text:
    Addie Chamblin, Appellee, v. New York Life Insurance Company, Appellant.

      Opinion filed November 8, 1937.
    Rehearing denied December 10, 1937.
    Kramer, Campbell, Costello & Wieohert and Norman J. .Qundlaoh, both of East St. Lonis, for appellant.
    Louis Beasley and Edward C. Zulley, both of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

This action is brought upon the double indemnity provisions of a life insurance policy issued by defendant to Frank L. Chamblin, now deceased, in which plaintiff was named as beneficiary. The policy was in the amount of $2,000, with a provision for double indemnity if death of insured should result directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means, and not from any physical or mental infirmity, or directly or indirectly from illness or disease of any kind. The face of the policy was paid, but the double indemnity was contested.

Defendant moved to dismiss the action, alleging that the complaint did not set forth facts showing how, when or in what manner deceased suffered accidental and violent injury causing his death, and that only conclusions as to such matters were pleaded. This motion was overruled. Defendant thereupon answered, denying the averments relative to double indemnity, and also denying that proofs of loss were furnished.

Trial by jury was waived and the cause submitted to the court, who after a hearing rendered judgment for plaintiff in the sum of $2,083.33 and costs of suit, which defendant seeks to reverse by this appeal.

Numerous alleged errors are argued both as to matters of law and fact. Defendant contends that error was committed in overruling its motion to dismiss the action. Motions to dismiss are based upon sec. 48 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 172; Jones Ill. Stats. Ann. 104.048, which enumerates nine grounds therefor, none of which are set forth in defendant’s motion.

The motion averred three reasons: 1st, that no facts are set up showing how, when or in what manner deceased suffered an accidental injury causing his death; 2nd, that the complaint does not aver sufficient facts showing how, when and in what manner such accidental injury was occasioned; and 3rd, that all the allegations that would fix defendant’s liability are not averments of facts, but mere conclusions.

It is thus seen that the gist of the motion went not to the right of plaintiff to maintain the suit, but merely to the1 sufficiency of the allegations in the complaint as a statement of a cause of action. If defendant conceived that it was deficient for such reason, it properly might have moved for a bill of particulars under sec. 37 of the Act, Ill. Rev; Stat. 1937, ch. 110, § 161; Jones Ill. Stats. Ann. 104.037, which provides for the grant of such where the pleading is wanting in details, or could have moved the court to order a fuller or more particular statement under sec. 42, Ill. Rev. Stat. 1937, ch. 110, § 166; J ones Ill. Stats. Ann. 104.042. This it did not do. Moreover, par. 2 of sec. 42 provides that “No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet. ’ ’

The complaint charged “that Frank L. Chamblin died on, to wit, January 14,1936, and that the death of the said insured, Frank L. Chamblin, resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means, and that such death of the said Frank L. Chamblin occurred within sixty days after sustaining such injuries.” This we think was sufficient to reasonably inform defendant of the nature of plaintiff’s claim. If defendant desired more detailed information, or a fuller statement, it should have moved for same under either said sec. 37 or sec. 42.

Plaintiff, to establish the fact that proofs of death were made, called as a witness, under sec. 60 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060, one of the attorneys for defendant, who testified that such proofs had been made. It is insisted that such attorney was not the adverse party, nor an officer, director or managing agent of defendant corporation, and that the trial court erred in admitting such testimony.

We do not find that any objection was made as to the competency of the witness for the purpose for which he was called. Not to have questioned it in the trial court, the defendant is precluded from raising the proposition on review, People v. Hager, 249 Ill. 603; Forster v. Sheridan Trust & Savings Bank, 257 Ill. App. 463. In any event it appears that at the close of all the evidence counsel for defendant stated of record, in open court: “It is agreed that the interest on $2,000 from the time proofs of loss were furnished in this case to the estate at the rate of 5 per cent per annum, is $83.33.” This is an admission that proofs of death were made, and a sufficient warrant for the trial court to so hold.

Defendant further urges that certain physicians were permitted to testify on behalf of plaintiff, in response to hypothetical questions, which, in instances, either included elements not appearing in evidence, or lacked important and essential items of proof.

Dr. De Haan and Dr. Meyer were both asked a lengthy hypothetical question as to whether there was any causal connection between the claimed injury and Chamblin’s death. No objection was made to either that the question included unproven elements, or that it lacked facts shown by the testimony, and as to these the contention is therefore unavailing.

The same question was propounded to Dr. Bisele, to which defendant objected upon the ground that it incorporated some facts and conditions not shown by the evidence. The objection, however, did not specifically point out what unproven facts were contained in the interrogatory, and failing so to do the objection was properly overruled, Peter v. Cohen, 176 Ill. App. 58; City of Aledo v. Honeyman, 108 Ill. App. 536.

While Dr. Gfradwohl was on the stand he was asked the same question, whereupon defendant objected as follows: “I would like to make the same objection I made before, plus the fact that the question is not in the proper form, in that it invades the province of the Court in determining this matter and incorporates some conditions which have not been proven.” Again the objector failed to specify what elements it contained that did not appear of record, hence was obnoxious to the decisions previously cited. Relative to the objection to its form as being a usurpation of the court’s duty to determine the facts, the question appears to be framed in conformity with the established rule in this State, Squire-Dingee Co. v. Industrial Board, 281 Ill. 359; Fuhry v. Chicago City Ry. Co., 239 Ill. 532; Chicago City Ry. Co. v. Foster, 128 Ill. App. 571.

The principal ground urged for a reversal of the judgment is that the court’s finding is not sustained by the evidence.

Deceased was employed as a clerk by the Illinois Power & Light Company at Belleville, Illinois. Among others, it was his duty to periodically inventory the contents of the storeroom. On December 23, 1935, he was using a traveling ladder 8 or 10 feet high in order to check the contents of some bins which were as high as the ladder, there being also some other bins which were about 3% feet in height. While so doing, in some manner he fell, striking with his back one of the bins on the floor with such force as to break one of the one-inch boards forming the top of one of the bins. He was immediately thereafter seen in a standing posture, holding both hands just above the hips. Prior to the accident deceased had been a rugged, healthy man who worked regularly at his employment and after hours did carpenter and other work around his home. He returned to his desk and worked the remainder of the day, and upon arrival at his home that evening, went to bed without supper, and remained there for two days, thereafter he went back to work and so continued until January 10,1936, when he died. Dr. Byan treated him intermittently between the dates of injury and death. On January 9,1936, after work, he went to the Knights of Columbus hall where he bowled several games. He arrived home about 11:30 o’clock, went to bed, was taken ill at about one o’clock in the morning and died within a few hours.

There was proof that prior to the injury deceased had been very active and did a great deal of work about the house, but that after such event he walked slower, did not appear to be as mentally alert as previously, and appeared to be lacking* in Ms former spirit, Ms appetite failed to some extent and lie had difficulty in sleeping, though before the fall he had been a sound sleeper, and that when he walked, after the injury, he generally had his hand upon his side. Following Ms death an autopsy was had, which disclosed that the cause of death was an occlusion of the right coronary artery on account of a blood clot.

Defendant earnestly contends that the proof fails to establish that this coronary occlusion was attributable to the injury which deceased sustained as a result of his fall. The proof bearing* upon this proposition was necessarily that of physicians. Four experts called by plaintiff testified that in their opinion the injury sustained on December 23, 1935, or 16 days prior to his death, was sufficient to cause the occlusion. Five physicians on behalf of defendant gave it as their opimon that the coronary occlusion could not have resulted from the fall.

Dr. Ryan, one of defendant’s expert witnesses, when cross-examined, stated that there would be a possibility that the injury which deceased received on December 23,1935, might have caused the clot or occlusion of the artery, and that where coronary occlusion is caused by trauma the person might live for months. Another of defendant’s witnesses, Dr. Thompson, testified that there are at least two types of coronary occlusion, one slow and progressive, and the other sudden and complete. Dr. Cannady, also for defendant, stated that it is possible for any case of coronary occlusion to live for two or three weeks, or even longer, and then die from such trouble.

The expert proof bearing upon the vital question, being in conflict, it was for the trial judge, sitting without a jury, to find the fact, wMch he must do largely from the credibility of the witnesses and the weight to be attached to their testimony, People v. Ristau, 363 Ill. 583, 589.

It is further the rule that where the testimony merely conflicts, the reviewing court may not substitute its judgment for that of the trial court. People v. Overbey, 362 Ill. 488; People v. Martishuis, 361 Ill. 178. In order to warrant interference with the finding it must appear that the judgment is contrary to the manifest weight of the evidence, Kuehne v. Malach, 286 Ill. 120; Tarjan v. Regelin, 202 Ill. App. 320; Union Foundry Works v. Columbia Iron & Steel Co., 112 Ill. App. 183.

From a careful consideration of the record of testimony in this case we cannot say that the trial judge’s finding of fact is manifestly or palpably against the weight of the evidence.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Murphy

license: Public Domain

text:
    Lee Fyffe and Cynthia Holsen, Appellees, v. Charles Fyffe, et al., Appellees. International Oil & Gas Company, Appellant.

      Opinion filed November 8, 1937.
    McGaughey & McGaughey, of Lawrenceville, and P. J. Kolb and Walter F. Kolb, of Mt. Carmel, for appellant.
    Gee & Shaw, of Lawrenceville, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.

The land which furnishes the subject matter of this litigation consists of 38.71 acres located in Lawrence county and was owned by Ella Fyffe at the time of her death in 1893. She died intestate and left her surviving Charles Fyffe, her husband and four children, Grace, Roy, Pearl and Julia as her only heirs. In 1896, Charles Fyffe remarried and Lee Fyffe, Cynthia Fyffe now Holsen and Fred Fyffe, appellees herein, were the only children of that marriage. Pearl and Julia, children of the first marriage died intestate in April 1905, unmarried, leaving their father, the brother and sister of the first marriage and appellees as their heirs.

In 1906, Charles Fyffe, individually and as guardian of Roy and Grace who were then minors, executed an oil and gas lease to C. L. Wise. The lease granted and conveyed to the lessee all the oil and gas in and under -said premises and granted the exclusive right to enter and drill for wells, to erect and maintain buildings and other equipment necessary in the development and operation of the wells. The lessors were to have one-eighth of the oil produced and provision was made for payment for gas. The lease was for a period of five years and as long thereafter as oil and gas were produced. A well was to be developed within 180 days or the lessee was to pay one dollar per acre each year that the completion of the well was delayed.

The lessee, Wise, assigned his interest in the lease and by successive assignments the International Oil and G-as Company, appellant herein, became the owner of an undivided one-half interest in said lease in March 1907. On the trial it was stipulated that appellant has since 1911 operated the lands and sold all of the working interest oil and after paying the expenses distributed the money to the other owners of the lease. A number of wells were developed and large quantities of oil and gas have been taken out covering a period from 1907 when the first well began to produce to the institution of this suit in August 1931.

Lee Fyffe and Cynthia Holsen, two of the three appellees, filed a bill for partition of the lands and for an accounting of the oil and gas taken. Charles Fyffe, Boy and Grace, the surviving children of the first marriage, Fred Fyffe, International Oil and Gas Company and other oil companies engaged in the purchase and transportation of oil and gas, were made defendants. The title of appellees as tenants in common was contested by Boy Fyffe arid G-race Denison on the grounds that their interest was barred by the 20-year statute of limitations but a decree was entered finding that Lee, Cynthia and Fred, children of the second marriage each had a 2/28th’s interest subject to the dower of their father and on appeal by Boy Fyffe and Grace Denison that decree was affirmed. Fyffe v. Fyffe, 350 Ill. 620.

After the decree was affirmed by the Supreme Court, the case was referred to a special master who stated an account. A decree was entered ordering* partition and finding that there was due from appellant to each of appellees the sum of $5,237.83. This appeal is from that decree and involves questions in reference to the accounting feature of the litigation. The suit having been instituted prior to the adoption of the Civil Practice Act all pleadings have been filed under the former chancery practice.

When the cause was redoclceted in the trial court for further proceedings appellant, resisting* appellees demand for an accounting, asked leave to file an amendéd answer which specially pleaded the five-year statute of limitations. The court reserved ruling* on appellant’s motion until after the special master’s report was filed and then denied leave to file it.

On this appeal appellant contends that the five-year Limitations Act was applicable and the court’s ruling denying it leave to file the amended answer deprived it of that defense. Appellees contend that the original decree entered 1932 was a final decree on the question of appellant’s liability to account and that since appellant did not appeal from such decree it is final and appellant waived the right to plead the five-year Limitations Act.

The bill alleged the execution of the lease March 22, 1906, by Charles Fyffe, individually and as guardian for Roy Fyffe and Grace Fyffe to C. L. Wise, assignments of the lease by Wise and various successive assignments vesting* the title to part of the lease in appellant. It alleged the development of the wells and the productions of oil and gas by appellant and the sale of it to certain other companies who were made parties defendant. It was alleged that oil and gas had been produced since 1906 but that appellant had produced and marketed oil and gas from the premises since June 11, 1911. The prayer was for partition of the lands and accounting for rents and profits and for oil and gas produced from said premises.

Appellant’s answer admitted the execution of the lease, alleged various successive assignments of the leasehold interest leading to its title and ownership of a part thereof. It was alleged that it had paid to its lessors the one-eighth part of the oil and gas provided for in the lease, that it did not know until April, 1931, that the appellees had any interest in the lands, that they expended large sums of money developing the wells and pumping the oil, that the appellees lived in the vicinity of the wells and never made any protest or claim of interest and that therefore they had been guilty of laches. It neither admitted nor denied the complainants’ allegations of heirship but prayed strict proof, alleged that it and its predecessors in title had been in possession under said lease from 1906 to April, 1931, without knowledge of complainants’ interest that they acted in good faith and under the belief that the lessors named in the lease were the sole owners of the premises, that such possession had been open, visible and exclusive. The answer was amended specifically pleading the 20-year statute of limitations.

Evidence was heard before the court and a decree entered finding that Charles Fyffe farmed the lands prior to the development of the oil wells, that the premises were unimproved with buildings at that time, that Charles Fyffe executed an oil and gas lease in 1906, that the appellant became the owner of it in 1907 and has since that date operated the wells and produced oil and gas which have been marketed in large quantities, that the records of the amounts and prices is in the custody of the defendants, that in order to fix and determine the rights of complainants with reference to the defendants, that an account be taken between the parties. The decree ordered that an account be taken “between the parties hereto with reference to the rents and profits that have issued or arisen from said above described premises, including all oil and gas . . . that have been produced and marketed from said premises, and that the said accounting shall be taken between the parties hereto, as between the complainants and the defendants,” It ordered that defendants produce the books, records, etc. and that said accounting shall be taken by this court “that this court reserves the determination of all matters touching the said accounting until after the same has been taken and due consideration thereof has been had.” The appellant did not perfect an appeal from that decree.

A decree is final and appealable only when it terminates the litigation between all the parties on the merits so that when it is affirmed the court below has only to proceed with its execution. A decree is final and appealable even though incidental matters may be reserved for consideration and it directs a reference to a master to state an account. Free v. The Successful Merchant, 342 Ill. 27; Eich v. Czervonko, 330 Ill. 455.

In Barnes v. American Brake-Beam Co., 238 Ill. 582. it was held that a decree for an accounting which fixes the complainants’ rights as to some of the defendants but reserves for final consideration the question of the liability of some other defendants is merely interlocutory. In Gray v. Ames, 220 Ill. 251, the decree contained findings of fact as to some of the items involved in the accounting and ordered that the parties produce before the master all books and papers relating to the accounting and specified four subject matters of accounting, It was held that the decree was interlocutory and not a final appealable decree. In Hynes v. Jennings, 262 Ill. 268, which was a suit for partition and accounting, the decree contained findings of fact in reference to the collection of rents by certain tenants in common and then concluded that the matter of the accounting should be reserved in toto for the future consideration of the court and it was held that the decree was interlocutory and not appealable. In Smith v. Bunge, 358 Ill. 229, 231, it was said, “A final decree is one which fully decides and finally disposes of the rights of the parties to the cause. Where accounts are to be settled between the parties and the decree contains an order of reference by which the accounts are to be stated according to certain principles fixed by the decree the decree is final, but where the chancellor fails to fix the principle by which the accounts are to be stated and future judicial action and discretion on his part are contemplated and necessary,- or where some equity different from the equities involved in the accounting remains for further adjudication, then such decree is interlocutory, unless the status of the account or matter to be thereafter determined is apart from the other equities involved.”

In Quayle v. Guild, 83 Ill. 553, the court reversed a decree for an accounting between copartners. The answer among other things alleged the statute of limitations. On the second appeal, 91 Ill. 378, appellees contended that the former decree was final on the question of liability to account and that the application of the Limitations Act was not before the court on the second appeal. The court held the first decree to be interlocutory as against the defense of the statute of limitations. On page 390 the court said, “Where the suit is for an account, all the evidence necessary to be read at the hearing is that which proves the defendant to be an accounting party, and then the decree to account follows of course; and any evidence as to the particular items of an account, however useful they may be in a subsequent stage of the cause, would be irrelevant at the original hearing. 2 Dan. Oh. Pr. (Perkins’ ed.) 854. The Statute of Limitations was set up here in the answer. When so set up, defendant can not have that part of his answer constituting a distinct and substantive bar disposed of before the cause is ready for hearing on all the pleadings and proofs. McLin v. McNamara, 1 Dév. & Batt. 408. Hence, the only proper time for passing upon the defence of the statute was not until after the account had been taken, and at the final hearing. There could not have been made a proper application of the Statute of Limitations to the case until there had been a statement of the details of the account.”

Under the principles announced in these cases we hold that the decree of January, 1932, was not final as to the Limitations Act appellant sought to plead.

On the former appeal Boy and Grace contended that appellees’ rights as tenants in common were barred by the 20-year statute of limitations but the Supreme Court held that under the relationship as it existed between appellees and their father, brother and sister, the statute did not begin to run until appellees attained their ages of majority and since the suit was started within 20 years from those dates their rights were not barred.

As tenants in common each had an equal right with his cotenants to enter upon the whole land and every part of it and his possession was not unlawful so long as he did not exclude his cotenant. The interest of each cotenant could be conveyed and each had the right to grant a lessee the right of possession in the common property, subject to the limitation that he could not grant to a lessee any greater right of possession than he himself possessed. One cotenant could not by lease grant to hi's lessee any right that would interfere with the rights of his cotenant.

The lease which was given to appellant purported on its face to grant to it all the oil and gas in and under said premises with the exclusive right to enter thereon at all times to drill and operate wells for oil and gas, to erect buildings, pipe lines and other appliances deemed necessary or convenient for the production of oil and gas save and except that lessors were to have one-eighth part of all oil produced and saved. Although the lease purports to grant all the oil and gas and exclusive possession, it was not binding on appellees and was void as far as their interests were concerned. Zeigler v. Brenneman, 237 Ill. 15.

There is a conflict in authorities as to the right of one tenant in common to grant to a third party the right to take oil and gas from the common property, Prairie Oil & Gas Co. v. Allen, 2 F. (2d) 566, 40 A. L. R. 1388; Earp v. Mid-Continent Petroleum Corp., 167 Okla. 86, 27 P. (2d) 855, 91 A. L. R. 188, but under the authority of Murray v. Haverty, 70 Ill. 318 and Zeigler v. Brenneman, supra, we are of the opinion that no such right rests in a tenant in common in this State. However in this case the oil and gas has been removed from the common property without the consent of appellees and we are only concerned with the rights of accounting on an equitable basis.

Sec. 1, ch. 2, Cahill’s Ill. Rev. St. 1933, ft 2, which was in force when this suit was instituted, provided that where one or more tenants in common in real estate or any interest therein shall take and use the property or benefits thereof in greater proportion than his or their interest, he shall be required to account.

In Wolkau v. Wolkau, 202 Ill. App. 387, in an action of an accounting between tenants in common the defendant pleaded the five-year statute of limitations. It was held that the statute did not begin to run against the party instituting the suit, until there was a demand for an accounting and a refusal or a repudiation of the tenancy.

If the five-year Limitations Act would not start to run against a cotenant in án action for accounting* by one cotenant against the other until there was a refusal following a demand or a repudiation of the tenancy, we cannot perceive how a lessee of such cotenant could equitably claim the benefit of the statute except upon the same conditions his lessor might assert it. If the rule were otherwise, then one tenant could lease the common property and the lessee could in an action against him for accounting by his lessor’s cotenant, plead the statute when such defense would not be available to his lessor. The lease does not clothe the lessee with any greater rights against lessor’s cotenant than the lessor himself possessed.

The evidence is that appellees were ignorant of their interests in the land until January, 1931, and appellant had no knowledge of appellees’ claim of title until April, 1931, and since there was no demand for accounting followed by refusal or a repudiation of the tenancy the five-year Limitations Act did not begin to run and appellant’s rights were not prejudiced by the court’s refusal to let it plead such act.

Appellant contends that inasmuch as its lease gives to it a freehold estate and that it went into possession under a lease which purported to convey the whole title to the oil except the royalty interest and having* operated thereunder continuously and without interruption under claim of absolute ownership of the whole of the worldng interest in the oil and gas for more than 20 years before the institution of this suit and for more than two years after appellees arrived at their legal majority that appellees are therefore barred from asserting any rights as against appellant for oil and gas by reason of the 20-year Limitations Act.

It has been held that a lease which grants to the lessee the right to enter upon land for the purpose of prospecting and operating for oil and gas, laying pipe lines and other structures to produce, save and care for the products is a conveyance of an interest in the land itself, is of indefinite duration and is a freehold estate in the land, Transcontinental Oil Co. v. Emmerson, 298 Ill. 394; Ohio Oil Co. v. Daughtee, 240 Ill. 361, and title to it could be acquired by adverse possession under the statute of limitations. Catlin Coal Co. v. Lloyd, 176 Ill. 275.

To establish a title under sec. 1 of the Limitations Act, Ill. Rev. Stat. 1937, ch. 83, §1; Jones Ill. Stats. Ann. 107.259, not only must there be 20 years, continuous, uninterrupted possession but such possession must be hostile in its inception and so continue. It must be visible, exclusive and notorious, and be acquired and retained under claim of title inconsistent with that of the true owners. All these elements must concur. Stowell v. Lynch, 269 Ill. 437; Downing v. Mayes, 153 Ill. 330; Reuter v. Stuckart, 181 Ill. 529; Clark v. Jackson, 222 Ill. 13.

In Fyffe v. Fyffe, supra, in referring to this lease, the court said, “The appellants, the appellees and their father were in possession of the land under a common title as tenants in common. The only occupation (prior to the lease) was by the father farming. That occupation was under his title to 4/28th’s of the land in common and was the equal possession of all the co-tenants. His lease, with Grace, to Wise did not change the relation. It is presumed to have been made for the benefit of all the cotenants. The actual possession of the land by the lessee was not adverse to any of the cotenants but was subservient to their title.”

This statement to the effect of this lease was binding on the trial court and is controlling here, and therefore appellants’ entry was not hostile at its inception and the evidence does not disclose that it did become so at any time during the occupancy of the premises. The 20-year statute of limitations did not bar appellees’ right of recovery.

Appellant contends that appellees were guilty of laches. Appellant’s only defense is by reason of the statute of limitations. In fixing the period in which rights and claims will be barred by laches equity follows the law, and as a general rule, where the period of limitation is fixed by statute, courts of equity will by analogy adopt the same period. If appellees’ rights are not barred by the statute of limitations they are not barred by laches unless in addition to mere delay, there would be something in their conduct or the circumstances that would make it inequitable to permit them to assert their claim. Thomas v. Chapin, 274 Ill. 95; Compton v. Johnson, 240 Ill. 621; Stowell v. Lynch, supra. Nothing of that kind has been shown.

Appellant argues that since appellees stood by and watched the development and operation of the wells, the construction of buildings, machinery and equipment for the production and saving of the oil that they are estopped to assert their claims.

Where silence is the ground of estoppel it is essential that the party estopped shall have knowledge of the facts and the other party be ignorant of the truth and be misled into doing that which he would not have done except for such silence. Bradley v. Lightcap, 202 Ill. 154; Mullaney v. Duffy, 145 Ill. 559.

In Zeigler v. Brenneman, supra, a father and his children were tenants in common in a tract of land. The father acting upon the belief that he was the holder of the entire title, executed an oil and gas lease for the entire title. The children shared in that belief for a considerable period of time and made no claim of interest until after a paying well had been developed. The court, on page 22, said, “It is contended by appellants that these children, by their silence and acquiescence while appellants expended large sums of money and demonstrated the great value of the property, are estopped to assert, as against the appellants, their title to the premises or to object to appellants operating the land for oil. There is evidence which tends to show, and the court found, that these children were ignorant of the fact that they owned any interest in this land until after appellants ’ well was brought in. With this finding of fact we are not disposed to interfere. Within a reasonable time after they so ascertained that they owned an interest in the land they gave notice to appellants. No estoppel arises against them, because during the time of their silence they were ignorant of the fact that they owned an interest in the land.”

Fred Fyffe, one of the appellees, was made a party defendant to the original suit. He defaulted. Appellant insists that the court erred in stating an account for him and against appellant. The bill alleged Fred Fyffe’s interest in the land that he had not executed the lease and prayed for an accounting against Fred Fyffe, the other tenants in common and appellant.

Fred Fyffe was a codefendant of appellant and the rule under the former chancery practice was that equities arising between codefendants could only be adjusted on cross-bill filed by the party seeking such aid of the court. Ballance v. Underhill, 4 Ill. 453; Houck v. Herrick, 187 Ill. App. 579; Babcock v. Farwell, 189 Ill. App. 279.

The court erred in stating an account between the codefendant, Fred Fyffe, and appellant.

Appellant contends that since it owned only one-half interest in the lease that it should have been charged with only one-half of the royalties. The answer to this contention is found in the stipulation which is that appellant has owned one-half interest in the lease since 1907 and since 1911 has operated the lands and sold all of the working interest oil and after the payment of expenses has distributed the money to the respective owners of the lease. Appellant removed the oil and sold it and it was not incumbent upon appellees to trace the proceeds to appellant’s co-owners to whom it had made payment. That would involve equities between appellant and its co-owners with which appellees are not concerned.

It is further contended that appellant’s co-owners of the lease should have been made parties defendant. The original bill did not pray for a cancellation of the lease but did ask for a partition of the lands and if that could not be done that the same including the oil and gas rights be sold. The original decree directed a sale of such rights but the commissioners appointed to make partition found the property indivisible and fixed a falue exclusive of all oil and gas rights or royalties and the decree of sale directed that the lands be sold excepting therefrom all royalty and leasehold interests arising under any and all oil and gas leases upon said premises.

Appellant was not interested in the sale of the land when sold subject to its lease and therefore cannot complain of change from the original decree. Since we hold that appellees did not have to proceed against appellant ’s co-owners in the accounting they were not necessary parties in the accounting feature of the suit. Under the stipulation appellant was in possession representing the whole ownership of the lease and inasmuch as appellees did not ask for a cancellation of the lease or for any relief that would effect its terms, the co-owner of appellant in the lease was not a necessary party to the accounting feature of the case.

Appellant contends that since Charles Fyffehad an unassigned dower interest in the lands that the interests of each of appellees is subject to such dower and that in fixing the amount due from appellant to appellees, deduction should be made for such dower. It is further contended that the proceeds from the oil and gas should be considered on a basis of rents and profits from the land which would be one-third interest. As heretofore pointed out the lease created a freehold estate and under the authority of Ohio Oil Co. v. Daughtee, supra, the lease is to be considered as a sale or conveyance of a portion of the land. We do not regard the oil taken as a rent or issue from the land which would entitle Charles Fyffe to one-third absolute. Charles Fyffe is not asking for such dower but inasmuch as appellant is a lessee of his and has paid him royalties there are certain equities between them which would entitle appellant to retain it as against appellees.

The remaining question is the proper measure of damages. The trial court based its decree upon the statement contained in the opinion of the Supreme Court that it (the lease) is presumed to have been made for the benefit of all the cotenants and made an allowance based on the one-eighth royalty provided for in the lease after making deductions for expenses incurred in production. Appellees have assigned cross errors and contend that the measure of damages is to be on the basis that appellant was a willful trespasser as to appellees’ interests, that the provisions of the lease are not controlling* as to the royalty and that appellant is not entitled to any deductions for expenses of production.

In view of the fact that appellant was in possession in good faith and under a lease which the Supreme Court has said must be presumed to have been made for the benefit of all and the further fact that appellees being ignorant of their rights made no protest, it should not be now held to account as a willful trespasser. In the application of the rule in reference to the five-year statute of limitations we have held that the lessee had no greater rights than its lessor' as against its lessor’s tenants in common and in equity and good conscience the reverse of that rule should be true.

The reasoning and logic adopted by the court of appeals in New Domain Oil & Gas Co. v. McKinney, 188 Ky. 183 in announcing the measure of damages as between cotenants is equally applicable to a lessee of a cotenant who entered upon the premises” under the circumstances of this case. The court there said, “In cases of a willful trespasser the rule seems to be well settled, as will be seen from the authorities, supra, that the plaintiff is entitled to recover, in a suit for an accounting, the value of the mineral, without deducting any expenses incurred in mining it. But we do not understand that this stern rule should be applied in cases where a cotenant operates the mine with the knowledge of his cotenant’s interest. Especially should this rule not be applied against a cotenant where the mineral involved is of a fugacious nature and liable to be exhausted by adjacent operators. In such case if one tenant is able and willing to develop the mine and extract the oil before it is entirely lost, and his cotenant is not, he should be allowed to do so without incurring the penalty of accounting to his cotenant for the gross amount of oil produced; but since he may not convert, to any extent, his cotenant’s interest, he must account to the latter for his proportion of the net value of the oil produced, which is its market value, less the cost of extracting and marketing. Any other rule, it seems to us, would be not only inequitable, but illogical; for, if the operating tenant could be made liable for the gross amount of the plaintiff’s proportion of the oil produced, the rights of the former would be fixed according to the rules governing an operation by a willful trespasser who had no interest whatever in the mineral. We cannot believe that an exclusive operation by one joint tenant is so tainted with wrong as against his cotenant as to require the application of the same rules that should be applied to a willful trespasser. Moreover, it would be illogical to say that a cotenant could lawfully operate the joint property (as he may do, Thornton, supra, § 312) and at the same time be compelled to divide the gross proceeds or profits with his joint tenant, thus circumscribing his rights according to the rule applicable to a willful and malicious trespasser without pretense of title or right. There is no rule of law known to us that would render the plaintiff cotenant immune from the observance of that healthy maxim, ‘He who seeks equity must do equity,’ and the equity which plaintiff in such cases is required to do is to pay his proportionate part of the actual expenses of operation and marketing, if they are not above that which is usual and customary in that locality. ’ ’

The court’s ruling as to the measure of damages was correct.

That part of the decree which found an amount due Fred Fyffe is reversed and that part which found an amount due to Lee Fyffe and Cynthia Holsen is reversed and the cause is remanded with directions to compute the value of the dower of Charles Fyffe in the amounts found due Lee Fyffe and Cynthia Holsen and give appellant credit for such dower on the amount found due from it to Lee Fyffe and Cynthia Holsen and the decree is in all other respects affirmed.

Reversed and remanded with directions.


author: Mr, Justice Murphy

text:
    Charles Conley, et al., Appellees, v. National House Furnishing Company, Appellant.
    Opinion filed November 8, 1937.
    Rehearing denied December 28, 1937.

      Chapman & Mote, of Alton, and Max Sigoloff, of St. Louis, Missouri, for appellant; Leigh M. Kagy, of Edwardsville, of counsel.
    C. C. Ellison, of Alton, for appellees.
   Mr, Justice Murphy

delivered the opinion of the court.

Charles Conley, Charlotte Conley and Irene Donovan, plaintiff appellees referred to herein as plaintiffs, instituted this action against the National House Furnishing Company herein referred to as defendant to recover a balance alleged to be due under the terms of a written lease. On a trial before the court without a jury plaintiffs recovered a judgment against defendant for $2,400, and this appeal is from that judgment.

In 1931, plaintiffs leased to defendant a store building consisting of three stories, basement and another adjoining building referred to in the lease as the “annex,” for a period of one year, with an option to defendant to renew the lease from year to year. The defendant was to pay as rental a fixed per cent of the monthly sales of merchandise sold and delivered. Defendant was granted the right to install an elevator in the “annex” building, to cut a door opening in the wall between the two buildings on each of the three floors and basement and to enlarge the main entrance to the ‘ ‘ annex” building. Defendant was to advance the costs of the improvements and repairs but was to be reimbursed by deducting the same from the monthly rentals. The total cost to plaintiffs was not to exceed $2,500.

Defendant entered into possession of the main building November, 1931, and the “annex” February, 1932. It made the door openings through the wall but did not install the elevator. The evidence shows the cost of the repairs made was $100. For the months beginning November, 1931, to and including the month of September, 1932, the defendant deducted on account of repairs $2,500. For the month of September, 1932, there was a balance of $165, paid plaintiffs and the regular monthly rentals were paid thereafter until November, 1935, when defendant vacated the buildings.

Defendant’s contention that plaintiffs made certain material admissions in their pleading requires a consideration of the complaint, answer and reply.

The complaint was amended at various times but the part material here, alleged the making of the lease, the entry of defendant into possession, and the provision in the lease in reference to the installation of the elevator and the repairs and the failure of the defendant to install the elevator after having made the deductions from the rentals. A copy of the lease was attached as an exhibit.

Defendant’s answer denied that the repairs made by it under the lease cost less than $2,500, and alleged that it exceeded that sum and as a further defense it alleged in par. 3 that after the making of the lease and after it took possession the plaintiffs promised and agreed to make all repairs, alterations and improvements necessary to make the leased premises suitable for defendant’s use, that it was not to be limited to the improvements specified in the lease and that relying upon said agreement defendant made many lasting repairs at a cost in excess of $2,500, that in January, 1932, defendant delivered to plaintiffs its written statement showing the amount advanced by defendant on account of such repairs, the total amount of merchandise sold, the rental accruing on such sales to and including December 31, 1931, and that similar statements were rendered for each of the following months to and including September, 1932, that said statements were received by plaintiffs and that they made no objection to the correctness of the same, that the plaintiffs knew the repairs were being made and that deductions were being claimed and taken by defendant and that plaintiffs did not object to the repairs or protest the deductions, that monthly statements were made by defendant and delivered to plaintiffs for the month of October, 1932, and all subsequent months during defendant’s occupancy of the buildings and that plaintiffs made no objection to the same.

Plaintiffs’ reply to the matters set up by defendant as further defense is general as to each paragraph in that it is alleged that they deny each and every allegation in paragraph 3 of the defendant’s further defense (this being the paragraph of the further defense which alleges the making of a subsequent agreement) denies each and every allegation of par. 4, denies they did not make any objections to the correctness of the monthly statements, denies they did not at any time prior to the filing of the complaint request or demand that the defendant pay to the plaintiffs any of the amounts deducted. Plaintiffs admitted that they received $165, for September, 1932, as being in full of the rent for that month provided that the improvements were made as provided for in the lease, admit the receipt of monthly rentals for October, 1932, and for each month thereafter during the defendant’s occupancy of the building but deny that the same was received by plaintiffs without objection as to defendant’s failure to install the elevator as provided for in the lease.

Defendant’s further defense sets up a supplementary agreement by the terms of which defendant would be privileged to make any repairs deemed necessary to make the buildings suitable for its purposes and deduct the same from the rentals.

Defendant alleges that pursuant to that supplementary agreement it made repairs on the building, other than those provided for in the lease, and rendered statements to plaintiffs showing the deductions made for such repairs. The reply specifically denies the making of such supplementary agreement and alleges that plaintiffs repeatedly protested against the defendant’s failure to install the elevator as provided for in the lease. There was no admission in plaintiffs ’ reply nor did they fail to answer any allegation in defendant’s answer which is to be taken as an admission by plaintiffs of any part of defendant’s further defense.

Defendant offered no evidence but plaintiffs called as their witness Manuel Fihn, secretary of the defendant company. In direct examination he identified his signature on the lease, fixed the date defendant entered the premises and the date it vacated, and the amount deducted on account of repairs. His cross-examination should have been confined to the matters he was interrogated about on direct, Combs v. Tounge, 281 Ill. App. 339, but he was permitted to testify as to the rendering of the monthly statements to plaintiffs showing deductions made for repairs other than those provided for in the lease but he did not testify and no evidence was introduced showing the making of the supplementary contract. Without evidence tending to show the making of a supplementary agreement whereby it was permitted to make repairs other than the ones called for in the lease, there was nothing to justify the deductions defendant claimed in the statements and the statements cannot be treated as account stated and creating a liability thereon.

The rule that an account which has been rendered and to which no objection has been made within a reasonable time is to be regarded as admitted by the party charged as prima facie correct, assumes that there was some indebtedness between the parties, for there can be no liability on an account stated if no liability in fact exists, and the mere presentation of a claim, although not objected to, cannot of itself create a liability. 1 Am. Jur. 282. An account stated cannot be made the instrument to create an original liability, it merely determines the amount of the debt where liaMlity previously existed. “An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed.” Pope County State Bank v. U. G. I. Contracting Co., 265 Ill. App. 420.

There being no evidence of the supplementary agreement there was no basis upon which to find that there was an account stated.

The judgment of the lower court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Friend

text:
    In re Estate of Jean F. Judd, Deceased. Hunter Farrow et al., Appellants, v. Elmer M. Judd, Appellee.
    Gen. No. 39,358.
    Opinion filed December 14, 1937.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellants; Benjamin V. Becker and Don M. Peebles, of counsel.

      Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; Joseph B. Fleming and W. Ayers Keplinger, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Jean F. Judd, died testate December 26, 1934, and her will was duly admitted to probate. The will, after mailing several specific bequests, provided that the residuary estate should be divided among her husband, Elmer M. Judd, respondent herein, and her five brothers and sisters, the petitioners, “in equal shares and being one-sixth to each. ’ ’ The estate of decedent in Illinois consists solely of personal property and no children nor descendants of a deceased child survive decedent. Respondent filed his renunciation and claims that he thereby acquired a one-half interest in the estate. The probate court ruled in his favor and on appeal and after trial de novo in the circuit court that order was affirmed and the executor was directed to distribute one-half of the personal estate to respondent and the remaining one-half to the five petitioners in equal shares. Petitioners have appealed.

The question presented is whether the provisions of eh. 41, Ill. State Bar Stats. 1935, H1 et seq.; Jones Ill. Stats. Ann. 41.01 et seq., as amended in 1927, commonly known as the Dower Act (but not so designated in the statutes), are applicable to an estate consisting solely of personal property. If applicable respondent becomes entitled to a one-half interest in the estate by virtue of his renunciation; if the statutes do not apply the provisions of the will remain in full force and effect.

It is first urged by petitioners that “no provision was made by the statutes in force prior to 1874 for any estate in personal property accruing to the surviving spouse, in a testate estate, unless the deceased spouse had been the owner of an estate in land.” (Italics ours.) It is argued that the so-called Dower Act, as amended in 1927, must be construed in the light of the historical background of applicable statutes prior to and including the Act of 1874 and the construction placed upon them by the courts of this State. The statutes preceding the Dower Act of 1874 may be summarized as follows: The ordinance of 1787 (Hurd’s Revised Statutes of Illinois, 1915-16, XVIII) gave the widow of an intestate estate one-third of the real estate for life and one-third of the personalty. The Illinois laws of 1819 contain the same provisions.

By sec. 40 of the Wills Act of 1829, the widow, upon renunciation, became entitled to one-third of the real estate and one-third part of the personal estate after payment of debts.

Under sec. 10, ch. 34 of the Revised Statutes of 1845, the widow, upon renunciation, received “her share in the personal estate of her husband,” but the statutes failed to define specifically what that share should be.

The first judicial construction of the statutes arose in McMurphy v. Boyles, 49 Ill. 110, wherein the testator left him surviving a widow, but no children or descendants of children. His estate consisted solely of personal property, and provision was made for the widow in the will. She renounced the will and claimed thereby to be entitled to the entire estate. The court held that, although the widow’s interest was not specifically defined in the statutes, her share in the personal estate of her husband meant a one-third interest. Within a period of two years the Supreme Court of this State twice reaffirmed this doctrine. In White v. Dance, 53 Ill. 413, the court sustained the widow’s right to one-third of the personal property, notwithstanding the statutory provision for only a share in the personal estate of her husband, and in the case of In re Taylor’s Will, 55 Ill. 252, the doctrine of the “widow’s one-third” was again reaffirmed. Here the court for the first time frankly admitted that no statutory authority existed for this construction, saying (p. 259) “it has become a sort of common law in this State, that this support shall be, ‘in all cases,’ one-third of the husband’s real estate for life, and one-third of the personal estate forever, . . . . ”

The foregoing cases are cited by petitioners’ counsel as supporting the contention made under point one in their brief, namely, that the statutes in force prior to 1874 made no provision for any estate in personal property accruing to the surviving spouse, unless deceased has been the owner of real estate, but we do not understand these decisions as so holding. In McMurphy v. Boyles, supra, the estate consisted solely of personalty and yet the court awarded the widow one-third interest in the personal estate' of her husband upon renunciation of his will. The decision cannot be construed to mean that the awarding of one-third of the personalty depended on the existence of real estate. Again, in White v. Dance, supra, the court awarded the widow one-third of the personal property and in so doing contradicted the contention here made by petitioners that the deceased spouse must be the owner of an estate in land, by saying that “the section was clearly designed to give to the widow the right to elect between two different estates in the realty, without disturbing her interest in the personalty.” Although the criticism of petitioners’ counsel, that the courts “reached beyond the language of the statute,” is apparently well founded, nevertheless these early decisions demonstrate that the legislature intended to give the widow a share i>n the personal estate regardless of whether or not there was any real estate involved, and in the absence of a specific definition in the statute as to the amount of the “share” of- personalty to which the widow shall be entitled upon renunciation of her husband’s will, the courts construed it to be one-third. Just why the widow’s share was not specifically defined by statute is a matter of conjecture, but the court in McMurphy v. Boyles, supra, attributed the vagueness of the statutes to the legislative draftsmen. Whatever other criticism may be levelled against these early decisions, they cannot be construed as holding that real estate must be involved before the surviving spouse can take an interest in the personal estate of the deceased spouse in the testate estate.

It is next urged by petitioners that “the Dower act of 1874, although originally misinterpreted by the Supreme court of Illinois, contained no provision affording an estate in personal property to a surviving spouse in a testate estate, in the absence of an estate in land in which dower could attach.” Sec. 1 of the Act of 1874 is substantially the same as sec. 1 of the Act of 1845, except the provisions thereof were made applicable to both husband and wife. Sec. 10 of the Act of 1874 remedied the omission in the statutes of 1845 by defining the phrase “share in the personal estate,” as a one-third interest in personal property. Sec. 12 of the Act of 1874, which superseded sec. 15 of the prior statute, dealt generally with the same subject matter without any material changes.

The early cases of Kent v. McCann, 52 Ill. App. 305, and Laurence v. Balch, 195 Ill. 626, involved the question as to the extent of the interest acquired under the Act of 1874 in personal property, and the Appellate and Supreme Courts both affirmed the doctrine of the “widow’s one-third” as it then existed. Next followed Zakroczymski v. Zakroczymski, 303 Ill. 264, wherein the court affirmed the holding in Laurence v. Balch, giving the husband one-third of the personal estate. However, two of the justices, dissenting, concluded that the doctrine of the “widow’s one-third” in personalty was based on a nonexistent statute. Then followed Clark v. Hanson, 320 Ill. 480, which is the subject matter of much discussion by counsel on both sides of this controversy. The estate there consisted of personal property. There were no children or descendants of children surviving the testator. He made some provision in his will for the widow and devised the residue of his estate to other relatives. Within a year after letters testamentary issued the widow filed a written renunciation of the provisions made for her by the will, and under sec. 12 of the Dower Act claimed one-half of the estate. Sec. 12 then provided that when a husband or wife died testate, leaving no child or descendant of a child, the surviving spouse may elect to have “in lieu of dower in the estate of which the deceased husband or wife died seized . . . and of any share of the personal estate which he or she may be entitled to take with such dower” (italics ours) one-half of all the real and personal estate after payment of debts and expenses. The court, after reviewing the history of dower in this State concluded that sec. 12, as it then existed, did not apply to cases consisting solely of personal property. The court evidently based its decision on the use of the wrords “with such dower,” and construed that language in sec. 12 to mean that no estate in personal property could be acquired by virtue of the Dower Act unless the decedent had also been the owner of real estate.

The Supreme Court thus definitely settled the law, contrary to former precedent, by construing the Dower Act to mean that no right in personal property accrued by reason of the Dower Act in a testate estate consisting solely of personal property. Respondent’s counsel say that “this decision came as a distinct shock to the entire legal profession,” and that the amendments at the next session of the legislature in 1927 were “enacted to cure the unfortunate results of that decision.” Petitioners, on the other hand, contend that Clark v. Hanson, is still controlling, because no substantial difference can be pointed out between the Act of 1874 and the Amendments of 1927, the enactment of which they say merely evidences a desire on the part of the legislature to reaffirm the holding of Clark v. Hanson.

Counsel on both sides assert that respondent’s claim to one-half of the personal property, through renunciation of the will, must be determined under the provisions of sec. 1 of the statute as amended in 1927, which, with the added portions of the section italicized, reads as follows: ‘1 Par. 1. Curtesy abolished- — Husband and wife to have dower — Equitable estates — Interest of surviving spouse in personalty. Section 1. The estate of curtesy is hereby abolished, and the surviving husband or wife shall be endowed of the third part of all lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. Equitable estates shall be subject to such dower, and all real estate of every description contracted for by the deceased husband or wife, in his or her lifetime, the title to which may be completed after his or her decease. And except where the deceased spouse died intestate, the surviving husband or wife, in case the deceased spouse died leaving surviving a child or children or descendants of a deceased child or children, shall also be entitled to one-third of all the personal property owned by the deceased spouse at his or her death, after all just debts and claims against such estate are fully paid, as and for his or her absolute estate forever; or, in case such deceased spouse left no child, children, or descendants of any deceased child or children, said surviving husband or wife shall be entitled to one-half of such personal estate of such deceased spouse, after all just debts and claims against such estate are fully paid, as and for his or her absolute estate forever.” Did the legislature by this amendment indicate an intention to depart from the holding in Clark v. Hanson, or did it so frame the amendment that the effect of that decision would be carried on and become the statutory law of this State ?

It is apparent that preceding the decision in Clark v. Hanson the question under consideration always presented some difficulty, and the courts in their effort to meet “an eager desire on the part of the lawmakers to provide some support for the wife in the event of her surviving her husband,” reached beyond the language of the statute, and, as said in In re Taylor’s Will, 55 Ill. 252, found “a sort of common law” by which they established the doctrine of the widow’s one-third with respect to personal property. In Clark v. Hanson the court pointed out the statutory distinction between “dower in the ‘estate’ of which the deceased died ‘seized’ and the share of the personal estate which the survivor may be entitled to take ‘with such dowur,’ ” and then inquired “if it was intended to give the surviving spouse the same right in an estate consisting entirely of personal property as in an estate consisting of both personal property and real estate, why should such language have been used in the statute? ” That decision undoubtedly had the effect of placing an entirely different construction on the Dower Act, with respect to personal property, and we think it challenged the bar to seek and the legislature to enact amendments that would clarify the rights in personal property accruing by reason of the marital relation. A number of circumstances support this conclusion. The decision in Clark v. Hanson became final upon the denial of the petition for rehearing in April, 1926. The Amendments of 1927 were enacted at the very next session of the legislature. The contention was made in Clark v. Hanson, that sec. 12 of the Dower Act was unconstitutional because it embraced a subject not expressed in its title. In view of its holding that this section did not apply to cases consisting solely of personal property, the court did not find it necessary to pass on the constitutional question. The Act of 1874 was entitled “An Act to revise the law in relation to dower.” The Amendment of 1927, evidently for the purpose of avoiding any further question as to the constitutionality of the act, changed the title to read “An Act concerning the rights in real and personal property accruing by reason of the marital relation,” and since the decision in Clark v. Hanson as to sec. 12 was clearly based on the words “with.such dower,” those words were omitted from the act as amended, evidently to obviate any future contention that the personal property mentioned in sec. 12 depends on a subsisting right of dower.

We think the added paragraph of sec. 1 of the amendment accomplished certain definite objects by providing for an interest in personal property in all cases except where the deceased spouse died intestate; it supplied the necessary provision as to personal property in estates where the surviving spouse was not mentioned in the will; and it also gave to--the surviving spouse certain rights which are applicable only to testate estates and comprise the “other rights” referred to in secs. 10 and 12. If it were true, as petitioners’ counsel contend, that the legislature intended by the amendment of 1927 to so frame the amendment that the effect of Clark v. Hanson would be carried on and become the statutory law of Illinois, the lawmakers would certainly have retained the words “to take with such dower.” The title of the act would not have omitted the word “dower,” and “the other .rights” specifically defined in the added portion of sec. 1 would have been made to depend upon the possession of real estate at the time of the testator’s death. The elimination of reference to dower, both in the title and in the act, indicates a contrary intention. Upon the whole, we think the changes, omissions and additions to the act were all made for the purpose of defining and enlarging the interest of the surviving spouse in personal property and to obviate the effect of the decision in Clark v. Hanson. It is pointed out in respondent’s brief, and is obviously true, that many estates today consist largely of personal property which may represent the accumulation and labors of a lifetime. Personal property so accumulated and constituting the bulk of an estate ought to have the same dignity as real estate, and sound reason dictates that a provision in the statute for the passing of personal property for the surviving spouse in testate estates ought not to depend on the ownership of real estate. If it were otherwise, a small parcel of real estate, constituting one of the assets of a substantial estate, would determine whether or not a surviving spouse could gain anything by renunciation.

We,are of the opinion that-the probate and circuit courts properly ruled in favor of respondents’s contention. The order of the circuit court is therefore affirmed.

Order affirmed.

Scanlan and John J. Sullivan, JJ., concur.


text:
    In re Estate of Richard T. Crane, Jr., Deceased. Luke Petre, Appellee, v. John K. Prentice and Continental Illinois National Bank and Trust Company of Chicago, Appellants.
    Gen. No. 39,477.
    Opinion filed December 14, 1937.
    Rehearing denied December 28, 1937.

      Ashcraft & Ashcraft, of Chicago, for appellant; Bussell F. Locke and William H. Alexander, both of Chicago, of counsel.
    Bell, Boyd & Marshall, Bomney Spring and Thomas L. Marshall, of Chicago, for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Luke Petre, petitioner, and five others whose cases are pending here on appeal (Nos. 39,478 to 39,482, inclusive) and have been consolidated with this case, filed their petitions in the probate court In the matter of the estate of Richard T. Crane, Jr., deceased, praying that the court direct the executors to pay each of them the respective amounts claimed to be due them as intended beneficiaries under art. 5 of decedent’s will. All the petitions were'considered de novo by the circuit court, and after an extended hearing separate orders were entered as to each petition, finding that the assets of the estate were ample to pay all legacies under art. 5 of the will; that petitioners were servants in the personal employment of decedent at the time of his death and fixing the total respective amount of each petitioner’s wages; that Bichard T. Crane, Jr., did, under art. 5, bequeath unto each petitioner the respective sums fixed in the various orders; and the court ordered the executors to pay petitioners, with interest, in due course of administration. Six separate appeals were prosecuted and the cases were consolidated on appeal and argued orally as one proceeding. Except as to the names of petitioners and the respective amounts awarded them, the petitions and orders in five of the cases are substantially identical. The appeal from the award in favor of Bobert K. Low, although consolidated with the others, presents circumstances somewhat different and will be treated separately in the course of this opinion.

Richard T. Crane, Jr., died November 7, 1931, leaving a last will and testament containing the following provision: “Fifth: I give and bequeath to each servant in my personal employment at the time of my death a sum equal to the total amount of such servant’s wages as such from the time of entry into my service to the date of my death.” The question presented is whether petitioners were servants in Crane’s personal employment within contemplation of this provision of his will. The record on appeal consists of some 1,700 pages, and although there is substantially no conflict in the evidence the issue in controversy resolves itself into an interpretation of the facts as bearing upon the provision of the will in question.

Mr. Crane was a resident of Illinois and had for many years preceding his death been active as president in the affairs of Crane Company. He left an estate of approximately $40,000,000 and was survived by a widow, a married son, and a daughter, who were made beneficiaries of the residuary part of his estate. In addition to his Chicago home he owned and maintained an estate on Jekyl Island, off the coast of Georgia, where he spent considerable time during the winter months. He also owned and maintained a large summer estate at Ipswich, Mass., where he spent considerable time during the summer. This property covered some 1,900 acres of ground overlooking the Atlantic ocean, with a seven mile beach. The original piece of Massachusetts property was acquired by decedent in 1911, and was known as Castle Hill. It was improved with a magnificent mansion, barns, garages, gardens and other appurtenances of an extensive country estate.

As distinguished from the property known as Castle Hill, two contiguous pieces of property were subsequently purchased by Mr. Crane, known as Sagamore Hill and Haskell Farm. During the year 1925, Haskell Farm was improved by decedent with a nine-hole golf course. In 1928 he conveyed title to the property which contained the golf course to his daughter, Florence, reserving therein a life estate to himself. He bought other properties in the vicinity, identified as islands lying near the Castle Hill property, and in 1928 he conveyed these to his son, Cornelius, likewise reserving to himself a life estate therein.

Until the date of his death the property known as Castle Hill was managed by one Robert Cameron, as superintendent, who hired, discharged and directed the work of some 30 employees engaged in tending the stock farms, gardens and landscapes known as Castle Hill. The servants employed within the mansion were under the direction of John K. Prentice, personal secretary of Mr. Crane, and paid by him.

With the assistance of a landscape architect and his superintendent, Mr. Cameron, Mr. Crane directed the building of the nine-hole golf course on Haskell Farm in 1925. Petre, Low and I. Blonda, petitioners, employed as laborers around Castle Hill, were assigned to work under the direction of Cameron in the construction of the golf course on Haskell Farm and except in 1930 alternated in their work between the golf course and the property known as Castle Hill until testator ’s death, by working on the golf links during the period between April first of each year and the end of that year, and from the first of January until the first of April each year at Castle Hill. Petre’s wages at the beginning were $3.50 a day, until the spring of 1925, when they were increased to $4 a day, and that of the other petitioners were substantially the same. While working at Castle Hill petitioners were paid by Robert Cameron, superintendent, and when they worked at the golf course they were paid by Robert K. Low, golf professional employed by Mr. Crane at the golf club.

Early in 1927 decedent sent out invitations to local residents around Ipswich to attend the opening of “Labor in Vain Country Club,” a name given to the golf links by Mr. Crane. These invitations were sent to about 100 people, inviting them to become subscribers to the country club, the subscription fee being $25 a year for each person. Some 50 local residents accepted these invitations, subscribed for membership and paid their $25 subscription fees, which entitled each subscriber to unlimited privileges of the use of the club and its facilities during the current calendar year. Similar invitations were issued each succeeding year, up to and including 1931, and an increasingly larger number of residents subscribed during succeeding years.

In 1927 four men, together with Mr. Crane, were designated by him as a membership committee whose duty it was to consider and pass upon all subscribers’ applications for membership in the club, and the committee was governed by a rule that the affirmative vote of any four of the five would be an acceptance of a subscriber’s application. This committee continued in existence and functioned until 1931, and other committees, including a tournament committee, took active part in the affairs of the club.

The golf course was improved with a main building which offered sleeping quarters and dining room facilities and was managed by the widow of an old friend of Mr. Crane’s, who was identified as the hostess and employed by Mr. Crane. There was also a caddy shop, where customary services were rendered for members of the club. The caddy house was operated and managed by Robert K. Low, one of the petitioners, engaged as a professional and superintendent of the golf course by Mr. Crane early in the year 1927. In addition to his salary Low’s earnings were augmented by payments for services rendered as a professional and the sale of golf supplies. This was by arrangement with Mr. Crane.

Charles Goodhue, Jr., designated by decedent to act as secretary and treasurer, continued to act in that capacity until the death of Mr. Crane. He established and maintained a set of books for the club. All income, including subscription payments and receipts from the clubhouse were turned over to Goodhue, who deposited them in the account of Labor in Vain Country Club in an Ipswich bank. Bills for materials and services rendered to the club were all paid by Goodhue through checks drawn on the Ipswich bank, and Good-hue’s books reflected an accounting of all receipts and disbursements had and made.

Bills for the construction of the club and for all major improvements were paid by Mr. Crane through his secretary, John K. Prentice, who kept a special set of books for these particular expenditures, charged to capital account. The evidence discloses that there was an annual operating deficit for the club, in excess of $8,000, which was paid by Mr. Crane through his secretary, Prentice, and by Prentice charged on his golf club book to operating account.

Counsel for the executors argue that on the date of Mr. Crane’s death petitioners were employed by the Labor in Vain Country Club, an association of residents of Ipswich, Mass., of which Mr. Crane was a member, and that petitioners were not in Mr. Crane’s personal employment at the time of his death, but were “working for each and every one of the members of the association known as Labor in Vain Country Club.” Petitioners on the other hand contend that Labor in Vain Country Club was a mere name given by Mr. Crane to his private golf course, which was constructed, maintained and operated by him as such, and that Petre and the other petitioners, including Low, were in the personal employment of Mr. Crane in the operation of that part of his Ipswich estate. In support of this proposition petitioners’ counsel have listed and discussed numerous salient items of evidence, which may be briefly stated as follows:

Mr. Crane’s mansion was located on Castle Hill. It included a swimming pool, Italian gardens, extensive lawns and landscaping. Sagamore Hill section adjoining was used as a farm. The golf course was constructed on Haskell Farm, and there were drives connecting these three separate parcels which constituted his whole estate in Ipswich. Mr. Crane gave to his golf course the name Labor in Vain Country Club, and to the drive leading through that part of his estate the name “Labor in Vain Road.” A small creek running through that part of the estate also bears the name “Labor in Vain Creek.”

When the golf course was completed Mr. Crane gave an opening party at the reconstructed farm residence on the golf course known as the clubhouse, to which he invited his friends and neighbors. The printed invitations read: “Mr. R. T. Crane, Jr., invites you to attend the opening of the Labor in Vain Country Club Saturday, June eleventh, nineteen hundred and twenty-seven. ...” He confined the invitations to residents of Ipswich. In order to obtain a desirable selection he enlisted the assistance, without compensation, of Charles E. Goodhue, a resident of Ipswich, whom he designated as secretary and treasurer. Later Mr. Crane named a committee consisting of himself, Good-hue and three other residents of Ipswich, to pass upon subscribers who might apply. During each year subsequent to 1927 his selected list of Ipswich residents to whom the facilities of the club were extended upon payment of a nominal season fee of $25 was then made up and Mr. Crane himself went through the form of paying such fee. The aggregate proceeds of these subscriptions amounted to only a small percentage of the operating costs, and the deficit was annually paid by Mr. Crane. The invitations were not extended “to join” any club, but the recipient was “invited to become a subscriber of the Labor in Vain Country Club for the summer season” of that year.

' Under the name Labor in Vain Country Club, Mr. Crane established an account in the First National Bank of Ipswich. Groodhue, as treasurer, drew checks against this account for current operations and deposited the payments of subscribers as well as the substantial amounts of cash received from Mr. Crane as currently needed. In the same bank Mr. Crane maintained a separate account drawn upon by Robert Cameron, superintendent, for farm expenses, and also another account drawn upon by his secretary, John K. Prentice. Groodhue was apparently always subject to instructions from Mr. Crane or his secretary, Prentice, consulted Crane or Prentice as to any unusual items, reported currently to Mr. Crane, and asked for cash remittances as needed.

Labor in Vain Country Club was never organized as a corporation nor as any legal entity, had no president or board of directors; the subscribers never met as a body nor were they ever consulted about management or expenditures; they never authorized anything nor did they ever elect or choose any committee or anyone to speak for them. No financial statements were ever furnished to them. Mr. Crane promulgated a rule that only residents of Ipswich could become subscribers and he named and appointed the so-called membership and tournament committees. The use of the facilities of the golf course was only on express invitation, and Mr. Crane refused to give many suggested invitations. Instructions and directions as to the operation of the club came solely from Mr. or Mrs. Crane, or Prentice, and never from any subscriber. Decedent or his secretary determined how many men were to be employed on the course, how long they were to be employed, when the course was to be opened, and what the men were to be paid.

In March, 1931, the status of the club was brought into question through correspondence with the collector of internal revenue, who sought to ascertain whether “subscribers’ dues” were subject to the Federal tax upon club dues. In this connection Mr. Thomas W. White, collector, wrote to Goodhue March 27, 1931, as follows: “ . . . From the information which you furnished verbally it appeared to this office that there was no liability on the part of the Labor in Vain Country Club under the club dues section of the law. This office understood that there is no club or organization; that the clubhouse and golf course are owned and operated personally by Mr. Crane at his own expense; that he invites persons to subscribe for clubhouse privileges and golf upon the payment of $25 for a single person and $50 for a family; that the amounts thus realized are not sufficient to cover the cost of running this place and that any deficit is made up personally by Mr. Crane. Further, that there is no actual membership, no voting privileges and no action is taken by any person towards admitting anyone to membership; that merely by payment of the fee for the privileges, persons are permitted to use the clubhouse and golf links.” On confirmation of this letter by Goodhue, White, collector of internal revenue, closed the matter in another letter to Goodhue, dated April 3, 1931, by saying: “Since there is no club or organization and the amounts paid are merely paid to an individual who operates and maintains the equipment it is the opinion of this office that the amounts paid are not dues or membership fees within the meaning of the club dues sections of the law and that accordingly there is no liability to tax on such payments. ’ ’

Another item of evidence discloses that during the entire operation of the golf course up to the date of testator’s death, Mr. Crane was the insured under policies of Workmen’s Compensation and Liability Insurance covering all Mr. Crane’s employees at Ms Ipswich estate, including these petitioners who worked on the golf course. Mr. Crane paid the premiums. In a letter dated February 8, 1928, respecting tMs insurance, written by Marsh & McLennan, brokers, to J. K. Prentice, Mr. Crane’s secretary, in response to Prentice’s letter of February 3, 1928, they said: “We have discussed with the Zurich Insurance Company the question of Workmen’s Compensation coverage on the cook, maid, ground keepers and other employees engaged in maintaimng the club premises and they advise that no endorsement is necessary on Mr. Crane’s compensation policy. . . . They also explain that the Labor in Vain Country Club having no corporate existence is nothing but a name which Mr. Crane has given to a certain part of his estate, ...” (Italics ours.)

Before Mr. Crane’s death three of the petitioners suffered injuries, the expenses of which were paid under these policies constituting the personal insurance of Mr. and Mrs. Crane, and in the report of these accidents B. T. Crane is designated as the employer of each petitioner, and Robert Cameron as the superintendent under whom they were employed.

It further appears from the evidence that when Mr. Crane died the tools and equipment of the golf course were inventoried by the executors as the testator’s property. This included the caddy house, clubhouse, equipment, shed, kitchen utensils and supplies.

The Ford truck kept and used on the golf course was purchased by Mr. Crane in 1930, and during each of the years thereafter until his death it was registered and licensed under the Massachusetts law in Mr. Crane’s name. Decedent also purchased the Chevrolet kept and used on the golf course and had yearly licenses issued to him in Ms name therefor. “No trespass” signs around the golf course bore the name of R. T. Crane, Jr., and were in the same form as those appearing throughout the Crane estate.

The original pay receipts, signed weekly by the petitioners in the ordinary course of their employment during the years 1927 to 1931 inclusive, consisting of some 173 originals which were introduced in evidence, uniformly and without variation recite: “Received of R. T. Crane, Jr.,” unquestionably indicating, as we believe, that they were employees of Mr. Crane. There are numerous other items of evidence, too lengthy to embrace within the confines of this opinion, and all uncontroverted, clearly supporting the contention of petitioners that the Labor in Vain Country Club was a mere name given by Mr. Crane to his private golf course.

Upon oral argument counsel for executors argued that the word “servant” was confined to menials who had been in daily contact with Mr. Crane and served his personal wants; that words of general import must give way to words of special import; that “personal” qualifies “servants,” and means personal servants and not all people who work on his estate. Obviously this was not the construction placed upon art. 5 of the will by the executors themselves, because they have paid in legacies under art. 5 of the will to beneficiaries substantially $487,000, and the legatees to whom these payments were made included not only household servants, such as maids, laundresses, chauffeurs, cooks, porters and housemen, but also outdoor servants who worked on the estate at Ipswich where petitioners were employed, including carpenters, laborers, poultrymen, teamsters, gatemen and others. Forty of the servants included in this category were outside workers on the Ipswich estate at the time of Mr. Crane’s death, and they ranged from superintendent down to common laborer. Their work was of the same general character as that of petitioners, and in paying their legacies the executors have evidently recognized the meaning of the word “servant” as petitioners seek to have it construed.

Executors ’ counsel argue that although Mr. Crane created the club and contributed the property which the club used, nevertheless the Labor in Vain Country Club, such as it. was, was not his personal estate, and they say that “before Crane organized the club and before the club accepted any subscription fee, Crane might have done as he chose with the property. But, having permitted the organization of the club, and having permitted the club to accept subscription fees on certain representations, he thereby sold and definitely parted with part of what theretofore had been his own personal property.” There is nothing in the evidence to warrant such a conclusion. The subscription fees were not accepted on any representations made, there were no conditions or obligations attached thereto, except the payment of a very nominal sum, and there is nothing to sustain the statement that he sold and definitely parted with part of what had theretofore been his own personal property. This calls into question Mr. Crane’s motive in utilizing part of his estate for a golf course. The evidence is scant on this subject, but it is fair to conclude that his motive in inviting subscribers, was purely social, for, as petitioners’ counsel point out a private golf course would not yield much enjoyment to its owner unless privileges of play were extended to his friends and neighbors. There is, however, the evidence of Robert K. Low, who testified that “there were summer people and a good many friends of Mr. Crane’s and he asked them to come and play. He charged them a small fee because he thought they would play if he charged something.” Mr. Crane was undoubtedly interested in the Ipswich community. His will provided an endowment of a private hospital in Ipswich, and his social instincts undoubtedly prompted him to extend the privileges of his private golf course to his friends and neighbors in the community.

Counsel on both sides cite numerous authorities dealing with the construction of the word “servant” and the interpretation that courts have placed upon wills making similar bequests, but as we view the controversy the question whether the particular language of art. 5 was intended to include petitioners' along with other servants depends entirely upon the circumstances of the case.

Counsel for executors invoke the familiar and well recognized rule that the intention of the testator must be ascertained from the whole will, and that no words used should be cast aside as meaningless. These propositions are well established and counsel for petitioners take no exception to the general principles of law established by the authorities cited in the executors’ brief. Invoking these rules, we find that it was apparently Mr. Crane’s desire to provide for all those who had been associated with him, not only in his business but also those who had contributed to his personal wants and comforts.

Mr. Crane bequeathed to every employee of the Crane Company, who had been in continuous service for 10 full years 10 shares of Crane Company stock and one share for each additional full year if such employee had been continuously employed up to and including 25 full years, and 2 shares of stock for each additional year in excess of 25 years. He also bequeathed 5,000 shares of Crane Company stock to he used as a pension fund for his employees, and gave each director of the company 1,000 shares of Crane Company stock. These bequests, taken together with the fifth clause of his will, indicate that it was his desire to provide for those who had served faithfully in his business enterprise, as well as his servants. There is no fair basis for excluding petitioners, whom we believe to have been servants in his personal employment, engaged in the same general class of work as many other employees to whom bequests have already been paid.

Judge Trude of the circuit court in announcing his decision commented specifically on the case of In re Cassel (1922) 39 Times Law Reports 75, wherein the testator was a man of great wealth and had many establishments. His will made provision for “every other clerk or servant who shall be in my employ at the time of my death.” The question arose as to whether four persons, one of whom was manager of testator’s farms, at a yearly salary of 370 pounds plus a profit sharing arrangement, another who was estate agent on one of testator’s estates, at a yearly salary of 240 pounds, another who was manager of his racing stables, at a yearly salary of 1,000 pounds, and one who was trainer of his race horses, at a yearly salary of 1,000 pounds, were comprised within the term “servant,” and the court said (39 Times Law Reports 76): “The testator desired to benefit all persons who had ministered to his service, and in the case of a man of the extraordinary wealth of the testator many persons might be in the position of servants whose social position was entirely different from that of those usually ranking in the servant class. So, for example, the captain of a private steam yacht might, although a highly trained navigator, be for the purpose of such a bequest as this a servant. In his (his Lordship’s) judgment, all four persons came within the designation ‘servants’ as used in the testator’s will.”

The argument of counsel for the executors that the “personal employment” provision of the law was intended to exclude the golf course workers evidently does not take into consideration that this private golf course, where Mr. Crane entertained his friends and where he furnished golf and social facilities to his friends and neighbors, brought him into more personal contact with petitioners, who were constantly employed on the course and to whom Mr. Crane frequently gave directions, than with many of the other servants on his estate. There is evidence that he frequently conversed with these petitioners, that one of them caddied for him, that others worked around his barbeque entertainments and operated the traps for his son’s skeet shooting equipment, and some of them transported Mr. Crane in and about the estate in their own cars. Their employment by Mr. Crane was personal to a greater extent than that of many of his other servants.

With reference to Robert K. Low, executors’ counsel state that “he was, in no sense, a servant, either of Crane’s or of the golf club.” We find in the record that Low was engaged by Mr. Crane. His initial salary was $125 a month, approximately $4 a day, about the same scale paid to the other petitioners. His salary was later raised to $150 a month, and there is extensive correspondence in the record to show that Low negotiated for this increase through John K. Prentice and ultimately received it only upon Mr. Crane’s approval, because Mr. Crane had promised him a raise when he was employed. Low’s duties consisted in superintending the force of six or eight men who worked on the golf course. He was subordinate to Cameron and took orders from him. Although he is referred to as a golf professional, his work was similar in character to that of the other petitioners. In addition to supervising the workers on the course, he performed manual labor, mixed and dumped loam, attended to seeding, at times operated the tractor, cultivated the sod, attending to digging holes and weeding about the course, performed physical and manual labor at Mr. Crane’s personal barbeques, operated the skeet shooting apparatus for Mr. Crane’s family, loaded and spread gravel, working with pick and shovel, cut and topdressed the greens, alone attended to the sprinkling through the nights, scraped and rolled tennis courts and transported tools. The argument that in addition to his salary he received fees for golf instruction, and the profits made from the sale of golf supplies, does not remove him from the category of a servant under the facts of this case. These extra emoluments obtained only between the middle of June and the middle of September were allowed him by Mr. Crane, who himself took golf lessons from Low, although as Low’s employer he was not called upon to pay for them. His activities as a golf professional were in addition to his regular work and were relatively insignificant, as disclosed by the evidence. In conducting a private golf course, the privileges of which were extended to many of Mr. Crane’s friends and neighbors, it was necessary to have a man such as Low around. He was, nevertheless, a servant in the personal employment of the testator within the provisions of the fifth clause.

The finding of both the circuit and probate courts after extensive hearings that petitioners were in the personal employment of Mr. Crane at the time of his death are abundantly sustained by the evidence. It is not contended that the finding is against the manifest weight of the evidence, and in fact executors’ counsel repeatedly assert, and stated on oral argument, that the evidence was undisputed. Under the circumstances we do not perceive how the court could well have made any other-finding. Therefore the judgment of the circuit court in this case and in each of the five consolidated cases, directing that the amounts found to be due be paid in due course of administration, is affirmed.

Judgment affirmed.

Scanlan and John J. Sullivan, JJ., concur.