author: Mr. Justice Dove

text:
    Fred A. Nott, Administrator De Bonis Non with the Will Annexed of the Estate of Froila R. Artz, Deceased, Appellee, v. Heitman Trust Company, Executor of the Last Will and Testament of Mattie E. Artz, Deceased, Appellant.
    Gen. No. 9,048.

      Opinion filed May 15, 1936.
    Hershenson & Hershenson and James B. McKeon, all of Chicago, for appellant.
    Seyster, Fearer & Fearer, of Oregon, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

The complaint in this case, as amended, alleged the appointment of the plaintiff as administrator de bonis non with the will annexed of the estate of Froila B>. Artz, who died testate on June 14, 1914, the admission of his will to probate, the appointment and qualification of Mattie E. Artz, surviving widow of the deceased, as executrix, the filing of an inventory by her, the appointment of appraisers, the allotment of a widow’s award in the sum of $2,000, the payment of the general pecuniary legacies, together with the payment of all the claims against the estate and costs of administration and the filing and approval of a final report on -or about December 15,1915. The complaint, as amended, then alleged that the said Mattie E. Artz, as executrix, after the making of her final report, was possessed of an enlarged life estate of all the real and personal property set forth in the inventory returned by her as such executrix, except certain notes and bonds therein mentioned which she had collected and accounted for in her final report. It was then alleged that the fair, cash, market value of the real estate at the date of the death of Froila It. Artz was $20,870 and the value of the personal property was $34,282.82; that the real estate, except certain property in the City of Oregon, Illinois, occupied by Mr. and Mrs. Artz as a homestead, was sold by the surviving widow, who received therefor the sum of about $31,041.25; that on January 29,1934, Mattie E. Artz died testate; that her will was duly admitted to probate and the defendant was duly appointed and qualified as executor of her estate, and that as such executor the defendant filed in the county court an inventory which purports to inventory the property of the estate of Mattie E. Artz, but that all the assets there listed except those designated “goods and chattels” are the property of the plaintiff to be distributed and divided as provided by the last will and testament of Froila R. Artz, deceased.

The complaint as amended then avers that at the time of the death of her husband, the said Mattie E. Artz was not the owner of or possessed of any real or personal estate; that Froila R. Artz was a veteran of the Civil War and after his death his widow received a pension; that at the time of her husband’s death, she and her husband resided in certain described property in the City of Oregon and that thereafter she continued to reside there until her death; that all of the property, real and personal, of Froila R. Artz and the proceeds coming from the sale thereof was not all expended or used by Mattie E. Artz for her support, comfort, needs and desires, but the greater part thereof remained unexpended and should be turned over to the plaintiff by the defendant to be distributed under the provisions of the last will and testament of Froila R. Artz, deceased. The complaint as amended prayed a discovery of all the transactions involving the property of the estate of Froila R. Artz, deceased, during the lifetime of Mattie E. Artz; that the amount of the property to which the plaintiff is entitled be ascertained by the court and that the defendant be required to account to the plaintiff and deliver to him all such property or the value thereof. Attached to the complaint as amended were copies of the will of Froila R. Artz, of the final account of Mattie E. Artz as executrix thereof, of the inventory which she made as such executrix, together with copies of the last will and testament of Mattie E. Artz and of the inventory made by the defendant as her executor.

After a motion to dismiss was denied, the defendant answered admitting many of the allegations of the complaint as amended, but denied that any property which it had inventoried as executor of the estate of Mattie E. Artz belongs to the plaintiff and denied that the plaintiff is entitled to an accounting. By its answer the defendant insisted that under the provisions of the last will of Froila R Artz she, the said Mattie E. Artz, took all the property which she received from her husband as an absolute bequest with the right and power to dispose of the same. After the issues were made up, the cause was referred to the master in chancery, who took the evidence and recommended a decree in accordance with the prayer of the complaint as amended and upon a hearing before the chancellor the report of the master was in most respects approved and a decree rendered finding that Froila it. Artz, under the provisions of his will, gave to his wife Mattie E. Artz an enlarged life estate in all of his property, with power of sale, for her support, comfort, needs and desires, she being the sole judge of what was necessary for her support, comfort, needs and desires. The decree further found that from and after the death of Mattie E. Artz, whatever personal property and the proceeds of real estate which formerly belonged to Froila R. Artz but which she had sold but which remained unexpended, should be divided and distributed in the proportions and to the beneficiaries named in paragraph four of the will of Froila-R. Artz; that the attempt by Mattie E. Artz, by her last will to bequeath to various persons named in her will, the personal property and proceeds of real estate sold by her, in which she had an enlarged life estate and which remained unexpended at her death, was not authorized by the will of Froila R. Artz and said bequests were therefore void and of no effect. The decree further found that Mattie E. Artz was never possessed of any real or personal property in her own right, except her widow’s award allowed out of her husband’s estate, together with the enlarged life estate in the property of her husband given to her under his will and that after the death of Froila R. Artz and after his widow came into possession of his estate, she changed some of the investments and took some in her own name, but that the greater portion of the property of her deceased husband remained after her death and came into the possession of the defendant, as executor of her estate. The decree then directed the defendant to deliver said property to the plaintiff as administrator de bonis non with the will annexed of the estate of Froila R. Artz, deceased, within thirty days from the entry of the decree. To reverse this decree the defendant below has prosecuted this appeal.

The evidence discloses that Froila R. Artz died testate on January 27,1911; that his will was duly admitted to probate and by it he nominated his wife executrix and directed that she serve without being required to give bond. By his will he provided that his debts and funeral expenses should be paid as soon as possible after his death and directed his executrix to pay Rufus B. Artz, Orlando W. Artz and Charles W. Artz, his brothers, each the sum of $1,000 and to his niece, Helen Artz, the sum of $500, within two years after his death. The third and fourth paragraphs of the will are as follows, viz.:

“Paragraph 3.- After making the payments mentioned in paragraphs 1 and 2 of this my last will and testament, I give, devise and bequeath all the rest, residue and remainder of my property of every kind and nature, to my beloved wife, Mattie E. Artz, for and during the term of her natural life, and I will and direct and authorize my said wife, Mattie E. Artz, to sell and transfer any and all of my property, whether real, personal or mixed or any part thereof, and change the form of my investments if in her opinion such sale or change of investment would he of benefit to her and my estate, she. being the sole judge in that respect, either at public or private sale, and to vest the title in the purchaser or purchasers by deed or assignment executed by herself. And I further will and direct that in the event of the income from all my property should be insufficient for the support, comfort, needs and desires of my said wife, then in that event my said wife is directed and authorized to use and expend the principal of my personal property or any part thereof and the proceeds arising from the sale of any real estate owned by me at the time of my death, or any part thereof for her support, comfort, needs and desires. And I further will and direct that my said wife shall not be required in any manner to account for the proceeds of the sale of lands or for the principal of my personal property that shall be used by her for her support, comfort, needs and desires, but she shall have the right to judge for herself how such money shall be expended and the manner in which she shall expend the same, and the amount she shall expend for her support, comfort, needs and desires shall not be questioned by any one, but if any of my personal property or any of the proceeds of land sold by her shall remain unexpended at her death, then I direct that such unexpended personal property or proceeds of lands sold shall be divided among the same persons and in the same proportions and in the same manner as I have hereinafter directed my real estate unsold at the death of my said wife to be divided.

“Paragraph 4. It is my will and I so devise that at the death of my said wife, Mattie E. Artz, so much of the real estate of which I may die seized and possessed as shall at the death of my said wife remain unsold, shall be divided as follows: To my brothers, Eufus B. Artz, Orlando W. Artz and Charles W. Artz, each the undivided one-fifth (1/5) part thereof, and to my sisters-in-law, Jennie McCall and Millicent Scadin, each the undivided one-fifth (1/5) part thereof.”

The evidence further discloses that prior to the death of her husband Mrs. Artz owned no property; that his estate consisted of the property in which they lived in the City of Oregon, together with other city property and a farm of 205 acres, and also stocks, bonds, accounts, notes, secured and unsecured, all of his estate being of the value of at least $50,000. They had no children and after the death of Mr. Artz, Mrs. Artz continued to live in the homestead property until her death. She lived economically and modestly. She was a member of the Presbyterian church and her social activities were few. She had two sisters, Millicent Scadin and Jennie McCall, who were the residuary legatees under her will. The evidence further discloses that the household goods and chattels inventoried by her, as executrix, were appraised at $1,026.25. Her widow’s award was fixed at $2,000 and upon this she selected the goods and chattels at their appraised value and her report shows she paid herself the balance of $973.75 in cash. Prior to the death of Mattie E. Artz, she sold all the real estate except the homestead and received therefor the sum of $31,041.25. She also collected the notes, sold some of the bonds and securities, and reinvested the proceeds derived therefrom and during her widowhood expended very little if any of the corpus of the estate which she received from her husband. Among other stocks and bonds which Mrs. Artz inventoried in her husband’s estate were 50 shares of the capital stock of the Illinois Central Railroad Company and 10 shares of the capital stock of Deere and Company registered in the name of P. R. Artz. The stock in Deere and Company was preferred stock and of the par value of $100. In 1931 Mrs. Artz exchanged this certificate for another one, at the request of the company, receiving in lieu of the old certificate a new one dated January 27, 1931, evidencing that F. R. Artz was the owner of 50 shares of the preferred stock of the company of the par value of $20 per share. At the time of Mrs. Artz’s death, she had possession of these certificates and they were inventoried by appellant as a part of her estate. And appellant also inventoried as her property the stocks, bonds and notes which she acquired during her widowhood with the proceeds derived by her from the sale of the real and personal property which came into her possession after her husband’s death. The evidence further discloses that Mrs. Artz became a depositor in the Oregon State Savings Bank on June 17, 1914, and continued to do business with that bank until it closed in January, 1933. She received dividend checks from various companies, which were made out to her as executrix of the estate of Froila R. Artz, deceased, and she so indorsed and cashed them up until the time of her death, which occurred on January 29, 19.34.

Counsel for appellant state that they did not contend in the lower court and do not insist here that the will of Froila R. Artz vested in Mattie E. Artz a fee or that under its provisions Mattie E. Artz had the right to dispose by her last will of the unexpended property belonging to Froila R. Artz; that their contention is that the plaintiff is not a proper party plaintiff and has no right to sue the personal representative of a deceased executrix; that the estate of Froila R. Artz was fully administered and that upon the termination of the life estate the remaindermen were entitled to possession of the unsold real estate, the personal property and any of the proceeds of the land which was sold by the life tenant which remained unexpended at her death without the appointment of appellee as administrator de bonis non and without any action upon his part. Counsel for appellant further insists that the will of Froila R. Artz created a vested remainder and that upon his death a present, vested interest passed to certain definite named persons whose right of enjoyment was postponed until after the death of the life tenant.

In order to sustain the decree of the chancellor, counsel for appellee insists that this is a suit for discovery and account and that the evidence discloses that the estate of Froila R. Artz had not been fully administered by Mattie E. Artz at the time of her death; that upon the death of Mattie E. Artz, it became necessary under the provisions of the will of Froila R. Artz, deceased, to divide what remained to the persons entitled thereto; that in order to do this an administrator de bonis non with the will annexed was properly appointed and appellee as such administrator was the proper party plaintiff.

The only report ever filed in the county court by Mrs. Artz states that it is a report of her acts and doings as executrix from her appointment to December 16, 1915. Tt disclosed that she had collected $10,084.75 and had paid certain claims, specific legacies, costs and attorneys’ fees, all amounting to $6,933, leaving, as stated in the report, a “balance due” of $3)151.75. There is nothing in* this report which informs the court that she has completed her duties as executrix nor does she ask to be discharged. The report discloses that the executrix signed and swore to it on March 10,1916, and on the same day it was filed by the county clerk and approved by the county judge. No order was ever entered by the county court closing this estate and no order was ever entered discharging Mattie E. Artz as executrix. The statute (chapter 3,' sec. 112, Hurd’s Revised Statutes 1917, in force at the time in question) then provided that “No final settlement shall be made and approved by the court, unless the heirs of the decedent have been notified thereof, in such manner as the court may direct.” This was not done by Mattie E. Artz and the report which she filed was a current report only and not a final one, and it does not purport to be a final report. Furthermore, the evidence is that Mrs. Artz continued long after to receive checks as executrix and so indorsed them and continued to cash them up until the time of her death. The undisputed evidence shows that the estate of Froila R. Artz was not completely administered at the time of Mrs. Artz’s death. There remained in her hands the several certificates evidencing the ownership of 50 shares of the capital stock of Deere and Company and 50 shares of the capital stock of the Illinois Central Railroad Company, all issued in the name of F. R. Artz. There was also in her hands stocks, bonds and notes which had been purchased by her with the proceeds derived by her from the collection of notes and the sales of securities and land which came into her possession at the time of the death of her husband. The total value of these, according to the inventory, is $21,005.74. The object sought by the complaint herein is a discovery and an accounting of the assets of the estate of Froila R. Artz, which had come into the hands of Mattie E. Artz, either as executrix or as life tenant. Until she was discharged as executrix she could not be said to have held the property as life tenant, but irrespective of the capacity in which she held it, the fact is that under the provisions of her will she sought to dispose of it and appellant, as her executor, inventoried it as her property. The law is that what remains after a life estate is ended is no part of the life tenant’s estate, Kinney v. Keplinger, 172 Ill. 449, and as the will of Froila R. Artz provided that his unexpended estate should be distributed as provided by his will, we know of no more satisfactory way for this to be brought about than by appellee, acting under the "supervision of the probate court of Ogle county. We are clearly of the opinion that appellee, under the facts as shown by this record, properly instituted this proceeding.

Counsel for appellant, however, cite the case of Miller v. Miller, 232 Ill. App. 86, and insist that under the holding in that case the distribution to Mattie E. Artz as life tenant was a distribution to the remainder-men mentioned in section 4 of the Froila B. Artz will and that it must necessarily follow that such remaindermen must seek their legacies or devises from the estate of Mattie E. Artz, the life tenant. The Miller case was a proceeding brought in the county court under sections 81 and 82 of the Administration Act by the executors of the last will of Samuel S. Miller, deceased, against Fred S. Miller, executor of the estate of Mary C. Miller, deceased, to procure possession of certain personal property. ' In that case it appeared that the life tenant (Mary C. Miller) had receipted in detail for the property in which she had a life estate and the final report had been approved, but the executors of the estate of Samuel S. Miller, deceased, had not been discharged. Upon the death of Mary C. Miller, her executor, Fred S. Miller, inventoried all the property which she had receipted for or property substituted for it and in the proceeding had in the county court for possession he answered that he was holding such property subject to the trust interest therein of the children of Samuel S. Miller. The court held that a distribution to the life tenant was a distribution to the remaindermen. In the Miller case the property was definite and fixed and the executor of the life tenant’s estate did not claim it as part of her estate but said he was holding it in trust for the remaindermen while in the instant case the remainder-men could not obtain their interest against the life tenant’s estate, as it is not definitely shown what property remained, and what it consisted of and here the executor of the life tenant insists that he is holding it only as executor of her estate. Furthermore, in the instant case the Froila B. Artz estate was not closed as required by law, but the life tenant continued to act as executrix until the time of her death. There was no distribution to her as life tenant, and if not there was no distribution to the remaindermen.

Irrespective of what is said in Miller v. Miller, supra, our Supreme Court has recognized that a complaint similar to the instant one is proper. Rock Island Bank & Trust Co. v. Rhoads, 353 Ill. 131. It appeared in that case that James F. Bobinson died testate in 1902. The provisions of his will were in some respects similar to the provisions of the will of Froila B. Artz. His wife Mary E. Bobinson was appointed executrix and she continued to serve until her death in 1929. Her will was admitted to probate and her brother was appointed executor thereof. The will of James F. Bobinson provided that after the death of his wife, the Central Trust and Savings Bank, predecessor to and later the Bock Island Bank and Trust Company, should become executor. This bank as executor made a demand upon Bhoads individually and as executor of the last will of Mary E. Bobinson for an accounting and for certain property as the corpus of the estate of James F. Bobinson remaining at the time of the death of Mary E. Bobinson, the life tenant. Certain property was turned over by Bhoads to the bank, but Bhoads denied that the bank was entitled to any accounting and thereupon the bank instituted suit against Bhoads individually and as executor, praying for a discovery of the books, records and accounts covering the period of the life tenancy in order to ascertain the amount of the corpus to which the complainant bank as executor of the will of James F. Robinson was entitled. The defendants answered denying the right to an accounting and alleging that the corpus of the estate of James F. Robinson had been theretofore accounted for and turned over to the bank. That such a proceeding was proper was not questioned and the court construed the will of James F. Robinson and held, among other things, that where a testator gave his wife a life estate in all of his real and personal property, with full power to dispose of the same if necessary for her comfort and satisfaction in life, that the wife thereby acquired no power to dispose of the residue of the corpus but that whatever remained of the principal of the husband’s estate would go to the remaindermen. Counsel for appellant seek to distinguish the instant case from the Rhoads case in that the will of the testator in the Rhoads case appointed the bank his executor after the death of his wife. It is true that the will of Froila R. Artz did not nominate anyone to act as his executor after the death of his wife, but our statute, eh. 3, sec. 37 [fl 38], Ill. State Bar Stats. 1935, expressly provides that if there is anything remaining to be performed in the execution of the will, the county court shall grant letters of administration with the will annexed to administer the estate of the deceased not already administered. The evidence in the instant case discloses that there is property of which Froila R. Artz died the owner of, which has never been administered and appellee was therefore properly appointed administrator de bonis non with the will annexed. The evidence is further that appellant is in possession of this unadministered property. Appellant, as executor of Mattie E. Artz, does not succeed to the estate which she was administering at the time of her death. Kinney v. Keplinger, 172 Ill. 449. And as there are unadministered assets in the Froila R. Artz estate, it is the duty of his administrator de bonis non to ascertain just what the unadministered assets consist of, reduce them into his possession and then distribute them as provided by his will and make a proper final settlement of his estate as provided by law, and we know of no more appropriate proceeding in which this can be done than by filing a complaint in equity as was done in the instant case.

. ‘ The existence of a remedy at law does not deprive equity of jurisdiction unless such remedy be adequate. That is, it must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” McGinniss v. First Nat. Bank, 214 III. App. 295.

The decree of the chancellor is affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    George C. Dixon, Trustee Under the Last Will and Testament of Kate B. Steward, Deceased, Appellant, v. Ernest M. Nefstead and Fred Bennett, Appellees. Edgar C. Cook, Appellant, v. Ernest M. Nefstead, Appellee.
    Gen. No. 9,053.

      Opinion filed May 15, 1936.
    Robert L. Bracken and H. C. Warner, both of Dixon, for appellant.
    Edward E. Wingert, of Dixon, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

George C. Dixon, trustee under the last will and testament of Kate B. Steward, deceased, instituted a forcible detainer proceeding against Ernest M. Nefstead and Fred Bennett to obtain possession of a certain tract of land in Lee county, Illinois. This suit was begun on April 1, 1935, before a justice of the peace and subsequently appealed to the county court of Lee county. Prior to that time and on March 14, 1935, Edgar C. Cook had also instituted a forcible detainer proceeding against said Ernest M. Nefstead in a justice court to obtain possession of certain other lands in Lee county. This case was also appealed to the county court and in that court the cases were consolidated and upon a hearing before the court a judgment was rendered for the defendants and from that judgment this appeal has been prosecuted.

It appears from the record that Kate B. Steward died March 4, 1932, leaving a last will which was proven and duly admitted to probate in the county court of Lee county on April 18, 1932. By the terms of her will she nominated Bertha Steward her executrix and provided that in the event Bertha Steward did not survive the testatrix, that then she nominated the People’s Loan and Trust Company of Rochelle, Illinois as her executor. The evidence discloses that Bertha Steward predeceased the testatrix and that the trust company was closed and in the process of being liquidated at the time of Mrs. Steward’s death, and Martin D. Barnett was by the county court of Lee county duly appointed administrator with the will annexed and letters were issued to him on April 18, 1932.

On October 1, 1917, the testatrix leased one of the tracts of land involved herein to appellee, Ernest Kefstead, the tenancy to begin on March 1, 1918 and end on March 1, 1919. Mr. Kef stead continued to occupy the land year after year under the provisions of the lease and was so occupying the land at the time of Mrs. Steward’s death. On May 11, 1932, Barnett, as such administrator, petitioned and obtained an order from the county court authorizing him to rent the lands belonging to the decedent and on August 30, 1932, he leased this tract and another tract also involved herein to Kef stead for a term of two years commencing March 1, 1933, and ending March 1, 1935. Sometime after March 1, 1935, Barnett orally leased the same premises to Kefstead under the same arrangements that had previously existed and he was so in possession of the premises at the time these proceedings were instituted.

On September 8, 1933, Ruth Ravnass, a niece of Mrs. Steward, filed her complaint in the circuit court of Lee county invoking the jurisdiction of that court and asking for the appointment of a trustee to sell the real estate and carry out the provisions of Mrs. Steward’s will. Barnett, as administrator, was made a party defendant as were also the heirs, legatees and other interested parties. Barnett, as administrator, entered his appearance and filed an answer and later a cross-hill, which was afterwards amended. Subsequently one of the residuary legatees, the' Berry Schools, a corporation, by leave of court, Decame a party plaintiff and the complaint was amended, answers were filed and after the issues had been made up, a final decree was entered on January 24, 1934.

This decree recites that it is a consent decree so far as the adult parties thereto are concerned and then after finding the usual jurisdictional facts, finds, among other things, that on March 4, 1932, Kate B. Steward died testate, that her will was duly admitted to probate, that the said Martin D. Barnett had been duly appointed administrator with the will annexed by the county court of Lee county and that as such administrator he was without power to sell and convert the real estate (which is fully set forth and described in the decree) into cash for the purpose of carrying out the terms of said will. The decree then set forth the pertinent paragraphs of Mrs. Steward’s will, by the eighth paragraph of which she directed that her entire estate should be converted into cash and after such conversion it should be divided equally between three charitable institutions, The Agard Deaconess Best Home of the Methodist Episcopal Church, Lake Bluff, Illinois, The Lake Bluff Orphanage and The Berry Schools of Mount Berry, Georgia. The decree then found that a trust exists in said estate, subject to legal claims and costs of administration, that the existence of said trust is not dependent upon the termination of probate proceedings, that a trustee should be appointed to control and manage the lands, pay the taxes, collect the rents and that the trustee should be vested with title to all the lands subject to the probate proceedings in the Kate B. Steward estate and should be authorized and directed to sell and convert the same into cash and pay out the proceeds in accordance with the terms of the last will of Mrs. Steward. The decree then found that the said Martin D. Barnett, administrator with the will annexed of the estate of Kate B. Steward, deceased, has no right to the possession or control of, or to collect the rents from any part of the real estate in the decree described, and appointed appellant, Dixon, trustee under the will of Kate B. Steward, vested him with legal title to all of said real estate and directed him to sell the real estate at public or private sale, subject to the approval of the court. The decree also directed the trustee to rent the real estate for not to exceed one year, collect the rents, pay the taxes, make the necessary repairs, manage the property, keep the buildings properly insured and take any necessary steps to obtain possession of said property and oust anyone illegally in possession, employ counsel, and after the conversion of the property into cash, that then the trustee pay the specific legacies and divide the remainder as directed by the will of Mrs. Steward.

The evidence further discloses that on August 24, 1934, Dixon, as trustee, entered into an agreement with appellant, Edgar C. Cook, by the provisions of which he agreed to sell to Cook and Cook agreed to buy one of the tracts of land involved herein. It further appears from the evidence that on September 10, 1934, appropriate notices were served on Nefstead and on Bennett, who .was, as we understand the record, in possession of one of the tracts of land under Nefstead, to vacate said premises on March 1, 1935, and not having done so, these proceedings ■ were instituted.

There is no question upon this record as to the sufficiency of the notices or service thereof for terminating the tenancies of appellees. Counsel for both parties agree that, the only question presented by the record for determination is a question of law and that is whether appellants, at the time their suits were instituted, were entitled to possession of the premises described in their complaints? Appellants contend that Barnett, as administrator with the will annexed, had no power to manage or control the real estate owned by Mrs. Steward at the time of her death, other than to sell the same for the payment of her debts; that the will of Mrs. Steward created a trust, that the decree of the circuit court appointing appellant Dixon trustee was properly entered, that the defense interposed herein is a collateral attack upon that decree and cannot prevail, that the order entered by the county court authorizing Barnett to manage the real estate involved herein is void and without force and effect as it purports to grant him powers commensurate with that of a trustee and this could only be done by the circuit court, and such powers were granted to appellant by the decree of the circuit court in the proceedings to which Barnett was a party and as appellees claim under him, they are likewise bound by that decree. It is the contention of appellees that the nature, extent and kind of trust fund which appellant Dixon was decreed to administer and control cannot be definitely ascertained until the final report of Barnett, the administrator with the .will annexed, has been filed and approved by the county court, and that until that is done, he, Dixon, is a trustee de son tort, without any power to take possession of said real estate and hence since the estate of Mrs. Steward is still pending and unsettled in the county court, all the acts of Dixon, as truste'e, are premature, void and of no effect. Appellees furtker insist that as to the right of appellant Cook to institute this suit that the evidence discloses he has not fully complied with his contract of purchase and until he has he is not entitled to a deed and not being entitled to a deed he is not entitled to recover possession of the property described in his complaint.

Counsel for appellees argue that appellees never were tenants of appellants, but that they are tenants of Martin D. Barnett, administrator, and that, in leasing to appellees, Barnett acted under the authority of the county court, that the trustee has no right to anticipate that certain property will not be required for administrative purposes and that it is unprecedented for a trustee to act as such until administration has terminated and cite Rahe v. Jobusch, 197 Ill. App. 200; Fenton v. Hall, 235 Ill. 552; Brinkerhoff v. Huntley, 223 Ill. App. 591; Wylie v. Bushnell, 277 Ill. 484, and Teater v. Salander, 305 Ill. 17. We have examined these cases but in our opinion they do not sustain appellees’ contention and are not applicable to the facts disclosed by this record.

Martin D. Barnett, as administrator with the will annexed of the estate of Kate B. Steward, deceased, took no interest in the real estate of the testatrix by virtue of that appointment. In Harding v. LeMoyne, 114 Ill. 65, it is stated that in the absence of an insufficiency of personal assets to pay the debts of the deceased, the administrator has no more to do with the real estate of the deceased than a stranger having no connection with the estate. In Penn v. Fogler, 182 Ill. 76, it was said: “The duties and powers which are imposed upon an executor as- a trustee are in the nature of a personal trust or confidence reposed in him by the executor and do not devolve upon the administrator with the will annexed, inasmuch as they can not be delegated.” In Frackelton v. Masters, 249 Ill. 30, it appeared that the testator nominated his sons executors of Ms will. They declined to qualify and Charles C. Frackelton was appointed administrator with the will annexed and subsequently filed a petition in the circuit court for the appointment of a trustee to sell certain real estate of the testator in accordance with the provisions of his will which directed Ms executors to sell his real estate and divide the proceeds thereof, together with accrued rents, to his children and grandchildren. In the course of its opinion the court said: “Here the proceeds of the real estate were to be distributed by the administrator with the will annexed, under the terms of the will, among the devisees named therein, and tMs could not be done without converting the real estate into money, and as the administrator with the will annexed could not make a sale (Nicoll v. Scott, 99 Ill. 529; Hall v. Irwin, 2 Gilm. 176) the appointment of a trustee was necessary.” This case also held that the Act of 1909 to extend the jurisdiction of probate and county courts to include the administration of testamentary trusts was invalid, and it has been frequently held that such courts have no general equitable jurisdiction but can only exercise equitable power within the zone conferred by the constitution. In re Estate of Shanks, 282 Ill. App. 1, and cases therein cited.

The will of Kate B. Steward created a trust and in a proceeding in the court which had exclusive jurisdiction of such cases, that court having acquired jurisdiction of the subject matter by proper petition and having acquired jurisdiction of all the interested parties, including Barnett, the administrator, as well as the heirs and devisees of the testatrix, and after a full hearing entered a decree on January 24, 1934, appointing appellant, Dixon, trustee and- vesting the title to the real estate in controversy here in him. That decree then directed him as to his duties and in effect expressly authorized him to institute this proceeding. The order upon which appellee relies was entered by the county court on May 11, 1932, upon the petition of Martin D. Barnett, administrator with the will annexed. This order found that it was, at that time, for the best interests of the estate that some person be authorized and appointed to manage the real estate and ordered that Barnett should have that power, that he should pay the taxes, including the 1931 taxes, should maintain the property in necessary repair, keep the premises insured, buy the necessary seed and employ the necessary labor, sell the produce and livestock and make leases or other arrangements for the rental of the real estate and that Barnett should continue in the capacity of manager until the further order of this court. Barnett was not appointed by Mrs. Steward’s will to administer this trust, but was acting under appointment of the county court as administrator with the will annexed. The county court has no chancery powers and no authority to administer trusts. McDonough v. Gage, 357 Ill. 466; Brinkerhoff v. Huntley, supra. Under the authorities herein cited the circuit court has exclusive jurisdiction and the decree of the circuit court entered on January 24, 1934, which was a consent decree so far as Barnett was concerned, vested the legal title to the premises involved herein in appellant Dixon, and authorized and empowered him to institute and maintain the instant proceedings.

The evidence discloses that appellant, Cook, paid Dixon at the time of the execution of the contract of purchase the sum of $10,000 and by the agreement was to pay the balance of the purchase price, amounting to $18,000, on March 1, 1935, at which time he was to have possession of the property described in the contract. Spero v. Shapiro, 162 Ill. App. 603, holds that a vendee who has become the equitable owner of the premises described in his contract of purchase may maintain forcible detainer even though the legal title has not been conveyed to him. We find it unnecessary however to pass upon that question, as the record discloses that no objection was urged in the trial court to appellant Cook’s right to maintain this action.

We are clearly of the opinion that there is no merit in appellees’ contentions and that under the undisputed facts as they appear in this record, appellants are entitled to recover possession of these premises and the lower court erred in rendering the judgment appealed from. That judgment is therefore reversed and this cause is remanded to the trial court with directions to render judgment for the plaintiffs below, appellants in this court.

Reversed and remanded with directions.


author: Mr. Presiding Justice Soanlan

text:
    McKesson-Fuller-Morrisson Company, Appellee, v. Chapell Ice Cream Company, Inc., Appellant.
    Gen. No. 38,376.

      Opinion filed May 26, 1936.
    Rehearing denied and additional opinion filed June 12, 1936.
    I. J. Berkson, of Chicago, for appellant; Eugene A. Weinberg, of Chicago, of counsel.
    Siebel & Siebel, of Chicago, for appellee; A. F. W. Siebel and Arthur F. Siebel, of counsel.
   Mr. Presiding Justice Soanlan

delivered the opinion of the court.

Plaintiff sued defendant in trover for the conversion of certain personal property. The trial court found defendant guilty of conversion upon the pleadings, then tried the issue of damages, and assessed the value of the fixtures at the time of the conversion at $1,350. From a judgment for that amount defendant appeals. •

Both sides concede that the questions before us arise out of the pleadings. The trial court ruled that the only question of fact under the pleadings was the fair market value of the fixtures sold by defendant. Plaintiff’s amended complaint alleges that on August 26, 1932, one J. H. Power gave it a chattel mortgage for $5,200, which covered certain drug store fixtures; that the mortgage was given to secure 26 chattel mortgage notes for the aggregate sum of $5,200, executed the same day, each note being for the sum of $200, the first due on September 26, 1932, “and each of said series of notes maturing thereafter consecutively on the 26th day of each month thereafter until paid”; that on July 24, 1934, Power was in default in payments and plaintiff declared the entire balance, $5,212.72, due; that on August 24, 1934, defendant unlawfully took possession of the chattels and converted them to its own use. Defendant’s amended answer alleges that said Power gave defendant a chattel mortgage, on May 14, 1931, covering the same fixtures, which matured on May 14, 1934; that on May 9, 1934, defendant executed an affidavit of extension and recorded it on May 10, 1934; that on July 23, 1934, Power filed his voluntary petition in bankruptcy in the United States District Court for this District; that on July 24, 1934, defendant, without actual knowledge of the bankruptcy proceedings, took possession of the chattels, under its chattel mortgage, and instituted chattel mortgage foreclosure proceedings by posting and serving notices, which fixed July 27, 1934, as the date of sale of the chattels; that on July 27, 1934, before the sale could take place, the District Court appointed a receiver of all of the assets of Power and issued an order restraining defendant from proceeding with the sale, and directing that all of the goods, chattels and other assets of the estate of Power be turned over to the receiver; that the receiver then took actual possession of the chattels; that thereafter defendant presented its reclamation petition to the District Court, and on August 24, 1934, that court entered an order dissolving the restraining order and directing the receiver to disclaim any and all further interest in the property; that on the same day, after the entry of that order, defendant took possession of the chattels, foreclosed under its chattel mortgage, and sold the chattels for $1,950 on August 27, 1934. The amended answer further alleges that plaintiff had actual knowledge of the existence and maintenance of defendant’s chattel mortgage prior to the time when it took its junior mortgage from Power, and that plaintiff had actual notice and knowledge of the date, time and place of the chattel mortgage sale on August 27, 1934.

The trial court sustained plaintiff’s contention that under the statute an affidavit for extension of a chattel mortgage must be filed for record after the maturity of the mortgage, and that an extension affidavit executed and filed before the maturity of the debt is a nullity and does not extend the lien. Defendant contends that the court erred in this ruling, and argues that “an affidavit for extension of a chattel mortgage is effective as against junior mortgagees when filed for record before the maturity of the prior mortgage. ’ ’

Sec. 4, par. 4, ch. 95, Ill. State Bar Stats. 1935, provides:

“No mortgage ... of personal property . . . shall be valid as against the creditors of the mortgagor, even though admitted to record . . . unless it shall be deposited for filing or recording . . . within ten days of its execution, and any such mortgage . . . not deposited . . . within ten days . . . shall be fraudulent and void as to such creditors. Such mortgage . . . shall thereupon ... be good and valid from the time it is received for filing or recording until ninety days after the maturity of the entire debt or obligation or until ninety days after an extension of the time of payment thereof made as hereinafter provided: Provided, that such maturity shall not exceed three years from the receipt of such instrument for filing or recording unless within ninety days after the expiration of said three years, or if the debt or obligation matures within such three years, then within ninety days after the maturity of said debt or obliga tion, the mortgagor and mortgagee, his, her, its or their agent or agents . . . shall deposit for filing* or recording in the office of the recorder of deeds . . . an affidavit setting forth particularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time when the same shall become due by extension or otherwise, ivhich affidavit shall be recorded or filed . . . and thereupon the mortgage lien originally acquired shall be continued and extended until ninety days after the expiration of such period of extension of the time of payment: Provided, such extension of the time of payment shall not exceed one year from the receipt of such affidavit.”

Our Supreme Court has frequently stated that the statute relating* to chattel mortgages is in derogation of the common law and must be strictly construed.

11 The time within which a chattel mortgage must be refiled or renewed is fixed by the statutory provision requiring such refiling or renewal. Such provisions must be strictly complied with. Where a certain period, such as thirty days, is given within which to refile a mortgage, any effort to renew the record before the period commences is ineffectual, and it has been held that refiling after the period has elapsed is likewise of no avail, and that no revival of the mortgag'e is possible after a default in refiling.” (11 C. J. 545, sec. 237.)

“A refiling of a mortgage must be effected within the time limited for that purpose. It is nugatory if done either before or after that time. ... If the refiling be not done in strict compliance with the statute, the mortgage becomes void as against creditors and bona fide purchasers and mortgagees, and cannot be revived. ... A refiling is necessary although such purchasers and creditors have knowledge that the mortgage has not been fully discharged and satisfied. ’ ’ (Bowers Ed. of Jones on Chat. Mtgs. (1933), Sec. 287.)

In Ferris v. Chambers, 51 Colo. 368, the court held that an attempt to extend, pursuant to the statute, the right given by it in mortgaged chattels remaining in possession of the mortgagor, must strictly pursue the statute, and that the period prescribed by the phrase “within thirty days after the maturity of the last installment of the indebtedness” in sec. 520 Rev. Stat. of Colorado, begins with the day succeeding the day of maturity; that an extension granted on the day of maturity is premature, and a purchaser of the mortgaged chattels from the mortgagor, after the lapse of 30 days from the maturity of the mortgage indebtedness, takes free of the lien of the mortgage, notwithstanding such attempted- extension.

In another Colorado case, First Nat. Bank of Las Animas v. O’Connell, 77 Colo. 275, the court held that the attempted extension of a chattel mortgage before the maturity of the mortgage indebtedness is premature and without effect under the statute. In its opinion the court said (p. 277):

“It is clear that there was no extension of the chattel mortgage. The attempted extension was premature, and the lien of the mortgage, as to third persons, ceased to exist after the lapse of thirty days from the maturity of the note secured by the mortgage. Ferris v. Chambers, 51 Colo. 368, 117 Pac. 994.

“There was, ‘therefore, at the date of the sale at which defendant purchased the property, no lien by virtue of the chattel mortgage, so far as the record thereof gave notice, on any of the property purchased by him, which affected him, although the mortgage was good as between the original parties.

“The plaintiff’s contention that defendant had actual notice of the existence of the mortgage at the time he purchased at the sale, and therefore he is not an innocent purchaser, cannot be sustained.

“In the circumstances of this case the defendant did not, and could not, have actual notice of a valid and existing mortgage, but could only have had actual notice of a mortgage which as to him had become void, and as to him was void at the time of the sale.”

In Biteler v. Baldwin, 42 Ohio St. 125, the law of Ohio required a refiling within 30 days immediately preceding the maturity of the debt. The court held that a refiling before the commencement of the 30 days was unavailing. (See also National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 13, 27; Bower v. Popp, 241 Ill. App. 568, 574; In re Smith, 198 Fed. 876, 877.) None of the five cases cited by defendant (Cary-Lombard Lumber Co. v. Fullenwider, 150 Ill. 629; Hamilton v. Seeger, 75 Ill. App. 599; Fuller v. Smith, 71 Ill. App. 576; Davies v. Miller, 130 U. S. 284 ; French v. Powell, 135 Cal. 636) supports its contention. It seems plain to us, from a reading of the statute, that the trial court ruled correctly in holding* that the extension affidavit executed and filed before the maturity of the debt was not in compliance with the statute. Defendant filed no affidavit of extension after the maturity of the debt: had it done so a different question would have been presented.

The act provides that a chattel mortgage shall be good and valid from the time it is filed for record until 90 days after the maturity of the entire debt or obligation. Defendant contends that if it be held that the trial court did not err in sustaining plaintiff’s position that the affidavit for extension was invalid and a nullity, nevertheless, the time in which the injunction was in force and the chattels were in the possession of the receiver is not to be included in computing* the 90 days fixed by the statute in which the chattel mortgage shall be good and valid; that the rights of defendant, under the act, were the same on the day that the District Court dissolved the injunction and surrendered possession of the chattels as they were on the day that court assumed exclusive jurisdiction of the chattels, and that, therefore, the foreclosure proceedings brought by defendant on August 24, 1934, and the sale held thereunder on August 27, 1934, were, in contemplation of the law, within the 90-day period and therefore valid. When the injunctional order was entered and the receiver took possession of the chattels, the bankruptcy court had exclusive jurisdiction of the chattels and it was impossible for defendant to obtain possession of them and to foreclose while that order remained in force. Defendant instituted foreclosure proceedings on July 24, 1934, which was 71 days after the maturity of the indebtedness, and but for the injunctional order the sale would have taken place on July 27, 1934, and defendant would then have perfected its title within the 90-day period. The amended answer alleges that plaintiff, at the time it took its mortgage, not only had constructive knowledge, but actual knowledge, that there was on record a valid chattel mortgage in which defendant was the mortgagee. It is clear that the equities are all with defendant, and the present contention should be sustained, unless settled law precludes us from so holding.

It is somewhat surprising that neither side is able to cite a case directly in point. Plaintiff fails to meet the issue raised by the contention. In answer to the contention it merely repeats its argument that defendant’s chattel mortgage was invalid and a nullity because it was not extended in accordance with the requirements of the statute and that the bankruptcy proceedings did not obviate the necessity of such extension, and it cites cases that support its argument but that do not apply to the instant contention of defendant, which assumes that the affidavit of extension was invalid and a nullity. Defendant cites In re Grosse, 24 F. (2d) 305, and In re Lake County Fuel & Supply Co., 70 F. (2d) 391. In the first case, after the maturity of the chattel mortgage debt, but within the 90-day period, the mortgagor filed his voluntary petition in bankruptcy. After the 90-day period had passed the mortgagee intervened in the bankruptcy proceedings to assert his rights under the chattel mortgage. The court held that the rights of the mortgagee had been fixed as of the date of the filing of the bankruptcy petition and the appointment of the trustee. It is true, as plaintiff argues, that in that case the parties stipulated, and the referee ordered, that the sale of the chattels proceed under the direction of the trustee and that the latter hold the proceeds without prejudice to the rights of either party. In the second case cited by defendant a creditor had secured a judgment without procuring the issuance of an execution within a year after the entry of the judgment. An involuntary petition in bankruptcy was filed against the debtor more than one year after the date of the judgment, and without applying for the issuance of an execution on his judgment the judgment creditor intervened in the bankruptcy court and claimed a lien on the bankrupt’s real estate under the Illinois statute, which makes a judgment a lien on real estate for one year if no execution is issued. In its opinion the court said:

“Assuming, as we do, that a court of bankruptcy has exclusive jurisdiction of the estate of the bankrupt and its administration and that such jurisdiction begins with the filing of the petition of creditors for an adjudication and such filing is a caveat to all the world, it necessarily follows that the issuance of an execution upon an outstanding judgment which is a lien upon the real estate of the bankrupt, in order to keep such judgment lien alive after the petition is filed in the court of bankruptcy, is either a futile, an idle gesture, ceremonial in character, or an indirect assault upon the exclusive jurisdiction of the court of bankruptcy. A judgment creditor need do neither to preserve his lien, which was in effect when the petition in bankruptcy was filed.”

It seems to us that it would be a serious reflection upon our procedure if the rights given defendant by the statute could be taken away from it by the action of the District Court. Justice, as well as common sense, forbids such an interpretation of the law. We hold that the instant contention of defendant is a meritorious one and that defendant, at the time of the sale on August 27, 1934, had a valid lien upon the chattels in question, which was paramount to plaintiff’s lien. If we are right in this conclusion it follows- that the trial court erred in finding defendant guilty of conversion, upon the pleadings.

Defendant strenuously contends that “the holder of a junior chattel mortgage with full knowledge of the existence of a prior chattel mortgage is estopped to question.its validity,” but we do not deem it necessary to pass upon this contention.

The judgment of the circuit court of Cook county is reversed, and judgment will be entered here for defendant for costs.

Judgment reversed and judgment here for defendant for costs.

Sullivan and Friend, JJ., concur.

Additional Opinion Upon Petition for Rehearing.

Plaintiff in its petition for a rehearing states that “neither the bankruptcy Act nor the restraining order issued prohibited defendant from suing”; that “no ‘action’ was enjoined”; and that “in this case no suit was commenced” by defendant.

It was not necessary for defendant to foreclose in a court of record. On July 24,1934, defendant took possession of the chattels and proceeded, under sec. 2, par. 28 of the Mortgages Act. Just before the time fixed for the sale the order of the United States District Court restrained defendant from proceeding with the sale and directed that all of the chattels be turned over to the receiver of that court, and thereupon the receiver took actual possession of the chattels. When the United States District Court entered the order dissolving the restraining order it did not direct the receiver to turn back the property to the defendant, but ordered him to disclaim any and all further interest in the property. The defendant was compelled to again take possession of the chattels and to again foreclose under section 2. But for the in junctional order the sale would have taken place on July 27, 1934, and defendant would then have perfected its title within the 90-day period. We adhere to the conclusion we reached in our opinion, that the rights of defendant, under the act, were the same on the day that the United States District Court dissolved the injunction and the receiver disclaimed all interest in the chattels, as they were on the day that court assumed exclusive jurisdiction of the chattels, and that the foreclosure proceedings brought by defendant on August 24, 1934, and the sale held thereunder on August 27, 1934, were, in contemplation of the law, within the 90-day period and therefore valid.

Plaintiff’s petition for a rehearing is denied.

Petition for rehearing denied.

Sullivan and Friend, JJ., concur.


author: Mr. Justice Friend delivered

text:
    The Trust Company of Chicago, Guardian of the Estate of Charles Brokovich, a Minor, Appellant, v. The New York Central Railroad Company, Appellee.
    Gen. No. 38,356.

      Opinion filed May 26, 1936.
    Lloyd T. Bailey, of Chicago, for appellant.
    Sidney C. Murray, Marvin A. Jersild and Harold E. Christensen, all of Chicago, for appellee.
   Mr. Justice Friend delivered

the opinion of the court.

In an action brought to recover damages for personal injuries suffered by plaintiff’s minor, the trial court, upon the conclusion of plaintiff’s evidence, peremptorily instructed the jury to return a verdict finding defendant not guilty and entered judgment accordingly. Plaintiff appeals.

The essential facts disclose that in the late afternoon of May 1, 1933, Charles Brokovich, then 14 years of age, proceeded to defendant’s railroad station located along the tracks between 92nd and 93rd streets on South Chicago avenue in Chicago to purchase for his father a monthly railroad ticket for use on defendant’s trains. The boy proceeded to the station over a path frequently traveled by the public in the neighborhood, accompanied by another boy, named Perusich. In so doing he saved about two blocks walk but was required to travel over a path along the railroad embankment, cross a railroad bridge carrying the tracks above and over 93rd street, proceed in a northerly direction along the right of way, walk diagonally across the Pennsylvania railroad tracks and several eastbonnd New York Central railroad tracks, all of which were on an elevated embankment, before reaching the train platform. From this platform access to the station proper, where tickets were sold,, was secured by means .of stairways and a tunnel. After reaching the station, Brokovich purchased and paid for the ticket and then went back up to the station platform through the tunnel and along the stairways, intending, as defendant argues, to return by the same route over which he came. It was raining, and the boys took refuge in the shelter shed on the station platform which was commonly used by passengers waiting for trains. While there the shelter house collapsed and blew over upon Brokovich, severely injuring him.

The declaration filed by plaintiff consisted of five counts. The first count charged defendant with a failure in its duty to maintain its platforms and shelters in a reasonably safe condition for plaintiff’s minor, who was then using the same lawfully and upon the platform and in the shelter as an invitee of defendant. The second count charged defendant with a failure in its duty to properly maintain its platform and shelter for the protection of plaintiff’s minor, who was then a guest and invitee upon the platform of defendant. The third count charged a violation of a like duty on the part of defendant in failing to properly erect, control and maintain the building and shelter at the station in a safe condition for the use of its guests, passengers and invitees. The fourth count charged that the defendant invited its guests and passengers and invitees to use and receive the benefits of this shelter shed, and that defendant negligently and carelessly allowed the roof cover and shelter to become old and dilapidated and in a generally dangerous condition. The fifth and last count, which was filed by leave of court at the time of the trial, charged that the defendant maintained the roadbeds and other railroad equipment, including the shelter and station, and that it became the duty of defendant to maintain the same in a reasonably safe condition, but that it failed in this regard and wilfully, wantonly and maliciously maintained the platform and shelter in a wholly dangerous and unsafe condition so that it became old and decayed and while plaintiff’s minor was an invitee and a guest at the station and about the shelter the roof thereof gave way, crashed and fell to the ground, injuring plaintiff’s minor.

It appears from the evidence that Brokovich had gone to defendant’s station for the purpose of purchasing a ticket for his father. He described the route by which he arrived at the train platform, testified that he then proceeded to the office where he purchased a ticket, and then came back up the stairway to the platform. “It was raining that day and was kind of windy,” and so the boys stepped into the shelter house. Almost immediately thereafter the structure collapsed and Brokovich was severely injured. He was taken to a hospital, where he remained for about two weeks under the care of defendant’s physician, and for several months thereafter he continued to receive medical attention by various physicians.

The principal issue involved is whether defendant owed Brokovich any duty to protect him at the time and place of his injury. Defendant’s position is stated in its brief as follows:

“Brokovich was an invitee while he was purchasing the ticket for his father, and he would have remained such invitee, if he had left the station through the means of egress afforded by the defendant, until he was off its premises. But he chose to follow an exit not provided by the defendant in order to save two or three blocks. That means of egress took him to the train platform as to which his implied invitation did not extend. That platform was for persons arriving and leaving on trains. It was not used for the transaction of business such as selling tickets.” In other words, it is conceded that plaintiff’s minor was an invitee on defendant’s property at the time he purchased the ticket, and that if he had followed the exit to the street immediately thereafter and had been injured in so doing defendant would have been liable in damages, but it is argued that when he proceeded to the station platform along the tunnel and up the stairway provided for that purpose for passengers on incoming and outgoing trains, he thereupon immediately became either a licensee or a trespasser, to whom defendant owed no duty except to refrain from inflicting upon him wilful or wanton injury. That seems to us to be a rather narrow view of the duty owing to persons who are rightfully present on railroad property and one that cannot be sustained by the current weight of authority. The reason for the presence of plaintiff’s minor on the station platform is at best a matter of conjecture. Plaintiff’s counsel argues that he evidently intended to return home by the same route over which he came, and defendant’s counsel seems willing to have us indulge in that presumption. There is no direct evidence bearing on that question, however, and we think it relatively unimportant. The essential fact is that Brokovich came to the station upon legitimate business in which both he and the defendant had a mutual interest. While there he had a right to move about the depot and premises within reasonable bounds and was entitled to receive the protection of defendant for his own safety. It is not unusual or unnatural for a lad of 14 to move about the station house and property of a railroad company under circumstances such as these, and in this instance he traveled along the passage regularly provided for passengers using the station and those who had an implied invitation to use the premises. It has been generally held that depots, grounds and passenger houses are not strictly private property but are places where persons may resort without permission for the purpose of transacting business with the company or with the employees of the company, for the purpose of meeting friends or others arriving on trains or to see others depart, and to pass over the same in going from one part of the city to another.

“Such grounds are made quasi public, by the general use to which they are appropriated. In populous cities, such grounds, from necessity, must be kept open to public use to a limited extent. . . . When they permit the people to pass over their grounds, and invite the public to transact business with them on these grounds, they thereby tacitly license persons to come upon and pass over them, and persons do not become trespassers by doing so in a proper manner.” (Illinois Cent. R. Co. v. Hammer, 72 Ill. 347, 349.)

In Newberry v. Baltimore & O. T. R. Co., 223 Ill. App. 304, plaintiff was injured while at a railroad depot where she had gone to accompany her son, who was departing on a train. The court said (p. 307):

“If the presence of plaintiff upon the premises was due to an invitation from the owner, express or implied, and not by mere permission, it became the owner’s duty to keep the premises in a reasonably safe condition. (Milauskis v. Terminal Ry. Co., 286 Ill. 547.) . . . This liability for injuries arising from its negligence extends not only to passengers but also to those who are on the premises for the purpose of welcoming or bidding farewell to passengers. Hamilton v. Texas & Pac. Ry. Co., 64 Tex. 251; Doss v. Missouri, K. & T. Ry. Co., 59 Mo. 27; Klugherz v. Chicago, M. & St. P. Ry. Co., 90 Minn. 17. The obligation arises from the public character of such corporations and the duties resulting from their acceptance of a charter from the State. It exists as to all who are rightfully upon the premises. Tobin v. Portland, S. & P. Ry. Co., 59 Maine 183.”

In Neice v. Chicago & Alton R. Co., 254 Ill. 595, it was said (p. 603):

“Upon the right of way of the railroad where the public are not invited or authorized to go for the transaction of business with the railroad company, those in charge of the train must have knowledge both of the presence of the trespasser and of his dangerous situation, but depot grounds and platforms provided by the railroad company for the use of the public in the transaction of its business, where persons have a right to be for legitimate purposes and where they may reasonably be expected, are quite different. If they are there for a legitimate purpose in connection with the business of the company they have a right to demand the exercise of reasonable care for their safety. If they are simply idlers, loiterers or trespassers the duty of the company is only to abstain from wilfully or wantonly injuring them. But the duty is owing to an indeterminate part of the public generally, and if there is a disregard of that duty, one of the general public who happens to be in such position as to be the sufferer from the violation of the duty will have a right of action for any injury he sustains.”

Defendant’s counsel takes the position, however, and the court evidently agreed with them, that the implied invitation which it is conceded Brokovich had in connection with the purchase of a ticket for his father did not extend to the train platform where he was injured. We cannot agree with this view of the duty owing to persons rightfully present on railroad property. Plaintiff’s minor was in no sense a trespasser, he was not a loiterer, nor was he wandering about the station in dangerous places not intended for the general public. When injured he was taking shelter on the train platform provided for the public for that purpose, and he was not obliged, as defendant contends, to immediately leave the station by one of the exits provided for that purpose. In Pauckner v. Wakem, 231 Ill. 276, defendants conducted a general warehouse business in the city of Chicago. The Chicago Tribune had certain pieces of machinery stored in defendant’s warehouse and sent plaintiff and another of their employees there to secure the machínery required, which was inclosed and stored in boxes. One of the warehouse attendants showed plaintiff where the goods were kept and pointed out to him the nearby door through which the boxes could be removed. At this point appellee asked permission to use defendant’s washroom, and while proceeding there through a passageway in another part of the warehouse, fell down the elevator shaft and was injured. Judgment was rendered in plaintiff’s favor and affirmed by both the Appellate and Supreme Courts. In the course of its opinion the Supreme Court said that “the owner of premises owes no duty to exercise ordinary care to keep the same in a reasonably safe condition to persons who may be upon such premises as mere licensees,” but that if plaintiff “was on the premises at the time and place of the accident by the invitation, either express or implied, of defendants,

they owed him the duty to exercise ordinary care for his safety while upon said premises.” It also stated in the opinion that the “invitation to appellee was to go into the warehouse to get such goods belonging to his employer as were wanted, and for this purpose the invitation must be held broad enough to give appellee the protection of the law while lawfully upon that portion of the premises reasonably embraced within the object of his visit.” Defendant adopts the language thus employed to fortify its argument that the object of Brolcovich’s visit to the station was to purchase a ticket, and that “by no stretch of the imagination did that include going up the stairway and on to the train platform.” We prefer to place the broader construction upon the doctrine thus invoked to meet the ends of justice and to hold that Brokovich’s presence in the platform shelter was reasonably embraced within the object of his visit to the station. Since railroad station property is of a quasi public nature and plaintiff’s minor was admittedly there on legitimate business, his status as an invitee remained unchanged up to the time of the injury. We think he did not overstep the bounds of the use of ' the premises to which his implied invitation entitled him.

In Southern Ry. Co. v. Myrick, 12 Ga. App. 241, plaintiff had gone to the railroad station to wait for a train on which he expected the arrival of certain passengers. He learned that the train would be 30 minutes late and decided to pass the intervening time at the home of a friend who lived nearby. He went around the station office near the side door of the freight room and proceeded down the steps at this point, it being the nearest way from the platform to his destination. There were no lights on the stairway and he stumbled over some skids used for loading and unloading’ cars. There was evidence tending to show that the steps he took in descending from the platform had been used by the public. In affirming judgment in his favor, the court said (p. 244):

“It must be conceded that plaintiff was at the station and in the waiting room and on the platform for a lawful purpose. He was there protected by the implied invitation of the company to meet a passenger on an expected train, . . . and in leaving the platform he had the right to make use of any means of egress from the waiting room, over the platform that was used by the public for that purpose. Unquestionably, it would have been better for him to have used the steps leading into the waiting room that he had used in coming to the station, but he was not necessarily guilty of negligence because he used other steps leading from the platform, if these steps were means for ingress and egress provided by the company for passengers or the public generally who had business with the railroad company; . . . ”

A considerable portion of the briefs on both sides is devoted to the question whether the court erred in excluding evidence tending to show that the approach to the station over the Pennsylvania tracks and defendant’s right of way had for many years been continuously and frequently used by persons in the neighborhood traveling on defendant’s trains, and the legal question as to the relationship of such persons to defendant; that is, whether they were trespassers or licensees. In the view that we take, the determination of this question is immaterial, because plaintiff’s minor was not injured in approaching the station. The vital question in the case is whether his implied invitation in connection with the purchase of the ticket for his father extended to the use of the train platform where he was injured. After careful consideration of the authorities we conclude that while at the station he was at all times an invitee, and as such, and as “an indeterminate part of the public generally,” he was lawfully present on the station grounds and private property of defendant and therefore entitled to the protection which the law affords persons of .that class, to keep the premises in a reasonably safe condition.

It follows from what we have said that the court erred in peremptorily instructing the jury in defendant’s favor. Therefore the judgment of the superior court will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Scanlan, P. J., and Sullivan, J., concur.


text:
    In re Estate of Frederick R. Whipple, Deceased. Cora E. Heintz, Appellee, v. Frank Z. Ames, Executor of the Estate of Fredrick R. Whipple, Deceased, Appellant.
    Gen. No. 38,415.

      Opinion filed May 26, 1936.
    Rehearing denied June 12, 1936.
    Andreen, Winstin & Mead, of Chicago, and Hunter, Kavanagh & McLaughlin, of Peoria, for appellant.
    Erich E. Pacyna, of Chicago, for appellee.
   Mr. Justice Friend delivered

the opinion of the court.

Within the year allowed for filing claims in the probate court, Cora E. Heintz, claimant, filed her claim against the estate of Frederick R. Whipple, deceased, for money due and owing on certain interest notes secured by a mortgage on real estate. After the expiration of one year the probate court permitted her to amend the claim by including the principal mortgage note, which did not mature until after the expiration of the year' allowed for filing claims, and also certain unpaid extension interest notes. The executor appealed to the circuit court from the order thus entered, where the cause was heard by the court de novo without a jury, and the order of the probate court allowing the filing of the amended claim was sustained. The executor appeals.

Upon the hearing in the circuit court the parties entered into a stipulation of facts, which may briefly be summarized as follows: That on October 10, 1933, letters testamentary were issued to Frank Z. Ames, as executor of the estate of Frederick R. Whipple, deceased; that an order fixing claim day in said estate was duly entered and notice thereof given by publication and posting, as required by statute; that an inventory of the estate was duly filed and approved, and that there are no known assets in the estate other than those listed in the original inventory; that on June 6, 1934, being within one year after the date of the issuance of letters testamentary, Cora E. Heintz filed her claim for three extension second mortgage notes, of $300 each, together with interest thereon, secured by a second mortgage on real estate owned by decedent during his lifetime, a copy of which is as follows:

“State of Illinois )

Cook County ) SS‘

“Probate Court of Cook County.

“Cora E. Heintz, being duly sworn, deposes and says that the annexed claim against the estate of Dr. Frederick R. Whipple, deceased, is just and unpaid after allowing for all just credits and that there is money due and owing to her on attached extended interest notes marked Exhibits ‘A,’ ‘B’ and ‘O’ the sum of $940; that she has no other claim against said estate except the extended principal note and remaining. unpaid extension interest notes.

“(Signed) Cora E. Heintz.

“Subscribed and sworn to before me this 4th day of June, A. D. 1934.

“(Signed) Erich E. Pacyna,

Notary Public.”

It was further stipulated that on October 31, 1934, being more than one year after the date of the issuance of letters testamentary, and pursuant to notice served on the executor, she obtained leave of the probate court to file instanter her amended claim for the total balance of $10,000 due on a second mortgage principal note against the same property securing the extension interest notes, and also for moneys which had become due on three additional extension interest notes for $300 each.

It was stipulated by the parties that “the only question involved in this proceeding is the right of said claimant, Cora E. Heintz, after the expiration of one year from the date of issuance of letters testamentary in this estate, to amend her original claim. . . . ”

With reference to the filing of claims against the estate of deceased persons, and the time within which they may be filed, the Administration Act (sec. 70, par. 71, ch. 3, Cahill’s 1933 Ill. Rev. Statutes) provides, in part, as follows:

“ . . . All claims and demands of whatever class not exhibited to the court within one year from the granting of letters as aforesaid shall be forever barred as to property and estate of the deceased which has been inventoried or accounted for by the executor or administrator ; . . . ”

The executor urges six separate points as ground for reversal, but we think the parties have by stipulation eliminated from consideration all questions except the one really involved, namely, whether claimant had the right, after the expiration of one year from the date of the issuance of letters testamentary, to amend her original claim as filed. Claimant argues that the statement in her original claim “that she has no other claim against said estate except the extended principal note and remaining unpaid ■extension interest notes,” sufficiently reserved her right to amend the claim even after the expiration of one year, upon the theory that the language employed apprised the court and the executor that she had a further claim for principal and interest. It is conceded that the mortgage note holder may pursue three remedies, concurrently or consecutively, to enforce the payment of his debt; he may sue the mortgagor in assumpsit for a judgment on the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an-action of ejectment. In the case of a deceased’s estate he may file his claim in the probate court in lieu of the first remedy. (Rohrer v. Deatherage, 336 Ill. 450.) In the original claim filed, the statement is made that claimant has no other claim ag’ainst the estate than the sum of $940, evidenced by extended interest notes “A,” “B” and “0” for $300 each, together with interest thereon, and while it is inferentially stated that another claim exists for the extended principal note and the remaining extended interest notes, nothing appears therein to suggest that claimant intended to present to the probate court for allowance the principal note and remaining extension interest notes. In view of the other remedies available to claimant under Rohrer v. Deatherage, supra, it may just as well be presumed that she intended to enforce the payment of the principal indebtedness and remaining extension interest notes by foreclosure or otherwise.

Counsel for claimant cites several cases wherein amendments of claims filed in the probate court were allowed after the expiration of a year. One of these cases involves the claim of Cyrus S. Baton and Selden E. Kline, copartners doing business as Otis & Co., against the estate of John W. Marshall, deceased, opinion No. 37,462, Appellate Court for this district. (Not published, abstracted in 278 Ill. App. 630.) In that case Otis & Co. had filed a claim against the decedent estate within the year, but no hearing thereon was had until the year had expired. Claimants then filed a petition for leave to have Eaton and Kline, the remaining partners of Otis & Co., substituted as claimants and have the claim allowed in their own proper names rather than that of Otis & Co., which was used as a trade name. The probate court and the circuit court on appeal both disallowed the motion. The Appellate Court reversed the order of the circuit court and allowed the amendment, on the ground that it did not constitute the filing of a hew claim but simply permitted the prosecution of the same claim with the proper claimants substituted for the firm under which the claim was inaptly filed.

In other cases cited the question usually presented for consideration to the reviewing court was whether the amended claim constituted a new cause of action.

In Dulaney v. Payne, 101 Ill. 325, the court had under consideration a suit brought on a promissory note due one year after date with interest at 10 per cent, payable semiannually. Several days after- the due date of the note suit was brought thereon, and in bar of the action there was pleaded a judgment rendered against defendants and in favor of plaintiffs more than two years after the date of the note. Upon an examination of the judgment which had been pleaded it appeared that it was for interest and did not purport to include principal (although the principal was overdue at the time the judgment for interest was entered). In discussing the question under consideration the 'court held that the promise to pay interest and the promise to pay principal were two separate demands and separate causes of action could be brought for each. In Wehrly v. Morfoot, 103 Ill. 183, the court reaffirmed its decision in the Dulaney v. Payne case, supra, by stating that it was “precisely covered by the decision of this court at the last term in Dulaney v. Payne,” and that “a promise to pay a debt at one time and the interest at another, was to be construed as containing distinct promises giving several causes of action, and they being several in their origin, no subsequent act could make them one and entire.” No cases pertinent to the facts in this proceeding are cited to the contrary, and under the authority of the foregoing decisions the rule seems to be well settled in this State that a note for principal and another for interest must be construed as containing distinct promises constituting different causes of action.

In line with this conclusion, claimant was barred by the Administration Act (Cahill’s Ill. Rev. St. 1933, eh. 3, sec. 70, ft 71) from asserting what clearly appears to be a new cause of action, after the expiration of the year allowed for filing claims, and she could not, under the authority of Carlin v. City of Chicago, 262 Ill. 564, amend her claim after the running of the statute by including a new cause of action therein.

It is urged by claimant that the new Civil Practice Act governs the probate and county courts of Illinois, and should permit her “to sustain the claim for which it is intended to be brought.” (Illinois State Bar Stats. 1935, ch. 110, sec. 46, H174.) This provision was evidently intended to afford parties the right to take advantage of defects in form, such as the improper statement of a claim, but it was not intended to nullify the one-year limitation provided in the Administration Act and to permit amendments after the running of the statute, setting up entirely new causes of action.

If claimant had intended or desired to file her claim for the principal sum and the additional extension notes in the probate court rather than to exercise her right by way of foreclosure or ejectment, she could have done so under sec. 67 of the Administration Act, even though the principal note and additional extension interest notes had not matured within the year, and her failure so to do at the time she filed claim for extension notes “A,” “B” and “0,” or at any time within the year, indicates an election or decision on her part to enforce the balance of the mortgage debt in some other manner.

During the pendency of this cause claimant' filed a motion in this court to dismiss the appeal, which was reserved to the hearing of the cause. The motion was predicated upon rule 1 of the Appellate Court rules, and also the decision in West Side Trust & Savings Bank v. Damond, 280 Ill. App. 343, relating to the time within which a report of proceedings or an agreed statement of facts are required to be filed. Inasmuch as the parties included in the record on appeal their stipulation of facts, which was' filed within the 60 days provided by the rules of this court, we think the point is without merit and the motion is denied.

For the reasons stated the order of the circuit court allowing the amended claim to be filed is reversed and the cause remanded with directions to disallow the amendment of the claim.

Reversed and remanded with directions.

Scanlan, P. J., and Sullivan, J., concur.