text:
    Mary Anne Lichtenhan, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 19,773.
    1. Insurance, § 191*—duty of insured to surrender policy for paid-up endowment or cash value. Where an insurance policy provides that if it shall lapse or become forfeited it may be surrendered for a nonparticipating paid-up endowment or for a cash surrender value as indicated in a table, the language creates an option requiring the exercise of the privilege of the beneficiary or insured within a certain time, so that a failure to exercise the option within the limited period of time terminates the right based on such language in the policy.
    2. Insueance, § 191

      —futility of surrender of self-executing policy. Where a policy provided that if it should lapse or become forfeited and be not surrendered for a paid-up endowment policy, the company would write in lieu thereof, without any action on the part of the insured, a nonparticipating paid-up term policy for a period indicated by a table incorporated therein, held thq language printed in italics in the policy made that provision of the policy self-executing, so that nothing was left for the insured or beneficiary to do to get the benefit thereof.
    3. Insueance, § 191*—effect of provision for surrender in an otherwise self-executing policy. Where a policy provided that in case of lapse, without any action on the part of the insured, the company would write a nonparticipating paid-up term policy as indicated by an incorporated table, the language that “the paid-up term policy will be delivered on the legal surrender of this policy,” does not change the effect of the preceding provision for a self-executing automatic term policy, independent of any act on the part of the insured or beneficiary, the law not requiring the doing of a useless thing.
    4. Death, § 9*—elements of legal presumption of. Where a person leaves home with the expectation of returning thereto within a short time and he remains away and his absence is unexplained and unaccounted for and no intelligence is received from him and he is not heard from, and his whereabouts cannot be ascertained although diligent search and inquiry are made in the vicinity of his home and at such places as he would be likely to go and from such persons as he would be likely to meet and know, and nothing is heard from or of him, and he remains away from his family and home for a period of seven years, a presumption arises from these facts that he is dead, unless there are other facts and circumstances shown which will rebut and overcome such presumption of death.
    5. Death, § 9*—sufficiency of evidence to raise legal presumption of. In an action on an insurance policy, based on the legal presumption of death after the expiration of seven years from the time of the disappearance of the insured, evidence held to warrant the jury in arriving at the conclusion that he was dead.
    6. Death, § 3*—sufficiency of evidence to show diligent search. In an action on a policy of insurance, inquiries made under the facts are held sufficient for the jury to hold that a diligent search had been made such as to raise a presumption of death after the expiration of seven years from the time an insured had disappeared.
    7. Municipai, Court of Chicago, § 17

      —effect of reading instructions from memoranda. Where the instructions to the jury in the Municipal Court consisted of one connected oral charge, the fact that certain paragraphs were presented to the court in writing and that the court while instructing the jury may have read from the memorandum containing such paragraphs, does not make that part of the charge a written instruction, the record expressly stating and showing that the court instructed the jury orally.
    8. Death, § 8*—inadmissibility of rumor without statement of source. It is improper to give a general rumor without stating ■ the source of the rumor to explain the disappearance of an insured, as against the presumption of death arising after the expiration of seven years.
    9. Death, § 8*—when rumor is admissible as showing reason for disappearance of one presumed dead. Where the record shows that whenever a witness could give the source of his information as to a rumor as affecting the reason for the disappearance of an Insured, the court permitted him to state the source thereof and the character of the rumor, held that the jury had before them the evidence as to the rumor, especially since the fact of the rumor was made the subject-matter of part of the oral charge of the court to the jury.
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This is an action brought in the Municipal Court of Chicago on June 24, 1911, for the recovery of the amount due Mary Anne Lichtenhan, appellee (and hereinafter referred to as the plaintiff or beneficiary), on a policy of insurance issued by the Prudential Insurance Company of America, appellant (and hereinafter referred to as the defendant or the Company), on February 9, 1903, upon the life of George Henry Lichtenhan, husband of the plaintiff (and hereinafter referred to as the insured), in favor of plaintiff, his wife. Insured disappeared on or about February 15, 1903, and has never been heard from since that date, but the plaintiff, who was the beneficiary in the policy, paid the premiums on same up to February 9, 1905. Suit was brought upon the assumption that the insured was dead, and that his death occurred at the expiration of the seventh year after his disappearance, his absence having been continuous and unexplained, and without any intelligence of his whereabouts having been received by friends, relatives or those with whom he would have been likely to communicate concerning his whereabouts.
    The statement of claim and affidavit of merits filed by the respective parties, and the trial of the case, presented but two issues, viz.:
    (1) That the plaintiff’s evidence did not bring the case within the doctrine of the presumption of death after an absence of seven years; (2) that the insurance policy was not in force.
    The case was tried before a court and jury, and the issue whether or not the policy was in force was concededly a question of law. The other issue was a question of fact to be determined by the jury under correct rulings as to the evidence and proper instructions.
    The court held, as a matter of law, that the policy was in force, and referred the issue, on the presumption of death after an absence of seven years, to the jury. The jury determined that issue in favor of the plaintiff, and assessed her damages in the sum of $1,162.50; the plaintiff, however, remitted the sum of $50, and judgment was accordingly entered for $1,112.50, from which judgment this appeal has been prosecuted.
    Hoyne, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    Rosenthal & Hamill, for appellee; Leo. F. Wormser, Nicholas R. Jones and Carroll Caruthers, of counsel.

       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 Pam

delivered the opinion of the court.

The substance of defendant’s contention on this appeal is set forth in its brief as follows:

(1) Where a policy of insurance gives the insured the right to a paid-up term policy upon surrender of the original policy, he must make a demand for such term policy and surrender the old one before he is entitled to sue or enforce the covenants of such term policy.

(2) In order to raise the presumption of death from seven years’ absence, it must be shown that it is such an unexplained absence as cannot be reasonably accounted for except on the presumption of death; and it must be shown that diligent search has been made, without avail, for the missing person. We shall consider these contentions ad seriatim.

In arguing its first contention, defendant insists that the policy having lapsed for failure to pay the premiums, plaintiff could only have based her action upon a clause in the policy which specified that if the policy should lapse after having been in force two years, the insured should have several options, one of which was to demand from the company, upon the legal surrender of the old policy, a paid-up term policy extending the insurance for five years and two hundred and thirty days from the date to which the premium had been paid; and further, that neither the insured nor his beneficiary ever exercised such option or demanded a policy, or ever surrendered the original policy, during such five-year term or thereafter, and that therefore the rights of the plaintiff as beneficiary, under the policy had been terminated.

In its brief and argument, defendant cited many eases on this point and quoted liberally from several of them, but at the oral argument, it relied in the main upon the case of Blume v. Pittsburg Life & Trust,Co., 263 Ill. 160, which case had been previously, by leave of this court, added to the list of authorities cited in its brief. However, the terms of the policy, a construction of which was involved in that case, were entirely different from the terms of the policy in the case at bar, and this difference in the terms of the policies makes the decision in the case of Blume v. Pittsburg Life & Trust Co., supra, inapplicable. The policy in the case at bar contained the following provision:

“PAID-UP ENDOWMENT POLICY OB EXTENDED INSURANCE.—If this Policy, after being in force two full years, shall lapse or become forfeited for the non-payment of any premium on the date when due, as specified on the first page hereof, or of any note given for a premium or loan made in cash on such Policy as security, or of any interest on such note or loan, it may be surrendered for a non-participating Paid-up Endowment Policy, as specified in the following table, to mature at the same time as this Policy; provided the Policy be legally surrendered to the Company within three months after the date to which premiums have been duly paid. If this Policy, having lapsed or become forfeited as above, be not surrendered for a Paid-up Endowment Policy, the Company will write in lieu of this Policy, and without any action on the part of the insured, a non-participating Paid-up Term Policy for the full amount insured by this Policy, such Paid-up Term Policy to be dated on the day to which premiums have been duly paid, and to continue in force for the term' indicated by the following table. * * * The Paid-up Term Policy will be delivered on the legal surrender of this Policy.
“OR CASH SURRENDER VALUE.—If this Policy be legally surrendered to the Company within three months from the end of the second year from its date or any year thereafter, all premiums, required by the terms of the Policy, to the end of that year have been paid in full, the Company will pay therefor the sum indicated by the following table. ’ ’

The paragraph entitled “Paid-up Endowment Policy or Extended Insurance” provided that “If this policy, after being in force two full years, shall lapse' or become forfeited * * * it may be surrendered for a non-participating paid-up endowment policy” (italics ours), and further, that the old policy be legally"surrendered to the Company within three months after the date to which the premiums had been duly paid. And the second paragraph, headed “Or Cash Surrender Value” also provided that if the policy be surrendered to the Company within three months from the end of the second year from its date, the premiums having been paid in full, the Company would pay a certain sum indicated in the table, as the cash surrender value of the policy.

If a recovery had been based on the aforesaid provisions in the policy (and it is conceded that it was not), then the decision relied upon by counsel in support of its contention (Blume v. Pittsburg Life & Trust Co., supra) would apply. The policy construed in that case contained the words “may be surrendered,” and provided that it should be legally surrendered within six months, which corresponds with the provision just quoted from the policy in the case at bar, save that therein the option was to have been exercised within three months. Clearly this language created an option which gave the beneficiary or the insured a privilege, and provided further that such privilege must be exercised .within a limited time; consequently the failure to exercise that option within the limited period of time terminated the right based upon such language in the policy. But the rights of the plaintiff in this case were not based upon that provision, but upon the following :

“If this policy, having lapsed or become forfeited as above, be not surrendered for a Paid-up Endowment Policy, the Company will write in lieu of this Policy, without any action on the part of the insured, a nonparticipating Paid-up Term Policy for the full amount insured by this policy, such Paid-up Term Policy to be dated on the day to which premiums have been duly paid, and to continue in force for the term indicated by the following table.” (The italics are in the original policy);

and it further provided the length of the term, based upon a table incorporated as a part of the policy. The printing of the words “without any action on the part of the insured” in italics plainly indicated that the advantage of securing a paid-up term policy after the policy had elapsed, without any action on the part of the insured, was held out as an inducement to take a policy in the form it was written. This language “without any action on the part of the insured” clearly made that provision of the policy self-executing, and there was nothing left for the insured or the beneficiary to do in order to obtain the benefit thereunder. In the case of Blume v. Pittsburg Life & Trust Co., supra, the policy contained no such provision, consequently that case is not applicable.

Defendant contends that before it can be held liable under this provision in the policy it must first have issued a paid-up term policy, and that it was not bound to issue such paid-up term policy until a legal surrender of the policy sued on in this case had been made, basing its contention upon the following language in the policy: “The paid-up term policy will be delivered on the legal surrender of this policy.” In our opinion, these words do not change the effect of the preceding language in the provision. The policy already provided that without any action on the part of the insured the Company would write a non-participating paid-up policy for the full amount for a certain period as governed by the table incorporated in the policy. This language clearly indicated that the provision was self-executing and automatic, and was not dependent upon any act of the insured or the beneficiary.' The law does not favor the doing of any useless act, and the surrender of the policy would be clearly a formal act of no consequence and unessential. Devine v. Federal Life Ins. Co., 250 Ill. 203 (pp. 206, 207); Rose v. Mutual Life Ins. Co. of New York, 240 Ill. 45 (pp. 51, 52). The very beginning of this suit was a notice to the defendant that plaintiff was claiming the benefit of this provision in the policy. The fact was admitted that the policy had been in force two full'years, and therefore the court properly held, under the provisions in the policy, that the plaintiff was entitled to a nonparticipating paid-up term policy for the full amount of this policy, for the term of five years and two hundred and thirty days; and the mere fact that the actual paid-up term policy itself had not been delivered in no way deprived the plaintiff of her right to bring her action, providing the plaintiff had maintained her contention , that the insured must have been presumed dead because of his continued and unexplained absence for more than seven years, and that notwithstanding repeated inquiries, nothing had been heard or seen of him since his disappearance, by his friends, relatives or those with whom he would naturally have communicated.

This brings us to the second issue in the case as contended for by the defendant, viz., that in order to raise the presumption of death from seven years’ absence, it must be shown that it is such an unexplained absence as cannot be reasonably accounted for except on the presumption of death; and it must be shown that diligent search has been made, without avail, for the missing person.

Counsel for both parties agree that the correct rule of law as to the presumption of death after a continued and unexplained absence for seven years is stated in the case of Kennedy v. Modern Woodmen, 243 Ill. 560, wherein it was said (p. 566):

“The law is well settled in this State that where a person leaves home with the expectation of returning thereto within a short time and he remains away and his absence is unexplained and unaccounted for and no intelligence is received from Mm and he is not heard from, and his whereabouts cannot be ascertained although diligent search and inquiry are made in the vicinity of his home and at such places as he would be likely to go and from such persons as he would be likely to meet and know and nothing is heard from or of him, and he remains away from Ms family and home for the period of seven years, a presumption arises - from these facts that he is dead, unless there are other facts and circumstances shown which will rebut and overcome such presumption of death. Whiting v. Nicholl, 46 Ill. 230; Johnson v. Johnson, 114 id. 611; Reedy v. Millizen, 155 id. 636; Hitz v. Ahlgren, 170 id. 60; Policemen’s Benevolent Assn. v. Ryce, 213 id. 9.” This has been the law in our State since the decision by Mr. Chief Justice Breese in the case of Whiting v. Nicholl, 46 Ill. 230, wherein he said (p. 241):
“As held by the courts of this country, the doctrine is, that a person once found to be alive, is presumed to continue to live until there be proof of the contrary. At the end of seven years from the time he was last heard of, the presumption of life ceases, and the opposite presumption of death, takes its place. The legal presumption, as we understand from the decisions quoted by appellee, establishes not only the fact of death, hut also the time at which the person shall first be accounted dead. This is an arbitrary presumption, but rendered necessary on grounds of public policy, in order that rights depending upon the life or death of persons long absent and unheard of, may be settled by some certain rule.”

And it has again been enumerated in the case of Donovan v. Major, 253 Ill. 179 (p. 182), which quotes approvingly the language in the case of Whiting v. Nicholl, supra.

Defendant contends that the evidence introduced by the plaintiff failed to set forth a state of facts which would permit the court to apply the principle of law as to the presumption of death, as set forth in the cases heretofore cited, and that the court erred in refusing to instruct for the defendant, both at the close of the plaintiff’s case and at the' close of all the evidence in the case, as requested by the defendant in written instructions.

As to this contention the question arises, did the evidence present a state of facts from which the jury could say that from the time of the disappearance of the insured his absence continued for seven years unexplained, and that though diligent efforts had been made to find him, nothing had been heard of his whereabouts by those who would naturally have heard from him if he had been alive? If so, the jury would have been entitled to indulge in the presumption of death, as stated in the case of Donovan v. Major, supra; which presumption was subject, however, to rebuttal by facts or circumstances sufficient to overcome it, or by a conflicting presumption.

The evidence shows that at the time of his disappearance the insured was a man about thirty-nine years of age, about six feet two or three inches tall, weighing about 225 pounds,—“a man to be noticed wherever he would be seen on the street,” as testified by one of the witnesses; further, that he had been married to the plaintiff for a period" of nine years and resided with her continually in the neighborhood known as Hyde Park, and in the immediate vicinity of his place of residence at the time of his disappearance, viz., 5646 Jefferson avenue; that for many years he had been in the ice business on his own account, and at the time of his disappearance was the owner of a wagon and team of horses; that he was last seen by the plaintiff and members of his family at about ten o’clock on the morning of either the fourteenth or fifteenth of February, 1903; that on that morning he brought ice to Ms home as usual, and played with his children, and before leaving, he told his wife (plaintiff) that he would have $40 for her that night, with which to pay the rent; that he was a man of cheerful disposition, very fond of his children, and at all times a good husband; that in addition to his own children, the insured provided for the children of the plaintiff by a former marriage, who lived with him, and that he never made any complaint as to their being in the house, but cheerfully kept up the household expenses of this large family; that at the time of his disappearance the eldest daughter of the plaintiff was married and was also living with her husband at the home; that when he was last seen he was attired in his ordinary working clothes; that plaintiff, at the time of his disappearance, made inquiry of the people in the vicinity, as to his whereabouts; that when asked on cross-examination why she did not inquire the same night, she answered, “I was too sick with my baby for to go out and make inquiries;” that neither the plaintiff nor her children nor any of the neighbors in that vicinity—of whom ten or twelve took the stand—had ever heard of or from the insured from the time of his disappearance, viz., February 14 or 15, 1903; that the insured was a member of a fraternal order known as the Knights of Pythias, and one witness (McKenzie) testified that though the lodge took it up, nothing was ever heard of the whereabouts of the insured; that at one time, the plaintiff having received the information that a man answering the description of the insured had died in a hospital in St. Paul or Minneapolis, Minnesota, she addressed a letter to the chief of police of Minneapolis, inclosing a photograph of the insured, but that she received a reply stating that the man there was not the insured; that inquiry was made of the mother of the insured, who resided in the old Lichtenhan homestead at North Germantown, New York, and also of his brothers who lived in New York City, and that replies were received stating that nothing had been heard of or from him and that they knew nothing of his whereabouts ; that the plaintiff for two years after Ms disappearance paid the premiums on the policy in question, and at the time she made the payments she informed the representative of defendant that her husband had disappeared; that on March 18, 1910, she addressed a letter to the defendant calling its attention to the fact that her husband had been absent for more than seven years, and also calling its attention to the fact that she had tried to get back what she had paid in during the first two years, but that she could not get it, having been told that the policy would carry itself for more than five years without paying any more; that to this letter a reply was received on March 24th, informing plaintiff that it was making an examination of the papers and would let her hear further; that on April 12,1910, plaintiff received a communication from defendant, stating that in further answer to her letter of March 18th its representative would call on her, and asked that she furnish him with a photograph of the insured; that shortly thereafter a photograph was furnished the defendant; that from that period correspondence continued between plaintiff and defendant, until on December 24th she was informed that nothing could be considered by the defendant until proofs of death were submitted; that from this time on her matters in controversy were taken up by her attorneys; that considerable correspondence was had between her attorneys and the Company; that from the time of his disappearance up to and including the time of the trial below nothing had been heard as to the whereabouts of the insured. The evidence with reference to the number of children the insured and the plaintiff had at the time of his disappearance leaves one in doubt as to whether there were three children already born, or two, and another about to be born.

Tested by the admitted rule of law governing the question of the presumption of death, the state of facts presented by this testimony, in our opinion, clearly entitled the plaintiff to the legal presumption of death, unless there were other facts and circumstances to rebut and overcome such presumption of death. Defendant contends that there were such facts and circumstances in evidence. On this contention it relies upon its evidence with reference to a certain rumor that prevailed in the community, that the insured had committed a crime against nature with a beast. It was brought out on cross-examination of some of the witnesses for the plaintiff, and on direct examination of some of the witnesses for the defendant, that they had heard that a man by the name of Bedmond—the owner of the stable where the insured had kept his team of horses—had found the insured in the act of committing the alleged crime. Some of the witnesses, however, testified that they had not heard such rumor, others that it was not believed in the community. A police officer testified that, following a conversation had with Bedmond on or about the time of the disappearance of the insured, he looked for the insured, but could not find him. The evidence further shows that no complaint had been filed by the said Bedmond, nor was any warrant ever issued for the arrest of the insured; it further showed that Bedmond, at the time of the trial, resided in Bankers, Michigan, which fact' appeared from the testimony of a witness for the defendant. There was no direct positive evidence as to the commission of the alleged crime by the insured. Defendant did not see fit either to call Bedmond or take his deposition, though it did take the deposition of Mary Lichtenhan, a sister of the insured, who resided in North Germantown, New York. Defendant was evidently content to rest upon the testimony as to the rumor of the commission of the crime; in fact, during the course of the trial, when objection was raised to the admission of evidence relating to this rumor, defendant promised to show that this rumor had been brought home to the insured, but the record does not disclose any evidence tending to show that fact. Other facts relied upon by the defendant to explain the absence of the insured were: that a sister of the insured—who admitted a hostile attitude towards the plaintiff—testified that the plaintiff was of a sarcastic disposition; and also that while on a visit at the home of the insured several years prior to his disappearance she had heard from the plaintiff that the insured had disappeared once before for three or four days; and also that he had another wife living in St. Paul from whom he had not been divorced prior to his- marriage to plaintiff. That such conversation ever took place was denied, however, by the plaintiff. Defendant relied further upon the fact that plaintiff had secured a decree of divorce from the insured two or three years after his disappearance.

Whether or not the aforesaid rumor, the aforesaid testimony of the sister of the insured and the fact of the divorce explained or fairly tended to explain the continued absence of the insured for seven years, was clearly a question for the jury. The jury by their verdict determined the issue presented on this question, in favor of the plaintiff, and we believe, under the evidence, that they were fully warranted in arriving at that conclusion.

Defendant further urges that the failure of the plaintiff to notify the police and insert advertisements in newspapers showed that she had not made diligent inquiry as to the whereabouts of the insured. While other persons situated as plaintiff might have followed that course, yet the failure to do so need not be regarded by the jury as conclusive evidence that she did not make diligent search; nor can we say, as a matter of law, that her failure to do so was determinative of her right to claim the legal presumption of death under the other facts and circumstances in evidence. ' The evidence showed that the insured disappeared suddenly; further, that there was never anything heard in the vicinity regarding him or his whereabouts, even up to the time of the trial ten years after his disappearance ; that inquiries were made. • The fact that plaintiff was sick with her baby may have accounted for her failure to notify the police. No facts or circumstances in the evidence tended to show where the insured might have been or could have gone, save his last known residence in Chicago, and the home of his childhood, North Germantown, New York, where the mother of the insured still maintained the old family home. The testimony clearly showed that none of the relatives knew his whereabouts. When plaintiff heard of the death of a man in St. Paul answering the description of the insured she at once acted upon it. The insured was a man of such stature and appearance us to be easily distinguished or recognized by his many acquaintances in the vicinity where he resided, or by any of his brothers and sisters or by his family, had they ever seen or heard of him since the time of his disappearance. We are therefore of the opinion that the inquiries made under this state of facts were sufficient for the jury to hold that a diligent search had been made.

In the case of Whiting v. Nicholl, 46 Ill. 230, and the Policemen’s Benevolent Ass’n v. Ryce, 213 Ill. 9, and the case of Kennedy v. Modern Woodmen, 243 Ill. 560, the legal presumption of death was sustained, and, in our opinion, the facts in the case at bar, measured by the facts and principles of law as laid down in the aforesaid cases, also sustain the legal presumption of death. We are therefore clearly of the opinion not only that the court would have erred to have instructed the jury to find for the defendant either at the close of the plaintiff’s case or at the close of all the evidence, but further, that under the facts and circumstances in evidence in this case, the jury were fully warranted in finding the issues for the plaintiff.

There remains but the question whether or not the court correctly instructed the jury as to the law. The instructions to the jury consisted of one connected oral charge. The record shows that they were divided into paragraphs numbered from one to fourteen. In the course of its brief, defendant makes the erroneous statement that in addition to the oral charge, the court gave the jury certain written instructions. The record shows that the subject-matter of the charge covered by paragraphs 11,12 and 13 was presented to the court in writing, and that before reading same, defendant, by its counsel, objected thereto. The record further shows that there was no exception taken at the close of the charge. Following this in the record, we have the additional language:

“But the court overruled said objections to the foregoing instructions numbered 11,12,13 and 14, to which ruling of the court in overruling said objections the defendant by its attorneys duly excepted. ’ ’

Opposite this paragraph in the record is written in pencil the word “out.” The fact that these paragraphs were presented to the court in writing and that the court while instructing the jury may have read from the memorandum containing these paragraphs, does not make that part of his charge a written instruction. The record expressly states and shows that the court instructed the jury orally. It is a grave question whether or not defendant has duly preserved an exception under the law governing objections and exceptions to oral instructions. The record does not show that any specific objections were made, save those made before the jury were instructed as to the subject-matter contained in paragraphs 11, 12 and 13; and nowhere in the record is there a statement to the court indicating the reason why such portion of the charge was objectionable, so as to give the court an opportunity to correct same if there was any error. We believe the case of Pecararo v. Halberg, 246 Ill. 95, and cases therein cited, preclude defendant from urging any error on this state of the record. However, we need not rely upon that point in order to dispose of defendant’s contention that the court did not correctly instruct the jury on the law as applied to the facts in the case.

Defendant complains that the subject-matter of the oral charge as contained in paragraphs 11 and 12 peremptorily instructed the jury to start out with the presumption that the insured was dead, instead of telling them first to determine if there was proof sufficient to raise such presumption. Defendant contends that this instruction does not bring to the attention of the jury that the absence must be unexplained, and, furthermore, that it did not require them to regard a diligent search as a necessary element, before the legal presumption of death could be indulged in. We do not agree with counsel that the instruction contains that vice. That portion of the court’s charge was but part of a connected oral charge to the jury. In paragraphs 6, 7, 8 and 9, the jury were expressly told that mere absence for seven years without having been seen or heard from by relatives or friends was not sufficient to raise the presumption of death, if the jury further believed the evidence showed good reason for the failure of the insured to communicate with his relatives or friends; furthermore, that if the jury believed from the evidence that the insured had, prior to the time he left Chicago in 1905, committed a criminal or disgraceful act and left for fear of apprehension and punishment or disgrace for committing such act, they might consider such circumstance as to whether or not it was sufficient to account for the failure of the insured to communicate with his relatives or friends; furthermore, that if they further believed from the evidence that there were reasons shown from the evidence why the insured would not want his family, relatives and friends to know his whereabouts, then the presumption of death from the absence of said party for seven years or more did not exist; further, they were expressly told that where a party’s absence from home for more than seven years, during which time he has not been heard of by his family, relatives or friends, is explained by facts and circumstances connected with his leaving home, or the evidence showed reasons why he left home and desired to conceal himself, then there was no presumption of death because of the said absence.

We have already held that the evidence fairly tended to show that diligent inquiry had been made, and we believe the language of the charge, in view of the evidence in the case, clearly told the jury that before the legal presumption of death arose it was necessary for the plaintiff to show that diligent search or inquiry had been made. An instruction almost in the precise language of paragraph 11 of the court’s charge was approved in the case of Policemen’s Benevolent Ass’n v. Ryce, 213 Ill. 9, under a state of facts much the same as in the ease at bar. On page 15 the Court said:

"The language' of the instruction is substantially the same as that which has been used by this court in a number of cases. In Hitz v. Ahlgren, 170 Ill. 60, we said (p. 63): ‘The rule in this State is, that the absence of a person for seven years from his usual place of abode or resort, and of whom no account can be given, and from whom no intelligence has been received within that time, raises the presumption that he is dead.’ To the same effect is Reedy v. Millizen, 155 Ill. 636; Johnson v. Johnson, 114 id. 611.”

Defendant complains of paragraph 12 of the court’s charge. This was but part of a connected charge and was proper, in view of paragraphs 6, 7 and 8. Fuller v. New York Life Ins. Co., 118 C. C. A. 227, 199 Fed. 897.

Defendant also complains of a part of paragraph 10. Viewed, however, in the light of the entire paragraph and as a part of a connected charge, there was no error in the giving thereof. .

Defendant further complains of paragraph 13, but we do not find any merit in such contention.

We are firmly of the opinion, after a careful consideration of the record, that the court in its one connected oral charge fairly stated to the jury the law applicable to the facts and circumstances in evidence.

Defendant also complains of rulings of the court sustaining objections to certain questions asked on cross-examination of witnesses for the plaintiff, with reference to a general rumor or talk affecting the reason for the disappearance of the insured. Evidence of this nature was held to be improper in the cases of: Kennedy v. Modern Woodmen, 243 Ill. 560; Johnson v. Johnson, 114 Ill. 611. Moreover, the record shows that whenever a witness could give the source of his information as to the rumor, the court permitted the witness to state the source thereof and the character of the rumor. The jury therefore had before them the evidence as to this rumor. This is further evident from the fact that this rumor was made the subject-matter of part of the oral charge of the court to the jury.

Finding no reversible error, the judgment of the Municipal Court will be aErmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    Mary Murphy, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,834.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.
    Rehearing denied February 16, 1915.

      Statement of the Case.
    Action by Mary Murphy against Chicago City Railway Company to recover damages for personal injuries sustained as the result of a collision between two of defendant’s cars while plaintiff was a passenger.
    At the time of the accident plaintiff was seated at the rear of the car, and upon the first crash jumped up. A second crash following threw her back onto the seat causing the injuries complained of.
    It was claimed in behalf of plaintiff that a retroflexion of the uterus, discovered by her physician six weeks after the accident, was caused by injuries then received. One of the defendant’s physicians, who had examined her within thirty-six hours after the accident, testified to finding no evidence of pelvic disturbance or conditions indicating that a retroflexion of the uterus was present. Other witnesses in behalf of the defendant testified that her condition was the result of overwork, lack of sufficient nourishment and anemia, and that retroflexion of the uterus could not result from an injury unless the injury was of a severe crushing or piercing character; that the condition of retroflexion is usually the result of a gradual wearing down of the ligaments supporting that organ, and that it frequently occurred among overworked, overtired, under nourished and anemic women.
    Plaintiff testified that prior to the accident she had been in good health, and her physician’s testimony was to the effect that the condition of retroflexion found upon his examination made six weeks or two months after the accident was. due to some external violence, and that such violence so weakened the uterine structures that the uterus prolapsed; and further that there was a relation between the condition of the plaintiff at the time of the trial and the accident in question.
    From a judgment for plaintiff for twenty-seven hundred and fifty dollars, defendant appeals.

      Abstract of the Decision.
    1. Damages, § 15

      —when condition proximate result of accident. In an action for personal injuries sustained in a collision between cars, on one of which plaintiff was a passenger, which injuries were alleged to have resulted in a retroflexion of the uterus, the evidence was held sufficient to present a question for the jury as to whether the accident was the proximate cause of the condition found, as against defendant’s claim that such condition was the result of natural causes.
    2. Appeal and error, § 1241*—when party cannot complain of refusal of instruction. A party presenting several instructions embodying the same proposition in varying language cannot complain because the court refused one which he considered most important where the others were given.
    3. Appeal and error, § 1514*—when statements of counsel not prejudicial. Statements in the closing argument of counsel for the plaintiff held not prejudicial in view of the character of a question interjected by counsel for the defendant, and the nature of the closing argument made by the latter, the amount of the verdict clearly showing that the jury were not swayed by sympathy, passion nor prejudice.
    Charles LeRoy Brown, for appellant; Leonard A. Busby and James G. Condon, of counsel.
    Thomas E. Rooney and Ferdinand Goss, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Jennie Philippe, Appellee, v. John J. Curran and Isabella Curran, Appellants.
    Gen. No. 19,871.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1915.

      Abstract of the' Decision.
    1. Municipai, Court of Chicago, § 13

      —sufficiency of affidavit of merits to raise general issue. An affidavit of merits that defendant is not liable to the plaintiff on the bond described in plaintiff’s statement of claim in any sum or amount is, in effect, a plea of the general issue presenting the issues of the case in the Municipal Court, as it by necessary implication denies the statement of facts making up the issue presented by the plaintiff’s statement of claim.
    2. Municipal Court of Chicago, § 13*—effect of allegations of law and conclusions. An allegation in a statement of claim in the Municipal Court that the amount of plaintiff’s damages, under a bond, is fixed by a deficiency decree rendered in certain foreclosure proceedings, to foreclose a trust deed to secure the payment of a note given in part payment of the purchase price of the property mentioned in the bond sued upon, is a conclusion and a statement of the law of the case.

      Statement of the Case.
    Action by Jennie Philippe against John J. Curran and Isabella Curran upon bond. From a judgment, for $5,669.28 against defendants in favor of plaintiff, defendants appeal.
    ■ John J. Curran purchased a piece of real estate assumed a mortgage for $4,000 and executed a mortgage for the purchase price of $30,000, no cash passing. He and the other defendant entered into a penal bond to erect a building on the property within a year to cost not less than $10,000. The building wás not erected. Plaintiff purchased the property at a foreclosure sale and a deficiency decree was entered for $5,435.49. Plaintiff then brought action to recover damages for the failure to erect on the premises foreclosed, an improvement at a cost of not less than $10,000, as provided for in the bond.
    William A. Rogan, for appellants.
    Bither, Goff & Francis, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

3. Municipal Court of Chicago, § 13*—allegations not requiring denial. A statement that a deficiency decree was entered in a foreclosure proceeding for a certain sum, which is the amount of the damages sustained by the plaintiff by reason of the defendant’s not erecting a building in accordance with a contract and the conditions of a bond, does not constitute a statement of fact, such as to require denial in an affidavit of merits under the procedure in the Municipal Court.

4. Municipal Court of Chicago, § 13*—matters of conjecture. Where the statement of claim as filed in the Municipal Court alleged that if a certain building had been erected the property would have been of sufficient value to have satisfied a certain note and costs and expenses, it is merely indulging in conjecture and does not set forth a fact requiring denial in an affidavit of merits.

5. Debt, action of, § 21*—improper evidence of damages. In an action on a bond conditioned to erect a building on real estate to a certain value, the admission of the deficiency decree to establish the amount due is held erroneous, as not constituting the measure of damages.


text:
    Ada Billings et al., v. John Burke, Executor, Appellee, on appeal of Ella H. Sharpe, Appellant.
    Gen. No. 19,968.
    1. Wills, § 192

      —necessity of specific objection to admission of transcript of evidence at probate. An objection to the admission of a transcript of the evidence of attesting witnesses at probate should be specific in the contest of a will in chancery.
    2. Wills, § 194*—admissibility of original transcript. Under the Statute of Wills, ch. 148, sec. 7 (J. & A. If 11548), the original transcript of the testimony of attesting witnesses to a will, when produced and properly identified, is as clearly competent as a certified copy, since no end of justice would be subserved in refusing the proof, once the record be in court.
    3. Wills, § 194*—incompleteness of testimony as affecting admissibility of original transcript of evidence at probate. If the original transcript of the testimony of attesting witnesses states on its back it is only a partial proof in the way of a designation of a continuance for further hearing, such an unexplained designation does not change the character of the instrument competent as evidence under the Statute of Wills, ch. 148, sec. 7 (J. & A. U 11548).
    4. Wills, § 195

      —weight of transcript of evidence at probate. A transcript of the testimony of attesting witnesses in the probate of a will is in the nature of an ex parte declaration in a contest of a will in chancery.
    5. Wills, § 70*—sufficiency of execution to comply with statute. Where it clearly appears from the transcript of attesting witnesses that they were present and saw the testatrix sign the will, in their presence and that they believed the testatrix to be of sound mind and memory at the time of signing, the transcript of the record meets the requirements of the Statute of Wills, ch. 148, sec. 2 (J. & A. ¶ 11543).
    6. Wills, § 203*—instructions as to effect of admission of transcript at probate. An instruction that the introduction of evidence of the transcript of the testimony of the subscribing witnesses to the will, together with the purported will itself, make a prima facie case establishing the will, and that after a prima facie case has been made, the burden of proof as to the whole case is upon those who are contesting the will to prove the allegations of their bill as to the lack of testamentary capacity of the testator or as to undue influence, by a preponderance of the evidence, held properly given by the trial court.
    7. Wills, § 203*—instructions inapplicable to case. In a contest of a will in chancery, the court may refuse an instruction which is not applicable to the case at bar.
    8. Wills, § 186*—when burden of proof rests on contestants. On a bill in chancery to contest a will, where the will and the testimony of the subscribing witnesses given when the will is admitted to probate make a prima facie case of its validity for the proponents, the burden rests upon the contestants to prove their allegations by a preponderance of the evidence.
    9. Wills, § 195*—insufficiency of evidence to overthrow will admitted to probate. Upon a contest of a will in chancery, evidence held to fail to sustain by a preponderance the contention that a testatrix was of unsound mind and memory at the time of the making of a will as against the proponent’s prima facie case made by the introduction of the will and a transcript of the testimony of attesting witnesses at probate.
    10. Wills, § 195*—effect of interest as to weight of evidence in will contest. Where a contract had been entered into providing for a distribution to a witness, who was not an heir, in a will contest, the testimony of such witness may be regarded by the jury in the light of the interest disclosed by the aforesaid contract.
    11. Wills, § 195

      —insufficiency of evidence to overthrow validity. On a bill in chancery to contest a will evidence held to fail to show by the required preponderance that testatrix at the time of making a will acted under the restraint or under influence of the defendant.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.
    Rehearing denied February 16, 1915.
    Statement by the Court. This is a hill in chancery brought in the Circuit Court of Cook county by the heirs at law of Lena Kennedy, deceased, to contest the last will and testament of the said Lena Kennedy. The grounds upon which it was sought to be set aside were,, a want of testamentary capacity in the testatrix and that she was unduly influenced in the making of same by John Burke, named therein as chief beneficiary and sole executor. Upon the bill and answer, an issue at law was made up as to whether or not the instrument in writing produced under the bill was the will and testament of the said Lena Kennedy, deceased. This issue was tried by a jury who returned a general verdict in favor of the validity of the will. The court also submitted to the jury three special interrogatories to be answered by them, which the jury answered, and by their answers found specifically; (1) That the writing read in evidence was the last will and testament of the said Lena Kennedy, deceased; (2) that at the time of the execution thereof the said Lena Kennedy was of sound mind and memory; and (3) that no undue influence was exercised over the said Lena Kennedy that resulted in the making of the said purported will.
    Complainants moved the court to set aside the verdict and special findings of the jury, but the court overruled said motion and complainant’s motion for a new trial, and entered a decree upon the verdict and findings of the jury, from which decree complainant prosecuted this appeal. Hereafter we shall refer to the appellants as the complainants, and to the appellee as the defendant.
    Joseph P. Mahoney, for appellant; Edwin B. Bodley, of counsel.
    Deming & Jarrett and Haight, Brown & Haight, 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.

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

   Mr. Justice Pam

delivered the opinion of the court.

Though many errors were assigned, only three are argued in complainant’s brief, which are as follows:

(1) That the court erred in admitting in evidence the document known as defendant’s Exhibit B, because said document was not sufficiently authenticated and identified as a certificate of the oath of the witnesses at the time of the- first probate, as contemplated in section 7, chapter 148, Statute of Wills (J. & A. 11548).

(2) That the trial court erred in giving a certain instruction on behalf of the defendant, and in the refusal of one offered on behalf of the complainants.

(3) That the verdict is clearly and manifestly against the weight of the evidence.

We shall discuss these points in the order named.

Section 2 of our Statute on Wills (chapter 148, p. 2376, Hurd’s Revised Statutes of Illinois for 1911, J. & A. ¶ 11543) provides as follows:

“All wills, testaments and codicils * * * shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county (Probate Court in Cook County) that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament or codicil, to admit the same to record: Provided, that no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said county (or Probate) court, shall be deemed sufficient to invalidate or destroy the same.” (Language in parentheses is ours.)

Section 7 of the same statute, under which the contest of the will in question has arisen and the issue of law made up to be tried by the jury, provides as follows :

“* * * a¡¡ gUch trials by jury as aforesaid the certificate of the oath of the witnesses at the time of the first probate, shall be admitted as evidence and to have such weight as the jury shall think it may ' deserve.”

The document designated as defendant’s Exhibit B, the admission of which in evidence by the court is assigned as error by the complainant herein, was a transcript of the testimony of the attesting witnesses at the time of the probate of the said will. An examination of defendant’s Exhibit B shows that it is a transcript of evidence taken in the Probate Court of Cook county before Judge John H. Batten, acting judge, on May 17, A. D. 1900, in the matter of proof of last will . and testament in the matter,of the estate of Lena Kennedy, deceased. It shows that Simeon Loudenback and Annie Mahoney, the two attesting witnesses to the last will and testament, were duly sworn and testified in open court; then follows the direct and cross-examination of both. After the last question appears the following:

“Further hearing in the above entitled cause continued to June 21, at 10:30 a. m.”

At the end of the transcript appears the affidavit of the stenographer who took the testimony of the witnesses, sworn to before the clerk of the Probate Court. This transcript clearly shows that the evidence of the subscribing witnesses was given under oath in open court, and transcribed by the stenographer who took the same. The deputy clerk of the Probate Court took the stand and testified that defendant’s Exhibit B was the testimony of the witnesses written up by the stenographer in shorthand at the time the testimony was given by the witnesses, and then typewritten by the stenographer who took the testimony; that it was the original on file, and was the only transcript of the testimony of the witnesses to the will of Lena Kennedy in the files of the Probate Court of Cook county.

The objection raised below was that no showing had been made, i. e., no proper identification of the document; furthermore, that it was incompetent, irrelevant and immaterial.

In urging their contention that the court erred in overruling their objection and admitting defendant’s Exhibit B in evidence, complainants rely in the main upon the case of Harp v. Parr, 168 Ill. 459. In that case proof was made in the form of an affidavit, sworn to by the subscribing witnesses, instead of by questions and answers given under oath. The point made in that case was, that the court erred in admitting the original affidavits in evidence instead of certified copies thereof, urging that in section 7 (J. & A. ¶ 11548) aforementioned, the words “certificate of oath” intended that proof be made in the form of a copy of the original affidavit in the Probate Court, properly certified by the clerk of the Probate Court.

Complainants, in citing the case of Harp v. Parr, supra, no doubt wished to have it appear to this court that the objection made below was upon the basis that a certified copy by the clerk of the court, of the transcript of the testimony, was not offered in evidence instead of the original transcript itself. This authority does not, however, sustain complainants in that contention. The cases of Harp v. Parr, supra, and Potter v. Potter, 41 Ill. 80, state that such objection is extremely technical, and not having been made below, cannot be urged on appeal; the reasoning being further apparent in the language of Chief Justice Walker in the case of Potter v. Potter, supra, (p. 83):

“The statute has made a certified copy of the affidavit evidence, but the original could prove no more or less than a copy; and, unless an objection was made that it was the original, and not a copy, when it was offered, there was no error in admitting it. The objection, however, was general, and we must presume it was intended to apply to its relevancy to the issue.”

That is true also, as we read the record, in the case at bar.

There was no specific objection made to the admission of defendant’s Exhibit B. Moreover, we believe that the original transcript of the testimony of the attesting witnesses, having been produced in court and properly identified, was clearly competent. As was said in the case of Potter v. Potter, supra: “The certified copy could contain no more than the original.”

Though it be argued that the only purpose of the provision for a certified copy was to protect the records of the court that they may remain permanently in the place assigned by law for their security, yet, once they are in court, they may be used as a matter of proof. In this view, we are fortified by the case of Stevison v. Earnest, 80 Ill. 513, wherein Mr. Justice Scholfield said (p. 517):

“The copy is receivable in evidence, not because it is better evidence than the original, but because it is presumed the original cannot be obtained. * * * What end of justice can be subserved when the records of one court are actually present in another court, by refusing to receive them in evidence and requiring them to be returned to their proper custody, there to be copied, and then receiving the copy in evidence?”

Another objection to the admission of this transcript in evidence was that it stated on its back that it was but partial proof of the will. This unexplained designation did not change the nature or character of the instrument. If the proof of the will, i. e., the testimony of the attesting witnesses, did not meet the requirements of section 2 of our statute (J. & A. ¶11543), complainants have failed to show that fact. Our examination, however, of this transcript shows that it meets all of the requirements of said section 2. It clearly appears from the transcript of the attesting witnesses that they were present and saw the testatrix sign the said will, in their presence, and that they believed the testatrix to be of sound mind and memory at the time of signing.

In the case of Baker v. Baker, 202 Ill. 595, it was held that the certificate of the oath of the witnesses at the time of the first probate is an ex parte declaration on oath, of the attesting witnesses, required by section 2 (J. & A. ¶ 11543), supra; and furthermore, a transcript of the testimony of the attesting witnesses is in the nature of such an ex parte declaration.

We are clearly of the opinion that defendant’s Exhibit B, namely, the transcript of the attesting witnesses to the will in question, was a compliance with the provision of section 2, supra, and under the proof in the case at bar was such a certificate of oath as was contemplated under section 7 (J. & A. ¶ 11548), supra, and therefore properly admitted in evidence.

The second contention of counsel for complainants was, that the court erred in the giving of a certain instruction for the defendant and in the refusing of another offered on behalf of the complainants. The instruction complained of is as follows:

“The jury are instructed that the introduction in evidence of the transcript of the testimony of the subscribing witnesses to the will, together with the purported will itself, make a prima facie case, establishihg the will, and that after a prima facie case has been made the burden of proof as to the whole case is upon those who are contesting the will to prove the allegations of their hill as to the lack of _ testamentary capacity of the testator or as to undue influence, by a preponderance of the evidence.” (Given)

In the case of Baker v. Baker, 202 Ill. 595, the Court said (p. 615):

“The uniform holding of this court has been that the certificate of the oaths of the witnesses on a bill in chancery to contest a will makes a prima facie case for the proponents. In Pendlay v. Eaton, 130 Ill. 69, we said (p. 71): ‘The defendant put in evidence the will and the testimony of the subscribing witnesses given when the will was admitted to probate, which was prima facie evidence of its validity.’ ” (Citing cases.)

Counsel cannot complain of an instruction that follows a principle of law that has been uniformly upheld by our Supreme Court as evidenced by the following cases: Entwistle v. Meikle, 180 Ill. 9; Harp v. Parr, supra; Taylor v. Cox, 153 Ill. 220; Graybeal v. Gardner 146 Ill. 337; Wilbur v. Wilbur, 129 Ill. 392; Dickie v. Carter, 42 Ill. 376. And the cases cited by counsel for complainant do not announce a different principle of law.

In refusing to give instruction No. 7, offered on behalf of the complainants, we believe the court ruled correctly, because the said instruction was clearly not applicable to the facts in the case at bar.

There remains but the contention of the complainants, that the verdict, being clearly and manifestly against the weight of the evidence, the court erred in overruling their motion to set aside the verdict and grant a new trial and in entering a decree thereon.

The issue of law made up upon the bill and answer, presented to the jury for their determination the following questions:

(1) Whether or not at the time the testatrix made the will in question she was of sound mind and disposing memory; and

(2) whether she was acting of her own free will and accord and not by reason of the restraint or undue influence on the part of the defendant, John Burke.

We have already held that the transcript of the evidence of the attesting witnesses was properly admitted in evidence as a compliance under section 7, and that the admission of said transcript, together with the will itself, made out a prima facie case in favor of the validity of the will, and that the burden of proof was then upon the contestants to prove the allegations in their bill, by a preponderance of the evidence.

As to the charge that the testatrix was of unsound mind and memory at the time of the making of the will, the only evidence adduced on the part of the complainants was the testimony of Mrs. Van Deusen, the daughter of the husband of the testatrix, by a former marriage, although many other witnesses were called by the complainant; and she testified to certain facts from which complainants argue that a natural inference therefrom tended to show that the testatrix was of unsound mind and memory; most of the happenings testified to by Mrs. Van Deusen, however, occurred many years prior to the making of the will.

As against this testimony to overcome the prima facie case already established, there is the testimony of one of the attesting witnesses, Simeon Loudenback, who took the stand, and both on direct and cross-examination testified that at the time the will was drawn the testatrix was clear in mind, definite in purpose, and thoroughly conscious of her acts. In addition to this testimony, there is also the testimony of Dr. Todd, who attended the testatrix from January, 1900, until the time of her death in March,' 1900; that he attended her about the time her will was drawn; and that he never saw anything to indicate mental derangement in the testatrix, save on the last day before her death, when uremic poisoning had set in, which brought with it a drowsiness which remained to the end; that prior to his last visit, she was of sound mind.

Clearly, on this evidence, complainants have failed to sustain by a preponderance of evidence the contention that testatrix was of unsound mind and memory at the time of the making of the will in question.

On the issue whether or not the testatrix had been unduly influenced by John Burke, the defendant herein, the complainants depended in the main on the testimony of Mrs. Nora Kennedy Van Deusen, G-ertrude White, Minerva Nooks and Anna M. Wild. In our opinion, the most that can be said of the testimony of these four witnesses is, that it tended to support the charge that the testatrix was unduly influenced in the making of her will by the defendant. On behalf of the defendant, however, the testimony of Simeon Loudenback, Margaret Raymond, Harriet Orleane Capps, in our opinion, fairly tended to show that the testatrix was acting of her free will at the time the will was drawn and was not under any restraint or undue influence of the defendant, John Burke.

The jury might well regard with suspicion the testimony of Mrs. Van Deusen, the chief witness for complainant. On cross-examination, it developed that a contract had been entered into, providing for a distribution of whatever was recovered by reason of the successful contest of the will. Under this contract, Mrs. Van Deusen, although not entitled to any share therein by reason of heirship, was to receive one-third of the entire amount recovered as a result of the contest; one-third was to be used in paying attorneys’ fees; and the remaining one-third was to be divided among six heirs at law. Under this contract Mrs. Van Deusen undertook to secure the evidence for a successful contest of the will. The jury had the right to regard her evidence in the light of her interest in the case by reason of the aforesaid contract; and further, the jury might well have received with suspicion the testimony of Anna M. Wild, which deals mainly with statements alleged to have been made to her by the defendant after this contest of the will had been begun, because of the inherent improbability that the defendant in a will contest would make the statements attributed to him by the said Anna M. Wild.

After a careful analysis of all the testimony upon this point, we are firmly of the opinion, not only that the complainants failed to prove by a; preponderance of the evidence, as was required of them, that the testatrix at the time of the making of the will acted under restraint and undue influence of the defendant, but that the clear preponderance of the evidence showed that the testatrix at the time of the making of the will in question was acting of her free will' and was not unduly influenced in the making thereof, by the defendant. We’ are therefore of the opinion that the jury arrived at á proper verdict and that the court properly overruled complainants’ motion to set it aside.

Finding no reversible error, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    R. P. Lamont, Trustee, Defendant in Error, v. United States Reduction Company, Plaintiff in Error.
    Gen. No. 20,064.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by R. P. Lamont, as trustee, against United States Reduction Company, a corporation, for rent under a written lease. From a judgment for $207.88 against defendant in favor of plaintiff, défendant brings error.

      On March 14, 1911, plaintiff leased the defendant space in a building known as the Western Electric Building, located at 410 South Clinton Street, in the city of Chicago, for a period of two years from May 1, 1911, at a rental of $100 per month. A written lease was executed to evidence the agreement between the parties; it was negotiated through Alexander Friend, a member of the firm of Alexander Friend & Company, real estate agents. About the end of March or the beginning of April,—at least, prior to the beginning of the term of the written lease entered into between the parties—defendant discovered it needed more space. Defendant contended that because of this fact, the president and secretary (Henry Lindenberger and Leo Wenk, respectively) of defendant called at the office of Alexander Friend & Company, the renting agents of plaintiff, and took up with Mr. Alexander Friend the question of securing additional space. Both Mr. Lindenberger and Mr. Wenk testified that after having arrived at an agreement as to the exact character of the additional space to be added to what had already been rented under the written lease, Mr. Lindenberger stated to Mr. Friend that he would be willing to take the original space and the new space for a term of one year, at a monthly rental of $125; that Mr. Friend replied that it was immaterial whether he made a lease for one or five years, and agreed that defendant should have the entire space for one year at a rental of $125 per month; that thereupon Mr. Wenk, who had the written lease with him, handed it to Mr. Friend; that Mr. Friend took it and said: “I will mail you a new lease for a period of one year.”
    Mr. Friend, a witness on behalf of the plaintiff, testified that at the time the additional space was discussed, he did not remember Mr. Lindenberger being present; he stated positively, however, that he did not discuss the question with Lindenberger or state to him that he could have a lease for the old space and the additional space at a rental of $125 per month for one year, hnt stated that he did have an interview with Mr. Wenk on this subject; that after discussing the question of space, it was agreed that the rental of the original space and the new was to be $125 per month, and that the term of rental should be for the same period as the written lease, namely, two years, in other words, that it was merely adding $25 to the written lease for the additional space not included in the written lease; and that he was to prepare a new lease for a term of two' years, for the new arrangement, upon the delivery of which the written lease would be taken up; he futhermore denied that Wenk at any time surrendered the old lease to him, or that defendant’s copy ever came into his possession; that no new lease, however, was actually drawn; defendant took possession of the original space provided under the written lease and the additional space, on May 1, 1911, and continued in actual physical possession thereof until April 30, 1912, paying during said year the sum of $125 per month rent.
    Defendant contended that the check in payment of the last month’s rent contained the word's “in full of lease expiring April 30, 1912.” Two witnesses testified that these words were on the check before it was delivered and accepted by the plaintiff; while two witnesses for the plaintiff, through whose hands the check passed in the course of business of Alexander Friend & Company, denied that these words were on the check when it was received from the defendant.
    Silber, Isaacs, Silber & Woley, for plaintiff in error; Martin J. Isaacs and James D. Woley, of counsel.
    Winston, Payne, Strawn & Shaw, for defendant in error; James H. Winston, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 325 —insufficiency of evidence to show surrender. In an action for rent under a written lease where defendant claimed that the written lease had been surrendered and canceled and that a new parol agreement had been entered into, the evidence was held insufficient to sustain defendant’s contention.

2. Evidence, § 476*—number not determinative of weight of evidence. The preponderance of the evidence is not necessarily determined hy the number of witnesses alone, as the appearance and demeanor of the witnesses on the stand may be taken into consideration.

3. Landlord and tenant, § 326*—determination of question as to length of term of parol lease. A reviewing court will not disturb the finding of the trial court on a question of fact as to whether or not a parol lease was for one or two years, unless it is clearly and manifestly "gainst the weight of the evidence.

4. Landlord and tenant, § 325*—sufficiency of evidence to establish parol lease. A finding of the trial court that parol lease was for two years, held not so clearly and manifestly against the weight of evidence as to require its disturbance by an Appellate Court.

5. Frauds, statute oe, § 96*—when part performance of oral lease insufficient at law. Part performance under a parol lease for two years does not operate, in an action at law, to take the lease out of the Statute of Frauds.

6. Landlord and tenant, § 452*—ineffectiveness of parol lease to modify written lease. A parol lease, invalid under the Statute of Frauds, cannot operate as a waiver, surrender or cancellation of a prior written lease.

7. -' Landlord and tenant, § 449*—what constitutes surrender. Where a lessee elects to avoid a parol lease, he cannot claim benefit ¡of it as a consideration for the cancellation and surrender of a written lease.

8. Landlord and tenant, § 452*—ineffectiveness of executory parol lease to cancel written lease. Under the contention that a parol lease is not void hut only voidable, still it does not become a good consideration for the cancellation of a written lease unless it has been fully executed or put in writing, as contemplated hy the agreement.

9. Landlord and tenant, § 452*—sufficiency of parol agreement to abrogate written lease. A lease, even though under seal may be abrogated by parol agreement.


author: Mr. Presiding Justice Barnes

text:
    Margaret McDonnell, Defendant in Error, v. W. Irving Osborne et al., Receivers, Plaintiffs in Error.
    Gen. No. 19,440.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Release, § 26

      —when error to submit validity of release to jury. Where a person employed as a maid in the household of an attorney was injured by one of defendant’s trains, was offered a certain amount in full settlement of all claims, which was fully explained to her by her employer, who advised her to accept the settlement, and she thereupon accepted such sum and signed a release, after same had been read to her by her employer, in the absence of any representative of defendant, nothing having been said or done which could possibly have been construed into a trick or device to deceive, and the evidence being clear that she understood what she was signing, it was held error to submit the validity of the release to the jury.

      Error to the Superior Court of Cook-county; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Margaret McDonnell against W. Irving Osborne, George G. Moore and D. B. Hanna, receivers of the Chicago & Milwaukee Electric Bailway Company, to recover damages for personal injuries sustained on being struck by a train while crossing defendant’s tracks with the intention of becoming a passenger upon the train inflicting the injury. From a judgment in favor of plaintiff for seventeen hundred ■ dollars, defendant brings error.
    Bull & Johnson, for plaintiffs in error.
    McCaskill & McCaskill, for defendant in error.

      See minois Note's 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 faction number .

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Cabbibbs, § 422*—when intending passenger guilty of contributory negligence. Where a person intending to become a passenger upon an interurhan train was struck by the train while attempting to cross the tracks in front of it, and her own evidence disclosed that she knew of the approach of the train and signaled it before she reached an intervening track which she was obliged to cross, and continued to look at it up to the time she was struck, having misjudged its distance and speed, it was held that contributory negligence was shown as a matter of law.


text:
    G. A. Crancer Company, Plaintiff in Error, v. C. P. Williams et al., Defendants in Error.
    Gen. No. 19,614.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action of replevin by the Gr. A. Crancer Company, against C. P. Williams, C. L. Williams and Werner Bros. Express and Storage Company to recover a piano sold by plaintiff to C. L. Williams under a conditional sale contract which contained a provision prohibiting the removal of the piano from the residence of the purchaser in Norfolk, Nebraska, without the vendor’s consent. The piano was removed without such consent and placed with the Storage Company in Chicago. Later defendant C. P. Williams brought attackment proceedings against C. L. Williams, and claimed to have obtained a judgment in rem, and a special execution thereon under which the piano was levied on and sold, he bidding in the property and leaving it in charge of the Storage Company.-
    Abstract of the Decision.
    1. Replevin, § 152

      —when joint, judgment, fpr defendants erroneous. In a replevin proceeding by the vendor against the purchaser of personalty, under a conditional sale contract and one claiming title thereto under an execution sale on judgment against such purchaser, a joint judgment for damages in favor of the defendants is erroneous, since if the execution purchaser obtained title under the execution sale he alone was damaged by the detention of the property under the replevin writ.
    2. Costs,-when judgment in favor of nonappearing party erroneous. A judgment for costs in favor of a defendant who entered no appearance is erroneous.
    3. Execution, § 206*—when purchaser claiming under must prove judgment. Where in an action of replevin by the vendor of personalty the defendant claims title under an execution sale upon a judgment against the vendee, he must prove the existence of the judgment upon which the execution issued, and proof of the execution alone will not suffice.

      Thereupon the plaintiff commenced a replevin proceeding to recover the piano. The Storage Company was dismissed out of the case. On trial without a jury the court found that the right of possession of the property replevied was not in the plaintiff and entered judgment for one cent damages and costs in favor of C. P. and C. L. Williams and awarded the writ of retorno habendo, from which judgment plaintiff prosecutes error.
    J. W. Sutton, for plaintiff in error; Martin L. Wilborn, of counsel.
    Eric Winters, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

4. Judgment, § 692 —what evidence insufficient to prove existence of. The introduction in evidence of the “half sheet,” a term used in the Municipal Court to designate the record of its proceedings including the judgment, which consists of a jumble of letters conveying no meaning unless explained, is insufficient to prove the existence of a judgment, especially where no explanation was offered:

5. Judgment, § 242*—when entry invalid. A record consisting of a jumble of figures conveying no meaning unless explained is invalid as an entry of judgment under Stein v. Meyers, 253 111. 199, and subsequent decisions.

6. Sales, § 436*—rights of bona fide purchaser from, vendee on conditional sale. Where a conditional sale is made arid the vendor retains the title in himself, but delivers the chattel to the vendee so as to clothe him with apparent ownership, the bona fide purchaser or execution creditor of the latter is entitled to be protected as against the claim of the original vendor.

7. Execution, § 193*—when attaching creditor becomes an execution creditor. An attaching creditor becomes an execution creditor after sale on execution, and consequently the principles governing the rights of attaching creditors are inapplicable aftér sale on execution.

8. Execution, § 193*—when purchaser at own sale a bona fide purchaser. The execution creditor of a purchaser of personalty under a conditional sale contract is not prevented from being a bona fide purchaser as against the original vendor merely because he was a purchaser at his own execution sale.

9. Sales, °§ 436*—when execution creditor of vendee of conditional sale contract protected. Where the vendor under a conditional sale ■ contract vested the purchaser with the indicia of ownership he cannot, as against a bona fide purchaser on execution against the vendee under said contract, contend that since the latter had no title ■ the execution purchaser acquired none.


text:
    Levitan Lumber Company, Defendant in Error, v. Max Yegendorf et al., Plaintiffs in Error.
    Gen. No. 19,723.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebroe, § 372

      —when invalidity of contract under Statute' of Frauds not considered. Where the question as to the invalidity of an oral contract under the Statute of Frauds was not raised below, it will not be considered for the first time in the Appellate Court.
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by Levitan Lumber Company against Max Tegendorf and another to recover the sum of $65.15, averred by the statement, of claim to have been “the current market price of lumber delivered to a building of the defendant, Max Tegendorf,” for which it was alleged both he and one Balonik, his contractor, promised to pay. Tegendorf’s affidavit of defense alleged that the goods were not ordered by nor delivered to him, but were sold to Balonik, and that he never so promised. From a judgment for plaintiff, defendant, Tegendorf, brings error.
    William J. Dillon, for plaintiffs in error.
    Heldman, Jackson & Graff, for defendant in error; Lewis F. Jacobson, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Sales, § 332 —when judgment for value of goods sold must he reversed. Where in an action to recover for the reasonable value of lumber alleged to have been sold and delivered to defendant there was no evidence whatever of quantity, quality or value of same, a judgment in favor of plaintiff must be reversed, there being no contention that a price was agreed upon between the parties.

3. Sales, § 327*—what evidence insufficient to prove quantity and value of goods sold. In an action for the reasonable value of goods alleged to have been sold to defendant, proof merely of the amount of the bill entered on plaintiff’s books is insufficient to prove the quantity, quality or value of the goods sold.


text:
    B. A. Thorpe, Defendant in Error, v. Cameron-Schroth Company, Plaintiff in Error.
    Gen. No. 19,806.
    (Not to be reported in full.)
    Error to the Municipal - Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action by B. A. Thorpe against Cameron-Schroth Company, a corporation, to recover a commission for procuring a tenant for defendant.
    Both Thorpe and another real estate firm, J. J. Harrington & Company were authorized to procure a tenant, and both presented one Reuter’s name to the defendant as a prospective tenant, the former by letter of January 7, 1913, and the latter by a letter dated January 2, 1913, each asking in his letter to be protected as to commissions in case a lease was effected. In a letter, of January 8th acknowledging receipt of Thorpe’s letter, W. A. Cameron, the president of defendant, said: “We will protect you in this - matter. ’ ’ About the middle of February, shortly after the deal was closed with Eeuter through the firm of Harrington & Company, Cameron received a bill for commissions from Thorpe. Thereupon he wrote his agents, Harrington & Company, that in looking over his files he had found correspondence with Thorpe above referred to and that he had overlooked it in negotiating with Harrington & Company. No special reference was made to the fact he had also overlooked the said letter previously received from Harrington & Company.
    Abstract of the Decision.
    1. Brokers, § 88

      —when evidence insufficient to show liability for commission. Where each of two brokers, in whose hands, property had been placed for the purpose of securing a tenant, submitted the name of the same person as a prospective tenant, each asking that he be protected as to his commissions in case a lease was effected, to which the principal assented in writing, and the deal was closed through one of them, who received the commissions, in an action by the other to recover his commissions it was held that the mere assent of the principle to protect him as to his commissions, and a subsequent letter by the principal to the successful broker that he had overlooked his correspondence with plaintiff in making the negotiations, was held insufficient in itself to show liability.
    2. Brokers, § 37*—when not the procuring cause. A broker is not entitled to a commission for securing a tenant whose name he submitted to his principal, where the evidence showed that he was not the first to call such person’s attention to the property and that all of the negotiations which culminated in the deal were conducted by another broker who was also the first to submit the property to the prospective tenant and the first to give his name to his principal.

      From a judgment for plaintiff, defendant brings error.
    William A. Jennings, for plaintiff in error.
    Henry Horner, for defendant in error; Arnold Heap, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Brokers, § 51*—liability for commission when property placed in hands of several brokers. One who places his property in the hands of several brokers for the purpose of securing a tenant, in the absence of any specific agreement to the contrary, is obligated, to pay commissions only to the one who was the procuring cause of the lease.