and Many, Blanc & Company. He called on druggists and retail cigar dealers to advertise the company’s cigars. Pie made allowances to jobbers for advertising matter in order to advertise the cigar "purchased through him from the company; and the retailers purchased from the jobbers. He employed one McFarland to do “missionary work” for him on behalf of the company and the company paid McFarland’s salary. Orr got 5 per cent on all goods shipped into Chicago. Further, it is obvious from the correspondence between Orr and the company that they were doing considerable business in Chicago, selling hundreds of thousands of cigiars. The company, also, furnished Orr with stationery which expressly stated that he represented “S. B. Moss Cigar Co., Lancaster, Pa.” It was sent from Lancaster, Pennsylvania. Orr employed his wife as a stenographer and paid her for her work and conducted an-office at his home in Chicago; and that expense was charged to the company. In several instances Orr collected delinquent accounts. Moss told Orr he wanted him to use his home as an office. The evidence of McFarland is that he was employed by the company and they paid him for his services rendered in Chicago, and that those services consisted e. g. in going with a salesman of Nathan Fox Company and calling on the retail trade and introducing a cigar of the S. B. Moss Cigar Company; that the goods were then sold and delivered by Nathan Fox Company and paid for by its customers. McFarland would then send duplicates of the orders to the S. B. Moss Cigar Company and that company would pay him.

We think the evidence in the instant case, that the g. B. Moss Cigar Company was doing business in this State is far stronger and more persuasive than that in Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98. In that ease the court sanctioned as the law the following: “If a corporation knowingly and voluntarily permits a person to hold himself out to the world as its agent, said corporation will be bound as principal to those dealing with such person to (who) act upon the faith that such agency exists; and this is true irrespective of whether or not an agency in fact exists.” And, further, the court said: “The appointment may be established by implication of law arising out of the conduct of the parties, or by way of estoppel.”

In Booz v. Texas & Pac. Ry. Co., 250 Ill. 376, where the person served merely solicited shipments of freight by way of the defendant railroad, and solicited prospective passengers to purchase tickets over that line, all of which railroad was outside of this State, the court held that the defendant was not doing business in this State and that the writ should be quashed. The court there said that “The decisions of the courts are that mere solicitors of business are not agents, within the meaning of the statute.” It must-be borne in mind that the solicitor referred to, in that case, only solicited freight and passenger carriage on the defendant railroad located outside of this State. Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61, pertains only to a case where the question arises on section 67b, chap. 32, Hurd’s Eev. St. 1905 (J. & A. 2526), that is, the necessity for a certificate from the Secretary of State. The same is true of Union Cloak & Suit Co. v. Carpenter, 102 Ill. App. 339, and the Journal Printing Co. v. Inter-Ocean Newspaper Co., 167 Ill. App. 274. A number of similar decisions are analyzed and commented upon in Journal Co. of Troy v. F. A. L. Motor Co., 181 Ill. App. 530.

Making a corporation amenable to process, because it is doing business in this State, does not in any way affect or restrict rights which grew out of the fact that the business it is doing may be Interstate Commerce. The law that exempts interstate commerce corporations from the need of a State license does not exempt them from service of process issued by a State court; they have no such immunity.

The defendant Moss Company offered no evidence to show it was not doing business in this State, so that the plaintiff’s evidence stands uncontradicted, and there was no evidence to show that it did no other business in this State. The burden was on the defendant to support its plea.

Considering what the S. E. Moss Cigar Company was doing in the State of Illinois; thé exploitation of its cigars; the large sales that were being made; the efforts in its behalf made by Orr, to whom it had given written authority; to whom it paid a salary and commissions; whose stenographer and home-office expenses, in part at least, it had paid for; to whom it furnished stationery which announced in express words that he was its representative; that in several instances he collected delinquent accounts; that he made allowances to jobbers for advertising matter in order to advertise the cigars purchased through him from the company; also, one McFarland was employed by it in Chicago and was under Orr’8 direction; that he went around doing what is called “missionary work”; that as a result cigars—in large' quantities—were sold to different retailers in Chicago; that those cigars would then be sent to the jobber in Chicago by the S. E. Moss Cigar Company and, in addition, McFarland would get paid for his services, wp are of the opinion that the S. E. Moss Cigar Company was doing business in Chicago and that • the service on Orr as its agent was sufficient to give the court jurisdiction.

Subsequent to the trial of the plea to the jurisdiction and the finding thereon in favor of S, R. Moss Cigar Company, there was a trial on the merits between the plaintiff and the defendant Koehn. The evidence introduced by the plaintiff was substantially the following: The plaintiff, who had been for many years in the cigar business, was on March 2, 1912, employed by S. R. Moss Cigar Company (hereafter called the Moss Company) as traveling salesman in a certain defined territory which included Chicago. By his contract of employment he was to offer and sell the cigars of the Moss Company exclusively and receive 5 per cent commission, and 5 per cent on duplicate orders, and he was to be paid $250 per month and necessary traveling expenses and to devote his time to the disposition of the output of the Moss Company. The contract further provided that “the extension of credit and the conduct of the business” rested solely in the Moss Company. About May 1,1912, he met Koehn, the secretary of the wholesale liquor firm of Many, Blanc & Company. He told Koehn, in the presence of Many and Moss that 500 retail druggists had agreed to make a simultaneous window display of the Moss Company cigars and that every druggist had agreed to buy outright 200, and to buy as many more within the next 30 days; that the Moss Company needed a distributor for the cigars in Chicago as it did not sell direct to the retail trade but almost entirely to the jobbers. In consequence, Many, Blanc & Company of Chicago then bought $11,000 of that brand of cigar and Koehn agreed that the Moss Company salesman would see that the 500 druggists would get their orders and the Moss Company would send out advertising matter to each druggist and act as distributors in Chicago of the Moss Company. Prior to that time Many, Blanc & Company had no cigar department. From May, 1912 to November, 1913, Koehn managed the cigar department of Many, Blanc & Company and upon the latter date the plaintiff was given its management and Many, Blanc & Company arranged that the plaintiff might draw—from Many, Blanc & Company— from 40 per cent to 50 per cent of the profits of his individual sales to the retail trade. That arrangement was made in the presence of Koehn, Many and Moss. Subsequently the plaintiff and Koehn had some dispute concerning the discharge of a woman who worked in the cigar room, the plaintiff claiming that her place ought to be filled by a man. On February 26,1914, the plaintiff entered into a written agreement with Many, Blanc & Company. By that contract the plaintiff and, seemingly, the Moss Company, agreed to conduct the “selling end”, and the management of the cigar department and it was provided that the plaintiff should pay the expenses of all salesmen connected with the cigar department of Many, Blanc & Company; that that company should advance, weekly, sufficient moneys for that purpose provided it did not exceed 50 per cent of the gross profits of all cigar orders taken during that particular week; that the salesmen of Many, Blanc & Company were not to solicit orders from the trade without the direction -of the plaintiff. It was recited in that contract that not' only Many, Blanc & Company agreed, but the plaintiff “for not only himself but for the S. B. Moss Cigar Company as well.” After that contract was entered into a display was made in the stores belonging to the members of the association. That was in May, 1914.

On July 20, 1914, S. B. Moss came to .Chicago and had a conference with Koehn in the office of Many, Blanc &. Company and at that time the plaintiff had some talk "with Moss in regard to a complaint which had been made by Koehn which was that the plaintiff was drawing 40 per cent of the profits on the cigar sales of their salesmen. The plaintiff talked with Moss at that time and told him that he would pay back a certain 20 per cent of the profits of certain sales. .On the next day there was a conference between Moss, Koehn and some of the employees concerning sales to the retail trade made by the plaintiff.

On July 31,1914, the Moss Company wrote the plaintiff making some complaint and offering him 5 per cent commission on all goods shipped to Chicago which would be in addition to the 40 per cent of the profits of all the cigars sold to Many, Blanc & Company and 20 per cent of the profits of the cigars sold by that company’s salesmen. The new offer suggested advancing him, on account, $60 per week and also offered to pay $25 per month for office rent. The change in their relations went into effect August 15, 1914. In a letter of September 19, 1914, signed by Many, Blanc & Company and Fred L. Koehn, secretary, it was stated that the Moss Company’s representative “takes rather arbitrary actions, and is acting very ungentlemanly in our office. The next time he comes in here we will show him the door. * * * We cannot have your representative run our business.”

On August 28, 1914, the plaintiff presented a statement to the cashier of Many, Blanc & Company for the 40 per cent that he claimed was due to him. There was some discussion as to whether he was entitled to 20 per cent or 40 per cent. The cashier said that Koehn told him that the Moss Company had told him a few weeks before not to pay the plaintiff but 20 per cent. There was some further talk and Many of Many, Blanc & Company told the plaintiff that he was entitled to 40 per cent.

On September 24, 1914, Moss of the Moss Company came to Chicago. He was met by the plaintiff and they went to the office of Many, Blanc & Company and they met one Richter who had charge of the cigar department and Koehn spoke to Moss but not to the plaintiff. The plaintiff said to them all, that he had written out a paper practically relinquishing his rights under his contract as there had been so much condemnation of-the manner in which the cigar department of Many, Blanc & Company had been conducted. That paper he handed to Koehn and also a copy to Moss. Following that, there was a wordy altercation between him and Koehn. The' plaintiff then left the room and when standing by the cashier’s desk overheard Koehn say to Moss.that he, the plaintiff, was of unsound mind; that he had been selling scarcely a cigar and had been putting in his time on Christian Science; that Moss in answer to that said that the plaintiff was not to his knowledge of unsound mind; that he, the plaintiff, heard Koehn say that the plaintiff had quit smoking and would not allow it in his house; that he heard fragments of sentences ; that he heard Moss say that if that was so he would discharge him but that he wanted to see Many first.

The plaintiff saw Moss during the next four days in St. Paul and some other northern cities. They traveled together and sold a large number of cigars. Pie did not see him afterwards until May 20, 1915, at the trial.

On November 24, 1914, the Moss Company wrote the plaintiff a letter in which, referring to his peculiar actions, which they said had been detrimental and injurious to them, they were compelled in their own interests to dispense with his services.

On cross-examination the plaintiff testified that it was part of his duty to collect money from Many, Blanc & Company due the Moss Company; that he had letters from the Moss Company asking him to collect money from Many, Blanc & Company; that Many said that Koehn was crazy; that his employment with the Moss Company terminated tin November 4, 1914. He subsequently brought suit against the Moss Company for a breach of contract and recovered and collected a judgment of $1,745.

The evidence of one Bichter, who was in the cigar department of Many, Blanc & Company in the year 1914, is to the effect that he saw a published article in a trade paper called the Tobacco Leaf; that he asked Mr. Moss if the article was true and Moss said no; that he would be continued with Many, Blanc & Company as it always had been; that Moss. further said that is some of Lament’s work and shows that he is of unsound mind. He further testified that Moss asked him if he had ever seen Lament take intoxicating liquors or drugs; that Louis Burk, who was present and lived with the plaintiff said that he never saw him do anything wrong; that in the afternoon of that day Mr. Moss said that he had discharged the plaintiff and advised him, Richter, to keep away from the plaintiff “because he is pretty foxy and he is a little bit too clever for you”; that Koehn was present when that was said; that he remained in the employment of Many, Blanc & Company until the trial took place between the plaintiff and the Moss Company; that after he had testified in that case and had left the witness stand and was in the corridor outside of the court room, Koehn asked him some questions about being there and then discharged him. The "witness also testified that, on one occasion in October, 1914, when a letter was received, the superscription of which was in the plaintiff’s handwriting, Koehn handed it to him and told him that he didn’t want him to be getting mail from the plaintiff or have anything more to do with him; that if he did he intimated that he would be discharged.

The evidence of the witness Nowack, who was a bookkeeper for Many, Blanc & Company, from March, 1914 to September, 1915, is to the effect that he was present at several conversations between Koehn and Moss and the plaintiff; that in the latter part of November, 1914, an article in the Tobacco Leaf was discussed in the presence of the plaintiff, Moss and his son, Richter, Koehn and Burke; that when Richter asked Moss if the article in the paper were true Moss said “no, that shows that Mr. Lamont is of unsound mind. ’ ’

The witness Lindemeyer, who worked for Many, Blanc & Company, corroborates the testimony of the plaintiff in regard to, changing the woman employee to that of a man; and that the plaintiff and Koehn had a dispute in the1 course of which the plaintiff said, “you are a moral and physical coward.” The witness further corroborated Richter as to his being discharged by Koehn.

The evidence of the witness Clough, who in October, 19l4, was a salesman for the Moss Company, and lived in Minneapolis, is to the effect that he had a conversation with S. R. Moss in the presence of two men, Conrad and Whitaker, in the course of which Moss told him that the plaintiff was crazy and was spending a great deal of his time studying Christian Science, figuring on becoming a practitioner.

The witness Briody, who was a representative of the Moss Company, is to the effect that Moss in November, 1914, in the City of Indianapolis, told him in answer to a question of one Dean, who had charge of a cigar department, that the plaintiff was crazy and that he was devoting his time to Christian Science and was going to become a practitioner.

The witness Pioso, who was employed by the Moss Company for 13 years as bookkeeper, is to the effect that in the office of the company in December, 1914, in the presence of several others, Moss stated that the plaintiff was studying Christian Science; that he must be of unsound mind; that he had given up a good position to be a scientist and that he was not attending to his duties in Chicago; that Moss further said that when he came back from Chicago that they were going to discharge plaintiff on account of his not attending to his duties; that his business was falling down; that a man studying Christian Science could not attend to his duties.

One Burie, a former stenographer of the Moss Company, testified to the effect that Moss said he would have to sever connections with the plaintiff on account of his not giving his attention to the business; that he was studying Christian Science.

The evidence of the witness Charles is to the effect that in the early part of the summer of 1914, in a conversation with Moss at Utica, Moss said: “Lament is irresponsible, he has gone crazy, we have taken our accounts out of his hands, he is crazy on the subject of Christian Science and is going to take it up as a practitioner, and is going to quit the cigar business. He, in fact, almost came to blows with one of our best customers in the City of Chicago.”

The evidence of the witness Koehn, the defendant, is that he owns 188 shares of the 524 shares of stock outstanding of Many, Blanc & Company; that the stock is worth $305 a share.

At the close of the plaintiff’s evidence, and upon a motion by the defendant Koehn, the trial judge directed the jury to find for the defendant. A verdict was, accordingly, rendered and judgment entered thereon. To reverse that judgment, the plaintiff prosecutes this writ of error.

The contention of the plaintiff is that the evidence sufficiently tends to show that the defendant Koehn has committed a wrong, a tort of some kind, by which he has been damaged, and that the trial judge erred in directing a verdict for the defendant Koehn.

The story told by the evidence, an elaborate resumé of which we have set forth, is merely a recitation of a certain portion of the business life of the plaintiff as it was affected, chiefly, by the conduct of Koehn and Moss. Therein are recited facts going to show that he and Koehn, as to certain business matters, did not agree and did not get along' amicably together. There may he in it, also, a suggestion, here and there, that Koehn and Moss came to agree that the plaintiff was not the man for the work he was engaged in. But, as far as Koehn is concerned, there is no substantial evidence either of conspiracy or wrong. Though 'it shows Moss told a number of different people that the plaintiff was “crazy” or “of unsound mind” and that he had adopted “Christian Science,” the only evidence against Koehn is the testimony of the plaintiff himself, that on one occasion, at the office of Many, Blanc & Company, he overheard Koehn say to Moss that he, Koehn, was of unsound mind. Of course that, alone, or even in conjunction with the other evidence, does not make out a prima facie case, such as that set forth in the declaration.. Then, too, it must be observed, that it does not appear that when Koehn thus spoke to Moss it was not privileged as being part of a communication between two persons both interested in the habits of one who may be considered as an employee of each. As to the charge of alleged conspiracy to injure the plaintiff by defamation or otherwise, the evidence is obviously insufficient.

After a careful analysis of all the evidence bearing upon the cause of action as set up against the defendant Koehn, we are of the opinion that the plaintiff failed to make out a prima facie case and that the trial judge was entirely justified in directing a verdict in his favor.

The judgment is, therefore, affirmed as to Koehn; and as to the defendant, S. B. Moss Cigar Company, it is reversed and remanded.

Affirmed in part, reversed in part and remanded.

Mr. Justices O’Connor and Thomson concur.


author: Mr. Justice Taylor Mr. Justice Thomson

text:
    In re Estate of Rosa Swartz, Deceased. Desider L. Tarjan, Administrator, Appellee, v. Rosa Revesz, Appellant.
    Gen. No. 25,035.
    1. Executors and administrators, § 122

      —what is extent of administrator’s title. When an administrator is appointed tor the estate of a deceased person and letters are issued, the letters relate back to the time of the decedent’s death, and the title to all of the decedent’s property, including personal property in specie which has come into the hands of a third person after such death, is vested in the administrator and the probate court has jurisdiction of a proceeding to recover such property from the third person, although the latter does not claim that the property came to her from the decedent during life but that it was given her by the decedent’s husband, but, also admits that the property was taken by her from the decedent’s effects. .
    Thomson, X, dissenting.
    2. Executors a^td administrators, § 254*—what jurisdiction of probate court depends on. The jurisdiction conferred upon the probate court by sections 81 and 82 of the Administration Act (J. & A. 130, 131) is not dependent upon what kind of claim is made by the one actually possessing the personal property sought for the estate but upon the nature and source of the property.
    3. Appeal and error, § 1273*—what will be assumed as to allowance of claims by probate court. Where the record on appeal from a judgment directing one to turn over certain property to an administrator as property of the estate shows that certain claims were allowed, held that under the record as it stood the Appellate Court was bound to assume that the claims were properly allowed.
    4. Appeal and error, § 1273*—what will be assumed as to status of property in probate court. On appeal from a judgment in a proceeding to compel one to turn over to the administrator certain property as property of the estate, where there is no evidence that the property had been inventoried previously, it may be assumed that such property was in the nature of further assets, and, as such, it could be subjected to the payment of a claim against the estate notwithstanding such claim was filed after the running of the statute of limitations, dating from the filing of the letters of administration.
    Appeal from the Circuit Court of Cook county; the Hon. George F. Barbett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 7, 1920.
    G. A. Buresh, for appellant.
    Lefkow & Lefkow, for appellee; K. B. Czarnecki, of- counsel.

      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.

The respondent, Rosa Revesz, having obtained possession of a pair of diamond earrings taken from the body of Rosa Swartz, a few minutes before or about the time of her death, the question arises whether the administrator of the estate of Rosa Swartz, deceased, is entitled to possession of them.

The probate court and the circuit court have both held that they belong to the administrator and ordered them turned over to him.

On January 28, 1915, the respondent, Rosa Revesz, was cited to appear before the probate court of Cook county to show cause why she should not turn over certain property belonging to the estate of Rosa Swartz, deceased.

On February 11, 1915, the respondent answered denying the possession of such property but alleging that Ignatz Swartz presented to her a pair of earrings in consideration of certain services; that she has offered to pay the said Ignatz Swartz the value of the earrings but that he has refused to accept payment for them; that there are no debts of the estate and no heirs except the said Ignatz Swartz.

On July 14, 1915, the respondent filed an additional answer reciting, among other things,, that the pair of earrings came to her after the death of the said Rosa Swartz.

On May 24, 1916, an order was entered in the probate court upon the petition of the administrator and answer of the respondent, and upon evidence taken, finding that the deceased, Rosa Swartz, at the time of her death was the owner of a certain pair of diamond earrings; that they came into the possession of the respondent after the death of Rosa Swartz and without consideration; that the respondent had failed to prove her claim that the said personal property was a gift from the deceased; that the pair of diamond earrings is now in the possession of the respondent. Further, that the earrings be turned over instanter to the administrator of the estate of Rosa Swartz; that the fair cash value of the earrings is the sum of $350.

An appeal was taken from that order of the probate court to the circuit court of Cook county.

On January 10, 1919, an order was entered in the circuit court of Cook county finding that the pair of earrings came into the possession of the respondent after the death of Rosa Swartz and that they were not acquired by the respondent for a valuable consideration and that the respondent failed to prove that the earrings were a gift to her from Ignatz Swartz, the husband of the deceased. An order was then entered that the respondent should, within 30 days, turn over the earrings to the administrator of the estate of Rosa Swartz. From that order an appeal was taken to this court.

The trial in the circuit court began on July 1, 1918. The evidence showed that Rosa Swartz died on April 13, 1914. One Alvina Mueller, who worked for the deceased as a hired girl for about 6 months, up to the time of the death of Rosa Swartz, testified, that she was present at the time of the death of Rosa Swartz and that there were also present Adolph Swartz, a brother-in-law of the deceased; the respondent, and a nurse and herself; that immediately after her death, or just prior thereto, the nurse took one earring and the respondent the other from the body of the deceased. Adolph Swartz, the brother-in-law of the deceased, testified that he was present when the earrings were taken by the nurse and the respondent; that the respondent said, “I am going to keep them in my possession until after the funeral.” He further testified that at the time the earrings were taken the lips of Rosa Swartz were still twitching, corroborating the witness Mueller, who testified that at the time the earrings were taken the mouth of Rosa Swartz was still moving.

Ignatz Swartz, the husband of the deceased, tes'ti- ' fied that a few days after the death of his wife he had a conversation with the respondent in which she stated that she would like to have the diamonds and would pay him for them; that he told her he did not wish to sell them and wanted them back; that she said “All right, we will see about it”; that a few days later in talking with her she stated that her lawyer advised her not to give them back.

The respondent, Rosa Revesz, testified that at the time of the death of Rosa Swartz there were present Mrs. Biggerness, Alvina Mueller, the nurse and herself; that Adolph Swartz was not there; that, immediately after Rosa Swartz died, the nurse took out one earring and she took out the other; that, a few days after the death of Rosa Swartz, she had a conversation with Ignatz Swartz in which she told him that she would like to have the earrings and would pay him what they were worth; that in response he told her to keep them; that she was entitled to them; that at that time she had the earrings in her hand and was ready to pay for them; that he told her she was entitled to them for what she had done for his wife; that the substance of that conversation was repeated at another meeting shortly afterwards.

Albert Revesz, the husband of the respondent, testified that a few days after the death of Rosa Swartz, in a conversation between Ignatz Swartz and the respondent, he heard his wife say to Ignatz Swartz, “Here are the earrings. I give it to you, if you want it back. I give it to you, if you want it”; that Ignatz Swartz then said, “I don’t want it. Keep it. You earn it. * * * You was working hard, so you deserve for the work what you did for her. ’ ’ After the foregoing testimony was introduced, it was admitted by counsel for the administrator and the petitioner that up to that time no claims had been filed in the estate in the probate court, and, further, that Ignatz Swartz was the sole heir of the deceased.

On behalf of the petitioner, and in rebuttal, Ignatz Swartz testified, denying the testimony of the respondent as to the conversation attributed by her to him. At the close of the foregoing testimony the matters involved were discussed between the court and counsel and then adjourned to July 8, 1918, for further argument, and on the latter date further adjourned until July 11, 1918, for further argument. On the latter date the trial judge announced: “I will continue this matter generally and give you an opportunity to publish and see if you can find some claims against the estate.” To that, objection was made by counsel for the respondent, the objection being that no claims had been filed against the estate and that the evidence had already been closed.

Subsequently, on October 24, 1918, notice having been served upon counsel for the respondent, counsel for the petitioner moved the court to open up the case and be allowed to introduce proofs of the records in the probate court allowing claims against the estate. That motion was continued from time to time and finally heard on December 24, 1918, and on that occasion it was admitted by counsel for the petitioner that claims were filed and allowed, but only since June, 1918. It was then claimed by counsel for the respondent that the statute of limitations began to run from the date the letters of administration had been issued and that the affidavit and petition for citation were made on January 15, 1918, and, further, that the statute of limitations need not be specially pleaded by the administrator when the time of the statute has expired. Counsel for the respondent objected because the claims were filed more than 2 years after the letters of administration were granted.

The trial judge then allowed a motion to introduce further evidence. The petitioner then offered in evidence two certified copies of the probate court records showing an allowance of claims against the estate of Rosa Swartz, deceased. They were objected to. Two claims, one for $150 in favor of Dr. Kolischer, and one in favor of Dr. Edward W. Bob, were offered in evidence.

Evidence was then offered a,s to the fair cash market value of the earrings. One Fischer, a diamond merchant, put it at $250, another from $325 to $350, and another at $375.

At a continuation of the trial on January 4, 1919, counsel for the respondent offered in evidence a certified copy of the letters of administration and of the inventory. The former was dated November 28, 1914, and the latter November 4, 1918. Also there was offered in evidence the petition of Ignatz Swartz for letters of administration to be issued to Desider L. Tarjan, dated November 28, 1914, and the letters of administration dated December 3, 1914. A motion was then made by counsel for the respondent to strike out the certified copies of orders allowing the claims of Kolischer and Bole. That motion was denied. The court then found that the personal property in question “came into the hands of the respondent after the death of the deceased and that said respondent has not proved by a preponderance of the evidence that she acquired said property for a valuable consideration from the deceased or that said personal property was a gift to said respondent from Ignatz Swartz,” and directed said respondent, within 30 days, to turn the earrings over to the administrator.

It is claimed by the respondent that as the property in dispute came to the possession of the respondent after the death of Eosa Swartz, that the circuit court had no jurisdiction under sections 81 and 82 of the Administration Act (J. & A. 130, 131). But it must be observed that in the instant case it is admitted that the property belonged to the deceased at the time of her death and that the respondent does not claim that the earrings came to her from the deceased in the lifetime of Eosa Swartz, but, only, that Ignatz Swartz, the husband and sole heir at law made a gift of them to the respondent after the death of Eosa Swartz. When Tarjan was appointed administrator and letters were issued, those letters related back to the time of the death of the decedent and the title to all her personal property, including the earrings, vested in the administrator and gave the probate court jurisdiction. Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625; 18 Cyc. 213. In Blair v. Bennott, 134 Ill. 78, the claimant had collected money of an estate after the intestate’s death. He refused to turn it over to the administratrix. Proceedings' were had under section 81, chapter 3, of the Statutes (J. & A. ft 130), and the court held that any “goods, chattels, moneys, etc., which belonged to the estate of the deceased and which have come into the hands of the parties charged since the death of the deceased” could be reached by the probate court. It would seem, 'therefore, that if an agent who has collected—after the death of the decedent—money belonging to an estate and has refused to turn it over, as in the Blair case, can be brought into the probate court under the statute, a fortiori, one who, as here, admits the personal property, the earrings, were actually taken from the effects of the deceased, may be brought in. Further, it would seem reasonable to hold, also, that her claim, in pais, that the husband of the deceased gave them to her after his wife’s death, would not oust the jurisdiction of the probate court.

The jurisdiction of the probate court under sections 81 and 82 cannot be considered to be dependent upon what kind of a claim is made by the one actually possessing the personal property; but that jurisdiction must be considered to be dependent upon what actually is the nature and source of that personal property. If, as here, the personal property was, at the time it was taken, admittedly that of the estate, the title to which passed to the administrator, and it has actually remained in specie, as here, then the probate court is entitled under the statute to consider it within its jurisdiction and order it brought in.

It is claimed by the respondent that the court erred in admitting the claims which were filed and allowed in the estate in the probate court and that they were barred by the statute of limitations. The record shows that they were allowed, and, as the record stands, we are bound to assume they were properly allowed.

Further, as to the claim that the statute of limitations had run when the claims were filed, it may be said there is no evidence that the earrings had already been inventoried, and as we are then entitled to assume that they were in the nature of further assets, they could, of course, at once become subject to the belated claim. Judy v. Kelley, 11 Ill. 211, 216; Thorn v. Watson, 10 Ill. 26.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Justice O’Connor concurs, Mr. Justice Thomson dissenting.

Mr. Justice Thomson

dissenting:

I am 'unable to concur in the foregoing decision. We have in this case a dispute between the administrator of an estate and another involving the title to personal property. The probate court is without jurisdiction to adjudicate any such issues under the provisions of sections 81 and 82 of the Administration Act (J. & A. 130, 131). In Dinsmoor v. Bressler, 164 Ill. 211, the court said: “The summary proceeding in the probate court to compel the production and delivery of property ‘is not the proper remedy * * * to try contested rights and title to property between the executor and others. ’ * * * Nor does the power conferred upon probate courts to subpoena and examine parties alleged to conceal or withhold property of the estate authorize such courts to try the title to the property in dispute.” This case was cited with approval in Martin v. Martin, 170 Ill. 18, and also in Moore v. Brandenburg, 248 Ill. 232. In the former case the court said: “The primary purpose of the statute is to discover assets of estates, and the court is authorized to make such order in the premises as the case may require. The statute is not designed to afford the means of collecting debts due to estates, * * * nor to try contested rights and title to property between the executors and others. * * * The mere fact that one party to the controversy is an executor will not justify depriving the other party of a trial by jury or authorize his imprisonment. ’ ’

In Rone v. Robinson, 188 Ill. App. 438, a citation was issued under the provisions of sections 81 and 82, directing and requiring appellee to surrender a certain certificate of deposit. The evidence showed that the intestate was the owner of $1,200 in money which he wished to give to his daughter, the appellee. He deposited it in the bank, taking a certificate reading: “Martha E. Bobinson (appellee) has deposited in this bank $1,200, payable to herself in current funds. * * * In case of the death of Martha E. Bobinson, before the death of Ivan Jackson (intestate), this certificate of deposit becomes the property of Ivan Jackson.” The intestate gave this certificate to appellee and told her to keep it as it'was hers. After the intestate died, appellee claimed to be the owner of the certificate while appellant, the administrator of the estate of the intestate, claimed it had never been delivered to her. The court said that the issue presented “was purely a contest of the right of ownership of this certificate, and being a contest as to its ownership, we do not think that the citation, under sections 81 and 82, is the proper remedy to try a contested question of this ■ character. * * # The court did right in dismissing the petition.” To the same effect are Hays v. State Bank of Saybrook, 202 Ill. App. 535, and Gulzow v. Fillwock, 205 Ill. App. 366.

In none of the cases referred to were the facts involved entirely like those involved here. But there would seem to be no logical distinction between a gift claimed by the respondent from the deceased, as in Rone v. Robinson, supra, and one claimed by the respondent from the administrator, as in the case at bar, where the latter is the sole heir and there were no claims involved in the estate.

It appears that in this case no claims had been filed in the estate up to the time the evidence was in and the cause submitted to the circuit court although the hearing in that court occurred on July 1, 1918, and the petition of the administrator in the probate court had been filed since January 28, 1915. After the close of the case, counsel for the petitioning administrator admitted that the latter could have made a, valid gift of the property in question, and stated that the issue presented was one of fact as to whether he had made such a gift. The court then pointed out that that involved a question of the title to the property and stated that the respondent had a right to have that question tried in a proper tribunal, that it presented an issue for a jury to determine, and he intimated that the circuit court could not determine such a dispute under the provisions of sections 81 and 82. The trial court said further: “Where there are no claims made against the estate, the sole and only heir may give away the personal property and pass good title. Whether or not he did in this case, I have not the power to decide. On that question she (respondent) has a right to a trial by jury.” Thereupon, on its own motion, the court continued the cause so as to give the petitioner “ an" opportunity to publish and see if you can find some claims against the estate.” At a subsequent hearing evidence was admitted involving claims which had been filed in the probate court in the meantime. In my opinion this was error. The statute of limitations had run against the filing of claims in the probate court. This was true although no publication for claims had been made, for the statute begins to run from the. date of the letters of administration which was more than 3 years before the time of the hearing on this petition in the circuit court. People v. White, 11 Ill. 341. Section 70 of the Administration Act (J. & A. ft 119) provides that all claims not' exhibited within one year “shall be forever barred unless creditors shall find other estate of the deceased not inventoried or accounted for. ’ ’ While -the earrings involved here had not been inventoried they were “accounted for” so far as the administrator was concerned, for his original petition in the proceeding at bar was filed in the probate court soon after his letters were issued. If the issue of fact presented here were determined, in a proper proceeding, in favor' of respondent she would necessarily be held to have “accounted for” the property in question at the time the period of limitation expired and no claims had been filed. Claims thereafter filed could not be allowed and satisfied b3r means of these earrings as unaccounted for property. Auburn State Bank v. Brown, 172 Ill. 284. The petitioner was in a position to make a valid gift of these earrings inasmuch as he" was the sole heir of the estate and no claims were filed within the period allowed by law. The question of whether he did make such a gift presented an issue which the probate court had no jurisdiction to determine and such jurisdiction could not be conferred by the filing of claims subsequently. Those claims would be subject to a plea of the period of limitations provided in section 70, if the alleged gift was made as claimed by the respondent. If it established that the respondent is the donee or assignee of the petitioner as to these earrings, she should have the same privilege of resisting these claims by interposing the defense' referred to as the administrator might have had, notwithstanding the fact he did not see fit to use it.

Furthermore, the claims brought into this case do not have the appearance of bona fide claims. It is quite apparent from the record that those whose claims were filed after this cause was continued by the circuit court to see if the administrator could not “find some claims against the estate,” as the court put it, did not “find other estate of the deceased.” Both claims are by doctors for professional services rendered deceased. They are sworn to before one of the attorneys of the administrator, as a notary public. The administrator filed his appearance and consented to the allowance of the claims and directed the clerk of the prob'ate court to charge the fees for filing the claims to the estate. This attempt to invest the court with jurisdiction should not prevail and in my opinion-the petition should have been dismissed for lack of jurisdiction.