author: Mb. Justice Fitch

text:
    Wakem & McLaughlin, Inc., Appellee, v. Royal Indemnity Company, Appellant.
    Gen. No. 30,660.
    1. Insurance — nonliability of insurer under burglary policy limiting coverage to losses where “visible marks” left at place of entry, where access gained by intimidation of watchman. Where burglars, by intimidating a night watchman, obtained access to insured’s place of business without leaving “visible marks of such entry made by the use of tools,” etc., no liability therefor attached under a burglary insurance policy expressly limiting its coverage to burglaries wherein such marks were left at the place of entrance, although the burglars who entered insured’s premises, to gain access to the property which they took from the premises, broke into locked stock rooms within such premises, and thereby left marks of the character described in the policy.
    2. Insurance — outer door to insured’s place of business as “pub-lie entrance” within terms of burglary policy. Where the insured occupied the whole of the building in which he carried on his business, and none used the outer door to his place of business except by his permission, such door was not a “public entrance” within the terms of a burglary insurance policy, the coverage of which was expressly limited to losses resulting when burglars, in gaining access to the premises, left “visible marks” thereof at the place of entry, and the policy defined “premises” as excluding “public entrances.”
    3. Insurance — when insurer not estopped to deny liability under burglary policy for loss not occurring within limitations of coverage. An insurer against loss by burglary under a policy limiting its coverage to cases wherein burglars, in gaining access to the insured’s premises, left “visible marks” at the place of entry, and defined "premises” as excluding “public entrances,” was not estopped to deny liability where burglars gained access, without leaving such marks, by intimidating a night watchman, although following a prior similar attempted burglary it did not, upon being notified thereof, cancel the policy or deny liability for any loss that might thereafter be sustained by such a burglary, and made suggestions designed to prevent any recurrence of further attempts.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Theodore F. Euler, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925. Reversed with finding of facts.
    Opinion filed July 13, 1926.
    Rehearing denied July 24, 1926.
    Tenney, Harding, Sherman & Rogers, for appellant; Charles F. Harding, Jr., and John E. O’Hara, of counsel.
    Wilson, McIlvaine, Hale & Templeton, for appellee; J. F. Dammann, Jr., of counsel.
   Mb. Justice Fitch

delivered the opinion of the court.

This appeal is from a judgment for $7,315.91, in favor of plaintiff, upon a policy of burglary insurance issued by defendant. The policy provides that defendant agrees to indemnify plaintiff:

“For all direct loss * * * from within the premises hereinafter defined, of merchandise, furniture, fixtures and equipment, by burglary committed by any person or persons who shall have made an unlawful entry into such premises, by force and violence, when such premises are not open for business, at the place of which entry there shall be visible marks of such entry made by the use of tools, explosives, electricity or chemicals.”

By a later clause in the policy it is provided:

“ ‘Premises’ as used in this policy shall be limited to that portion of the interior of the building designated in the schedule, occupied solely by the insured in conducting his business, but shall exclude: (a) show cases or show windows not opening directly into the interior of the premises; (b) public entrances, halls and stairways.”

In the schedule at the end of the policy are the following statements:

“2. The location of the building containing the premises is 225-235 East Illinois Street, Chicago.
“3. The portion of the building occupied solely by the insured in conducting his business and herein called ‘the premises’ is Entire.”

(In these last quotations the words we have italicized are typewritten; the rest are printed.)

The premises mentioned in the policy consist of three buildings, or three sections of one building, divided by solid fire walls with no connecting doors. Each building or section has its separate entrance door leading to a platform running along the front of all the buildings, on a level with the floor of a freight car. Two of the buildings are used as warehouses for the general storage of merchandise; the third is occupied by plaintiff as its office and salesroom and for the storage of its own merchandise. A large part of all these goods came in freight cars and was unloaded and hauled across the platform and into the buildings by men in plaintiff’s employ. Plaintiff employed a watchman who, because of the lack of connecting doors, was obliged to walk along the outside platform in order to pass from one building to another. One night in December, 1924, while he was outside of the building, going from one building to another, he was met by burglars who compelled him to open the door to the building in which plaintiff’s office and goods were located. He opened the door with his own key and let in the burglars, leaving no visible marks of their entrance into the building. The burglars proceeded to break into a locked stock room on the first floor containing radio equipment, and also into a like room on the second floor. After the burglary, there were visible marks, made by the use of tools, on the doors of both of these inner rooms.

Defendant contends that by the express terms of the policy its liability is limited to the payment of losses occasioned by burglaries in which unlawful entrance to the “premises” of the insured was effected by such force and violence as to leave visible marks thereof “at the place of entry” made by the use of tools, explosives, electricity or chemicals, and that the burglary proved was not of that character. Plaintiff does not dispute this construction of the policy, but insists that the door through which the burglars entered the building was a “public entrance,” which, by the language of the policy, is excluded from the description given in the policy of the “premises” of the insured, and that, therefore, proof of such a forcible entry made by tools into the stock rooms where the goods taken were stored is sufficient to bring the burglary within the terms of the policy of insurance. The trial court evidently agreed with plaintiff’s theory, but in this, we think, the court was in error. While the evidence shows that the door through which the burglars were admitted by the watchman is the door through which plaintiff’s customers and employees entered its place of business, it was at all times wholly under the control of the plaintiff, and any use of it by the general public was permissive only. The evidence shows that this door leads from plaintiff’s office to the outside of the building. The photographs appearing in the transcript show that the word “Office” is on the outside of the door, and the diagram and other evidence showing the arrangement of the first floor show that this door was an entrance to “that part of the interior of the building occupied solely by the insured in conducting his business.” The words “public entrances, halls and stairways,” as used in the policy, clearly refer to such entrances, halls and stairways, outside of the premises occupied by the insured, as are open to the use of the general public, and are not under the sole control of the insured. The word “public” is used in the policy as the opposite of “private.” To illustrate the distinction, a private road or way leading from a public highway into the premises of an abutting owner does not become a public road by being used by memhers of the public with his permission or upon his invitation. In the same sense, the door leading from the street into plaintiff’s salesroom and office did not become a public entrance merely because it was used by plaintiff’s employees or customers, or others whose use of the same was permissive or invited. We are therefore of the opinion that the door through which the burglars entered the premises of the plaintiff was not a public entrance within the meaning of the provision of the policy issued to the plaintiff.

It appears from the evidence that a Mr. Budweiser had a desk in plaintiff’s office, not separated by any partition from the rest of the office, and at this desk Mr. Budweiser conducted what is called the “Bud Collection Agency,” which, so far as the evidence shows, consisted of Mr. Budweiser alone, although Mr. Wakem had some sort of an interest in the business. There is nothing in these facts to indicate that plaintiff had in any manner parted with its control of the front door of its office. The fact that Mr. Budweiser with plaintiff’s permission may have conducted a collection business from a desk in plaintiff’s office is not, of itself, sufficient to convert the entrance to plaintiff’s office into a public entrance, as seems to be contended by plaintiff’s counsel.

Plaintiff also contends that the defendant is es-topped by its own actions from asserting it is not liable. This contention is based upon the facts that a similar burglary was attempted about a month before the successful burglary was accomplished, that plaintiff notified the defendant of the occurrence and that defendant did not promptly cancel the policy or deny liability for any loss that might be thereafter sustained by such a burglary, but made certain suggestions designed to prevent a recurrence of further attempts. We are unable to see anything in these facts to which the principle of estoppel can apply. There was no change in the position of the parties by reason of anything that was said or done on that occasion. Defendant gained nothing and plaintiff parted with nothing on that account. The contention is without force.

The rule is too well settled to require the citation of authority, that before an insured can recover upon a policy of insurance he must show that the loss claimed is within the terms of the policy. That was not done in this case, and for that reason the judgment must be reversed; and since the case was tried by the court without a jury, a finding of facts will be entered in this court and a judgment entered here for the defendant.

Reversed with a finding of facts.

Gridley, P. J., and Barnes, J.,

concur.

Finding of facts: We find, as ultimate facts, that the person or persons who committed the burglary mentioned in the plaintiff’s statement of claim did not leave behind them, at the place where they entered plaintiff’s premises, any visible marks of such entry made by the use of tools, explosives, electricity or chemicals, and that the place of such entry was not a public entrance within the meaning of the insurance policy in evidence.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    James Nelson, Appellee, v. American Business Bureau, Appellant.
    Gen. No. 30,720.
    1. Contracts — provision in contract of employment for payment of advances to he charged against expected commissions as one for salary. Where an applicant’s proposition to his intended employer stated: “I am to be granted weekly advances of not to exceed ?250 until such time as my commissions shall exceed any possible overdraft,” etc., and the employer’s written acceptance of such proposition referred to such advances as “salary” and after the commencement of service in accordance with the proposition and acceptance the employer made weekly payments to the employee, at his request, equivalent to the stipulated maximum advance, the practical effect of the agreement was to provide for a salary of the stated amounts, to he advanced by the employer and charged against commissions to be thereafter earned.
    2. Contracts — personal liability of employee to repay employer amounts of advances made in anticipation of commissions to be earned. In the absence of an express provision, in a contract of employment covering sales to be made on a commission basis, obligating the employee to pay back advances made in anticipation of commissions to be earned, or of words showing that such employee assumes personal liability to repay the same, such advancements are not to be deemed loans and the employee does not become personally liable to repay the same, although he fails to earn the expected commissions.
    3. Accord and satisfaction — sufficiency of evidence to show settlement of controversy as to amount due under contract of employment at time of payment of portion of employee’s demand. In an action upon a contract of employment a finding that no settlement of the controversy between the parties touching the amount due to the employee was made at the time when payment was made of a portion of the employee’s demand, held not manifestly against the weight of the evidence.
    4. Contracts — sufficiency oft evidence to show election by employee relieving him of obligation to accept and pay for stock of employer pursuant to terms of contract of employment. Under a contract of employment providing for the purchase by the employee of stock of the employer, but further providing that in the event the parties became disassociated prior to the date set for the completion of payments for such stock, the employer would, at the election of the employee, take back such stock at the purchase price plus interest, evidence that no stock was in fact offered or delivered by the employer prior to the termination of the employment, which occurred prior to the date aforesaid, and that upon the termination of such employment the employee informed the employer that he did not wish to receive the stock, held to show an election by the employee relieving him of any obligation in respect of such stock.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. C. F. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed July 13, 1926.

      Harry H. Felgar and A. Philip Smith, for appellant.
    Clarence A. Samuel, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This suit was brought to recover the amount claimed to be due to the plaintiff under the terms of a written contract with defendant by which plaintiff was employed to organize and direct a sales department for defendant and was to receive for his services and expenses a commission of 15 per cent on the gross amount of all sales, with stipulated weekly advances. Defendant’s affidavit of merits denied that plaintiff performed his part of the contract and claimed that defendant had advanced to plaintiff more than the amount of his commissions as fixed by the contract. Defendant also filed a set-off for the amount alleged by it to have been overpaid, and for $10,000, which defendant claimed to be due upon plaintiff’s promise to buy certain stock of the defendant company. Upon a trial before the court without a jury, the issues were found in plaintiff’s favor and from a judgment entered thereon defendant appealed.

Defendant was incorporated in January, 1925. Its business was the selling of a course of instruction in accounting by correspondence. Several months prior to the incorporation, at the request of the incorporators, plaintiff went to Eockford, Illinois, to discuss the question as to his engagement as sales director for the proposed corporation, and on December 2, 1924, plaintiff attended a meeting of the incorporators in Eockford, where the plan and scope of the proposed corporation were discussed, and plaintiff was requested to submit a proposition in writing. A week later plaintiff submitted a written statement of his plan for the organization of a sales department. He proposed, in this statement, to construct a sales organization consisting of 276 persons, headed by himself as “general field director.” He gave a detailed estimate of the resultó which he stated he believed could be expected from such an organization “in the way of enrollments and sales” for the first six months. His proposition mentioned the prices at which “enrollments” were to be sold, and stated that the total sales department expense should not exceed 50 per cent of the gross sales, such expense to be “budgeted” and to include plaintiff’s commission of 15 per cent on all sales for his services. He agreed to give his entire time and efforts, and out of his commissions to pay for certain advertising, office rent, clerk hire, stamps, and office supplies for branch sales offices. He also asked to be “permitted” to subscribe for 100 shares of the common stock, at $50 each, and 100 shares of the preferred stock, at $50 each, payable one-fourth on February 1, 1925, and the balance not later than August 1, 1925. The part of his proposition relating to advances was as follows:

“Third. I am to be granted weekly advances of not to exceed $250 until such time as my commissions shall exceed any possible overdraft, at which time settlement is to be made weekly. During the period prior to February 1, 1925, at which time you expect to be ready for the drive, and during which time I will be busy getting up kits and other sales data, I will only need $100 per week to cover my initial sales as well as living expenses.”

The incorporating committee replied, in writing, accepting plaintiff’s plan and proposal, with certain specified “reservations and exceptions,” one of which was to make the contract subject to cancellation upon 30 days ’ written notice by either party. The proposed commission of 15 per cent for plaintiff’s services was accepted without reservation. The portion of plaintiff’s proposition above quoted, beginning “Third,” was accepted in the following language:

“7. Tour statement under caption ‘Third,’ pages 3 and 4, is accepted except that the dates therein are changed to indicate the beginning of your contract with the Bureau as January 1, 1925, and the change in salary from $100 per week to $250 per week is to start February 1, 1925.”

As soon as defendant was incorporated, the agreement thus made between plaintiff and the incorporators was expressly ratified and approved by the corporation.

Pursuant to this contract, plaintiff proceeded to form a selling organization and gave to that work his whole time and attention. During the month of January, 1925, weekly advances were made to him at the rate of $100 a week, and during February, March and April, he received eleven checks of $250 each. The number of sales effected by his organization, however, fell far short of the number expected, and on May 5, 1925, defendant gave plaintiff a 30 days ’ notice in writing of the termination of the contract, stating therein that defendant would not “honor any further obligations or expenses” and would make no further advances to the plaintiff. Plaintiff insisted that the amount then due him for “weekly advances” was $750 and demanded payment. Three days later, at plaintiff’s request, a meeting was held, which resulted in plaintiff being given a check for $500 and instructed to “go ahead and do his best with the lecture tours” he had been making. Plaintiff’s evidence tends to prove that he followed these instructions until the expiration of the 30 days mentioned in the cancellation notice.

The main controversy between the parties turns on the construction to be given to the above-quoted provisions of the contract regarding advances. Defendant insists that the agreement does not obligate the defendant to advance any definite amount, but merely requires it to make weekly advances of “not to exceed” $250 per week. It is argued that this provision authorized defendant to determine the amount it would advance each week, and gave no right to plaintiff to demand $250 a week. This argument overlooks the language used in the remainder of the sentence in which the words “not to exceed” are found. The beginning of the sentence is: “I am to be granted weekly advances of not to exceed $250,” etc. The word “granted” is here used in its common acceptation of something given or allowed in response to a request; and the whole sentence clearly implies that plaintiff’s requests for advances of not more than $250 a week are to be allowed and paid by the defendant. As between parties to a contract like the one under consideration, the word “advances” does not necessarily imply a loan. (Northwestern Mut. Life Ins. Co. v. Mooney, 108 N. Y. 118.) It means “payments made in anticipation of expected commissions.” (Arbaugh v. Shockney, 34 Ind. App. 268.) Giving the words used their ordinary meaning, and one which appears to have been the meaning contemplated and acted upon by the parties themselves, the clause quoted clearly means that plaintiff was entitled to receive weekly payments, in anticipation of expected commissions, of such amounts, not exceeding $250 a week, as he might request. This construction gives effect to all the language employed in the contract and is the only construction that will do so. Moreover, defendant’s present contention is inconsistent with the letter of acceptance, which refers to the “change in salary from $100 a week to $250 per week,” starting February 1, 1925. While such advances are not, strictly speaking, to be considered as salary, yet as plaintiff’s proposal was that he should be given the privilege of drawing in advance not to exceed $250 a week, and as that proposition was accepted by the defendant, and acted upon by it in the manner stated for nearly four months, the practical effect of the agreement was to provide for a salary of the stipulated ' amounts, to be advanced by defendant and charged to commissions to be thereafter earned.

Defendant insists that a settlement of the controversy was made when plaintiff was paid $500 in May, 1925. Much of the argument of counsel is devoted to a discussion of this contention, although we fail to find any mention of such a defense in defendant’s affidavit of merits. In any event, however, the question is one of fact, and we are unable to say that the conclusion of the trial judge is manifestly against the weight of the evidence.

It is finally urged that defendant’s set-off should have been allowed. The rule is fairly well settled that in the absence of any express agreement, in such a contract, to pay back the amounts advanced to an employee in anticipation of expected commissions, or of words showing that he assumed a personal liability to repay the same, the advancements are not to be treated as loans, and the employee does not become personally liable for the repayment thereof. (Northwestern Mut. Life Ins. Co. v. Mooney, supra; L. J. Wing Mfg. Co. v. Thompson, 120 N. Y. Supp. 51; Luce v. Consolidated U. P. Co., 195 Mass. 84; Arbaugh v. Shockney, supra; Felsenthal Bros. & Co. v. Gradwohl, 217 Ill. App. 170.) As to defendant’s claim to be paid for the 200 shares of stock, the contract provides that if plaintiff and defendant shall “become disassociated,” for any reason, prior to August 1, 1925, “it shall be the duty” of defendant, if plaintiff shall so elect, “to take back all of my holdings of stock at the original purchase price plus interest.” It does not appear that any stock was ever in fact delivered or offered by defendant to plaintiff, and it would avail the defendant nothing to require plaintiff to pay for it now, since defendant, under the contract, would be at once required to repay the amount to the plaintiff with interest. The law does not require the performance of useless acts. It appears from the record that plaintiff notified the defendant, through one of its officers, before August 1, 3925, that he did not want the stock after the parties were “disassociated,” and was told that under the circumstances defendant did not want him to have the stock. This was a sufficient election under the circumstances.

Many alleged errors are assigned in general terms, both on the record and in the brief of defendant’s counsel, but the foregoing covers in substance those which are argued.

The judgment is affirmed.

Affirmed.

Gbidley, P. J., and Barhes, J., concur.


author: Mr. Presiding Justice Niehaus

text:
    John Hirschfield, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    Gen. No. 7,893.
    1. Searches and setzubes — sufficiency of complaint to support warrant for search and arrest. A verified complaint wherein affiant averred that he had just and reasonable grounds to believe and did believe that intoxicating liquor was unlawfully kept for sale in a building occupied by the defendant as a residence and stating as reasons for such belief that certain unnamed persons had made affidavit that they had purchased such liquors at such place, but failed to charge defendant or any other person with keeping or concealing such liquor in such place, was insufficient to support a warrant for the search of defendant’s premises and the arrest of any person found in possession of such liquor therein.
    2. CmnNAL procedure — when motion to quash search warrant improperly denied in prosecution for unlawful possession and sale of intoxicating liquors. Where before the commencement of the trial, in a prosecution for unlawful possession and illegal sale of intoxicating liquor, defendant moved to quash a search warrant and writ under which certain intoxicating liquors had been seized while in his possession and for a return of the seized articles, on the ground that the complaint was insufficient to support such warrant, the court should have granted the motion notwithstanding the matters therein referred to as grounds for investigation were not verified, the insufficiency of the complaint appearing upon its face.
    3. 'Criminal procedure — intoxicating liquors seized under unlawfully issued search warrant as evidence in prosecution for unlawful possession and sale. Intoxicating liquors seized while in the possession of one charged with unlawful possession and sale of such liquors, but under a search warrant issued upon an insufficient warrant, are not admissible as evidence against him, and their admission is ground for reversal of a judgment of conviction.
    Error by plaintiff to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed July 1, 1926.
    L. R. Herrick, F. T. Carson and H. A. Barr, for plaintiff in error.
    Roy R. Cline, State’s Attorney, and G-. C. Hodson, Assistant State’s Attorney, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The plaintiff in error, John Hirschfield, was convicted on the second and third counts of an indictment charging him respectively with unlawful possession of intoxicating liquors, and with illegal sale of intoxicating liquor, and he was sentenced to pay a fine of $1,000 under each count; also to serve a term of 60 days’ imprisonment in the county jail under the third count. This writ of error is prosecuted from the judgment of conviction.

The record discloses that, prior to the indictment, and in connection with the prosecution of the plaintiff in error for the alleged criminal offenses of unlawful possession and illegal sale of intoxicating liquor, John Gray, sheriff of Champaign county, on the 26th day of November, 1924, made a complaint before a police magistrate in the city of Urbana for a search warrant, and a search warrant was issued upon this complaint and put into the hands of a deputy sheriff to execute, who, in connection with another deputy sheriff, went to the residence of plaintiff in error and searched his residence, and, according to the return on the search warrant, seized the following articles: “One half-gallon glass bottle, with a small quantity of white liquor. One half-gallon glass bottle. Necks and stoppers of three pint bottles which had contained liquor.” It also appears that, during the progress of the search and seizure proceedings conducted by the officers under the search warrant, the officers handcuffed the plaintiff in error in order to conduct the proceedings more successfully. The articles obtained by the search and seizure proceedings were used on the trial as evidence of guilt against the plaintiff in error, over his objection. Before the commencement of the trial of the plaintiff in error, he made a motion to quash the search warrant and writ, and for an order of court directing a return of the property seized. The court, however, on the ground that the motion was not made in apt time, refused to investigate the legality of the search and seizure under the complaint and warrant, and overruled the motion. It is insisted as additional reason for overruling the motion that the matters referred to in the motion as grounds for the investigation were not verified. Inasmuch as the matters referred to were questions of the legal sufficiency of the complaint and warrant, and appeared on the face of the complaint and warrant, such verification was not necessary. The complaint referred to is as follows:

“State of Illinois, ) “Champaign County. (SS‘
“The complaint and affidavit of John Gray, of Urbana, made before U. G. Martin, one of the Justices of Peace in and for said county on this, the 7th day of November, A. D. 192....., who, being first duly sworn, upon his oath says: That he has just and reasonable grounds to believe, and does believe, that intoxicating liquor is now unlawfully kept for sale, to ' wit, at and within a certain building that is the residence property located at 208 South Third street and occupied by one John Hirschfield in the City (city, village or town) of Champaign in the county and state aforesaid, and that the following are the reasons for his belief, to wit: Certain persons, whose names are not disclosed at this time, have made affidavit that they have purchased intoxicating liquor at the above-named address of the above-named John Hirschfield within the past six months.
“Wherefore he prays that a search warrant may issue according to law.
“John Gray,
(Signature of complainant.)
“Subscribed and sworn to before me this 26th day of November, A. D. 1924.
“U. G. Martin.
“(Name of officer.)
“Justice of the Peace.
“ (Official title of officer.) ”

Upon the complaint a general warrant was issued as follows:

“To John Gray, Sheriff in and for Champaign County — Greeting:

“Whereas, a complaint was this day made, in writing, verified by affidavits of John Gray, to the undersigned, a Justice of Peace in and for said county (county, city or village as the case maybe), stating that said complainant has just and reasonable grounds to believe and does believe that intoxicating liquor is now unlawfully kept for sale, to wit, at and within a certain building, that is, the residence property located at 208 South Third street and occupied by John Hirschfield, in the City of Champaign in the county and state aforesaid, and from the facts upon which such belief is based, as set forth in said complaint, the undersigned is satisfied that there is reasonable cause for such belief.
“We, therefore, command you, in the name of the People of the State of Illinois, taking with you the necessary and proper assistance, in the daytime to forthwith enter the said building, hereinabove described, and make diligent and careful search for intoxicating liquor and any mash, still or other property hereinabove described and seize and bring any and all intoxicating liquor there found and all vessels containing the same, and all property, implements, furniture and vehicles kept or used for the purpose of violating or with which to violate any law of this state there found, and any and all persons in whose possession they are found, forthwith before me at my office in Urbana, or before some other Judge or Justice of the Peace having cognizance of the case, to be dealt with according to law.
“Given under my hand and seal at my office this 26th day of November, 1924.
“(Signed) U. G. Martin,
(SEAL) “Justice of the Peace.” sons or things to be seized.’ ” It is also pointed out in the Elias case, that: “The verified complaint must state the facts on which the complainant bases his belief that the articles sought to be seized are concealed by the accused, with sufficient definiteness that if it is false perjury may be assigned on the affidavit.” And in People v. Prall, 314 Ill. 518, the court pointed out that: “Whether there is probable cause for issuing the warrant is a judicial question, to be determined by the magistrate before whom the complaint is made. The testimony on which the magistrate acts must be reduced to writing, incorporated in a form of complaint and verified by affidavit. This complaint must state the facts constituting the crime and the facts on which the complainant bases his belief that the articles sought to be seized are concealed by the defendant, with sufficient definiteness, so that, if it is false, perjury may be assigned on the affidavit.” It is clear from these citations that the search and seizure proceedings instituted against the plaintiff in error were illegal, and an unwarranted invasion of his constitutional rights; and that therefore the motion to quash the search warrant and return thereon should have been sustained, and a return of the property seized ordered. It was held in People v. Brocamp, 307 Ill. 448, that the question of an unlawful search and seizure is properly raised before the trial, and that the court should investigate and determine the question of whether the articles involved were obtained by unlawful search and seizure. In the same case the court held, concerning the proper time for the application for investigation of the legality of a search warrant, “that the defendant should make timely application to the court, before the beginning of the trial, for an order directing the return to the applicant of the property or of the papers unlawfully seized, and that on such an application the question of the legality of the seizure must be fully heard, and if the court

As appears from the above complaint, the affiant avers that he had just and reasonable grounds to believe, and did believe, that intoxicating liquor was unlawfully kept for sale at and within the building which was the residence of the plaintiff in error, but it does not charge the plaintiff in error with keeping the intoxicating liquor in his residence for the purposes of illegal sale; nor does the complaint aver who was keeping intoxicating liquor in plaintiff in error’s residence; nor who was concealing it. The reasons given in the complaint, for the affiant’s belief that intoxicating liquor was unlawfully kept for sale in the premises of the plaintiff in error, are stated to be that certain persons made affidavit that they purchased intoxicating liquor at the address of the plaintiff in error within six months. The complaint does not inform the magistrate who the persons were that made the affidavit, nor when the affidavit was made, nor before what official it was made, nor from whom the persons referred to purchased the liquor. The averments in the complaint are vague and clearly insufficient to show definitely that a criminal offense was committed or who committed the offense. What was said in People v. Elias, 316 Ill., 376, is pertinent and applicable to the present case. The court, in commenting on the illegality of the search and seizure proceedings directed against Anton Elias, in that case said:

“The complaint filed in this case does not charge that Anton Elias, or any other person, has committed a crime. It merely states that the affiant believes that intoxicating liquors are to be found in the building occupied, owned or controlled by Elias. The fact that Elias owned the building and that intoxicating liquor was kept in it would not subject him to the penalties of the law unless the liquors were kept there with his knowledge for some prohibited purpose. Notwithstanding the failure of the complaint to charge any person with a crime, a general warrant was issued on the filing of the complaint, directing the sheriff to arrest any and all persons found in the premises in the event intoxicating liquor was found there. It was such general warrants issued by the officers of the. Crown of England that caused the American people to demand that the Federal Constitution specifically prohibit the issuance of a warrant except ‘upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the per-erroneously refuses to order such return, and thereafter receives the property in evidence against the applicant over his objection, it is an error for which a judgment of conviction must be reversed.”

For the reasons stated, judgment is reversed and cause remanded.

Reversed and remanded.


text:
    In re Estate of William K. Mertz, Deceased. Matt Yaple and Hugo W. Greb, Administrators of the Estate of William K. Mertz, Deceased, Appellants, v. Ella Mertz Mahy et al., Heirs at Law of William E. Mertz, Deceased, Appellees.
    Gen. No. 7,901.
    1. Estates of decedents — sufficiency of evidence to show good faith of administrators im employment of estate assets in effort to conserve its interests. Evidence upon objections to the final account of administrators held to show that payments made by them to liquidate the estate’s proportion of the diminution of the capital of a hank of which it was a stockholder, resulting from t'he worthlessness of certain commercial paper, were made by them in good faith and with a view to protecting the interests of the estate, especially in view of the fact that one of the administrators, interested individually as a stockholder in the bank, acted in the same way in respect of his individual interest.
    2. Estates of decedents — liability of administrators for payments made in good faith attempt to conserve assets of estate, where expected beneficial results did not materialize. Where administrators, in good faith, employ the assets of the estate in a manner which they deem for its benefit for the purpose of conserving its interests, they cannot be held liable even though it shall thereafter appear that their action did not result beneficially, or that they had made a mistake in respect of the benefits that would probably result from their action.

      3. Estates of decedents — propriety of disallowance of objections to payments made by administrators' in good faith effort to conserve assets of estate but without .formal sanction of court and resulting in loss. Where the evidence upon objections to the final account of administrators showed that in making of payments to liquidate the estate’s proportion of the diminution of the capital of a bank of which it was a stockholder, resulting from the worthlessness of certain commercial paper, the administrators acted in good faith and for the purpose of conserving the assets of the estate, objections to the allowance of such payments should not be sustained, although the benefits expected to result therefrom did not materialize and although such payments did not have the formal sanction of the county court, it appearing that the court was duly advised of the transaction and approved thereof.
    4. Estates of decedents — liability of estate upon guaranty of decedent where no claim thereunder made within year after granting of letters. Where the holder of a guaranty signed by a decedent and others made no claim thereon against the estate of the decedent within one year after the granting of letters of administration upon his estate, any right of the holder thereunder against the estate was barred by Cahill’s St. ch. 3, If 71.
    5. Estates of decedents — propriety of allowance, of objections to payment of claim by administrators under order of court where claim barred by Cahill’s St. ch. S, If 71, Where administrators of an estate paid a claim against it which was barred by Cahill’s St. ch. 3, If 71, objections to the allowance of such payment on their final account were properly sustained, although in making such payment they acted under authority of an order of the county court.
    6. Estates of decedents — power of county court to authorize payment by administrators of claims barred by Cahill’s St. ch. S, If 71. The county court is without power to authorize payment by the administrators of a claim against an estate which has become barred by reason of Cahill’s St. ch. 3, If 71.
    7. Estates of decedents — sufficiency of evidence to support reduction of allowance claimed for attorneys’ fees paid. Evidence on objections to the final account of administrators held to support the conclusion of the circuit court in reducing the credit claimed on account of payment of attorneys’ fees.
    Appeal by plaintiffs from the Circuit Court of Cass county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed in part, reversed in part, and remanded with directions.
    Opinion filed July 1, 1926.

      Thomas D. Masters, for appellants.
    Bradley, Williams & Farrell, for appellees; Thomas E. D. Bradley and Edward J. Farrell, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

William K. Mertz, who was a resident of Cass county, died intestate on April 26, 1922, and letters of administration were therefore granted by the county court of Cass county to the appellants, Matt Tapie and Hugo W. Greb, on May 19, 1922. The inventory of the estate, which was filed and approved by the county court, showed the value of the property of the estate, which included real and personal property, to be about $213,000. A part of the assets of the estate were 50 shares of the capital stock of the Kilbourne State Bank of the par value of $5,000. The appellants, as administrators, in due course of administration of the estate fixed upon the August, 1922, term of the county court for the adjustment of claims against the estate. On July 8, 1924, the appellants as administrators filed their final account, to which a number of objections were filed by the heirs at law of the deceased. The objections were overruled, and the report approved by the county court. Thereupon an appeal was prosecuted by the heirs at law, who are the appellees here, to the circuit court of Cass county. Upon the hearing of the objections in the circuit court, all the objections were overruled, except those pertaining to three specific matters. The appellants in their report asked to be credited with $8,200, which sum was paid to the Kilbourne State Bank ostensibly for the purpose of preventing the bank from being closed by the State auditor. They also ask credit for $6,332.24, which was paid to the First National Bank of Chicago, to satisfy an alleged liability of the deceased on a written contract of guaranty, signed by the deceased and other stockholders of the Kilbourne State Bank, to pay any indebtedness of the Kilbourne State Bank to the First National Bank of Chicago. They also ask credit for $9,120 for fees paid to the attorneys for legal services rendered in the course of the administration of the estate. The objections of the heirs at law were sustained with reference to the first two items, for which the appellants sought credit, and the court reduced the amount of the attorneys’ fees, by cutting off $1,135, and thereupon ordered the appellants to recast their account, by eliminating the $8,200 item paid to the Kilbourne State Bank, and the $6,332.24 item paid to the First National Bank of Chicago, and by deducting $1,135 from the amount for attorneys’ fees. From this order and judgment of the circuit court, an appeal is prosecuted.

Concerning the $8,200 item, for which the appellants ask credit, it appears from the evidence that this amount of money was paid by them during the administration year, and paid to liquidate the estate’s proportion of the loss or diminution of the capital of the Kilbourne State Bank by the worthlessness of a certain amount of commercial paper which was part of the assets of the bank, and amounted to the sum of $48,843.35. It appears from the evidence that this worthless commercial paper was discovered by the State auditor in his investigation of the financial condition of the bank, and he thereupon notified the owners of the stock in the bank on February 28, 1923, that unless this impairment in the capital of the bank was made good by March 10 following, the bank would be closed, and its affairs wound up. In this situation which called for prompt and speedy action the appellants representing the estate which was one of the larger stockholders of the bank, and after consultation with the attorneys for the estate, and with the county judge, joined with the other owners of the stock of the bank in carrying into effect a plan by which the worthless commercial paper referred to was removed, and substitution made therefor in money and assets of full value, and $8,200 was the proportion to be borne by the estate, as stockholder in the bank, and that amount was paid by the appellants, as administrators of the estate. A careful consideration of the evidence leaves no doubt about the good faith of the appellants in acting for the estate in this transaction, and it is also evident that they acted with a view to protecting the interests of the estate. This feature of the case is further emphasized by the fact that one of the administrators was interested as an individual stockholder and acted in regard to the estate matter in the same way that he acted concerning his own individual interests. It is contended by the appellees that the appellants should not be allowed to take credit for the item referred to, because they did not have the sanction of the county court in making the payment referred to for the benefit of the estate; and that the payment of the money for the purpose indicated did not result in the benefit which it was supposed would result from the adjustment or rehabilitation of the capital of the bank, because the bank shortly after-wards became insolvent, and the affairs of the bank were put into the hands of a receiver. Concerning this contention, it may be said that while the evidence does not disclose that the appellants obtained any order from the county court authorizing the expenditure of the money for the purpose referred to, the inference to be drawn from the evidence is sufficiently clear to justify the conclusion that the action of the appellants in this matter had the approval of the county judge. It is a well-established rule concerning the action of administrators in matters of this kind, where administrators act to protect what they consider to be for the benefit of an estate, and for the purpose of conserving its best interests, and act in good faith, that they cannot be held liable, even though the result of their action may not actually result beneficially; or it should afterwards appear that they made a mistake with reference to the benefits or gains that would probably result from their action. In an early case, Christy v. McBride, 1 Scam. 75, the Supreme Court defined this rule, which has been followed concerning matters of this kind. It is there said: “If an administrator has acted for the benefit of the estate, used proper diligence, and acted with ordinary care and circumspection in the discharge of his trust, he ought not to be held answerable for losses which could not have been foreseen, and which ordinary precaution may not guard against. The general principle which seems to run through all the authorities, as to his liability, recognize the doctrine, that if he acts honestly and prudently, though there be a loss to, or diminution of, the testator’s estate or rights, he will not be liable.” It is also said in Christy v. Christy, 225 Ill. 547: “In the performance of his duties an administrator must act with the highest degree of fidelity and with the utmost good faith, but he is held to the exercise of only that degree of skill and diligence which an ordinarily prudent man bestows on his own similar private affairs. Nothing more can be required of him, and if his acts will stand the test of that rule he cannot be held liable for any loss that may be sustained by the estate of his intestate.” 11 Am. & Eng. Encyc. of L. (2nd Ed.) 904; In re Corrington, 124 Ill. 363. Applying the rule announced in the cases cited to the action of the appellants as administrators, with reference to the matters referred to, we conclude that they are entitled to the credit in their final report, for the item referred to.

The credit claimed by the appellants for the $6,332.24 item, however, raises a different question. This item involves a payment made by them as administrators to the First National Bank of Chicago, and it appears from the evidence that the deceased, William K. Hertz, with three others, who were connected with the management of, or interested in the Kilbourne State Bank, entered into a written agreement with the First National Bank to secure an extension of credit for the Kilbourne State Bank, and by this written agreement guaranteed to the First National Bank the prompt payment, when due, of any and all indebtedness of the Kilbourne State Bank resulting from the extension of this credit, limiting their liability, however, to a total sum of $20,000. Apparently the extension of credit obtained from the First National Bank by virtue of this agreement resulted in creating an indebtedness of the Kilbourne State Bank to the First National Bank of $19,098.33. This indebtedness was evidenced by and embodied in promissory notes which were given and renewed from time to time by the Kilbourne Bank, and were finally consolidated in the one $20,000 note. Just what was the condition or amount of the indebtedness at the time of the death of Hertz does not clearly appear; but no claim or demand was made by the First National Bank under the guaranty contract upon the appellants as administrators of the estate, and no claim or demand was exhibited to the county court or filed against the estate, within one year after the granting of the letters of administration; nor at any time, as required by the statute. If, therefore, the First National Bank had any claim against the Hertz Estate, growing out of the guaranty contract referred to, such claim or demand was barred under section 70 of the Administration Act [Cahill’s St. ch. 3, ¶ 71]. Stone v. Clarke’s Adm’rs, 40 Ill. 411; Pearson v. McBean, 231 Ill. 536; Gross v. Thornson’s Estate, 286 Ill. 185; Morse v. Pacific Ry. Co., 191 Ill. 356; Chicago Title & Trust Co. v. Corporation of Fine Arts Bldg., 288 Ill. 142; Snydacker v. Swan Land & Cattle Co., 154 Ill. 220; Rassieur v. Jenkins, 170 Ill. 503, The demand made for payment of the indebtedness, of the Kilbourne Bank growing out of the guaranty contract, by the First National Bank, was made upon Mr. Yaple individually, as one of the signers of the guaranty contract, nearly two years after the issuance of the letters of administration on the Mertz Estate, and it was after this personal demand that the appellants filed a petition in the county court praying for an order authorizing them to pay to the First National Bank the $6,332.24 item, which was alleged to be the liability of the Mertz Estate to the First National Bank, and the authority was granted by the county court. It must be pointed out in connection with this payment to the First National Bank that such payment of a claim which had been barred by limitation, and which had never been allowed by the court in the way provided by the statute, was clearly without authority of law, and was in violation of the duty of appellants, as administrators, which duty required them to defend the estate against the allowance of any claim which had been barred by limitation. Unknown Heirs of Langworthy v. Baker, 23 Ill. 484; McCoy v. Morrow, 18 Ill. 524; Hapke v. People, 29 Ill. App. 546; Fragd v. Fragd, 175 Ill. App. 246. Nor did the county court have power to authorize the payment of an alleged claim against an estate contrary to the provisions of the statute. County courts have no judicial power in directing the administration of estates except such as conferred upon them by the statute. Chapman v. American Surety Co., 261 Ill. 594. A county court could not therefore authorize an administrator to pay the claim after the claim was barred from payment by the statute. To authorize payment under these circumstances would in effect nullify the provision in the statute. We are of opinion therefore that the order of the court disallowing the credit for the item of $6,332.24 was proper.

We find no error in the action of the court in reducing the amount claimed as a credit for attorneys’ fees. The reduction of $1,135 was fully warranted by the evidence. For the reasons stated, the order of the circuit court is affirmed in all respects except as to the $8,200 item, and the cause is remanded with directions that in recasting the account of appellants, the appellants be given credit for the $8,200 item.

Affirmed in part, reversed in part, and remanded with directions.


author: Mr. Justice Shurtleff

text:
    Illinois-Indiana Fair Association, Appellant, v. George A. Phillips, Appellee.
    Gen. No. 7,968.
    1. Sales — sufficiency of evidence to support finding that purchase of corporate stock was a transaction within Cahill’s 8t. ch. 121a, V 7. Evidence in an action upon a note alleged to have been given in payment for stock of a corporation held to support a finding that no portion of the purchase price of such stock had been paid, that the purchaser had never accepted any portion of the stock so purchased, and that the transaction therefore came within Cahill’s St. ch. 121a, If 7.
    2. Appeal and eebbob — conclusiveness of findings of court trying case without jury, upon controverted questions of fact. The findings of a judge to whom a cause is submitted for trial without a jury are entitled to as much weight, upon controverted questions of fact, as the verdict of a jury, and will not be set aside by a court of review unless manifestly against the weight of the evidence.
    3. Cobpobattons — actual or issued stock defined. Actual, or issued, stock is stock which has been subscribed for and which has been paid in, or is subject, under legal compulsion, to be paid in, but it is not necessary that the actual certificate shall have been issued,

      4. Sales — sufficiency of evidence to show note given in payment of subscription for unissued corporate stock. Evidence in an action upon a note alleged to have been given in payment for corporate stock held not to show that such note was given in payment of a subscription for unissued stock, hut actual, issued and existing stock.
    5. Sales — giving of promissory note as payment of purchase price of actual, issued stock of a corporation. The giving of a promissory note for actual, issued stock of a corporation is not a payment of the purchase price or any part thereof, within Cahill’s St. ch. 121a, IT 7.
    Appeal by plaintiff from the Circuit Court of Vermilion county; the Hon. John H. MabshaLl, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Charles Troup, for appellant.
    O. B. Dobbins and Harold F. Lindley, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The issue raised in this case is substantially one of law as to the construction to be given to the first clause of section 4 of the Uniform Sales Act [Cahill’s St. ch. 121a, ¶ 7], providing that:

“A contract to sell or a sale of any goods or choses in action of the value of $500 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”

Does this statute of frauds, under the Uniform Sales Act, apply to a sale of shares of stock in a corporation, and under the facts in this case did appellee accept part of the shares of stock claimed to have been sold him by appellant? No other questions are raised upon this record.

On October 21, 1919, appellee executed Ms promissory note for the principle sum of $1,000, payable to the order of appellant, the principal payable in equal annual instalments of $200 each on November 1, 1920, 1921, 1922, 1923 and 1924, respectively, with interest at the rate of six per cent, payable annually, and, if not paid when due, a reasonable attorney’s fee.. Appellee caused the note to be delivered to appellant. The transaction grew out of the affairs of appellant corporation which had been incorporated in 1917, with a capital stock of $2,500. In the early part of 1919, appellant, in carrying on its activities, had incurred an indebtedness of over $100,000 and certain of its members and stockholders had become security for and personally responsible for this indebtedness by giving their notes therefor. Thereafter, a plan was conceived by the Chamber of Commerce of Danville, which was interested in maintaining the Interstate Fair at Danville, to have 135 prominent citizens of Danville underwrite $135,000 worth of the capital stock of appellant corporation to take care of this indebtedness and to supply some additional funds for appellant. Accordingly, in March and April, 1919, an underwriting agreement was gotten up and 135 signatures secured thereto, appellee’s among the number. This underwriting agreement provided that the parties signing the agreement underwrite the sale of $135,000 of capital stock, of the Illinois-Indiana Fair Association for the corporation increasing its stock and waiving notice of the stockholders’ and directors’ meetings for the purpose of such increase; for a stock selling campaign to last at least 30 days to sell this $135,000 worth of capital stock; that each signer should pay only for his pro rata share of the part of the stock remaining unsold after said 30 days’ campaign; that in the event that any of the signers of the agreement were required to purchase any stock remaining, they should have the right to pay for the same at the rate of $200 a year, by giving their notes, with interest at six per cent per annum from the date of such purchase.

The 135 subscribers had all affixed their signatures to the agreement prior to April 19, 1919. Thereafter, in pursuance of the terms of the agreement, appellant held a special meeting of its stockholders on May 31, 1919, and passed resolutions increasing the capital stock of the corporation from $75,000, to which it had been increased, to $200,000, and its shares to 8,000 in number. It is claimed by appellee that at the time the underwriting agreement was signed and up to July 3, 1919, appellant had taken no steps to qualify the additional stock under the Illinois Securities Act [Cahill’s St. ch. 32, ¶ 254 et seq.], known as the “Blue Sky” law, with the secretary of State. The stock selling campaign started July 14, 1919, and did not meet with much success. Appellee with some three or four others of the signers formed a team and sold some stock. Altogether there were $13,500 in stock sold. There is some conflict in the evidence as to just what took place when appellee signed and delivered the $1,000 note which we shall discuss.

In December, 1919, appellee brought to appellant’s office further stock subscriptions to the amount of $325, with $50 in cash, $50 in Liberty bonds and a note for $25 of one Paul Atherton, and it is claimed by appellant that appellee then directed the assistant secretary of appellant to issue stock, for the money, note and bonds to the subscribers out of the stock for which appellee had subscribed and to give him credit upon his note. Thereupon, four shares of stock were issued direct to the subscribers who had paid the money and furnished the bond, but no credit was given to appellee, and upon this state of affairs appellant insists that appellee accepted a part of the goods and choses in action, which takes the transaction out from the operation of the statute of frauds. This we shall refer to later. No stock was ever tendered to appellee until the principal of the note was wholly due and shortly before the commencement of this suit. No payments were ever made by appellee upon the note except as herein set forth and except the Atherton note which was paid, and one share of stock issued to him.

Appellant’s suit is brought upon special count based upon the note. Appellee filed various pleas. The fifth avers that appellee did procure subscriptions of stock of said plaintiff, amounting to the sum of $1,000, which subscriptions were delivered to the plaintiff and accepted by the plaintiff as performance by the defendant of his underwriting agreement, as set forth, whereby the said note became and was fully discharged and satisfied. To this plea appellant replied, after setting out the underwriting agreement, that after said stock selling campaign was ended the defendant with full knowledge of all of the said facts, then and there purchased of the plaintiff corporation 40 shares of the capital stock of the plaintiff corporation of the par value of $25 each, and made and delivered to the plaintiff his promissory note in payment of the same, as set forth in the declaration; and that thereupon the plaintiff received said promissory note as the purchase price of said 40 shares of stock, etc. To this replication appellee by rejoinders pleaded the statute of frauds and that he never purchased the said 40 shares of stock. To the first rejoinder appellant by surrejoinder pleaded that appellee did accept part of the goods or choses in action so contracted to be sold or sold and actually received the same and gave something in earnest to bind the contract or in part payment, and that a note or memorandum in writing of the contract or sale signed by the defendant was given.

Issue was taken upon appellee’s second rejoinder and upon appellant’s sur-rejoinder. A jury was waived. The court heard proofs and there was a finding and judgment for defendant. Appellee and appellant have appealed.

We have set out the pleadings to show just what the issues were in the court below and what issues are presented to this court. Appellant has cited authorities and made an extended argument upon the basis that a stock subscription for unissued and unauthorized stock does not come within the ban of the statute of frauds in the Uniform Sales Act [Cahill’s St. ch. 121a, ¶ 4 et seq.]. That question was not at issue in the court below and is not one of the issues here.

There were two issues of fact in the case. Appellee testified that at the time he signed the note the arrangement was that he was to have credit upon the note for the sales of stock he had made. Appellee, with others, had constituted a team in selling stock and they had made sales, amounting substantially to the amount of their subscriptions. Appellee testified that the president of the chamber of commerce had promised him that these sales should be credited upon his subscription, which would have varied the terms of the underwriting agreement. In any event, appellee was entitled to a credit of $100 upon his subscription on the total sales made. In behalf of appellant, however, the witnesses McCray and Hartshorn, who secured the note from appellee, testified: “We took the note down there and told Mr. Phillips that there was $13,500 worth of stock sold in this campaign and he was entitled to $100, but there were quite a few people that were not able to carry the $1,000 and that he was interested in the fair and that we thought he was able to carry $1,000 and, if he was, we would like him td take $1,000 worth of stock or 40 shares so we could relieve some of the fellows on the notes that were not able to carry them, and he just turned the note over and signed it without any question. We said something to him about the stock selling campaign being over at that time.” The witnesses further denied that at that time or any other time anything was said to appellee about the “pro rata” being taken care of later on, as appellee had testified. The chancellor made a finding in the court below which is part of the record. He found that appellee (defendant) from the preponderance of the evidence gave the note in question, not under any prior contract, but as an independent agreement to purchase 40 shares of stock at $25 per share. This finding is in exact accord with appellant’s second replication to the fifth plea and should be conclusive. As to appellee’s accepting part of the stock purchased or sold and making a payment upon the same, appellee testified that he took the subscriptions, cash, bond and note to Mr. Tate, the secretary, and that he told Tate to give him credit for the amounts upon his note. Tate testified that when appellee brought in these subscriptions he wanted credit upon his stock subscription or note and that he told appellee he had no authority to give any credit on notes until he conferred with the officers or board of directors. Stock was issued to the subscribers, as presented by appellee, who had paid cash and the Liberty bonds, and to Atherton upon the payment of his note, but appellee was not allowed credit upon his note for any of the subscriptions. Upon this issue of fact, part payment or acceptance of a portion of the stock, the chancellor held that the burden of proof was upon appellant and tersely held: “Tate was interested in getting the money for the stock solely. Mr. Phillips was solely interested in reducing a liability, which he then believed he would sometime have to meet. If Tate had positively testified on the exact point in irreconcilable contradiction to Phillips, there would be no preponderance, for the credibility of both witnesses stands unimpeached. The circumstances add nothing to plaintiff’s contention on the question of part performance. The title to the shares was not in Phillips. If Tate understood Phillips was selling his own stock, it might be expected that he would inform Phillips that it was a matter of indifference to the plaintiff whether Phillips transferred any or all of his stock. It appears from the evidence that the defendant was a man of considerable financial means. His note might have been accepted by plaintiff as payment for the stock, but it was not so accepted. Tate was insisting upon payment before the stock was issued. Phillips brought in money and collateral in payment of five shares and he issued the five shares to the parties paying for it. His interest went no further. Tate did not give Phillips credit upon his note. The transaction on its face appears to be merely the report of a stock selling solicitor to the responsible officer of the corporation. To justify a holding that the transaction was of an essentially different character, requires proof that both parties so understood it and so intended.”

The court held that the testimony failed to show that appellee had paid a portion of the purchase price of the stock for which the note was given, or had accepted any of the stock and that the transaction came within the statute of frauds. We have examined the testimony and read the record and it seems to support the finding of facts made by the chancellor. The finding of a judge, to whom a cause is submitted for trial without a jury, is entitled to as much weight on controverted questions of fact as the verdict of a jury, and will not be set aside by a court of review unless it is manifestly "against the weight of the evidence. Haug v. Haug, 193 Ill. 645; Johnson v. McNellis, 228 Ill. 351; Caruthers v. Reesor, 134 Ill. App. 370; Hess v. Killebrew, 209 Ill. 193; Schumacher v. Wolf, 125 Ill. App. 81.

Shares of stock, by practically aU authorities, have been treated as choses in action (14 C. J. 389), and have been held to be choses in action in this State. First Nat. Bank of Mendota v. Smith, 65 Ill. 55; Banta v. City of Chicago, 172 Ill. 204. According to the great weight of authority in this country, the sale of corporate stock is held to be within the statute of frauds. 25 R. C. L. 616, ¶ 230; 14 C. J. 238; Hinchman v. Lincoln, 124 U. S. 38, 31 L. Ed. 337; Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St. 44, 110 N. E. 518, Ann. Cas. 1917 C 988; Franklin v. Matoa Gold Min. Co., 158 Fed. 941, 16 L. R. A. (N. S.) 381; Sprague v. Hosie, 155 Mich. 30, 118 N. W. 497, 19 L. R. A. (N. S.) 874; Meeham v. Sharp, 151 Mass. 564, 24 N. E. 907; Hewson v. Peterman Mfg. Co., 76 Wash. 600, 136 Pac. 1158, 51 L. R. A. (N. S.) 398; Spencer v. McGuffin (Ind.), 130 N. E. 409. In the last case cited the court, after citing the English rule to the contrary, based upon the statute 29 Car. II, ch. 3 (1677) holds: “But in America there never has been a reported decision of a court of last resort, of which we have knowledge, holding that sales of stock that has been actually issued are not within the statute.” There is a contrariety of holdings and some very respectable authority that the rule does not apply to a subscription for unissued stock. 14 C. J. 520; 27 C. J. 238. Appellant, in its brief and argument, practically concedes the state of the law and contends: “If corporate stock has been once issued and is then the subject of sale or contract of sale from one person to another, the weight of authority in the United States is that the same comes within the statute of frauds regulating the sale of goods, wares, and merchandise. There is a distinction, however, as to a subscription for or a purchase of unissued stock from the corporation and the decided weight of authority is that such sales or subscriptions are not within such statutes.” Upon the latter question we express no opinion, and it must be borne in mind that appellant has brought suit, not upon the stock subscription, called the underwriting agreement, but upon the note, based upon a purchase of 40 shares of stock, independent of said stock selling campaign and the subscription agreement signed by the 135 citizens of Danville, including appellee. The 40 shares, by appellant’s second replication to the fifth plea, appellee purchased from the appellant corporation, and gave the note therefor. It becomes pertinent to inquire whether the 40 shares purchased, as set out in appellant’s replication, was unissued stock, subscription stock or actual stock owned by the corporation, which it had the right to sell, the same as any stockholder. What is unissued stock? In 14 C. J. 383, various cases are cited and the subject discussed. It is held: “Actual stock is stock which has been subscribed for and which has either been paid in or is subject, under legal compulsion, to be paid in, while potential stock is merely the power under the charter or governing statute to acquire a capital stock. Merely authorized capital stock has no existence or validity until it is actually issued or subscribed for. * * * If capital stock has been issued or subscribed for it is actual and valid stock, although it may not have been actually paid in, and in such case it is within the term ‘capital stock,’ as employed in a statute, unless, as is sometimes the case, there is something to show an intention to refer to paid up capital only.”

In Sturges v. Stetson, 1 Biss. (U. S.) 246, it was held:

“The corporate powers of the company were conferred for the express purpose of creating stock as a means of constructing the railroad. As well might the route for the road designated be called a railroad, as to call the corporate means of creating the stock, stock. * * * Stock can be created only by contract, whether it be in the simple form of a subscription or in any other mode. There must be an agreement to take the stock, and nothing short of this can create it. This imparts to the stock the quality of property, which before it did not possess. It is called capital stock in the charter, because the corporate capacity to create it is given. The term stock, as used in the charter, before it is taken by subscription, means nothing more than a power in the directors to receive subscription for stock.”

Again, in 14 C. J. 406, the authority seems to be ample that: “There is a difference between actual and potential stock and authorized capital stock has no existence or validity until it has been actually issued or subscribed for, although it need not have actually been paid in. Stock which has not been subscribed for, although authorized, cannot be an asset of the corporation or used for any purpose and neither the corproation, nor anyone else can be liable upon it.” It is held: “As to unissued stock which a corporation is under obligation to issue to a person for property, which has been conveyed by him to the corporation, it is a mere trustee.” Wait v. Kern River, Mining, Milling & Developing Co., 157 Cal. 16, 106 Pac. 98. “Stock which once has been legally issued by a corporation and which has been reacquired by it by purchase or donation cannot be regarded as unissued stock in the proper sense. It belongs to the corporation like its other assets and, subject to charter or statutory restrictions, may be disposed of by sale or otherwise as it may see fit, for any legitimate corporate purpose and reissued. Such a reissue is not a creation of new stock within the meaning of charter clauses relating to original subscriptions, nor does it constitute an overissue. Stock which has been forfeited to the corporation may be treated as unissued stock for particular purposes (for purposes of reduction of capital stock) but it is not unissued stock in the proper sense, for it has been issued.” 14 C. J. 407.

. It has been held that a corporation may, without express authority, acquire shares of its own stock by way of bequest or by receiving them in satisfaction of debts which cannot be collected in any other manner. Morawetz on Corporations, sec. 231. It is further held in Morawetz on Corporations, sec. 260:

“The contract between the different subscribers depends for its validity upon the statute under which the corporation is formed and not merely upon the common law, and it seems but a reasonable inference that the intention of the legislature in providing for the opening of stock books was to make a subscription binding from the time it was made.” And section 262: “A person may become a shareholder in a corporation already in existence by an increase of the number of its shares. In such, the relation between the members of the company becomes altered, a new party being added to their original contract. Where shares are subscribed under a statute for the purpose of forming a corporation, the engagement between the subscribers is mutual, and its result is the formation of a corporate association. But, if a corporation issues new shares after having been fully formed and organized, the original members do not act individually in entering into the contract of membership with the purchasers of the new shares; in such case the whole company acts in a corporate capacity through the common agents. The contract must therefore be treated as a contract between the corporation on the one hand and the subscriber on the other; and this contract does not constitute the subscriber a shareholder until the company has issued a certificate, or in some other manner recognized the subscriber as a member.”

Under the guide of these authorities it seems to be the settled rule that actual stock, or issued stock, is stock which has been subscribed for and which has been paid in or is subject, under legal compulsion, to be paid in, and it is not necessary that the actual certificate should have been issued. One who is a member or stockholder in a corporation must be the owner of issued stock. Unissued stock is merely authorized capital stock which has not been subscribed for and is not sold, although there might exist a contract of sale. Applying these rules to the case at bar, there is no evidence in this record that appellee purchased unissued stock or potential stock, other than actual stock issued and in existence upon October 21, 1919. It is not certain from appellant’s pleadings and evidence just what stock was contracted to be sold to appellee, but from some of appellant’s testimony it may be inferred that the stock sold was a portion of the stock subscribed for in March and April, 1919, by some of the 135 subscribers, citizens of Danville, who were not as able financially to carry the stock as appellee. It is certain, under appellant’s second replication to the fifth plea, that the stock sold appellee on October 21, 1919, was other and different stock from that subscribed for by appellee in March and April, 1919, and from any sold during the “selling campaign” in July and August of the same year. From the testimony, all of appellant’s stock had been subscribed for prior to July, 1919, and it follows that appellee’s purchase on October 21, 1919, could not have been a subscription for unissued stock.

Much confusion is caused in this case by appellant’s argument being based upon a stock subscription. Appellant’s pleadings and testimony exclude that ground of recovery if it should he held a legal ground for a recovery. It must he held under the pleadings and testimony of the case that the stock which was the subject of contract between appellant and appellee was actual, issued and existing stock in said corporation. The giving of a promissory note is not payment of the purchase-money or a part thereof, within the statute of frauds. 27 C. J. 255, ¶ 302.

In construing uniform acts the language ought to he interpreted in such a way as to give effect to the beneficent design of the legislature in passing an act for the promotion of harmony in the law. Sherer-Gillett Co. v. Long, 318 Ill. 432; National City Bank of Chicago v. National Bank of Republic of Chicago, 300 Ill. 103; Commercial Nat. Bank v. Canal-Louisiana Bank & Trust Co., 239 U. S. 520.

It appearing that the transaction in question comes clearly within the provisions of section four of the Uniform Sales Act [Cahill’s St. ch. 121a, ¶ 7], the judgment of the circuit court of Vermilion county is affirmed.

Affirmed.,


author: Mb. Justice Shurtleff

text:
    Canton Homestead & Loan Association, Appellant, v. Lizzie Simms and Oscar Simms, Appellees.
    Gen. No. 7,971.
    1. Cotjbts — jurisdiction of city court confined to municipal limits. In view of Const, art. 6, § 1, the jurisdiction of a city court is limited to the confines of the city in which it is established.
    2. Courts — when service of city court process without municipal limits not equivalent to substituted service. A city court, whose process was served without the territorial limits of the city in and for which the court was established, does not acquire jurisdiction of the parties so served on the theory that the action was in rem and the service substituted service, where it appears that neither of the defendants comes within the classifications provided for substituted service or constructive notice.
    3. Discontinuance, dismissal and nonsuit — when procurance of order of dismissal by plaintiff following dismissal of his appeal not involuntary nonsuit. Where, in dismissing an appeal on the ground that the record did not show a final, appealable order, the court ordered “that the joint and several plea of the defendants be sustained and the motion of the complainant to deny same be overruled,” but did not dismiss the bill, the action of the appellant, on remand of the cause, in procuring an order of dismissal to be entered, was merely a step to lay foundation for an appeal, and did not amount to a voluntary nonsuit.
    Appeal by plaintiff from the City Court of Canton; the Hon. Feed H. Snyder, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.

      Jesse Heylin, for appellant.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellees.
   Mb. Justice Shurtleff

delivered the opinion of the court.

The only substantial question on this appeal is whether the city court of Canton can obtain jurisdiction over the persons of appellees, residents of Illinois in another county, by sending its process outside of the city of Canton in a foreclosure suit to the county in which appellees reside, where the lands mortgaged are situated within the city.

Appellees filed special pleas, questioning the jurisdiction of the court, which were sustained, the bill dismissed and appellant has brought the record to this court by appeal.

In Ladies of Maccabees v. Harrington, 227 Ill. 517, the court held: “It has often been held by this court that the territorial limits of the jurisdiction of a city court for service of original process is confined to the city limits wherein such court is located. (People v. Evans, 18 Ill. 361; People v. Barr, 22 Ill. 241; Covill v. Phy, 26 Ill. 432; Holmes v. Fihlenburg, 54 Ill. 203; Gardner v. Witbord, 59 Ill. 145; Dixon v. Dixon, 61 Ill. 324; Joslyn v. Dickerson, 71 Ill. 25; Reid v. Morton, 119 Ill. 118; Miller v. People, 183 Ill. 423.) In People v. Evans, supra, this court held that an act of the legislature creating the recorder’s court of the cities of La Salle and Peru was unconstitutional because the act purported to extend the jurisdiction of the court to the two towns named.”

In Miller v. People, 230 Ill. 65, the court, having under consideration certain sections of the enabling act establishing the municipal court of Chicago, after reviewing a line of decisions pertaining to the powers of similar courts, held: “The doctrine that the juris diction of a city court for service of original process is confined to the city limits wherein the court is located, and that the General Assembly has no power to pass a law extending such jurisdiction beyond the city, was reaffirmed in the case of Ladies of Maccabees v. Harrington, 227 Ill. 511, which arose under the present constitution. In these cases the courts were called courts of common pleas, city courts, or a recorder’s court; but they were all municipal courts under various names, and were the same kind of courts as the municipal court of Chicago. It must be held that the G-eneral Assembly in proposing and the people in adopting, the amendment, had in view the construction uniformly given by this court as to territorial limits of the city or municipal courts.”

Again, in Wilcox v. Conklin, 255 Ill. 607, the court having before it a case where the municipal court of Chicago had issued original process for a defendant residing in the State, outside the limits of the city, impleaded with a defendant residing within the city, held the process void. It was held that the Chicago Charter Act of December 5, 1904, known as section 34 of article 4 of the Constitution, conferred no power or authority on the G-eneral Assembly to create municipal courts in the city of Chicago, but that the authority to create such courts is conferred by section 1 of article 6 of the Constitution, citing Miller v. People, supra; People v. Olson, 245 Ill. 288; People v. Cosmopolitan Fire Ins. Co., 246 Ill. 442.

Section 1 of article-6 of the Constitution provides: “The judicial powers, except as in this article is otherwise provided, shall be vested in one supreme court, circuit courts, county courts, ■ justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns.”

It follows that the courts created by law have only such powers and jurisdiction expressly given them by statute, and their jurisdiction is limited to the confines of the municipality. In the case at bar we must hold that the original process issued by the city court of Canton to Sangamon county was void. It is argued, however, that the service of process in this case in Sangamon county constituted substituted or constructive service, the action being m rem and the court having jurisdiction of the subject matter. It is sufficient answer to that contention to point out that neither of the defendants in the suit at bar comes under the classifications provided for substituted service or constructive notice. In that respect, this case differs from Spitznagle v. Cobleigh, 120 Ill. App. 191, decided by this court.

This case has been before this court at a former term and the appeal was dismissed on the ground that the record did not show a final, appealable order. There was an order in the record decreeing “that the joint and several plea of the defendants be sustained and the motion of complainant to deny same be overruled,” but the bill was not dismissed. On the remand of the cause there was an order entered dismissing the bill of complaint and for costs against complainant, upon appellant’s motion. Counsel for appellees strenuously insist that this amounted to a voluntary nonsuit upon appellant’s part, upon which error cannot be assigned. This action by appellant did not constitute a voluntary nonsuit. The finding of the court in the first record in effect amounted to a dismissal of appellant’s bill involuntarily, and the entry of the final order, dismissing the bill, was a mere technical necessity upon which to base an appeal. There is no merit in the contention.

The decree of the city court of Canton is affirmed.

Affirmed.


text:
    Ben F. Cox, Appellant, v. Margaret E. Snyder, Appellee.
    Gen. No. 7,988.
    1. Wills — devise to life tenant subject to payment of portion of rents received from premises as requiring accounting for net rental only. Under a devise to the testator’s wife for life, subject to the payment by her to the testator’s son, annually during her life, of one-third of the rents received by her from the premises, it was the duty of the devisee of the life estate to first pay the taxes and any other legal and necessary expense chargeable out of the income and proper to be paid by the life tenant before she received any of the rents from the premises under the terms of the will, and then to pay to the holder, of the reversionary interest the proportion of the net rents received in accordance with the terms of the will.
    2. Equity — when bill properly dismissed for want of equity although complainant entitled to relief other than that ashed. Where a bill to construe a will averred a refusal of the defendant to account to the complainant for one-third of the gross rents of the premises, and the will, properly construed, required defendant to account only for one-third of the net rents, a decree dismissing the bill for want of equity was proper.
    Appeal by plaintiff from the Circuit Court of Douglas county; the Hon. Fbanklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Craig & Craig, for appellant.
    Vause & Kiger, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

William L. Snyder of Douglas county, Illinois, died testate September 9, 1913, leaving surviving him his widow, Margaret E. Snyder, the appellee, and a daughter, Anna E. McFaull, and a son, Ervin L. Snyder. The fourth paragraph of his will provides:

“FOURTH. I give and devise to my said wife the northwest quarter of section thirty-two (32) in township fifteen (15) north, range eight (8) east of the Third Principal Meridian, situated in the County of Douglas and State of Illinois, to have and to hold the same during her natural life, subject to the payment by her to my said son, annually during her life, of one-third (%) of the rents received by her from said premises, from and after the date on which as devisee of this will, she will receive the rents from the real estate devised to me by my said father.”

The reversion in fee in the lands described in paragraph four was devised to the son, Ervin L. Snyder, by the sixth clause of the will. On June 26, 1919, Ervin L. Snyder conveyed his reversionary interest to appellant and on April 30, 1920, Ervin L. Snyder assigned to appellant all his interest in the rents described in paragraph four of the will.

Appellant, at the March term, 1925, of the Douglas circuit court, filed his bill in equity to obtain a construction of paragraph four of the will. An amended bill was filed in September, 1925, to which appellee demurred. Appellant there contended and urges here that the words “one-third of the rents” in paragraph four of the will should be construed and interpreted to mean “gross rents.” Appellee’s contention was and is that these words should be construed and interpreted to mean rents after deduction for taxes, repairs and insurance. The testator, William L. Snyder, left other property, an additional 160 acres of land and a house and lot in the city of Areola in which the widow, Margaret E. Snyder, was to have the life estate, reversion in fee to the daughter, Anna E. McFaull.

Appellant elected to stand on his amended bill and refused to plead further. The chancellor thereupon entered a decree dismissing the amended bill for want of equity and appellant appealed to this court.

It is necessary first to determine the nature and character of the estate in Margaret E. Snyder, which is made: “Subject to the payment by her to my said son, annually, during her life, of one-third of the rents received by her from said premises,” etc. It is a life estate, “but the tenant for life is, in such case, an implied or quasi trustee for the remainderman, and a court of equity can enjoin him from injuring the inheritance.” Perry on Trusts (6th Ed.) section 540. The rule is laid down by the same author (section 527): “Where trustees are in possession and have the management of the estate, they must pay all rates and taxes, and protect the estate from tax sales; they may, therefore, insure and good management would demand it, but they are not bound to do so. Where they have the management, they must use due diligence in collecting rents. If they are directed to accumulate the rents, or to receive them for any other purpose, they will become personally liable if they allow the tenants to fall in arrear, and a loss is thus imposed upon the estate.”

As between tenant for life and the remainderman, “The ordinary taxes and expenses in the care and management of the capital are charges on the life estate to be paid out of the income.” Perry on Trusts, supra (section 554). A life tenant, enjoying the income of property must keep it free from incumbrance by paying the ordinary yearly taxes, and a trustee must pay such taxes out of the income of the property taxed. Hagan v. Varney, 147 Ill. 281. It appears, therefore, that the interest of Margaret E. Snyder in the lands described in the fourth paragraph of the will, is the rents, issues and profits of said lands, after deducting the taxes and the other charges proper to be paid by the life tenant or quasi trustee. It is this estate that is made subject to the payment of one-third “of the rents received by her from said premises.” It might well be contended that the life tenant received no rents or no rents, issues and profits until the taxes and other proper charges were fully paid. But it is sought in this case to subject the life tenant to a personal charge to pay one-third of the “gross rents,” not contemplated by the rules of life tenancy, and not so written in the devise. It becomes important to consider just what the word “rent” means in this devise and the constructions given to it by law. “Bent” as a noun is defined: “A profit out of lands and tenements.” (34 Cyc. 1333; Rouse v. Catskill & N. Y. Steam-Boat Co., 59 Hun 80, 13 N. Y. Supp. 126); as a verb, “to grant the right to occupy lands, paying a certain sum therefor. ” (34 Cyc. 1333; Rouse v. Catskill, etc. Steam-Boat Co., supra.) Bouvier has defined rent as: “A certain profit in money, provisions, chattels or labor, issuing out of lands and tenements, in retribution for the use.” Bouvier further defines rent: “A rent somewhat resembles an annuity. Their difference consists in the fact that the former issues out of lands and the latter is a mere personal charge.” And upon this definition of rent clause four of the will may be said to partake partly in rent and partly in annuity, if we concede appellant’s construction to the clause. Blackstone, vol. 2, p. 40, defines rent: “The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgement given for the possession of some corporeal inheritance. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money; for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent. It may also consist in services or manual operations; as to plow so many acres of ground, to attend the king or the lord to the wars, and the like. * * * This profit must also be certain; or that which may be reduced to a certainty by either party.” This question of certainty is amplified in McFarlane v. Williams, 107 Ill. 39. From the uncertainty, in the amount of rent to be paid and the language of the fourth paragraph, it cannot be construed as a reservation of rent to be paid by the life tenant to the son (36 C. J. p. 286, § 1039), and that was not the intent of the testator. The nature of rent is defined in Corpus Juris, vol. 36, p. 288, ¶ 1048 as follows:

“Rent or more accurately, the right to an unaccrued rent, is a species of incorporeal hereditament and is to be classed as real, as distinguished from personal property. It is an interest or estate in land which may be the subject of a grant or devise. Until separated from the reversion, it constitutes a part of the land and passes as incident to a transfer of the reversion. Rents which have become due constitute mere choses in action and are personal property.”

This right, or incorporeal hereditament, under paragraph four in the will, passed by the conveyance from Ervin L. Snyder of the reversion to appellant. This nature of rents to accrue as an interest in lands has been passed upon by the Supreme Court in this State in Scully v. People, 104 Ill. 351: “The lands themselves were all the while taxed. In the valuation of the land itself for taxation there would be included in it, as an element, the value of the use of the land. The rent is but a representative of the use of the land, and taxing such rent against the owner of the land before it has accrued due, and during the same time the land is taxed, appears to be taxing a thing which was covered by the taxation of the land. Rent is defined as a certain profit issuing yearly out of land; and while accruing due to the land owner, is it not embraced in such year’s valuation, assessment and taxation of the land? Had the owner himself personally used and enjoyed the land, it would not be thought such use and enjoyment would be taxable aside from, and in addition to the land. Rent arrear is a chose in action, and would be taxable as a credit; but rent to grow due is a part of the land, — is an incident to it, — and passes as such to a grantee, by a grant of the land.”

From these authorities it is plain that the term “rents” used in the will was used as a noun, and had reference to a profit out of the lands and tenements and that the term was not used as a verb, referring to any particular renting, leasing, or letting of the lands. It is further plain, under the law in Illinois, that the provision in the will constitutes an interest or estate in lands to the extent of all unaccrued rents, which interest should equitably bear its just proportion of the taxes, repairs and necessary charges of the trustee, the same as the interest willed and devised to Margaret E. Snyder, appellee, which, for aught we can see, would be in proportion to the division of rents under the will. Appellee is the life tenant, subject to all the obligations and entitled to all the rights and privileges of a life tenant. In addition, appellee is the trustee of appellant’s interest in the life estate of said lands, and it is the duty of appellee, out of the income from said lands, to first pay the taxes and any other legal and necessary expense chargeable out of the income and proper to be paid by the life tenant before she receives any rents from said ' premises under the terms of the will.

Appellant contends that in any event the allegations of the bill and the prayer entitle appellant to an accounting. The only charge in the bill as to withholding rents is that appellee has. withheld the gross rents and refuses to account to appellant for one-third of the gross rents. This appellee is not required to do.

Finding no error in the judgment of the circuit court of Douglas county, that judgment is affirmed.

Affirmed.