text:
    Samuel Hyndman, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 15,519.
    Contributory negligence—when person seeking to cross railroad tracks guilty of. Held, as a matter of law, that a person seeking to cross railroad tracks at an intersection where he knew from previous daily experience no flagman was stationed, was guilty of contributory negligence, where it appeared that he made no effort to see the approaching locomotive which struck him and did not listen to any sounds caused thereby, but walked straight on toward the track without looking to the right or left up to the time he was struck; it likewise appearing that if he had taken the precautions which he did not take he could have avoided the injury sustained.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of fact.
    Opinion filed May 16, 1913.
    Winston, Payne, Strawn & Shaw, for appellant,
    McGoorty & Pollock, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This action was brought by the appellee to recover for injuries received shortly after six o’clock on the morning of November 5, 1903, as the result of being struck by the tender of one of appellant’s locomotives at a point opposite Center Avenue, at the southern boundary of the Union Stock Yards, Chicago.

It appears from the record that the territory known as the Stock Yards is bounded on the south hy Forty-seventh street, and on the east and west by public streets in the city of Chicago. Center avenue extends south from Forty-seventh street at a point opposite the middle of the southern boundary of the Yards. At the time of the accident, November o, 1903, a board fence, from eight to ten feet high, extended along the north line of Forty-seventh street, the entire length of the Stock Yards, broken only by an opening of from twenty-five to thirty feet wide at a point opposite the intersection of Forty-seventh street with Center avenue. There was a flag shanty four feet by five feet and ten feet high at the west end of the opening in line with the center of Center avenue. The board fence came up against the west side of the shanty, the north line of the shanty corresponding with the line of the fence. The opening was to the east of the shanty. North of this opening is a private street of irregular outline called Center avenue, extending north for some distance in the Yards. Two of appellant’s switch tracks extended across this opening north of the fence and parallel with it. The southernmost track was four or five feet north of the fence.

About twenty-five feet west of the opening in the fence a cross-over track of about one hundred feet in length led from the southern track or fence track to the track next north of it. Switch tracks extended from both of those tracks off to the northwest where there was an extensive switch yard. The stands controlling the switches were three or four feet east of the crossing in question.

Appellee had been working for various companies in the Stock Yards for about twenty years, and during all that time had lived somewhere south of Forty-seventh street. Until the fence was built, which was about five.years before the accident, he had been in the habit of crossing the railroad tracks at any point along the south side of the Yards on his way to work. After the fence was built he had gone through the opening shortly after six o’clock in the morning every day to his work and returned across the tracks in the evening. The engines of the Chicago J unction Railway Company, appellant, were constantly operating back and forth over this crossing, switching cars for the various industries in the Stock Yards, with all of which appellee was perfectly familiar.

Shortly after six o’clock on the morning of the accident appellee went north on the east side of Center avenue on his way to work for Armour & Company, where he was employed. He had crossed Forty-seventh street in a northeast diagonal direction and then went north through the opening in the fence, passing four or five feet east of the shanty. He emerged from behind the shanty with his head down, and without looking in either direction, or, as he testified, without thinking about the cars at all, and was about two steps east of the shanty on the southernmost track, when the corner of the locomotive tender backing east struck him in the shoulder, knocking him down. In some way his foot was caught under the wheel of the tender, and his toes were crushed so that amputation of about half of the length of the foot was necessary.

Appellee had used that particular place to enter the Yards ever since the fence was built. During that time he had never seen a flagman there at six o’clock in the morning, and as he testified, never expected to see a flagman there, and did not look for one when he attempted to cross over the tracks. A flagman ordinarily came on duty at seven o’clock in the morning.

His case was submitted to a jury upon the four additional counts of the declaration. The first count averred that the appellant failed to maintain at the said intersection gate a flagman or other means of warning passersby of the approaching trains.

The negligence averred in the second count was that the defendant carelessly and negligently ran and operated and drove its locomotive engine to and upon the crossing without keeping a reasonably careful lookout. The negligence averred in the third count is that defendant improperly, negligently and carelessly maintained, managed, controlled and operated its railroad and locomotive engine, and the fourth count averred that the appellant failed to have a bright light directed in any way in the direction said locomotive was moving, or other means of warning persons.

Several grounds are urged by appellant for the reversal of the judgment. In our opinion the case turns upon the question whether the appellee was guilty of contributory negligence in going upon the track upon which he was struck and injured. As we said in C. & E. I. R. R. Co. v. Olson, 113 Ill. App. 320: “No inflexible rule can be laid down as to what constitutes contributory negligence on the part of a person who is struck by a railroad train when passing over the track upon which said train is moving. Each case depends upon its own circumstances.” In I. C. R. R. Co. v, Batson, 81 Ill. App. 142, after a review of many authorities the court said: “These authorities and many others that might be cited warrant the statement that while a failure to look if a train is approaching is not negligence per se, it is negligence in fact, if there are no conditions or circumstances which excuse the looking. And a jury without evidence of conditions or circumstances which excuse looking, when looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.”

Appellee’s own statement of the accident is in part as follows: “As soon as I got to the south side of Forty-seventh street I walked over in a northeast direction towards the opening in the fence. As I walked over there I was looking north. I was looking straight ahead of me. As I came across the street walking northeast I was looking northeast straight ahead; saw the fence on the north side of Forty-seventh street. I was close opposite the fence when I looked at it, three or four feet south of the shanty. I walked along until I got within three or four feet of the fence and then turned and walked to the front of the shanty,' east of the shanty. I seen the fence when I was coming across the street; took particular notice of it. I looked at the fence when I was about twelve feet north of the street car tracks and about twelve feet south of the shanty or more. * * * Didn’t see anything coming over the top of the fence; saw no sign of an engine cab. The people ahead of me who were going over the crossing were fourteen or fifteen feet away. Seen about five or six; had no difficulty seeing them. Could see people plain. At the time I was on the south side of Forty-seventh street, when I looked west just as I passed the corner of Fitzpatrick’s saloon, I could see the fence over there. I could see about one hundred feet west at that time. * * * As I continued to walk north from that point I was looking right north; I was looking north across the track all the time. I don’t remember looking in any other direction but north, from that point south of the shanty until I was hit. I was making a regular march probably between three or four miles an hour. Didn’t walk in any other direction or turn in any other direction except to go straight north before the moment I was struck. The first thing I saw of the engine that struck me was the northeast corner. I didn’t see it at all before it struck me. At that time I was a step and a half or two steps east of the shanty, that would be from four to five feet, something like that. * * * I don’t know how fast the engine was going. As I was going north there I was thinking about getting down to my place where I had to work I suppose, but I don’t know. I don’t know what I was thinking about. I was not thinking particularly about cars that might be coming along the crossing. I don’t know that I was thinking about them at all. I was in the habit of crossing there about six o’clock every day for about twelve months; had used that particular place to go into the Yards ever since the fence was built. During that time I never saw a flagman there at six o’clock in the morning. There never was a flagman there at that hour while I crossed over there. I never expected to see a flagman there and never looked for one when I went over there. * * * The engines and car were there most of the time. Every time I went over there there was an engine somewhere near there working hack and forth on the tracks continually. You could see them going back and forth off of the street.”

The witness James Hawkins testified, that when he saw the appellee that morning appellee was about five feet east of the shanty going north at a regular gait; that he saw appellee struck by the tender, but that he didn’t see the tender before appellee was struck by it; that he saw him knocked down and rolled over on the plank crossing, but the witness kept on going, and passed over the crossing without stopping to see how badly appellee was hurt. This he explains by claiming that he had to get to his work. He further testified as to appellee’s actions that he was looking north and going north before he was struck; “didn’t see him look any other direction at all that I know of; didn’t see him turn in any other direction. I think I would have seen him if he had turned either one way or the other.” Hawkins further said that the engine appeared to be going ten or twelve miles an hour, but upon cross-examination he admitted that he had never had occasion to estimate the speed of a locomotive, and that it might have been going less than that.

Love, the fireman, and Thompson, the engineer, testified that they were moving about three or four miles an hour.

The witness Hora Liston, who sold papers at this gate or entrance, testified that the engine was going about ten miles an hour. “It was going slow, like a child walking. I don’t think it was going ten miles an hour. I could just walk as fast the engine. It was going slow.”

On the question as to whether any warning was given of the approach of the locomotive appellee said that no whistle was blown or bell rung; and Hawkins said that he heard no bell. On the other hand, Love, the fireman, and Thompson, the engineer, testified that the bell was being rung by an automatic air bell ringer, which did not require the pulling of a bell cord to ring it. And Nora Liston testified that the bell was ringing slow. Daly, the switchman, who at the time of the accident was standing some four hundred feet northwest of the crossing, testified that the bell was ringing when the engine went east from him and that it was an automatic bell.

There is some controversy in the evidence as to the distance between the north side of the flag shanty and the south rail of the track on which appellee was struck, but in our opinion this controversy is of little importance on the question of the contributory negligence of appellee.

In C. M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248, the court, through Mr. Justice Scofield, said: “One who failing to observe due care blindly walks into a danger that the observation of due care would have enabled him to avoid, is no less guilty of contributory negligence than he who being able by the observance of due care, to extricate himself from danger, fails to make any effort for his own personal safety and because thereof is injured. Abend v. Terre Haute R. I. Co., Ill Ill. 203. On approaching a railroad crossing is bound to know that it is a place of danger, and he must give that attention to the sights and sounds warning of an approaching train that a man of ordinary caution under like circumstances would give. If he shall permit himself to become absorbed in thought about other matters, and in consequence, oblivious of his present surroundings, he will do so at his own peril.”

In Boyle v. I. C. R. R. Co., 88 Ill. App. 255, this court said: “It appears from appellant’s testimony that he was not on the track itself when he was struck by the engine but on the side of the track and approaching it. He appears to have reached the track at the instant when the engine was passing the point of intersection of his course with that of the train. He was hit only upon the head; and not by the front of the engine, according to his own statement, but by its side. In other words, he thrust his head blindly against a passing engine. It appears there was nothing to obstruct the view of the approaching- train except the watchman’s tower from behind which he emerged a few seconds before he struck the engine. The tower was a small structure which he must have passed in two or three steps, and before reaching it his view of the approaching train going only at the rate of about twelve to fourteen miles an hour, was unobstructed. It is evident that appellant did not take the precaution to look. * * * But that he did fail to use ordinary care for his own safety seems to admit of no question.”

It is clear, we think, from the testimony of appellee and the other witnesses in the case who were in the position to observe appellee’s actions, that he made no effort of any kind to see the approaching locomotive, nor did he listen to any sounds caused by the locomotive, but walked straight on toward the track without looking to the right or left up to the time he was struck, by the locomotive tender. It is clear from the situation of the tracks and the fence and the switch shanty that appellee, by the exercise of due care and caution for his own safety, might have seen the approaching locomotive had he glanced to the west at the time that his line of vision would be clear of the shanty and before coming upon the railroad track. It is susceptible of mathematical calculation we think, and it is evident without any mathemathical calculation, that he could have seen the locomotive approaching when it was some distance to the west if he had looked as soon as he arrived at a point where his vision would he unobstructed by the corner of the switch shanty. But this precaution appellee did not take, although he had been for years familiar with the constant use at all times of this track for irregular switching purposes; and he very well knew that locomotives and trains were passing over these tracks at the point where he was injured at all hours- of the day, and that he might expect to meet a locomotive or train whenever he entered the gate and was about to step upon the track. According to his own testimony he was not relying upon any warning of any kind, for the reason that he knew that no flagman was ever on duty at the hour when he was attempting to cross the track. We think from the evidence that the locomotive was moving at a slow rate of speed and that the automatic bell was ringing. ' It seems to us, and we are of the opinion, that appellee was clearly and palpably negligent in thus attempting to pass over the track of the appellant railway, in the manner in which he did, and without looking to the right or left to ascertain whether there was any locomotive or train approaching.

Many similar cases might be referred to in which it was held that the plaintiff failed to exercise due care under facts and circumstances similar to those shown in this record. We are compelled to hold upon the evidence of the appellee and all the witnesses that saw the accident that the appellee, at and immediately before the time of the injury, was guilty of contributory negligence without which he would not have been injured, and therefore he cannot recover in this case.

In view of our holding on this question it is unnecessary for us to consider and determine the other questions presented.

The judgment is reversed with finding of facts.

Reversed with finding of facts.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    B. Tomaszewski et al., Plaintiffs in Error, v. Martin C. Anderson, Defendant in Error.
    Gen. No. 17,304.
    Municipal Court—within what time statement of case must he filed. The statement of case must be filed within thirty days of the judgment date or within such time thereafter as may have been provided for by extension granted within such thirty day period. A second extension granted after the lapse of the thirty day period is unavailing to' continue the jurisdiction of the court.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Motion to strike sustained and affirmed.
    Opinion filed May 16, 1911.

      Wayman & Jurgens, for plaintiffs in error.
    Bulkley, Gray & More, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court in a fifth class ease in that court, entered on December 31, 1910. On January 27, 1911, within the thirty days provided by paragraph sixth of Section 23 of the Municipal Court Act, the time to file a statement of facts was by order of court extended to February 6, 1911; and on February 4, 1911, by agreement in open court an order was entered further extending the time to file such statement of facts to and including February 15, 1911. On the same date, February 4, 1911, and within the .extended time originally granted, a statement of facts was presented to the trial judge, which was signed and filed by him on February 11, 1911, more than thirty days after the entry of final judgment, and after the expiration of the extension of time given within the thirty days after the entry of final judgment.

Dpon this state of the record a motion is interposed to strike the statement of facts from the record upon the ground that the same was not signed by the trial judge and filed within the time allowed by the statute, and for an affirmance of the judgment for the reason that all the errors assigned are confined to such matters as appear in the statement of facts and do not involve or arise upon, the statutory record. Lassers v. N. German Steamship Co., 244 Ill. 570; Haines v. Knowlton Danderine Co., 248 id. 259 ; and other cases are cited in support of the motion.

Before the amendment of the Municipal Court Act in 1907, that court had all the power of the Circuit Court in regard to fixing the time within which a bill of exceptions might be presented, signed and filed. By that amendment the Legislature effectually denied to the- court the power to act at any other time. Haines v. Dander ine Co. supra. For want of power the order of February 4, 1911, was void, and must be disregarded. Lassers v. N. German Steamship Co. supra.

It is claimed on behalf of plaintiffs in error that the situation in this case is precisely the same as was the situation in Banker v. Miller, 148 Ill. App. 182, decided by this court in an opinion filed April 20, 1909, holding in substance that if a bill of exceptions has been presented to the trial judge for signature before the expiration of the time for filing the same, the failure of the trial judge to sign and file it within the time fixed is immaterial, and the party presenting it should not be prejudiced because the judge may not actually sign and file it until after the time fixed has expired. That decision was based however upon the decisions of the Supreme Court under the statute of February 4, 1819, and the Practice Act, and the practice which grew out of the action of the courts thereunder. In Haines v. Danderine Co. supra, the opinion was filed December 21, 1910, nearly two years subsequent to the ruling in Banker v. Miller. The court said: “Arguments based upon the practice in the Circuit Court are not in point, because the object of the amendment was to change that practice, so far as the Municipal Court is concerned and limit the time within which bills of' exceptions must be presented.” Banker v. Miller is therefore overruled in effect, and is not the law.

Upon the authority of the cases cited the statement of facts in this record was signed and filed when the judge or court had no power to act in the matter, and it cannot be considered as a part of the record. The motion to strike must be sustained.

The errors assigned are clearly confined to such matters as appear in the statement of facts, and do not relate to the statutory record. The judgment of the Municipal Court is therefore affirmed.

Motion to strike sustained and judgment affirmed.


author: Mr. Justice Baldwin

text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Helen McKeown, Administratrix, Appellee, v. The Merchants Loan & Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,420, 15,556.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and. McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, appellee, v. Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428-267, 15,552,-375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not be repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Mary McAnrow, Appellee, v. The Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,421, 15,550.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, appellee, v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428—267, 15,552—375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the fácts and discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not he repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Katie McAnrow, Appellee, v. The Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,422, 15,551.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased ; Claim of Kate M. Keeler, appellee v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna Sexton, appellants, 15,428-267, 15,552-375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not be repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Susie McAnrow, Appellee, v. The Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,423, 15,557.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit court of Cook county; the Hon. Julian W. Mack, Judge presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, appellee v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428—267, 15,552-375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not be repeated.

The judgment of the Circuit court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceedings.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Eliza B. Reilly, Appellee, v. The Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,424, 15,553.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased ; Claim of Kate M. Keeler, appellee, v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428-267, 15,552-375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not be repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Lucinda Reilly, Appellee, v. The Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,425, 15,549.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased ; Claim of Kate M. Keeler, appellee, v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428—267, 15,552—375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not be repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed, and cause remanded with instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of John J. Reilly, Appellee, v. Ter Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. No. 15,426, 15,555.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of' Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, appellee, v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428—267, 15,552—375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not be repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with, instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Claim of Thomas W. Reilly, Appellee, v. The Merchants Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,427, 15,554.
    This case is controlled by the decision In re Estate of Patrick J. Sexton, deceased; Claim of Kate M. Keeler, Appellee, v. Merchants Loan & Trust Company, Executor, et al., Appellants, post, p. 222.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions involved in this appeal are the same as those decided by this court In re Estate of Patrick J. Sexton, deceased ; Claim of Kate M. Keeler, appellee, v. The Merchants’ Loan and Trust Company, as Executor of the Last Will and Testament of Patrick J. Sexton, deceased, and Anna L. Sexton, appellants, 15,428-267, 15,552-375. Post, p. 222.

The statement of facts and the discussion in that case was intended to cover the facts and the discussion of law in this, and the views expressed in the opinion in that case are decisive of the issues here and need not he repeated.

The judgment of the Circuit Court is reversed and the cause remanded to that court with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceeding.


text:
    In re Estate of Patrick J. Sexton, deceased. Kate M. Keeler, Appellee, v. The Merchants’ Loan and Trust Company, Executor, et al., Appellants.
    Gen. Nos. 15,428, 15,552.
    1. Appeals and errors—when person not^party may appeal. The widow of the deceased, though not a party to, tüa proceedings against his estate in the probate court to obtain thefifijjowanee of a claim, has an appealable interest by virtue of the statute whifeh authorizes an appeal by her.
    2. Administration of estates—when allowance of bequests as claims erroneous. If a will make bequests by reference to notes made in favor of the beneficiaries and payable after death, it is error to enter judgment on such notes as claims, inasmuch as so doing operates to give to such bequests the preferential rights of claims.
    3. Wills—how testamentary gifts cannot be made. Testamentary gifts cannot be made in the form of unattested promissory notes.
    4. Wills—what essential to valid bequests the amounts of which are fixed by reference. In order that bequests the amounts of which are to be determined by promissory notes may be valid and enforceable it must appear (1) that the will at the time of its execution and formal attestation was complete; (2) that the will contained within itself a statement of the testator’s intentions; (3) that the notes which measured the amount bequeathed were in existence at the time the will was made and be referred to in the will in such terms as to indicate their then existence; (4) that the will referred to such notes in such terms as to exclude from its description any instruments or papers thereafter made; and (5) that the notes are so identified and referred to as to constitute the measure of such bequests. Held, in this case, that the language -of the will was not sufficient to warrant extrinsic evidence to make certain the amounts, etc., of the several notes, none of which were produced.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed May 16, 1911.
    Statement by the Court. This proceeding involves a claim of one Kate M. Keeler against the estate of Patrick J. Sexton, deceased, which she filed in the Prohate Court, where it was disallowed. Upon her appeal to the Circuit Court of Cook County a judgment was entered in her favor for $24,-191.78, and costs, to he paid in due course of administration. From that judgment The Merchants’ Loan & Trust Company, the executor of Sexton’s will, appealed to this court, as also did the widow of Mr. Sexton.
    The same controversy was presented in the matter of eight other separate claims against the estate, which were severally disallowed in the Probate Court, but upon appeal to the Circuit Court, judgments were entered in favor of the respective claimants, from which several judgments separate appeals were taken by the executor of Sexton’s will and the widow of the deceased. By order of this court the appeals in the matter of these nine separate claims were consolidated for hearing upon one set of abstracts and briefs, and the abstracts and briefs filed in this cause were ordered to stand as and be taken and considered as the abstracts and briefs in all of said causes. The several claims are as follows:

    These claims were heard together in the Probate Court and in the Circuit Court respectively. The two separate appeals as to each claim have been consolidated. The claims of the nine several claimants have not been consolidated, except for the purpose of the hearing, but the record is the same in each case, except as to names and amounts of the respective claims, and the numbers of the suits. Of these several claimants Eliza Beilly, Mary McAnrow and Kate M. Keeler were sisters of the deacesed; while Katie McAnrow, Susie McAnrow, Eliza B. Beilly and Lucinda Beilly were nieces, and J ohn J. Beilly and Thomas W. Beilly were nephews, of the deceased.
    Though the widow, Anna L. Sexton, was not a party of record to the proceedings in the courts below, yet because the several judgments were against the estate, as claims, she hid an appealable interest, under Chapter 3, Section 124 B. S..
    The testator, Patrick J. Sexton, died on October 28, 1903, leaving a will dated June 26, 1902, which was duly admitted to probate in the Probate Court of Cook County on December 1,1903. In this will The Merchants’ Loan and Trust Company was designated as executor thereof.
    The deceased left him surviving his widow, Anna L. Sexton, his son, Thomas O. D. Sexton, then about twenty-one years of age, and a son, Patrick Joseph Sexton, Jr., then about nine years of age, as his only heirs at law. He also left surviving his brother, John M. L. Sexton, and three sisters, Kate M. Keeler, Mary McAnrow and Eliza Beilly, the latter of whom died shortly after the death of the testator. The various nieces and nephews above named also survived the testator.
    By the terms of the Second Paragraph of the will, testator gave to his wife, Anna L. Sexton, all such proportion and interest in his estate, both real and personal, as she would be entitled to under the laws of the State of Illinois, in force at the time of his death. In addition, he gave her the use of a certain homestead as long as she should remain his widow.
    The Third Paragraph of Mr. Sexton’s will reads as follows :
    “Article Thirl. To my brother, J ohn M. L. Sexton, of Chicago, Illinois, who is at the present time indebted to me in sundry amounts, evidenced by his notes now held by me or otherwise, I do give and bequeath the entire amount of his indebtedness to me, at the time of my decease, however the same may be made to appear, and I do hereby direct my ex-editor and trustee to cancel and surrender to my said brother all evidences of such indebtedness to me, in whatever form such evidences may exist, and from the payment of such indebtedness, or any part thereof, my said brother is hereby released and forever discharged; and in addition to the release and cancellation of his indebtedness to me as above provided, I do will and direct that there be paid to my said brother, John M. L. Sexton, by my executor and trustee, as a further legacy and bequest, the full principal amount of any note or notes executed by me in his favor and which he may hold, or which may be held by any other person or persons for his account and benefit, at the time of my decease, and which by the terms thereof are made payable after my death.”
    The Fourth Paragraph reads:
    “Article Fourth. To my sister, Mrs. Eliza Reilly, of Chicago, Illinois, I give and bequeath whatever sums of money she may be owing to me at the time of my decease, however they may be evidenced, and I direct that all such evidences of her indebtedness to me, in whatever form they may appear, be cancelled and delivered to her; and in addition to the release and cancellation of said indebtedness, if any, it is my will and direction that the full amount of the principal of any note executed by me in her favor and made payable by the terms thereof after my decease, and held by her or by any other person or persons for her account and benefit, be paid to her out of my estate and property by my executors and trustee; and in addition to the provisions above made for her, I do give and devise to my said sister Eliza Reilly, her heirs and assigns, the lot of ground and all improvements thereon, now occupied by her and her family, known and designated as Number 2956 Indiana Avenue, in the City of Chicago.”
    The fifth paragraph reads:
    “Article Firth. To my sister, Mary McAnrow, of Chicago, Illinois, I give and bequeath all and every part of her indebtedness to me at the time of my decease, however the said indebtedness may be evidenced, and it is my will and direction that all such evidences, if any such shall appear, be cancelled and surrendered to my said sister by my executor and trustee. It is also my will and direction that the principal sum of any note signed by me in her favor, and by the terms thereof made payable to her after by decease, be paid to her out of my estate; and in addition to the above provisions, I do give” the property occupied by her and known as 4056 Lake Avenue, Chicago; also, certain other property located in Cincinnati.
    Sixth Paragraph:
    “Article Sixth. To my sister, Kate M. Keeler, of Chicago, Illinois, I give and bequeath any and all claims and indebtedness owing by her to me at the time of my decease, and direct that all evidences of such claims or indebtedness be cancelled and surrendered to her by my executor and trustee. It is also my will and direction that the principal of any note signed by me in her favor, and by the terms thereof made payable after my decease, shall be paid to her as a further bequest; and in addition to the foregoing provisions, I do give” the property occupied by her and known as 1468 Michigan Avenue, Chicago.
    By the Seventh Paragraph the testator devised to his son, Thomas O. D. Sexton, two farms in Lake County, and $5,000 in money.
    The Minth Paragraph of his will reads as follows:
    “Article Mintii. It is my further will and direction that any note or notes signed by me, in favor of any person or persons, and made payable by the terms thereof after my decease, be recognized and treated as bequests in behalf of the payees therein respectively designated, and my executor and trustee is hereby fully authorized and empowered to pay the amount of the principal of such notes out of my estate and property, or the proceeds thereof. I have heretofore and may hereafter adopt this means of designating the persons I wish to be remembered as beneficiaries under my last will and testament.”
    By the Twelfth Paragraph the testator devises the residue of his estate to his trustee, mainly for the benefit of his minor son, Patrick J. Sexton, Jr., with the provision that when he should arrive at twenty-four years of age he should receive the property absolutely.
    Paragraphs Thirteen and Fourteen read as follows:
    “Article Thirteenth. In respect to the notes herein-before referred to as notes signed by me and by the terms thereof made payable after my decease, it is my further will and direction that they be presented and filed in the usual way as claims against my estate in the proper court having jurisdiction of the settlement of my estate, and within the time allowed by law for such settlement, and that when so presented and filed, and in the due course of the business of said court, they be allowed as just claims against my estate, before payment thereof by my executor and trustee and my executor and trustee is hereby instructed and directed to make no objection .to the allowance thereof.”
    “Article Fourteenth. In the settlement of any matters pertaining to my estate, in relation to which specific directions are not herein given, and for information in respect thereto my executor and trustee is hereby referred to such memoranda or statement concerning the same as I may have made and signed and which may be found in the safety deposit vault and in the box containing my personal and private papers, and by following the suggestions, instructions or line of policy, indicated in such memoranda and statements, in the making of settlements, it is my will and direction that no personal obligation shall be created on the part of said executor and trustee.”
    By Paragraph Fifteen the testator appointed The Merchants’ Loan and Trust Company sole executor and trustee of and under the will.
    By Paragraph Sixteen testator appointed Rev. Hugh P. Smyth testamentary guardian of his son, Patrick J. Sexton, Jr., without bond, and directed that he be allowed $500 per annum for his services as such.
    By Paragraph Seventeen testator expressly revoked and annulled all former wills made by him and declared this to be his only last will and testament.
    Heither when the will was presented for probate, nor at any time thereafter, was application made by any one to admit to probate, as a part of said will, any note or notes, claiming such note or notes to be the notes referred to in the will. ¡Nor have any notes of any kind answering the description given in the will ever been produced or found.
    On ¡November 30, 1904, the last day for filing claims, Kate M. Keeler and the other nine claimants filed their separate claims against the estate, in the Probate Court, the claim of Kate M. Keeler being as follows:
    “To amount of a certain note or certain notes, signed by sqid Patrick J. Sexton, in favor of said Kate M. Keeler as payee therein, and by the terms thereof made payable after the decease of said Patrick J. Sexton, and intended as a bequest in behalf of said Kate M. Keeler according to the terms of articles nine (9) and thirteen (13) of the last will and testament of said Patrick J. Sexton, deceased, heretofore probated in this court; the date and amount of said note or notes being at the time of the filing of this claim unknown to the claimant.”-
    The claim of each of the others was filed at the same time and is in the same form.
    On December 4, 1905, the several claims came on for hearing in the Probate Court, where, after the hearing, they were severally dismissed. From these several orders of dismissal appeals were taken to the Circuit Court, where a jury was waived, and the cases heard together by the Chancellor. On February 8,1909, after the hearing and decision by the court, Kate M. Keeler amended her claim by leave of court, nunc pro tunc as of September 22, 1908, by adding thereto the following:
    “Said note being for the sum of $20,000 and executed and signed by the said Patrick J. - Sexton, about the month of June, 1893”.
    At the same time, each of the other claimants made an amendment in the same form, except as to the amount.
    At the conclusion of the hearing, the court entered an order reciting the issues, and making a finding in favor of the claim of Kate ¡M¡. Keeler, “that the claimant is entitled to have and recover of and from the estate of Patrick J. Sexton, deceased, the sum of twenty thousand dollars ($20,-000), being the amount of the principal of a certain note signed, and executed "by said Patrick J. Sexton, in his lifetime, in favor of said claimant, and by the terms thereof made payable, after the decease of said Patrick J. Sexton, and intended by the said Patrick J. Sexton as a bequest in favor of said claimant, Kate M. Keeler, according to the terms of said last will and testament of Patrick J. Sexton, deceased, together with interest on said principal sum of twenty thousand dollars ($20,000), at the rate of five per cent per annum from and after December 1, 1904, which interest amounts to the sum of forty-one hundred ninety-one and 78/100 dollars ($4191.78), making the total sum of twenty-four thousand one hundred ninety-one and 78/100 dollars ($24,191.78)”; to which recitals and findings exceptions were duly preserved. After overruling a motion for a new trial and in arrest of judgment respectively, to which exceptions were severally allowed, the court then entered judgment in favor of the claimant in the following words:
    “Therefore it is considered, ordered and adjudged by the court that the claimant, Kate M. Keeler, have and recover of and from The Merchants’ Loan and Trust Company, as executor of the last will and testament of Patrick J. Sexton, deceased, the sum of twenty-four thousand one hundred •ninety-one and 78/100 dollars ($24,191.78), together with costs in this suit to be paid in due course of administration.”
    The proceedings in the several claims were the same, and judgment in each of the cases was in the same form, but the amounts differed as to the respective claimants, being as follows:
    Helen McKeon, as administratrix of the estate of Eliza Keilly, deceased................ $24,191.78
    Mary McAnrow.......................... 24,191.78
    Katie McAnrow.......................... 12,095.89
    Susie McAnrow.......................... 12,095.89
    Eliza B. Keilly.......................... 12,095.89
    Lucinda Keilly............................12,095.89
    John J. Keilly .......................... 6,047.95
    Thomas W. Keilly ....................... 6,047.95
    Kate M. Keeler ."......................... 24,191.78

      From these several judgments separate appeals were taken to this court.
    The executor, appellant here, contends: °-
    1. That under the language of the will of deceased no note can he incorporated therein, or he used to designate the donee or the amount of any gift.
    2. The alleged notes never having been proved or offered for probate in the Probate Court as a part of the will cannot operate as a testamentary disposition of property.
    3. Ho bequest, however evidenced, can be proved or allowed as a debt or claim against an estate.
    4. The Court erred in admitting improper evidence.
    5. The finding is contrary to the weight of the evidence.
    6. If there ever were notes, they were revoked.
    7. Interest should not have been allowed. It is not shown that the alleged notes bore interest before maturity, and it is not shown how long after Sexton’s decease the alleged notes matured.
    While appellant, Anna L. Sexton, urges that the court below erred in the following particulars:
    1. In entering judgment allowing these claims, because if any such notes existed they were not debts of the deceased, and therefore, not claims against his estate.
    2. The judgment of the Probate Court admitting the will to probate is res adjudicate and not having been appealed from, stands as the judgment of the court as to the will. This cannot be attacked collaterally in this case.
    3. The court erred in admitting any evidence as to the making or existence of notes, because the language of the will itself is not sufficient to entitle any note or notes to be incorporated as parts of the will.
    4. If the will remains in the possession of the testator and is not found on his death, the presumption is that he destroyed it with the intention of revoking it.
    5. The.court erred in the admission of evidence on behalf of appellees.
    6. The 'finding and judgment of the court are contrary to the evidence.

      Appellees reply that,
    1. The suits were properly brought by filing claims.
    2. The language of the will is sufficient to warrant the extrinsic evidence, to make it certain as to the amounts and names of nephews and nieces, etc.
    3. There is legal and sufficient evidence to warrant the judgments.
    4. Interest was properly allowed.
    Hoyne, O’Connor, Hoyne & Irwin and McCullough & McCullough, for appellants.
    G. W. and Wharton Plummer, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

It is intended by the foregoing statements, and by the discussion which shall follow, to cover each of the nine separate claims which are included in the eighteen separate appeals pending in this court.

It appears that the deceased had been for many years prior to his death a brick manufacturer and general contractor in Chicago, and left an estate valued at approximately one million dollars. Plis business transactions were large and were attended with more than ordinary risks, and he kept a large part of his property in such form as to enable him to utilize it quickly, in case of necessity. In 1892, and again in 1896, when about to go to Europe, he turned over to his brother, John M. L. Sexton, his tin box, and the keys to his safety deposit box, telling John that, in the event of anything happening to him, John should follow the instructions which he would find there. Later, in 1896, deceased arranged for a joint safety deposit box, which could be opened by himself or John, and he took John to the vault, where declaration was made that John was entitled to the contents of the box. This arrangement, after lasting about five years was terminated by deceased, but he did not tell John of the change. In 1902, when again about to go to Europe, he took his sister, Kate M. Keeler, down to the safety deposit vault where he hired a box, and he gave her the keys, introduced her to the parties in charge, and told her that if anything should happen to him, she would find instructions in the box. In. August, 1903, he again went to Europe. At the railroad station, when leaving, he handed a sealed package to his friend, Rev. Hugh P. Smyth, saying, “Take this, this is yours. I will write you instructions from the other side.” The package was marked, “This belongs to the Beverend Hugh P. Smyth who knows my will, and this is to be opened only at my death, but not before my death.” Following this inscription, was the signature of the deceased.

The package, when opened, was found to contain his will, and more than thirty other documents, several for each of his relatives, including some deeds signed and witnessed by Sexton and his wife, but which had no names of the grantee therein,—some notes, certificates of stock, letters, etc.

His trip to Europe was made because of his poor health and in the hope of securing relief. In this he was disappointed, and upon his arrival there was so ill that he was compelled to go to a hospital, and to employ a nurse. Being advised to return home, he did so, bringing with him one George B. Lawrence, an English nurse. He arrived in Chicago early in September, 1903, went to his residence on Michigan Avenue, where he was attended until his death, by Doctor Patrick. Throughout his prolonged illness, which at times was very serious, his mind remained sound and clear up to the time of his death.

He failed to send any instructions to Father Smyth from Europe or elsewhere, concerning the package, and, upon his return, received it back from him. From that time until his death, the deceased kept the package in a small satchel in his room, in which there was also a carbon copy of his will. During the last few weeks of his illness he was kept informed as to his business, and knew what was going on. He was seen reading the copy of the will several times during his last illness, and he also looked over many other papers, some of which he tore up. He told his wife that whenever he died, she should give the satchel to Mr. Jacobs, his private secretary, who would know what to do with it. He died in the afternoon, and on the following morning the satchel was delivered to Jacobs who, during the day, delivered it to Father Smyth. The satchel dontained only the sealed package (sealed with wax seals) and the carbon copy of the will. The sealed package appeared to Father Smyth to be in the same condition as when it was first delivered to him at the railroad station by Mr. Sexton. Father Smyth took the package to the office of his attorney, where it was opened, and a list of its contents made, and he afterward distributed the contents of the package, but the list was lost, and was never exhibited to any of the interested parties. Various of the notes, deeds and letters and other papers in the package were distributed by Father Smyth among the relatives of the deceased, and the will was given to the Executor.

It is not contended that the supposed notes, under which appellees claim, were in the package at the time it was received by Father Smyth, but, rather, that they were abstracted from the package either after or at about the time of the death of Mr. Sexton, and before it was turned over, and that it was probably done by the widow with the aid of a Miss Gleason, and the package resealed by Jacobs before its delivery by him.

It is contended that the testator made the alleged notes long prior to the making of his will, and probably in June, 1893, and that they were still in existence at the time of his death. To sustain this contention, one A. S. Bradley, a lawyer, testified on the hearing in January or February, 1908, on behalf of the claimants, that he made two wills for the testator prior to the one in question, the first one being in 1888, and the second in 1893. He testified as to the contents of these wills of 1888 and of 1893, respectively, which, according to his testimony, were substantially like the present will. He also testified that at the time of making the 1893 will, the testator made notes and showed them to him; that the notes were made before the will was executed, and the witness gave the names of the payee and the amounts of the several notes (12 in number), except, that as to those for the nephews he could not remember definitely the amounts, hut was certain they were for $5,000 or more, and as to the others the names and amounts in those notes were the names of the several claimants, and the several amounts here claimed.

Appellees claim that these alleged notes, referred to in the will of 1893, are the notes intended to he referred to by testator in the will of 1902, and are the ones which he intended to incorporate therein. To overcome the presumption of law that the testator himself destroyed them with the intention of revoking them as parts of his will, which would exist because of their non-production, claimants charge that they were destroyed either by the widow or by their son, Thomas O. D. Sexton, or by someone at their instance, or that they had knowledge of the existence of such notes and knew what became of them, though the testimony of Mrs. Sexton, Thomas O. D. Sexton, Miss Gleason and Mr. Jacobs is directly to the contrary, and to the effect that they never saw any such notes, nor did they ever know anything as to their whereabouts, if such notes evér existed.

In addition to the testimony of Mr. Bradley, one J. B. Langworthy, an attorney, testified that just before Mr. Sexton went to Europe in the summer of 1903, he told witness that, having been advised by John 1ST. Jewett, Esquire, an eminent attorney of the city, that he could make a will and evidence the amount of the bequest by notes, provided he mentioned the notes in the will and directed in the will that they he paid, he had acted upon his advice, and had made a will in that way, and that Attorney Bradley had known about it and had seen the notes, and had seen that they were drawn in accordance with the law. Judge Kavanagh also testified that about ten days before Sexton’s death he called to see him, when Sexton told him about his having provided for relatives by making promissory notes for them as legacies, and asked whether they were legal. Judge Kavanagh asked whether the notes had been delivered, and Sexton replied, “Mot to the person for whom they are intended. They are in my possession now. John N. Jewett thought they were perfectly valid, and I made them out on the direction of Mr. Bradley.” Judge Kavanagh promised to look the matter up, but never saw the deceased after that.

Appellees made no contention, that any notes were made by deceased at the time of making the last will of 1902, or at any time after 1893.

The judgment -of the court below is, in express terms, a judgment at law, that Kate M. Keeler have and recover from The Merchants Loan and Trust Company, as executor, $24,191.78, to be paid in due course of administration, thus transforming the claim into a judgment against the estate, payable in due course of administration, though the contention of the claimant herself is that the claim is for a legacy, and the court in its finding recites that it is.

Claims against estates of deceased persons are classified, and are payable in the order of such classifications. The judgment for the claim would have preference over bequests. The foundation of this claim is an alleged bequest, and not an indebtedness of the decedent.

The aggregate of the judgment in this ease, and that of the other eight claimants entered at the same time, is $133,-054.80, and the effect of these judgments, if they are allowed to stand, would be to take from the estate that sum before the payment of Mrs. Sexton’s share, thereby wrongfully reducing the amount to which she is entitled under the will.

It seems clear to us, therefore, that the judgment of the court below was erroneous in form, and that it cannot stand. We deem it our duty, however, to go further than to decide merely as to the form of the judgment, and, therefore, proceed to consider other and controlling questions presented by the record and briefs.

Under the law of this state, testamentary gifts cannot be made in form of unattested promissory notes. The Appellate Court of the Third District in Armstrong v. Armstrong, 142 Ill. App. 507, said (p. 509):

“It is well settled law that a promissory note executed without any other consideration than that of natural affection, and intended merely as a gift to the- donee, cannot be made the basis of a recovery either at law or in equity by the donee against the donor or against his estate after his death. Williams v. Forbes, 114 Ill. 167; Richardson v. Richardson, 148 Ill. 563.”

It follows, therefore, that the various claimants here must recover, if at all, not upon these notes as claims against the estate, but upon the contention that by the terms of the will they are so identified and referred to that they constitute the measure of bequests therein made to these several claimants.

Bor can there be any doubt that, in order for Sexton to have made a valid will, he must at the time of its execution, have had a definitely fixed purpose in his own mind, and that purpose must be stated in the instrument itself. Parties are not permitted to make skeleton wills with the purpose of filling them out by future declarations.

Even if we were to conclude from all the surrounding circumstances that the wishes of the testator would be substantially met by allowing these claimants to receive from the estate the amounts contended for, that could not justify us in finding for them unless we can find that the will was complete, and that these claims are within its provisions.

The instrument must, at the time of its execution, and formal attestation of witnesses be complete, and must contain within itself a statement of the testator’s intentions.

While the testator may incorporate an unattested paper into his will, it can only be done when such paper is in existence at the time the will is made, and the will must refer to it in such terms as to indicate its then existence, and in such terms as to exclude from its description any instrument or paper thereafter made.

In Thayer v. Welington, 91 Mass. 283, the court said:

“The view thus taken of the present case does not exclude in all cases a reference to other documents or instruments for the purpose of giving effect to a will. A testator may refer expressly to a paper already executed, and describe it with such particularity as to incorporate it virtually into the will, or he may refer to deeds and other instruments, or monuments, or existing facts, to which reference may be had in construing his will. Habergham v. Vincent, 2 Ves. Jr. 234; Smart v. Prujean, 6 Ves. Jr. 560. The distinction is a very obvious one. In the case last cited, the purpose of the testator as to the particular legatee and the character of the legacy is fully settled. Such reference leaves nothing ambulatory, and excludes the idea of an unsettled purpose and a design to leave anything open as to the person who shall be the legatee. But if his purpose is not definitely settled at the time of executing his will, and is to be fashioned and moulded by future events which may affect his mind, such future determination to make one a legatee cannot be allowed to have any legal effect, unless by the execution of a codicil or a subsequent will, in accordance with the legal requirements of a testamentary instrument.”

In Dyer v. Erving, 2 Demarest (N. Y.), 160, the court used the following language:

“At the date of the will, the testamentary purposes of its maker had not fully and definitely and finally shaped themselves in his own mind. But he believed that, by duly executing such an instrument, and by referring therein to other papers as containing directions to his executors, he could order the distribution of his store of paintings and engravings, and of certain pecuniary legacies, according to such scheme as he might afterwards, and upon more mature deliberation, devise,—a scheme which would need to be known to his executors alone and could escape the publicity of record in the Surrogate’s court. In other words, he believed, and in my judgment he acted on his belief, that by his reference to memoranda in the fourth clause of his will, ho gained the privilege of creating memoranda at his pleasure, and at his pleasure of altering them, and thus of making legally effectual such purposes as at the time of his death might find expression in any holographic papers which purported upon their face to be the memoranda referred to by his will.” * * *
“It is with great reluctance that I have formed these conelusions. I have little donht that the real wishes of the decedent at the time of his death find substantial expression in the will as it stands recorded, supplemented by the memoranda that are here the subject of dispute, and that by the decree to be entered upon this decision, the bulk of this estate will be diverted from the hands of those whom the testator by painstaking effort sought to make his beneficiaries. But any other decision than that which I have announced could only be reached by utterly setting at naught the statutes which prescribe the formalities that must attend the execution of testamentary instruments, and the modes whereby such instruments once executed can be revoked.”
It is to be noted that among the nine claimants, consisting of the three sisters, two nephews and four nieces, only the three sisters are named in the will. Whatever claims the nieces and nephews may have are entirely dependent upon the phraseology of the will which not only does not mention their names, but fails to specify the dates, the names of the payees, and maturity or the amounts of the several notes forming the basis of these respective claims.
The provisions invoked on behalf of the respective sisters, so far as relate to the notes claimed to have been executed, are (1) as to Kate M. Keeler,
“It is also my will and direction that the principal of any note signed by me in her favor, and by the terms thereof made payable after my decease, shall be paid to her as a further bequest.”
(2) As to Eliza Beilly, “and in addition to the release and cancellation of said indebtedness, if any, it is my will and direction that the full amount of the principal of any note executed by me in her favor, and made payable by the terms thereof after my decease, and held by her, or by any other person or persons for her account and benefit, be paid to her out of my estate, and property by my executors and trustee.”
(3) As to Mary McAnrow, “It is also my will and direction that the principal sum of any note signed by me in her favor, and by the terms thereof made payable to her after my decease, be paid to her out of my estate.”
As to the claim in favor of the four nieces and the two nephews the provision is,
“It is my further will and direction that any note or notes signed by me, in favor of any person or persons, and made payable by the terms thereof after my decease, be recognized and treated as bequests in behalf of the payees therein respectively designated, and my executor and trustee is hereby fully authorized and empowered to pay the amount of the principal of such notes out of-my estate and property, or the proceeds thereof. I have heretofore and may hereafter adopt this means of designating the persons I wish to be remembered as beneficiaries under my last will and testament

Article Thirteen of the will also provides:

“In respect to the notes hereinbefore referred to as notes, signed by me and by* the terms thereof made payable after my deease, it is my further will and direction that they be presented and filed in the usual way as claims against my estate.”

The Third Paragraph of the will is, in part, as follows:

“I do will and direct that there be paid to my said brother, John M. L. Sexton, by my executor, and trustee, as a further legacy and bequest, the full principal amount of any note or notes executed by me in his favor and which he may hold, or which may be held by any other person or persons for his account and benefit, at the time of my decease, and which by the terms thereof are made payable after my death.”

Though John M. L. Sexton made no claim under this provision, it is here cited because, with the other citations, it covers the entire provisions of the will in relation to bequests of this character.

It is contended that the language of the will is sufficient to warrant the extrinsic evidence offered to make it certain as to the number, dates, amounts, and maturity of the several notes intended to be included, and the names of the respective nephews and nieces who were to be beneficiaries. After a careful examination of the subject we are unable to reach this conclusion. The testator had executed at least two wills previous to the one in question. The proof tends to show that these wills were quite similar in terms to this one. The deceased appears to have heen advised by his lawyer, Bradley, and to have believed that he had the right to dispose of his property by making general provisions in the will, skeleton in character, the details to be furnished by notes or other written memoranda, and we are forced to conclude from the evidence and from the wording of the clauses before mentioned in this will that the testator believed he had the right to make and alter notes at his pleasure, and thus change the disposition of his estate from time to time, as his circumstances and inclinations might dictate. Indeed, the deceased, himself, said to Bradley that, if his “affairs should prosper,” “I think I may make additional notes.” And he was advised by Bradley, “If you want to make some more notes and put in there, all you have to do is-to go to John and get the key of the safety deposit vault and unseal your package and put in your notes and seal it up again. That is all you have to do. John will be your executor and trustee, and you have entire confidence in him, and he will pay those notes no doubt, or if he can’t he will have to pay them as legacies.” We do not think that the attested will expressed his final determination as to the disposition of his property. Indeed, the letter from deceased to his wife, written in London on the 31st day of August, 1903, clearly indicates not only that he then knew how serious was his physical condition, but that he was considering the matter of his will and an intention of changing it, either by making notes or otherwise, for he says, “In the hurry of coming away, I did not finish my will and so on, but will add a codicil if I can.” The language of the clauses in his will wherein he speaks of “any note or notes signed by me, in favor of any person or persons,” and “I have heretofore and may hereafter adopt this means of designating the persons I wish to be remembered as beneficiaries,” strongly supports the view that he had not yet definitely determined what notes, if any, he wished to incorporate into his will, but intended to reserve the power to make changes in this manner both as to the beneficiaries and the amounts they were severally to receive whenever he desired.

We think' it clear upon principle that the law will not permit this to be done, and the following are some of the authorities which so hold:

University College v. Taylor, L. R. P. D. 1908, p. 140-144; In re Yockey, 29 L. T. R., N. S. 699; Thayer v. Wellington, 91 Mass. 283; Bryan’s Appeal, 77 Conn. 240; Dyer v. Erving, 2 Demarest, N. Y. 160; Rose v. Cunynghame, 12 Vesey Jr. 12; In re Watkins, L. R. 1 P. & D. 19 (1865) ; Hartwell v. Martin, 71 N. J. Eq. 157; In re Reid, L. J. P. D. & M. 1 (1868); Heidenheimer v. Bauman, 84 Tex. 174.

In Trustees, etc. v. Hall, 48 Ill. App. 536, on page 545, the court says:

“If one desires to make a solemn disposition of his property, to take effect only after his death, yet leaving him so long as he may live fully empowered to change such disposition, or to apply its subject matter to his own use, or to any other purpose, he must do so by a will executed in strict conformity with the statutory enactments regulating such bequests. Redfield on Wills, Vol. 3, 348; Cline v. Jones, 111 Ill. 563; Olney v. Howe, 89 Ill. 556. The note in question cannot be received as a testamentary bequest and given the force and effect of a will, under our statute, providing for the execution of such instruments.”

Even if we regarded the will as being sufficiently specific in its language to authorize proof concerning the notes therein referred to, we think the claimants have failed to establish their several claims by sufficient legal evidence. The testimony concerning the original making of notes, as claimed, is exceedingly unsatisfactory. When Bradley testified concerning some notes, claimed to be the ones involved in this litigation, he was speaking of a transaction which occurred more than fourteen years before. It is no reflection upon his integrity to say that after fourteen years of active practice in Chicago, the terms of the notes, concerning which'he has testified, could not have been as clear and distinct in his mind as if the occurrences were more recent. In addition to the lack of clear recollection, which an inspection of his testimony discloses, there is the further fact that his testimony was not very specific. Attorney Crahen, who prepared this will, testified that no notes were exhibited at the time it was drawn or executed, though he thinks notes were mentioned. The claims here are upon nine alleged notes,-—it is claimed that they were the ones made in June, 1893, but Bradley testifies that there were twelve notes executed at that time. How many beneficiaries did Sexton intend to include in his last will,—were there to be nine, ten or twelve, and which ones ? Moreover, if it be assumed that the notes had been made at the time the will was executed, the ordinary presumption that they had been destroyed by the testator, and therefore eliminated from his testamentary purpose, is not satisfactorily overcome. We are not at all satisfied, from the evidence, that any such notes were in the possession of Mr. Sexton, or even in existence, at or about the time of his death. We do not find in the evidence any sufficient warrant for believing that the notes in question were destroyed either by Mrs. Sexton, or by her in conjunction with Miss Gleason and Mr. Jacobs, or any one else.

Mor do we think that the language of the will, or the evidence, or both together, justify the conclusion that, when Sexton made this last will in 1902, he had in mind and intended to refer to the notes of 1893, nor even, that such notes were then in existence.

Mor do we think the language of this last will sufficient to incorporate into it the alleged detached promissory notes upon which claimants rely. Mor does the will so distinguish as to clearly indicate whether the notes therein referred to were then in existence, or were thereafter to be made.

Treating this case as of an equitable nature, or, at least, as a statutory proceeding, as distinguished from an ordinary suit at law, (Grier v. Cable, 159 Ill. 29), we conclude, that, for the reasons given, the judgment of the Court below must be reversed and the cause remanded, with instructions to dismiss the proceeding.

Judgment reversed and cause remanded with instructions to dismiss the proceeding.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,469.
    1. Passenger and carrier—what essential to establish relation. In order to establish the relation, the person claiming to be a passenger must have put himself into the care of the carrier for the purpose of being conveyed and the carrier must, impliedly at least, have 'accepted him as a passenger.
    2. Passenger and carrier—how acceptance of passenger may be shown. The acceptance of a passenger need not be direct or expressed but there must be something from which, it may be fairly implied.
    3. Passenger and carrier—when relation not established. Held, under the evidence, that the plaintiff, who was injured while riding upon the blind side of a car, did not become a passenger, no acceptance of him as a passenger having been shown.
    4. Personal injuries—who not authorised to eject. An employee on a car who is not intrusted with its general management and control but has specific duties, such as a motorman, is not presumed to be authorized by his employer to eject persons from the car, for the reason that the removal of passengers is not ordinarily Within the scope of the employment of motormen or brakemen.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and judgment entered here upon a finding of facts.
    Opinion filed May 16, 1911.
    Statement by the Court. This is an appeal from a judgment for $2000, recovered in the Superior Court of Cook County, by appellee on account of the death of his intestate, Pilade Crocetti, deceased, a boy of about 16, who was killed on December 8, 1906, as a result of riding on the front step on the west or blind side of a north bound street car. 'A former trial resulted in a verdict for plaintiff, which was set aside by the trial court.
    The accident occurred on Halsted street about 120 feet north of Archer avenue, Chicago, where the surface of Halsted street is depressed about 4 feet, and the cars pass under an elevated structure or viaduct crossing the street. This viaduct was supported by iron pillars extending in a north and south line between the two street car tracks in Halsted street.
    The declaration contained three counts. The first two allege that Crocetti was a passenger on the north bound car; that he was on the west side of the car and on its steps, but, that the vestibule door was between the front platform of the car and Crocetti, and that, while the plaintiff’s intestate was in the exercise of due care for his own safety, the motorman then driving the car, carelessly and negligently opened the vestibule door and called upon him to get off, and started for him in a threatening manner, by reason of which he became frightened and jumped hurriedly from the moving car and came into contact with a pillar of the viaduct, and was killed.
    The third count charges that, while the boy was riding on the step, in the exercise of due care and caution, the motorman rushed upon him in a threatening manner while the car was going at a high rate of speed, and frightened him into jumping off the car, as a result of which he was killed.
    Deceased was about 16 years of age and weighed about 140 pounds. The accident occurred just before 7 o’clock in the morning, when he was on his way from home down town. While on the Archer avenue car, he paid his fare and received a transfer slip to the Halsted street line, which slip was found on his person after the accident. He left the Archer avenue car at the west side of Halsted street, and was next seen a short distance north of Archer avenue on the west front step of a north-bound Halsted street car. This car was on the east one of the two car tracks on Halsted street, and had an enclosed vestibule at each end. When going north, the vestibule door on the west side was closed, and could not be opened from the outside, and entrance to the car was obtainable only from its east side. This Halsted street car had stoped on the south side of Archer avenue, and did not stop again until after deceased had been injured. Ho one saw him get on the step, though witnesses for the plaintiff testify that they saw him standing upon it just before the accident, facing toward the inside of the car, grasping the hand. hold. He apparently made no effort to notify anyone inside- of the car that he wished to enter.
    Plaintiff’s claim is that when the car was a short distance north of Archer avenue and was beginning to descend the decline under the viaduct, the motorman, seeing the boy standing outside on the step, left the controller or lever, opened the door, and yelled at him to get off; that thereupon the boy, either in obedience to the command, or in fear of being assaulted by the motorman, jumped from the step, and his body struck one of the iron pillars, resulting in his death. There were three witnesses who testified for the plaintiff, who said they were riding on the front platform; that the car was in motion at nearly or quite full speed when the motorman yelled to the deceased to get off.
    On the other hand, the testimony for the defendant was to the effect that neither the motorman nor the conductor knew that deceased was upon the car, or any part of it, at any time, 'until after the accident.
    Appellant seeks to reverse the judgment of the court below on the following contentions:
    1. That plaintiff could not recover because deceased was not a passenger; and because the alleged wrongful act on the part of the motorman was not within the scope of his employment.
    2. That while plaintiff conceded on the trial (and also on argument here) that, before he could recover on any theory, it was incumbent on him to prove the exercise of ordinary care by deceased, the evidence wholly failed to establish the exercise of such ordinary care.
    3. That the court erred in rulings on instructions.
    B. F. Richolson and C. Le Roy Brown, for appellant.
    John Bloomingston and Albert N. Gulano, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

In this case, if appellee was entitled to recover under the first two counts of his declaration, it must he established that the deceased was a passenger upon the street car in question. To entitle plaintiff to recover upon the third count, it must appear that the acts of the motorman in frightening the boy off the step were within the scope of his employment. In this state, the law has been settled by numerous decisions that, before the railroad company can be bound, under the first claim, the passenger must have put himself into its care for the purpose of being conveyed, and the carrier must, impliedly at least, have accepted him as a passenger. Illinois Central Railroad Co. v. O’Keefe, 168 Ill. 115; Chicago & Eastern Illinois Railroad Co. v. Jennings, 190 Ill. 478.

In the O’Keefe case, the Supreme Court said:

“It was also necessary for the plaintiff to prove that the relation of passenger and carrier existed between the deceased and the defendant. This relation which was claimed to exist is a contract relation. * * * If a person goes upon cars provided by the railroad company for the transportation of passengers, with the purpose of carriage as a passenger with the consent, express or implied, of the railroad company, he is presumptively a passenger. Elliott on Railroads, Sec. 1578. Both parties must enter into and be bound by the contract. The passenger may do this by putting himself "nto the care of the railroad company to he transported, and the company does it by expressly or impliedly receiving him and accepting him as a passenger. The acceptance of the passenger need not be direct or express, but there must be something from which it may be fairly implied. One does not become a passenger until he has put himself in charge of the carrier and has been expressly or impliedly received as such by the carrier. Bricker v. Railroad Co., 132 Pa. St. 1; Webster v. Fitchburg Railroad Co., 161 Mass. 298; Elliott on Railroads, Sec. 1581. * * * The purchase of a ticket does not make one a passenger unless he comes under the charge of the carrier and is accepted for carriage by virtue of it, If a ticket holder should offer himself as a passenger and should be refused transportation, there would be a liability for consequent damages, but it would not be a liability to him as a passenger or on account of the relation of passenger and carrier, but would be a liability for the refusal to enter into that relation and to permit him to become a passenger.”

The language of the court in applying the facts in that case has a direct bearing upon the facts in this. The court said:

“The question is whether these facts fairly tend to establish the relation of passenger and carrier between O’Keefe and the defendant, by showing that he had put himself in the care of the defendant as a passenger, and had been expressly or impliedly received and accepted as such by the defendant through any authorized agent. We think that they do not. He did not go upon the train at the station provided for the reception of passengers, and did not take any place provided for the reception, accommodation or carriage of passengers. * * * It will certainly not be claimed that defendant was hound to have the baggage car door open so as to give access to its passenger coaches by way of the baggage car. But even if that were a wrong to him, he could not become a passenger by attempting to get in that door any more than if he had attempted to open one of the vestibule doors which was locked, and had failed. He had not put himself in care of the defendant as a passenger. Of course, the fact that the engineer knew that deceased climbed upon the train would not make him a passenger, since an engineer is not authorized to act for the defendant in such a matter or to accept passengers. For do we think that the mere fact of the conductor knowing that some one had boarded the moving train on the platform between the tender and baggage car, and might still be there, is evidence tending to show that defendant accepted him as a passenger. The conductor did not know who he was or what he was there for,—whether as a passenger or otherwise.”

The court, therefore, held in that case, that the relation of passenger and carrier did not exist, and that there could he no recovery.

The facts in the case of Strong, Admr., v. North Chicago St. R. R. Co., 116 Ill. App. 246, were much like those in the present case. In that case, the deceased boarded an electric street car, and stood on the front step on the blind side of the car, thus occupying the same relative position that the deceased had in this case. The step on which the deceased in the above case stood, was partitioned off from the front platform by a gate or door. In that case the car was crowded, while in this it does not so appear. In neither case did the conductor see the deceased before the accident. In that case, the court held that the deceased, Brown, was not a passenger, and that the court should have directed a verdict of not guilty. The court said:

“Assuming (as to which the proof is not altogether certain) that the boy boarded and stood on that step of the car outside of the gate with the intention of becoming a passenger, it remains to be determined whether he put himself in the care of defendant and was accepted by it as a passenger. There is but seldom any formal act of delivery of the passenger’s person into the care of the carrier or of acceptance .by the carrier of one who presents himself for transportation; hence the existence of the relation is commonly to be implied from the attending circumstances. R. R. Co. v. Jennings, supra. Had the boy stood inside of the car or on either of the platforms or at any place which persons riding on the cars are usually invited or permitted to occupy, there can be no doubt but that an implication would have arisen that the defendant had accepted him as a passenger. He stood at a place where it was not only inconvenient and highly dangerous for him to stand, but where the gate plainly indicated that persons should not stand at all, and from which he could not make his way into the car so long as the gate was in its place.”

In this case, appellee practically concedes that Crocetti did not, by getting on the car at the place provided for receiving passengers, place himself under the care or control of the street car company, and also concedes that, if deceased had been struck by a passing wagon, or jerked loose from the train, the company would not have been liable, both because Crocetti would have been guilty of contributory negligence as a matter of law, and for the further reason that he was not a passenger, because appellant did not know he was on the car. But appellee contends that, with the opening of the door by the motorman, there was created an opportunity for Crocetti to enter the car, and for the company to collect his fare, and he claims that, the door being opened for any purpose, the street car company immediately owed to the deceased the duty of a carrier to a passenger, especially as he had a transfer slip, and he cites the case of B. B. Co. v. Flexman, 103 Ill. 546, in support of this proposition. This was an action brought by Flexman against the railway company to recover damages for personal injuries inflicted upon him while a passenger, by a brakeman in the employ of the company. It appeared that Flexman had paid his fare to Milford. When the train arrived there, and when he was about to leave the car, he missed his watch. He then refused to leave the train until he recovered his watch, and the conductor consented that he might remain on the train until he reached Watseka. While the train was going from Milford to Watseka, a search for the missing watch was made, and a controversy arose as to its whereabouts, resulting in Flexman charging the brakeman with having taken it, whereupon the brakeman struck him in the face with a railroad lantern, inflicting severe injuries. The railroad company was held liable, but the holding was upon the express ground that 'there was a contract of carriage between the railroad company as a common carrier and Flexman as a passenger, under which the railroad company should have protected him against personal injuries from its agents or servants.

In this case, the relation of carrier and passenger is expressly denied, and in that case it expressly afforded the ground of the liability.

We do not say that under no conceivable circumstances could a person riding upon a vestibule step be a passenger, and entitled to the protection which a contract of carriage would furnish. The case of Birmingham Railway Co. v. Bynum, 139 Ala. 389, cited by appellee, discloses circumstances under which that relation was properly claimed and sustained, but upon the facts in this case,, we are clear that the deceased was not a passenger under the law, as laid down by our Supreme Court.

We next consider appellee’s case, as made under the third count of his declaration. That count proceeds upon the theory that the motorman’s act constituted a wilful and malicious assault upon the deceased, for which the company was liable.

It should be noted, however, that the declaration does not aver that the act of the motorman was within the scope of his employment, and we think the testimony offered fails to sustain the contention of appellee. There can be no doubt that the street car company might be responsible for a wilful tort committed by one of its servants, if he were acting clearly within the scope of his employment, but it would be incumbent upon the plaintiff to allege and sustain by proof both the tort and the authority of the motorman. We think it must be accepted as the law of this state that an employee on a car, who is not entrusted with its general management and control, but has specific duties, such as a motorman, is not presumed to be authorized by his employer to eject persons from the car, for the reason that the removal of trespassers is not ordinarily within the scope of the employment of the motorman or brakeman. Illinois Central Railroad Co. v. King, 179 Ill. 91; Chicago City Railway Co. v. Cooper, 128 Ill. App. 528; Chicago City Railway Co. v. Mogk, 44 Ill. App. 17; same case, 80 Ill. App. 411.

Appellee at the trial sought to establish by proof the authority of the motorman, and offered the rules of the railway company, referring to the conduct of the motorman. A portion of Section 31 “Ejectments” reads as follows:

“The motorman will assist the conductor in case of a forcible ejectment of a passenger.”

Taking this extract in connection with the other rules offered, we think it clear that the conductor of the car is the only person whose act, under the conditions in this case, would have hound the company. That the motorman’s chief duty was in the mechanical management and handling of the car, though he might he called upon to “assist the conductor” upon request.

In support of his contention that the street car company is liable in this case, because of the menacing conduct of its motorman, which, it is claimed, resulted in the death of the deceased, appellee cites the case of Illinois Central Railroad Company v. King, 179 Ill. 91. In that case, it is clear that the liability did not grow out of the relationship of passenger and carrier. The injured party was a trespasser, and was riding on the rods underneath the car, and he was injured by being violently jerked therefrom by the brakeman, while the car was moving six or eight miles an hour. The evidence showed that the act of the brakeman was wilful. In that case, however, there was undoubted evidence that 'the act of the brakeman was within the scope of his duty. Indeed, he testified, “Our instructions are to stop and put them off, if we find someone heating their way.” It thus becomes very apparent that that case cannot be an authority in this.

The view we have expressed makes it unnecessary for us to consider whether the court erred in its rulings on instructions. For the reasons given, the judgment of the court below will be reversed, and judgment entered here for the appellant upon a finding of facts.

Judgment reversed, and judgment entered here for appellant upon a finding of facts.