text:
    In re Estate of Lottie A. Wynn, Deceased. Samuel Rubin, Appellant, v. L. Grover Wynn et al., Trading as Sheldon and Brown, and Lila M. Stevens, Administratrix of Estate of Lottie A. Wynn, Deceased, Appellees.
    Gen. No. 9,672.
    Heard in this court at the May term, 1941.
    Opinion filed July 9, 1941.
    Jacob Cantlin, of Rock Falls, for appellant.
    Samuel Rubin, of Rock Falls, pro se.

    Sheldon & Brown, of Sterling, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Lottie A. Wynn, a resident of Sterling, Whiteside county, Illinois, died intestate in the city of St. Paul, Minnesota, on November 13, 1939, leaving as her only son and heir-at-law, L. Grover Wynn, a resident of St. Paul, Minnesota. On June 3, 1940, L. Grover Wynn filed a petition in the county court of Whiteside county, in which he prayed that Lila M. Stevens, a resident of the city of Sterling, Whiteside county, Illinois, be appointed administratrix of the estate of his mother. The petition stated that the name and post office address of the only heir of Lottie A. Wynn, deceased, is L. Grover Wynn, an adult son who resides at St. Paul, Minnesota. On June 3, 1940, letters of administration were issued to Lila M. Stevens on said petition. On July 1, 1940, the claims of Sheldon & Brown and L. K. Wynn against said estate were filed. Both claims were allowed the same date that' they were filed.

On July 1, 1940, L. K. Wynn and Sheldon & Brown, as creditors of the estate of Lottie A. Wynn, deceased, filed a petition in said court asking that the letters of administration granted to Lila M. Stevens on June 3, 1940, be ratified and approved. On the same day the county court ordered that the granting and issuing of letters of administration to Lila M. Stevens be ratified and approved. On the same date L. K. Wynn filed a petition wherein he prayed that letters of administration heretofore issued to Lila M. Stevens, be ratified and approved, or that new letters of administration be issued to her. The petition stated that L. K. Wynn was a brother-in-law of Lottie A. Wynn, deceased ; a resident of the State of Illinois; a creditor of the decedent, and was legally qualified to petition for letters of administration.

On the same date Sheldon & Brown filed a petition praying that letters of administration heretofore issued to Lila M. Stevens, be ratified and approved, or new letters of administration be issued to Lila M. Stevens. There was an order entered July 1, 1940, on the petition of L. K. Wynn and Sheldon & Brown, creditors, which finds that said parties are creditors and are residents of Whiteside county, and that the prayer of their petitions should be granted, and ordering that the prayer of their petitions be granted, and further ordering that the letters of administration issued June 3,1940, to Lila M. Stevens be and the same are hereby approved and confirmed.

On July 10, 1940, Samuel Rubin, the public administrator of Whiteside county, filed a petition in said court wherein he prayed that letters of administration be issued to him as such public administrator. The petition stated that Lottie A. Wynn, at the time of her death, was a resident of the city of Sterling, Illinois; that she died on the 13th day of November 1939, and left no will. The petition also stated that she left $7,000 personal property and real estate valued at $22,400; that the only heir of the deceased is L. Grover Wynn, an adult son residing in St. Paul, Minnesota. The petition further stated that Rubin is now and has, for more than one year last past, been public administrator of Whiteside county, Illinois, and is also qualified to petition for letters of administration which he prays be issued to him as public administrator.

A hearing on the petition was set for July 23, 1940, and Lila M. Stevens, administratrix of the estate of Lottie A. Wynn, deceased, was notified of said hearing. On August 5, 1940, the county court entered an order that the petition of Samuel Rubin, as public administrator for the appointment as administrator of the estate of Lottie A. Wynn, deceased, be allowed. The appointment of Lila M. Stevens on June 3, 1940, was revoked, and the order entered July 1, 1940, on a petition of the creditors was vacated and set aside. An appeal was taken to the circuit court of Whiteside county, where the court denied the petition of Samuel Rubin, as public administrator of Whiteside county, to be appointed administrator of the estate of Lottie A. Wynn, deceased. The order of the county court entered August 6, 1940, was found to be of no effect and void. The letters of administration to Lila M. Stevens, were found to be valid and in full force and effect from the date of their issuance, June 3, 1940. It is from this order that the appeal is prosecuted to this court.

In the circuit court it was stipulated that Lottie A. Wynn died on the 13th day of November 1939, and that up to November 1, 1940, no instrument purporting to be her last will and testament had been found, or offered for probate; that said Lottie A. Wynn left surviving her, no husband, but left surviving her one child, a son named L. Grover Wynn; that said son is a nonresident of the State of Illinois; that said Lottie A. Wynn had no next of kin residing in the State of Illinois, and that she left no heirs other than her son, L. Grover Wynn.

It is - seriously insisted by the appellant that the probate act which was effective on January 1, 1940, governs the proceeding in this case, and that under the new act, the public administrator has the preference over the creditors to administer the estate. It is contended by the appellee that as Mrs. Wynn died on November 13, 1939, the old law of administering the estates of deceased persons applied, and that creditors were preferred before the public administrator. Under the statute as existed prior to January 1, 1940, the law is well settled that in the administration of estates, creditors of the intestate should be preferred to the public administrator. In Dupee v. Follett, 304 Ill. 166, we find the following: “It was the clear intent of the legislature that relatives and creditors of the estate should be preferred to the public administrator as evidenced not only by the plain language of section 18, but also of sections 19, 46 and 48.” Section 346 of the Probate Act, section 501 chapter 3, Smith-Hurd’s Revised Statutes provides as follows: “The provisions for repeal contained in this Act shall not in any way: (1) affect an offense committed, an act done, a penalty, punishment, or forfeiture incurred, or a claim, right, power, or remedy accrued under any law in force prior to the effective date of this Act.”

The additional abstract filed by the appellee contains the decision of the trial court. We take the liberty of quoting parts of what the learned trial judge said in rendering his opinion. ‘ ‘ The new act contains a saving clause appearing as Section 501 of Chapter 3. The section in question follows the section which specifically repeals prior legislation. The saving clause provides that such repeal shall not in any way affect ... a claim, right, power or remedy accrued under . . . the old act. The word “remedy” is always interpreted to refer to methods of procedure as distinguished from substantive rights. The term “remedy” is taken to cover forms of action, methods of procedure, rules of evidence, and all other details of practice and procedure as distinguished from rules pertaining to substantive rights. It is apparent that the word “remedy” has a definite legal meaning. It is customarily used in law to designate rules of procedure, parties, practice, forms of action, methods of review, etc., as distinguished from the law of rights. It follows that the word must be given this meaning in construing the Statute in the absence of any showing of any absurd result, or other reason for departing from general rules of construction. Upon these principles it is evident that the act in question must be construed to retain existing remedies as well as existent substantive rights in the estate of a person who died before January 1, 1940. A different construction would require that the Court ignore or reject the word “remedy” in construing the saving clause. No sound reason for ignoring or rejecting this provision of. the statute has been suggested.” We think the theory on which the court decided the case was a proper one.

There is another reason why we think the court properly decided that the public administrator was not entitled to administer the estate of Lottie A. Wynn, deceased. Under the law prior to the adoption of the new probate act, a creditor had a right to administer the estate in preference to the public administrator, and if a creditor petitioned the court to be appointed before the public administrator had so petitioned, it was mandatory upon the court to appoint such creditor. The language of the statute is that the administration of the estate of all persons dying intestate “shall” be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled to preference in the following order, then follows the order of preference. In the case of O’Rear v. Crum, 135 Ill. 294, at page 299, a husband and wife had entered into a post nuptial contract whereby he released and relinquished all his right in and to his wife’s estate. After the death of the wife, the husband petitioned for letters of administration to settle the estate. Her brother also petitioned for letters of administration claiming that the husband had released his interest in and to his wife’s estate, therefore he, the brother, had a right to administer the same. In the opinion we find the following: “But the statute of this State says, that administration shall be granted to the husband upon the goods and chattels of his wife. We regard this statute as mandatory, unless the husband has waived his right, or is disqualified. Where the word ‘shall’ is used in a statute, and a right or benefit to any one depends upon giving it an imperative construction, then that word is to be regarded as peremptory. (Fowler v. Pirkins, 77 Ill. 271; Wheeler v. City of Chicago, 24 id. 105.) Here, the right of appellee to administer upon this estate, and the benefits he will derive in the way of compensation for his services in administering upon a personal estate worth $30,000, are dependent upon giving the word ‘shall’ an imperative signification. In Jones v. Bitting er, 110 Ind. 476, the words of the statute were: ‘At any time after the death of an intestate the proper clerk or court shall grant letters of administration in their order: First, to the widow or widower; second, to the next of Mn, ’ etc.; and it was held, that the provisions of the statute were mandatory, and ought to be strictly observed.” To the same effect is Clark v. Patterson, 214 Ill. 533.

In the case of Smart v. Morrison, 15 Ill. App. 226, the court was discussing a change in the statute of limitations in which there was a saving clause preserving any rights or liabilities etc., which may have accrued under the old law. The court says, “A right is a well founded claim.” The Century Dictionary and Encyclopedia define a right as a power or privilege whereby one may be doing, receiving or enjoying something. Webster’s Unabridged Dictionary defines it, “That to which one has a just claim: a power or privilege to which one is entitled upon principles of morality, religion, law or the like.” The saving clause in this statute expressly provides that it shall not affect any right that may have existed in any one prior to the passage of this act. That the right to administer the estate in question is a valuable one must be conceded, as the estate is of considerable value, and is evidenced by the fact that each side is so vigorously prosecuting their claim to the right to administer the estate. The legislature must have had such cases in mind at the time they passed the law with this saving clause preserving the rights and remedies existing to parties at the time the law was to become effective.

It is our conclusion that the trial court properly held that the public administrator was not entitled to administer the estate in question. The order appealed from is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    City of Freeport et al., Appellants, v. Robert Kaiser, Appellee.
    Gen. No. 9,602.
    Heard in this court at the October term, 1940.
    Opinion filed July 9, 1941.
    Marvin F. Burt, of Freeport, for appellants.
    Heard & Wilson, of Freeport, for appellee; Oscar, E. Heard, Jr. and William S. Wilson, both of Freeport, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee, a tavern keeper, held a retail liquor dealer’s license, issued by the City of Freeport. The mayor and ex officio liquor control commissioner revoked the license on account of appellee’s conviction before a police magistrate on a charge of selling alcoholic liquor (beer) to a minor. Kaiser appealed to the Illinois Liquor Control Commission. After notice and a hearing, the commission held the local commissioner had just cause to revoke the license and denied the appeal. The commission made a like finding and order upon a rehearing, and Kaiser prosecuted an appeal to the circuit court of Stephenson county, where the cause was heard upon notice and a transcript of the record of the liquor control commission. The circuit court held the .purported revocation was without notice or hearing and without any record of the revocation proceedings; that the transcript of the proceedings before the police magistrate did not show a violation of any law or ordinance; and that there was no valid basis for revoking the license. The orders of the commission were vacated and the proceedings quashed. The City of Freeport, and the mayor and ex officio liquor control commissioner have prosecuted this appeal.

Appellee has filed a motion to dismiss the appeal, which has been taken with the case. The grounds of the motion are that we are without jurisdiction to entertain the appeal because the Liquor Control Act is purely statutory, complete within itself, is not amendatory of any other act, and provides for appeals only from the local commission to the State commission, and from the latter to the circuit or superior court of the county in which the premises licensed are situated; that the hearing in the circuit or superior court is confined to the matters raised and relied upon at the rehearing before the State commission; that the act provides for no other or further appeal and that the decision of the circuit or superior court is final.

Section 8 of Article 7 of the Liquor Control Act approved January 1, 1934 (Ill. Rev. Stat. 1939, ch. 43, par. 153 [Jones Ill. Stats. Ann. 68.060]) provides for appeals from the local commission to the State commission. Section 8a provides in part as follows:

“Appeal from any decision of the State commission, except in cases involving railroad or boat licenses, shall lie to the Circuit or Superior Court of the county in which the premises licensed, or proposed to he licensed, are situated.”

There is no provision in the act for the review of any order, judgment or decree of the circuit or superior court in such proceedings, by appeal, writ of error or otherwise.

Appellants quote the provision of section 8 of “An Act to establish Appellate Courts,” approved June 2, 1877, as amended in 1935. (Ill. Rev. Stat. 1939, ch. 37, par. 32 [Jones Ill. Stats. Ann. 36.032]), which provides that Appellate Courts shall “have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the Superior Court of Cook County, or county courts, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute.”

They also quote section 77 of the Civil Practice Act (Ill. Rev. Stat. 1939, ch. 110, par. 201 (1) [Jones Ill. Stats. Ann. 104.077]), the pertinent part of which reads:

“ (1) Appeals shall lie to the Appellate or Supreme Court, in cases where any form of review may be allowed by law, to revise the final judgments, orders or decrees of the Circuit Courts, the Superior Court of Cook County, the County Courts, the City Courts and other courts whose judgments, orders and decrees are reviewable therein, under such limitations and conditions as may be imposed by law and subject to such rules of court as may be established and promulgated under this chapter.”

Prior to the enactment of the Civil Practice Act, section 91 of the Practice Act of 1907 (Ill. Rev. Stat. 1931, ch. 110, par. 91) provided as follows:

“Appeals shall lie to and writs of error from the appellate or supreme court, as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery. Appeals or writs of error in this section allowed shall be subject to the limitations by this Act provided and to the conditions imposed by law. ’ ’

It is noted that the two latter sections are practically alike, except that the words “in any suit or proceeding at law or in chancery” are omitted from section 77 of the Civil Practice Act. Those words, however, are still carried without change in section 8 of the Appellate Court Act as amended in 1933 after the passage of the Civil Practice Act. The law is well settled that a particular statutory provision prevails over a general one relating to the same subject where the two are in conflict. (Dahnke v. People, 168 Ill. 102; People v. Baltimore & O. S. W. R. Co., 350 Ill. 217.) Thus, if there is any conflict between the provisions of section 8 of the Appellate Court Act and section 77 of the Civil Practice Act, the particular provision of section 8 will prevail over any general provision of section 77; especially so as section 8 of the Appellate Court Act was amended after the passage of the Civil Practice Act. (City of Chicago v. Chicago Great Western R. Co. 348 Ill. 193.) It is also the law that the re-enactment of a law which has been construed by the courts is presumed to have been so reenacted in view of such construction. (McGann v. People ex rel. Coffeen, 194 Ill. 526.) Section 8 of the Appellate Court Act and section 91 of the Practice Act of 1907 were repeatedly construed by the courts of this State prior to the passage of the Civil Practice Act.

It is also to be noted that section 1 of the Civil Practice Act provides :

“The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record, except in attachment, ejectment, . . . or other actions in which the procedure is regulated by special statutes,” and in City of Breese v. Abel, 359 Ill. 579, the Supreme Court said: “Any action in which the procedure is regulated by special statute is expressly excluded from the terms of the Civil Practice act.”

Procedure under the Liquor Control Act is prescribed by the act itself. Our conclusion, therefore, is that the effect of the statutes now in force,- so far as they relate to the jurisdiction of this court in the case at bar, is the same as before the enactment of the Civil Practice Act.

The words “suit or proceeding at law or in chancery” as employed in section 91 of the Practice Act of 1907 and section 8 of the Appellate Court Act have been repeatedly construed to include every claim or demand in a court of justice which was known at the adoption of our constitution as an action at law or suit in chancery, and also all actions since provided for in which personal or property rights are involved of the same nature as those previously enforced by actions at law or in chancery, but does not include special statutory proceedings involving rights and providing remedies which are not of the kind previously enforced either at law or in chancery. (Lavin v. Wells Bros. Co., 272 Ill. 609; People v. Emmerson, 294 Ill. 219; Phelps v. Board of Appeals of Chicago, 325 Ill. 625; People v. Gale, 339 Ill. 162; People v. Graw, 363 Ill. 205.)

Appellants admit that the Liquor Control Act is a comprehensive act governing the control, regulation, manufacture, sale and distribution of alcoholic liquors. Section 8a of the act provides that no ground shall be relied upon in the circuit or superior court which was not set forth in the application for rehearing before the commission. No new or additional evidence can be introduced in court, but the appeal shall be heard upon the notice of appeal and a certified copy of the record of the commission. If it appears that the commission failed to receive properly proffered evidence the court shall remand the case with directions to receive the rejected evidence and enter a new order; provided, that if it shall appear the new evidence would not be controlling the court shall so find in its order and the case shall not be remanded.

Appellants claim the. right to appeal lies where the right sought to be asserted is of statutory origin but the procedure assumes the aspect of common-law procedure; and that the procedure for review of a decision of the liquor control commission by the circuit court is analagous to the procedure under the common-law writ of certiorari, except that the court is given the power to remand the case for failure to receive proper evidence. They overlook the fact that in addition to the power to remand, the court is permitted to pass upon the relevancy and weight of evidence outside the record and what shall be done about it. They admit that no such procedure is allowable under the common-law writ of certiorari, and that thereunder the court cannot consider any matter not in the record, and the only action the court can take is to either quash the proceedings or the writ. This refutes the claim of analogy to the procedure under the common-law writ of certiorari. If the statute had provided for review by certiorari, instead of appeal, with the same provisions it contains, it would not be a common-law certiorari, for the reason already mentioned, and appellants would have no right of review thereunder. (In re Petition of Forbes, 316 Ill. 141.)

There are two other methods of review, — by writ of error and by appeal. The writ of error, unless abolished by statute, is a writ of right applicable to all cases in which jurisdiction is exercised according to the course of the common law, but not applicable to cases not known to or in derogation of the common law, unless otherwise provided by statute. The right to appeal from a judgment or order of a nisi prius court in civil proceedings is purely statutory, and it is within the power of the legislature to prescribe the cases in which and the court to which a litigant may bring a cause for review by that method. In proceedings which are purely statutory and in which the jurisdiction of the court is not exercised according to the course of the common law there can be no review unless it is specifically provided for by statute and then the review must be had in the manner prescribed. (Freeport Motor Casualty Co. v. Madden, 354 Ill. 486.) In that ease it was held a writ of error did not lie in a garnishment case, but the only remedy was by appeal, which was specifically provided for by the Garnishment Act.

No writ of error is involved in this case. However, it is to be observed that while a writ of error is a writ of right where the proceeding is according to the course of the common law, an appeal in any case is a matter of statutory privilege not based on any comparable right of review. It follows that decisions denying a writ of error in cases where the procedure is not according to the course of the common law are persuasive in like cases involving the right to appeal.

Under the above mentioned construction of the meaning of the words “suit or proceeding at law or in chancery” and. the doctrine that in proceedings which are purely statutory where the jurisdiction of the court is not exercised according to the course of the common law there can be no review unless it is specifically provided for by the statute, there are many holdings of our Supreme Court denying a review by writ of error of the orders or judgments of nisi prius courts. The Forbes case, supra, was a proceeding in the circuit court to review by statutory certiorari the action of the board of appeals in a zoning case denying a petition to exempt certain property from the provisions of the zoning ordinance. It was sought to review the judgment of the circuit court by writ of error. In denying the right to the writ the court said: “The statute does not authorize a review of the judgment of the court of record reviewing the decision of the board of appeals, and, there being no right of review by appeal granted by the statute, no right to appeal exists. (Union Drainage District v. Dupuis-Granger Drainage District, 313 Ill. 37; People v. Andrus, 299 id. 50; Drainage Comrs. v. Harms, 238 id. 414.) This proceeding is not a suit in equity or a proceeding at law within the meaning of section 91 of the Practice act, and so the judgment of the circuit court is not reviewable either by appeal or writ of error. (People v. Emmerson, 294 Ill. 219; Christensen v. Bartelmann Co., 273 id. 346; Myers v. Newcomb Drainage District, 245 id. 140.) ” These pronouncements show the same doctrine is applicable to appeals as is applied to writs of error. Other analogous cases are Freeport Motor casualty Co. v. Madden, supra (Garnishment); People v. Emmerson, supra (Mandamus to compel Secretary of State to file statement under the Securities Act); Phelps v. Board of Appeals, supra (Zoning case); Heaney v. Northeast Park Dist. of Evanston, 360 Ill. 254 (Proceeding to test validity of organization of Park District); Hart Bros. v. West Chicago Park Comr’s, 186 Ill. 464 (Local improvement proceeding); City of Chicago v. Chicago Steamship Lines, 328 Ill. 309 (Forcible detainer); Allerton v. Hopkins, 160 Ill. 448 (Bill of review); People v. Gale, supra (Releasing automobile from impounding order).

In the Phelps case and the Gale case, supra, it is held that if the right sought to be asserted is one which did not exist at common law but is of statutory-origin and is similar to a common-law' right, it is not essential that the provisions for the enforcement of the right in its primary stages be in accordance with common-law methods, if, when the right is later asserted in a court of record, the procedure for its enforcement assumes the procedure according to the course of the common law. Appellants rely upon this principle as stated in the Gale case, but it has no application here, because at common law the right to remand was not limited to the single purpose of requiring the receiving of evidence properly proffered but rejected.

Section 14 of article 6 of the Liquor Control Act provides an action for damages against persons selling or giving away alcoholic liquors resulting in intoxication and injury. The claim that such cases are analogous is untenable. They are actions according to the course of the common law upon a cause of action newly created by the statute. The section mentioned does not create a procedural remedy, but merely creates a new cause of action to be enforced by an old remedy, which is according to the course of the common law, and appealable under the Civil Practice Act.

So, too, there is no force in the claim that because appeals have been allowed from orders of circuit courts admitting wills to probate or denying probate, on appeals from the county court, while the Wills Act makes no provision for appeal, except from the county court to the circuit court. The cases cited by appellants are not applicable here. In Chandler v. Fisher, 285 Ill. 57, the court said it had been assumed without discussion that since the amendment of the Wills Act in 1897, that an appeal would lie from an order of the circuit court dismissing an appeal from the order of the county court refusing to probate a will; and held that a judgment of the circuit court in such cases may be reviewed by appeal or writ of error. In McCormich v. Meisenheimer, 337 Ill. 65, the court, in upholding the right to a writ of error, quotes Simpson v. Simpson, 273 Ill. 90, where it is said: “The proceeding to probate a will in the probate court is a trial or action at law,” and reaffirmed the holding in the Chandler case. Barber v. Barber, 368 Ill. 215, merely holds that as the cause involved real estate, it was appealable to the Supreme Court.

This is not a “suit or proceeding at law or in chancery” known at the adoption of our constitution, and is not a right of the kind previously enforced as such. The procedure in the circuit court is not according to the course of the common law. The Liquor Control Act makes no provision for review of the orders or judgments of the circuit court, and the Civil Practice Act is not applicable. Under the decisions of the Supreme Court above mentioned, we manifestly have no jurisdiction of the appeal and it is accordingly dismissed.

Appeal dismissed.


text:
    Hazel Goff, Appellee, v. Will County National Building Corporation et al. (William. M. Knutson, as Receiver of Will County National Bank Building), Appellant.
    Gen. No. 9,637.

      Heard in this court at the February term, 1941.
    Opinion filed July 9, 1941.
    Donovan, Bray & Gray, of Joliet, for appellant.
    Finn & Miller, of Chicago, for appellee; Robert S. Cook, of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee recovered a judgment for $4,500 in the circuit court of Will county against William M. Knutson, as receiver, in a Federal court foreclosure proceeding, of the Will County National Bank Building, and he appeals. .

Appellee was a passenger in an elevator in the building. Her suit is based on injuries she claims to have suffered by a fall of the elevator from the third floor to the basement on February 20, 1937. The building was formerly owned by the Will County National Building Corporation, and had been occupied by the Will County National Bank. Appellant was receiver of the bank by appointment of the comptroller of the currency. In a proceeding instituted by him to "foreclose a trust deed on the premises in the District Court of the United States for the Northern District of Illinois, he was, by order of the court appointed receiver of the building on May 6, 1935. The building was sold in the foreclosure proceeding and the period of redemption expired on February 16, 1937, four days prior to the alleged accident, at which time appellant was still in control of the building as receiver in the foreclosure proceeding. He was also still receiver of the bank.

The suit was begun by appellee and her husband, Henry Goff. The case was dismissed as to the latter upon his own motion at the close of his testimony. The original complaint, filed March 23, 1937, and the request for summons, named the Will County National Building Corporation as sole defendant. The return on the summons shows service upon appellant as receiver of the building corporation. On December 17, 1937, Knutson, as receiver of the Will County National Bank, was added as a party defendant, and an amended complaint was filed. The first three counts were against the Will County National Building Corporation, and the last three charged Knutson was in possession and control of the building as receiver of the Will County National Bank. An answer was filed by both defendants denying the material allegations of the amended complaint.

On March 21, 1938, responsive to interrogatories of the plaintiffs, appellant answered that he, as receiver of the Will County National Bank of Joliet, was appointed receiver of the Will County National Bank Building in the Federal court foreclosure proceeding, and that in such capacity he was in possession and control of the premises on February 20, 1937. The complaint was not further amended prior to the trial.

At the close of the plaintiff’s case there were but two defendants, the Will County National Building Corporation, and Knutson as receiver of the Will County National Bank. On February 26, 1940, motions for a directed verdict on behalf of each of these defendants were allowed, and, upon appellee’s motion, the title of the cause was amended so as to name Knutson as receiver of the Will County National Bank Building, as a defendant, and the amended complaint was amended by substituting the allegations that Knutson, as receiver of the building, was in control and possession thereof on February 20, 1937. No new summons was issued. Knutson, as receiver of the building, then filed a special and limited appearance and motion in the nature of a plea in abatement to dismiss the cause as to him, questioning the jurisdiction of the court on the ground that he had never been served with summons in the case nor entered his appearance except to question the jurisdiction. Appellee demurred generally. The court sustained the demurrer and denied the motion. As receiver of the building, Knutson then filed a motion in the nature of a plea of the statute of limitations. A demurrer to this motion was. sustained and the motion was denied. Appellant then answered as receiver of the building, denying all material averments of the amended declaration as amended, and persisted in his claim that the statute of limitations is a bar.

, The language of the order of the Federal court is: “That William M. Knutson, Receiver of the Will County National Bank of Joliet, be and he is hereby appointed Receiver of the following described premises:” (describing them, and including the buildings). It is to be noticed that he was not appointed receiver of the building “ as ” receiver of the bank. The words “Receiver of the Will County National Bank” do not in any way define or limit his appointment as receiver of the building or prescribe his powers or duties as such, but are merely descriptio personam.

A suit against a receiver is not a proceeding against him personally, but it is in the nature of a proceeding in rem against the res which he holds in his capacity as receiver. Any judgment recovered against him is payable only from funds that are under the jurisdiction and control of the court that appointed him. (McNulta v. Lockridge, 137 Ill. 270, aff’d 141 U. S. 327, 35 L. Ed. 796; Sneeden v. Industrial Commission, 366 Ill. 552; Kloepher v. Osborne, 177, Ill. App. 384; 53 C. J. 363.) Under these authorities the suit against Knutson as receiver of the bank is in effect a suit against the assets of the bank, and a suit against him as receiver of the building in the foreclosure proceeding, is in effect a suit against the assets in that proceeding. The bank receivership and the building receivership were separate and distinct matters in different causes of action, each within the jurisdiction of the particular court in which it was pending, and having no relation to the other. As receiver of the building, appellant acted in a separate and distinct capacity from that as receiver of the bank, the same as if different persons were acting in the respective capacities. The record does not show that Knutson was ever receiver of the building corporation, or that he ever had possession or control of .the building as receiver of the bank. The order of the Federal court finds that prior to its entry W. M. Knutson had been collecting and disbursing the rents under an arrangement with the directors of the building corporation, but that does not imply that even under that arrangement he was in possession or control of the building. So far as the record shows appellant’s control and possession of the building at the time of the alleged accident was solely by virtue of his appointment as receiver of the building by the Federal court in the foreclosure proceeding.

There was never any attempt to make Knutson a party to the cause in his capacity as receiver of the building until February 26, 1940, and as such he was never served with process. His answer to the interrogatories disclosed his appointment as receiver of the building in the foreclosure proceeding and his possession and control of the building in that capacity. Nevertheless, appellee made no attempt to make him a party in that capacity until after the expiration of the limitation period.

Appellant relies upon these facts as establishing nonliability as receiver of the building. Appellee contends that appellant is the same person that was originally served with summons; that he had possession and control of the building at all times both before and during the receivership; that the building is the same building alleged in all the counts of the amended complaint; that appellant was represented in the Federal court and in this proceeding by the same counsel; and that these facts are sufficient to establish liability.

In Wilcke v. Henrotin, 241 Ill. 169, cited by appellee, an original declaration named the defendant as “Charles Henrotin, Receiver,” etc. An amended declaration, filed after the limitation period, inserted the word “as” between the words “Henrotin” and “Receiver.” The question presented for determination was whether the defendant was sued as an individual or as receiver. The court held there was nothing in the record from which it could be supposed the plaintiff was seeking to enforce a personal liability against Henrotin, and that the suit was, in fact, against him as receiver and not against him personally. Pennsylvania Co. v. Sloan, 125 Ill. 72; McNulta v. Ensch, 134 Ill. 46, and Ferenc v. Walden W. Shaw Auto Livery Co. 210 Ill. App. 340, all involved analagous misnomers of the defendant intended to be sued. In the case at bar the order under which the amendment was made authorized an amendment substituting Knutson as receiver of the building in lieu of Knutson as received of the bank, thus recognizing the proposed amendment was a substitution of parties and not merely a change in the name of the party intended to be sued. This is further demonstrated by the order directing a verdict in favor of the receiver of the bank. The cases relied upon by appellee were where there was a change in the name of the party intended to be sued, and have no application here where it is manifest the intention was to sue the receiver of the bank, and not the receiver of the building. The mistake was not a misnomer, but was a mistake as to the party liable.

The rule in cases of misnomer, that where the real party in interest and the one intended to be sued is actually served with process, even under a wrong name, he must take advantage of the misnomer by plea in abatement, or be concluded by a judgment against him, is not applicable where a different party, against whom a judgment is rendered, was not a party to the suit. (County of Winnebago v. Industrial Commission, 336 Ill. 466.)

In Fitzpatrick v. Pitcairn, 371 Ill. 203, affirming a judgment of this court, Proctor v. Wells Bros Co., 262 Ill. 77, and Grewenig v. American Baking Co., 293 Ill. App. 604, it is held that where the record shows that a certain defendant is intended to be sued, and pursuant thereto, is sued, an amendment after the limitation period, attempting to substitute a different party as defendant who was not theretofore a party to the cause, is not a case of misnomer, but is a mistake as to the identity of the party hable, and the amendment is vulnerable to a plea of the statute of limitations. In the Qrewenig case and the Fitzpatrick case, supra, the service of summons was had upon the person who represented the defendant sued, and the party attempted to be added by amendment. In the latter case both parties were represented by the same counsel. These facts were not sufficient to uphold a judgment against the added party, and it follows that similar facts are not sufficient to uphold the judgment in this case. The cases cited by appellant are controlling here. The facts set out in the motions of appellant are a complete defense to the action and were admitted by the demurrers. It is, therefore, unnecessary to discuss the other grounds urged for reversal. The judgment of the circuit court is reversed.

Judgment reversed.


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    First National Bank of Chicago et al., as Trustees Under the Last Will and Testament of Susannah Brown Miller, Deceased, Appellees, v. Anna B. Cherrier et al. (Louise Madsen et al.), Appellants.
    Gen. No. 9,648.
    Heard in this court at the May term, 1941.
    Opinion filed July 9, 1941.
    Cameron, Heath & Burry, of Chicago, for certain appellants; John R. Heath and Richard V. Henry, Jr., both of Chicago, of counsel.
    William T. Kirby, of Waukegan, for certain other appellant; William T. Kirby, of counsel.

      Bernard M. Decker, of Waukegan, for certain appellees ; Bernard M. Decker, of counsel.
    Henry D. Fisher, of Waukegan, for certain other appellees; Henry D. Fisher, of counsel.
    Bell, Boyd & Marshall, of Chicago, for certain other appellees; Thomas L. Marshall, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

The question in this case is presented by an appeal from a decree of the circuit court of Lake county, construing the last will of Susannah Brown Miller, deceased, and holding that a one-half of the income from a trust created by said will shall be distributed per capita among the nieces and nephews of the testatrix, and per stirpes among the issue of any deceased niece or nephew. The appeal is by one of the nieces of the testatrix and her two children, who claim the distribution shall be entirely per stirpes.

The issue involves the construction of Clauses (H), (I) and (J) of the will. They read as follows:

(H) The rest, residue and remainder of the net income of my trust estate shall be paid over by my Trustees in quarter-yearly installments as follows:
“(1) One-half (½) thereof to my brother, Joseph Henry Brown, of Little Bock, Arkansas, so long as he shall live, and upon his death, to pay said one-half (½) of said rest, residue and remainder of the net income to my nieces and nephews living at the respective dates provided for the distribution of income until the date of the distribution of principal hereinafter mentioned;
“(2) One-half (½) thereof to my sister, Anna B. Cherrier, of Los Angeles, California, so long as she shall live, and upon her death, to pay said one-half (½) of said rest, residue and remainder of the net income, to my nieces and nephews living at the respective dates provided for the distribution of income, until the date of the distribution of principal hereinafter mentioned, provided, however, that if Harry A. Cherrier survive my sister, Anna B. Cherrier, said Trustees shall pay out of said share of such net income, the sum of One Hundred Dollars ($100.00) per month to the said Harry A. Cherrier, on the first day of each month, so long as he shall live.
“(I) The date of distribution of the principal of my said trust estate shall be upon the death of the survivor of my brother and sister.
“ (J) (The first paragraph of this clause is conditioned upon Harry B. Miller or Harry A. Cherrier, or both, surviving the brother and sister of the testatrix, and makes provision for them during their lives, with distribution of the balance of the principal. This paragraph has been rendered inoperative, they having predeceased the testatrix, and it is, therefore, omitted.)
“In the event that both Harry B. Miller and Harry A. Cherrier shall predecease either my brother or my sister, then upon the death of the survivor of my brother and sister, my Trustees shall divide the entire principal of my said trust estate into five (5) equal shares and distribute the said shares to the children of my brothers and sisters, such children taking by representation per stirpes and not per capita.
“In the event of the death of any of the children of my brothers or sisters, prior to the date of distribution of principal, leaving lawfully begotten issue him or her surviving, who shall be living at the date of distribution, such issue shall receive the share of the parent, taking by representation per stirpes and not per capita.
“In the event of the death of any of the children of my brothers or sisters prior to the date of distribution of principal, leaving no lawfully begotten issue him or her surviving who shall be living at the date of distribution, the share of such child or children shall be paid to his or her brothers or sisters, if any, then living, or the lawfully begotten issue of any brother or sister who may have died; and in the event that such child or children shall have no brothers or sisters or no lawfully begotten issue of any brother or sister who may have died then living, such share shall be divided among the other beneficiaries according to the same ratio in which they are entitled to receive the principal of said trust estate.”

The testatrix executed her will on September 15, 1931, and died on October 17, 1938. She had nine brothers and sisters, four of whom predeceased her without leaving any issue. Her remaining brothers and sisters were Joseph Henry Brown, Anna B. Cherrier, Margaret June, Jane Knox, and John Thomas Brown. All of them, except Joseph Henry Brown and Anna B. Cherrier, died before the will was executed. Joseph Henry Brown died on September 28,1939, leaving no issue. Anna B. Cherrier is still living. She had one daughter, Ruth Peyton, one of the appellees. Margaret June had three children: (1) Marjorie Van Tassell, who was alive when the complaint was filed, but died in 1940, leaving no issue; (2) Morris B. June, now living; (3) Raymond June, who predeceased the testatrix, leaving two children, Norman Henry June and Dorothy June, who are still living. John Thomas Brown left three children, Grace Clark, Suzanne Rich and Aileen Mogge, all now living; Jane Knox left surviving her one daughter, Louise Madsen, who is still living. She has two children, Keith Knox Madsen and Earlene Louise Madsen. The last three named are the appellants mentioned above.

None of the parties question the holding that Norman B. June and Dorothy June are entitled to a share of the income per stirpes. It is conceded by all the parties that the ultimate distribution of the principal is to be per stripes.

Hnder the claim that the entire income should be distributed per stirpes, appellants contend that Ruth Peyton is not entitled to any share therein during the lifetime of her mother on the ground that stirpital distribution is based upon representation, and permitting her to share is inconsistent with the general scheme of the testatrix. Eliminating her from their calculations, they claim Louise Madsen is entitled to one-third of the income instead of one-eighth as provided by the decree, with adjustments in the other shares conformable to a stirpital distribution.

Appellants claim the provisions of the will relating to distribution of income are ambiguous. While we do not think the claim could be upheld as to any single clause when isolated, we are of the opinion that under the conflicting claims of the parties, allegedly supported by authorities cited, the question of how the clauses when considered together, and the will as a whole, should be interpreted, was sufficient to give the court jurisdiction in the premises.

We cannot agree with the contention of appellants that the courts of this State are committed to the doctrine that where a will is ambiguous distribution is to be held stirpital wherever possible. They cite no case, and we know of none, which so holds. It has been repeatedly held that owing to the fact that wills are seldom worded alike, decisions in particular cases are of little value as precedents, and each case must be decided upon its own peculiar facts and circumstances. (Whittington v. Hunt, 296 Ill. 133; Wallace v. Noland, 246 Ill. 535.) The decisions where distribution has been held to be stirpital may be roughly classed into two groups. First, where the court determined the testator so intended, as disclosed by the language of the particular will, either by itself, or in connection with other controlling facts and circumstances. None of these decisions are predicated upon any doctrine that the court will hold a distribution to be stirpital wherever possible, but they are based upon the universal rule that where the testator’s intention can be determined from the will, and is not in violation of some positive rule of law or public policy, it will be given effect. (Dahmer v. Wensler, 350 Ill. 23; McCormick v. Hall, 337 Ill. 232.) The second class of cases is where the intention of the testator was not clear or the gift was to heirs or descendants as a class. Holdings in those cases are based upon the presumption that the testator intended his property to go in accordance with the statute of descent. A pertinent statement is found in 16 A. L. R. 16, where the annotators say: “It is a common remark that the decisions on the question as to when beneficiaries under a will are to take per capita and when per stirpes are in hopeless confusion. Analysis and comparison, however, show that their diversity of result is due not to a difference as to the principles of construction, but as to the amount of evidence of a contrary intent which will overcome the general presumption that where the proportions in which the beneficiaries are to take are not specified, they take per capita.” All of the pronouncements of our Supreme Court demonstrate that the fixed policy in this State is not to follow any arbitrary rule of construction, but whenever the intention of the testator can be ascertained with reasonable certainty, that intention must be effectuated.

Among the eases relied upon by appellants are Wyeth v. Crane, 342 Ill. 545, and Poehlman v. Leinweber, 288 Ill. 58, where the gifts were to descendants; Kelley v. Vigas, 112 Ill. 242; Thomas v. Miller, 161 Ill. 60; Richards v. Miller, 62 Ill. 417; Welch v. Wheelock, 242 Ill. 380 and Clark v. Todd, 310 Ill. 361, in each of which the gift was to heirs or heirs-at-law. A significant statement is found in Clark v. Todd, supra, as follows: “As a general rule, when gifts are made by will to heirs-at-law simpliciter, the persons to take and the proportions must be determined by the Statute of Descent.” (Citing Richards v. Miller, Kelley v. Vigas and Welch v. Wheelock, supra.) It is to be observed that it is required not only to determine proportions but to determine who are to take, which might include descendants or heirs-at-law of several different degrees of relationship. It is also to be noted that the statute of descent, which results in stirpital distribution, is applied because the testator has not designated the persons who are to take otherwise than as prescribed by the statute. Manifestly, there is no occasion for applying that doctrine where, as here, the persons who are to take are specifically designated as nieces and nephews. It follows that the cases cited have no bearing upon the question at issue.

In Pitney v. Brown, 44 Ill. 363, a will directed the conversion of the estate into money and provided for certain legacies and an annuity to the widow. It then provided: “The balance remaining of said fund I hereby direct shall be equally divided between the children of my late brother, Mahlon Pitney, and my brother-in-law, William H. Brown ... a large portion of my property having been received through his father and the father of my late wife, Betsey II. Pitney.” There were three children of Mahlon Pitney. The court held the four legatees took per capita, basing its holding upon the rule announced in 2 Jarman on Wills, p. Ill, and a long line of decisions upholding the rule, which was quoted in the opinion as follows: “When a legacy is to the children of several persons they take per capita and not per stirpes. The. same rule applies when a bequest is made to a person standing in a certain relation to the testator and the children of another person standing in the same relation, as to my brother A and the children of my brother B, in which case A takes only a share equal to that of the children of B.” A factor in that case to be hereinafter noticed was that the general rule applied unless a contrary intention was indicated by the will. It was contended that a contrary intention was indicated by the fact that a large portion of the estate came from Brown’s father, but the court said it could only regard this clause as giving a reason for making Brown a legatee at all, and not as indicating the extent of the legacy, inasmuch as Brown would not have taken anything at all if there had been no will.

In Richards v. Miller, supra, where the gift was to heirs-at-law, the court points out that the gift in Pitney v. Brown was not a gift to a class to be ascertained by the statute, but was a gift to certain persons, as if they were individually named. Kelley v. Vigas and Welch v. Wheelock, supra, point out the same distinction. In Northern Trust Co. v. Wheeler, 345 Ill. 182, the court mentions that Kelley v. Vigas distinguished Richards v. Miller from Pitney v. Brown, and says that they have been repeatedly cited and followed. This refutes the contention of appellants that the earlier cases have been nullified by later decisions. Another recent case that supports the claim of appellees is Carlin v. Helm, 331 Ill. 213, where the gift was “to my lawful heirs to be divided equally among them . . . I mean by my lawful heirs, my daughter Aura F. Hecox and her children, and grandson Harry B. Helm. ’ ’ In holding the distribution was to be per capita, the court said: “All designated devisees are in being. The children of Mrs. Hecox cannot be considered as taking per stirpes because they take in their own right directly by the will and not by representation.” The statement as to how the children took is squarely in point here as to the nieces and nephews of the testatrix.

In McCartney v. Osburn, 118 Ill. 403, the will gave the testator’s daughter Henrietta certain property of the value of $30,000 and to his grandchild, Harry Gr. McCartney, the sum of $30,000 to be paid to him when he reached the age of twenty-one years. The remainder of the estate was to be divided equally between the heirs of Henrietta that might be living at the time of distribution, and Harry Gr. McCartney. The time of distribution was when the youngest child of Henrietta became twenty-one years of age. In holding the distribution should be per capita the court held there was nothing in the will which indicated a contrary intention. It was so held even though the other gifts to Henrietta and the grandson were equal. In the course of the opinion the court said: ‘ ‘ It is conceded, and such is unquestionably the law, that if a testamentary gift be made to one person and the children of another person, as, for instance to A, and the children of B, A and the children of B, in such case, in the absence of a contrary intention, will take per capita and not per stirpes. (2 Jarman on Wills, 756.) Tet it is equally well settled, that the opposite construction will prevail when the intention to that effect can be gathered from the context, — or, in the somewhat quaint language of Jarman, — ‘this mode of construction will yield to a very faint glimpse of a different intention in the context, id. 757.” The same doctrine appears in Welch v. Wheelock, supra.

Appellants also rely upon the cases hereinafter discussed. In Dollander v. Dhaemers, 297 Ill. 274, the will provided, after a life estate to the testator’s widow, that upon her death or remarriage, all the property should be vested in the testator’s named children, and the children of a deceased daughter share and share alike. The only question was whether the grandchildren took per capita or per stirpes. The court held that under the wording of the will the grandchildren were to be considered as a class and should take per stirpes and not per capita. The opinion quotes Jarman’s rule and his statement that the rule will yield to a faint glimpse of a contrary intention. It mentions the fact that the decisions in Kelley v. Vigas; McCartney v. Osburn; Welch v. Wheelock, supra, and Straw v. Barnes, 250 Ill. 481, all indicate that the courts generally will depart from the rule laid down by Jarman if there is the faintest intention to show that the class, — in that case the grandchildren —might be considered as taking per stirpes rather than per capita; and says that where there is an ambiguity in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid in construing the will. The opinion quotes Ferrer v. Pyne, 81 N. Y. 281, as follows: “He designates the children of Irene as a class and not as individuals, remembering them not in their own persons but as representatives of their parent and substitutes them in her place. We are unable to discover any intent to bestow upon them any greater or more numerous marks of affection than their parent would, if living, have received, ’ ’ and proceeds: ‘ ‘ The reasoning of this opinion on this point is quoted with approval in the note to Perdue v. Starkey’s Heirs, supra.” (Ann. Cas. 1916 C (Va.) 409.) It cannot be doubted that the basis of the holding in Dollander v. Dhaemers, supra, is that the testator intended the grandchildren to take the share of their deceased parent by representation. In the case at bar there is no question whether the issue of a deceased niece or nephew take per capita or per stirpes. The parties concede that they take per stirpes. In Dollander v. Dhaemers, supra, there was no question as to how the children should take. Aside from a recognition of Jarman’s rule and the exception thereto, there is nothing in the case that is applicable here.

In Whittaker v. Porter, 321 Ill. 368, two wills, substantially alike, bequeathed income and devised property equally to two daughters for life and after their death to their children to be shared equally. One daughter had six children and the other had two. The court held that the two daughters took as tenants in common and that after their death the children of each daughter took the remainder in fee after the particular estate to each daughter. The language of the will clearly indicated the property should go, one-half to one daughter for life and then to her children, and the other half to the other daughter for life and then to her children. That case has no application here.

In Fussey v. White, 113 Ill. 637, the will expressly provided for a division in halves between the children of two life tenants who were children of the testator. The question in that case was whether the gift to one set of the grandchildren was postponed until the death of both life tenants and the court held it was not postponed. How it is persuasive here is not apparent.

In Palmer v. Jones, 299 Ill. 263, there was a devise of real estate to life tenants with a provision that at their death the property should be divided equally between the testator’s sister and the surviving children of her brother. The personal property was to be divided equally between the surviving children of the brother and the surviving children of the sister. Following Dollander v. Dhaemers, supra, it was held the children of the deceased brother were to be considered as a class and to take the real estate equally per stirpes with the testator’s sister. In that case the will showed the testator’s intention was to divide the property in halves.

In Beal v. Higgins, 303 Ill. 370, the gift was “to my son William Everett Higgins, to my daughter Myrtle I. Higgins and the children of my daughter-in-law, Maggie Higgins, share and share alike.” The court held the children of the daughter-in-law took per stirpes. There was a like holding in Dahmer v. Wengler, 350 Ill. 23, where the will gave the residue of the estate to the children of John Dahmer and Charles Wensler and Henry Wensler in equal parts, and the first two named were dead when the will was executed. None of those cases furnishes an analogy to the case at bar.

The claim that the gift in this case is not simpliciter we regard as of no importance. The controversial gifts in McCartney v. Osburn, supra, and in Beall v. Beall, 331 Ill. 28, were not of that character, yet the court held the parties took per capita.

That the courts of this State will always give effect to the intention of the testator, notwithstanding rules of construction on the question of per capita or per stirpes distribution, is demonstrated in the following cases: In the Dollander case, supra, the court said: “When the bequest is to an individual or several individuals, and to others as a class, the latter generally take per stirpes; but this rule yields when the testator used language indicating an intention that the members of a class should share equally with the named individuals.” In Northern Trust Co. v. Wheeler, supra, it is said: “The Illinois law favors a construction of a devise to descendants as will cause the division among descendants per stirpes and not per capita, but it is the intention of the testator which must govern.” To the same effect is Baker v. Baker, 152 Ill. App. 620.

Inasmuch as the law in this State is that Jarman’s per capita rule will prevail unless there is a “faint glimpse” of a different intention in the context, it is unnecessary to discuss decisions in other jurisdictions, and the issue resolves itself into a question of the intention of the testatrix. Appellants claim that because the will provides for a stirpital distribution of the principal, that circumstance indicates the testatrix intended there shall be a like distribution of the income. In our opinion the language of Clause (J) so carefully discriminates from the language of Clause (H) as to show clearly and unequivocally that the testatrix intended the distribution under Clause (J) to be on a different basis than that in Clause (H). The use of the technical language clearly demonstrates she knew the meaning of distribution per stirpes and employed it for the purpose of showing that intention as to the principal of the trust. The claim that the principle of distribution was that of equality between brothers and sisters is without foundation. There is no such element in Clause (H). The families of deceased brothers and sisters were ignored and the income was divided equally between the surviving brother and sister; and after the death of one until the death of both, the nieces and nephews are to receive the half which previously went to the deceased brother or sister. No intention appears from the provisions of the will of testatrix to provide equality among her brothers and sisters or their families. The fallacy of the contention of appellants for a stirpital distribution is further indicated by their claim that Ruth Peyton is not entitled to share in the income during her mother’s lifetime. Of course, this would be a necessary consequence if their claim is upheld that the income is to be distributed per stirpes, but the testatrix made no such exception either expressly or by implication. On the contrary, she included all her nieces and nephews without distinction as to whether their parents were living or dead, and she knew that Ruth Peyton’s mother was living. Furthermore, if Anna B. Cherrier had died before Joseph Henry Brown, appellants’ argument would obviously fail. They lose sight of the fact that the beneficiaries, as respects nieces and nephews, are the same in either case. These facts alone are sufficient to show the testatrix had no intention that the income should be distributed per stirpes. On this question, the holding in Pitney v. Brown, supra, is to be noticed, where it was contended the fact that the testator had received a large part of his property through the father of his brother-in-law indicated an intention for a stirpital distribution among the other legatees, but the court held it could only regard the clause as furnishing a reason for including him at all. So too, in McCartney v. Osburn, supra, the gift of the residue was held to be per capita, although the other gifts to the daughter and grandson were equal. We are of the opinion that the facts in those cases were as strong a circumstance as the mere fact that the testatrix in the case at bar provided for a stirpital distribution of the principal. In addition to the foregoing reasons, it is apparent that to give Louise Madsen one-third of the income, leave Ruth Peyton entirely out, give the nephew Morris B. June one-sixth, and the other three nieces one-ninth each, which would be the result of a stirpital distribution of the income, would be so manifestly against the expressed intention of the testatrix as to need no further discussion. There is nothing in the will or the testimony to indicate that she had any such intention, but on the contrary, all the facts and circumstances indicate she intended the income to be distributed per capita. Under these conditions we do not consider it is necessary or desirable to analyze cases from other jurisdictions involving different factual situations. Nor do we agree with the claim that the absence of such words as “equally,” “share and share alike” or words of like import tends to show an intention for stirpital distribution of the income. While such words are frequently held to indicate an intention requiring per capita distribution, no case is cited holding that the absence of such words tends to have a contrary effect.

We are of the opinion that there is not only no “faint glimpse” of an intention to prescribe stirpital distribution of income among the nieces and nephews, but the will clearly shows her intention that it shall be per capita. The general rule accords with that intention. She had the right to so provide and the courts have no power to change her will or make a new one for her. The decree was correct and is affirmed.

Decree affirmed.


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    M. R. Schmahl, Appellant, v. Aurora National Bank et al., Appellees. Isidor J. Leins et al., Cross-Appellants, v. M. R. Schmahl, Cross-Appellee.
    Gen. No. 9,663.

      Heard in this court at the May term, 1941.
    Opinion filed July 9, 1941.

      Beamish, Edwards & Brunnemeyer and Robert E. Dolph, both of Aurora, for appellant and cross-appellee; J. Emil Brunnemeyer, Robert E. Dolph and H. L. Beamish, all of counsel.
    Matthews, Jordan & Dean, of Aurora, for appellees and cross-appellants; John T. Matthews and Robert J. Janda, both of Aurora, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Kane county in a foreclosure suit by appellant, M. E. Schmahl, against appellees and cross-appellants.

On June 23, 1932, appellees executed and delivered to the Aurora National Bank their promissory note for $5,000, payable to bearer, due in five years, secured by a trust deed on certain real estate in the city of Aurora, as collateral to an unsecured demand note of Isidor J. Leins for $9,300, dated June 1, 1932, payable to the bank. The trust deed was subordinate to a first mortgage to a building and loan association.

In March 1933, the bank was closed by the comptroller of the currency and a receiver was appointed. On October 31, 1936, it appearing that appellees were insolvent, an agreement to settle the indebtedness, then amounting to $4,200.98, for $1,500, was entered into between them and the receiver. $500 of the agreed settlement price was paid that day. The balance was to be paid in two equal instalments of $500 each, on February 20, 1937, and May 20, 1937.

On November 9th, 1936, Leins assigned to the receiver fifty per cent of the rentals, to be applied on the unpaid $1,000. Pursuant to the agreement and at the direction of the comptroller of the currency the receiver filed a petition in the circuit court, ex parte, and on February 16, 1937, obtained an order of the court authorizing the settlement for $1,500, $500 being payable as a down payment, $500 to be paid in ninety days, and the, remaining $500 in six months,, with interest at 5 per cent, and upon full payment the notes and trust deed to be-canceled and returned to. appellees. Appellees paid $400 of the second $500 in four instalments of $100 each, on March 4, March 20, June 26 and July 10, 1937. No further payment was made.

On December 1, 1939, upon an ex parte petition of the successor receiver, the court vacated the prior order and authorized the successor receiver to sell the notes and trust deed to Mrs. E. M. Biddle for $1,000 cash. They were assigned to her on November 28th, and the next day she assigned them to appellant for $2,500. Shortly thereafter appellant commenced the instant foreclosure suit. After the issues had been made up a hearing was had resulting in a decree which found that the order vacating the prior settlement order was entered without notice to appellees and is null and void. Foreclosure, however, was, decreed for the unpaid balance of $600 together with interest, costs, and attorney’s fees of $145.

Appellant contends the court erred in holding the vacating order void and in not allowing him reasonable attorney’s fees; and that he is entitled to a decree for $4,856.69 as of May 3,1938, with interest. The amount so claimed would be the amount of the debt on the date mentioned if the settlement agreement had not been made. Appellees and cross-appellants claim the court correctly held the vacating order is void, but erred in failing to further hold that neither Mrs. E. M. Biddle nor appellant obtained any title to the notes and trust deed, and consequently were not entitled to foreclose or to receive any payment from appellees.

During the year 1939, up to September of that year, Leins and N. H. DuSell, assistant to the successor receiver, had five or six conversations about the indebtedness. DuSell testified he said something would have to be done about completing the settlement; that Leins was always going to raise some money but did not do so, and the matter would go along another month, with the same result each time. They talked about a further reduction in the amount of the settlement. In April 1939, Leins turned over to DuSell an appraisal of his assets and testified that he told DuSell it had been made at the suggestion of the former receiver, to be submitted to the comptroller of the currency; that DuSell said that was a matter with which he was not concerned, but promised Leins to submit it, and had never done so; and that he, Leins, never told DuSell he would not go ahead with the original settlement. The receiver never attempted to enforce the assignment of the rents. Leins did not learn his offer of further compromise was rejected or that his notes had been sold until he was served with summons in the foreclosure suit.

Appellant’s claim that notice to appellees was not necessary to the validity of the vacating order is without merit. The Federal statute (12 USCA title 12, par. 102), under which the order authorizing the settlement was made, provides in part that the receiver “upon the order of a court of competent jurisdiction may sell or compound all bad or doubtful debts, and, on'a like order, may sell all real and personal property of such association, upon such terms as the court shall direct.” It thus appears that an order of the circuit court either authorizing or approving the settlement agreement was a prerequisite to its validity. (Strong v. Burden, 311 Ill. App. 255 and cases there cited which opinion is this day filed.)

While it is true that the receiver in the instant case, by filing his ex parte petition and procuring from the circuit court of Kane county the order of February 16, 1937, authorizing the settlement for $1,500 submitted himself to the jurisdiction of that court for the purpose of that particular application and order,, yet, by so doing, he did not thereby submit himself or the affairs of the hank to the general jurisdiction of that court. Fifer v. Williams 5 F. (2d) 286. When the receiver invoked the jurisdiction of the court and submitted himself thereto to obtain the necessary settlement order he and his successor cannot be permitted thereafter to say they are not bound by the proceedings. The order and settlement contract were therefore legal and binding on both parties.

In Dugger v. Cox, 100 F. (2d) 834, cited by appellant, the court, on the hearing for confirmation of a sale of bank assets, first confirmed the sale, and then permitted the bids to be reopened. It was held the proceeding for confirmation was ex parte and the statute did not contemplate notice to those interested and there was none of the essentials of a legal controversy. The transactions there were in a single proceeding for confirmation of a sale. That case has no application here where nearly two years had elapsed after an order was entered authorizing a legal and binding contract of settlement, and that contract had been partly performed and never terminated. Appellant cites no authority holding that any court may vacate or -modify in substance a prior legal order of the court without notice to the interested parties.

It has been repeatedly held that after a term of court has expired, the court has no authority to amend or modify a decree except as to matters of form and after notice to the opposite party. (Wilson v. Fisher, 369 Ill. 538; People ex rel. Sweitzer v. City of Chicago, 363 Ill. 409; Cummer v. Cummer, 283 Ill. App. 220). The Civil Practice Act of 1933 substitutes a thirty-day period in place of a term of court. (Ill Rev. Stat. 1939, ch. 110, par. 174 [Jones Ill. Stats. Ann. 104.050].) A corollary is that the court has no authority to vacate an order after the expiration of the thirty-day period. The chancellor correctly held the vacating order, entered nearly two years after the entry of the original order, and without notice to appellees, was null and void. As a valid order of the court is a requisite to a receiver’s sale, Mrs. Biddle derived no title to the notes and trust deed, and consequently could pass none to appellant.

There is another reason why the attempted vacating order and sale were invalid. Some of the instalment payments were accepted after the due date and were not in the full amount due. There were negotiations, and forbearances during a period of two years. Leins was never notified to pay the delinquent amounts within any certain time or of an intention to declare a forfeiture. Delays in performance of a contract may be waived by conduct indicating an intention to regard the contract as still in force. (Cottrell v. Gerson, 371 Ill. 174; Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194; Evans v. Howell, 211 Ill. 85; McArthur Bros. v. Whitney, 202 Ill. 527.) After delays in performance have been waived, a contract cannot be rescinded for failure strictly to perform without giving notice and a reasonable opportunity to perform. (Plummer v. Worthington, 321 Ill. 450; Hibernian Banking Ass’n. v. Bell & Zoller Coal Co., 181 Ill. App. 581; Worth-Huskey Coal Co. v. Columbia Malting Co., 230 Ill. App. 165; 1 Am. Jur. 251, par 65.) The conduct of the receiver amounted to a waiver of strict performance, and appellees were entitled to notice and an opportunity to perform before the contract could be rescinded. Under these authorities and the facts in the record the settlement order and the settlement contract were still in force and so remained after the purported vacating order. So long as they were in existence nobody could obtain title to the notes and trust deed except subject to the conditions mentioned.

We do not agree with appellant’s contention that he is a holder in due course and as such is entitled to payment of the full amount of the unpaid face of the notes and interest. The alleged assignments were made about seven and one-half years after the date of the $9,300 demand note, more than two years after the due date of the $5,000 collateral note and more than two years after any payments were made. Section 52 of the Negotiable Instruments Act (Ill. Rev. Stat. 1939, ch. 98, par. 72 [Jones Ill. Stats. Ann. 89.072]) provides: “A holder in due course is a holder who has taken the instrument under the following conditions : 2. That he became the holder of it before it was due.” This demonstrates that appellant was not a holder in due course of the $5,000 note. Section 53 of the same act provides: “Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.” Section 192 provides: “In determining "what is a ‘reasonable time’ or an ‘unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business (if any), with respect to such instruments, and the facts of the particular case.” We are of the opinion that under these sections appellant is not a holder in due course of the demand note, and we so hold. Furthermore, appellant and Mrs. Riddle are charged with knowledge of the Federal statute which requires an order of court authorizing the receiver to sell or compound any of the assets of his trust. With such knowledge they would be put on notice as to all matters contained in the order authorizing the sale to Mrs. Riddle. That order shows the former settlement order and that it was entered more than two years previously. The assignment on the back of each note was by the receiver. The expression of a holder’s or transferor’s fiduciary character on the face of a negotiable instrument is notice to the purchaser of a probable limited or restricted authority. (8 C. J. 515, sec. 722). The purchaser is charged with notice of such limitations of the trustee’s authority as a reasonable inquiry would disclose. (Chicago Title & Trust Co. v. Brugger, 196 Ill. 96; Owens v. Nagel, 334 Ill. 96). Section 52, supra, also requires: “4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect of title in the person negotiating it.” Section 58 provides: “In the hands of any holder other then a holder in due course, a negotiable instrument is subject to the same defense as if it were nonnegotiable.” One taking past due paper is chargeable with notice of all equities between the original parties but not with equities between intermediate endorsers. (Young Men’s Christian Ass’n Gymnasium Co. v. Rockford Nat. Bank, 179 Ill. 599.) No case of equities Between endorsers is presented here. The receiver was not an intermediate endorser or transferee but merely stood in the shoes of the bank. Under these authorities appellant is not a holder in due course. This defense was sufficiently raised in the circuit court by the answer of appellees in which the assignments of the notes and their ownership by appellant is denied. He does not hold the indebtedness by a valid assignment and is not entitled to payment of any amount thereunder. The notes and trust deed are and will remain a part of the assets of the receiver’s trust unless and until proper proceedings are had to terminate the settlement agreement and to thereafter assign the indebtedness.

That part of the decree holding the vacating order void is affirmed. In all other respects the decree is reversed and the cause is remanded with directions to enter a decree consistent with the views herein expressed.

Decree affirmed in part and cause reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    In re Estate of Albert Marti, Deceased. Sarah Spiess and Albert Marti, Appellants, v. Helen Marti, In Her Own Right and as Executrix of the Last Will and Testament of Albert Marti, Deceased, Appellee.
    Gen. No. 9,689.
    Heard in this court at the May term, 1941.
    Judgment affirmed.
    Opinion filed July 9, 1941.
    Savage, Holbrook & McKeown, of Joliet, for appellants.

      Irving Shutts, of Joliet, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Albert Marti lived in the county of Will. He was twice married. He had four children by his first marriage, namely; Sarah Marti, now Sarah Spiess, Bertha Marti, now Bertha Aspel, Daniel and Albert Marti. By his second marriage, he had four sons, namely; Louis, Nicholas, George and Tina Marti.

On May 16, 1923, he executed his will, which contained two paragraphs relative to the disposition of his estate. That part with which we are concerned is as follows:

“First: It is my Will that my funeral expenses and all just claims against my estate be first paid.
“Second: Subject to the foregoing, I hereby give, devise, and bequeath to my wife, Helen Marti, the use and income of all of my property, both real and personal as long as she may live.
Third: Subject to the foregoing I hereby give, devise, and bequeath to my four children, Louis Marti, Nicholas Marti, George Marti and Tina Marti, all my property and estate both real and personal to be taken by them in equal parts.” The four children referred to in the third paragraph of the will are the four sons by his second marriage.

On May 4, 1929, the testator executed a codicil, making legacies with reference to the children of his first marriage. Those portions of the codicil with which we are concerned are as follows:

“Second: I give and bequeath unto my daughters, Sarah Spiess and Bertha Aspel, each the sum of Five Hundred Dollars.
“Third: I give and bequeath unto my sons, Daniel Marti and Albert G. Marti, each thé sum of Fifty Dollars.
“In all other respects my said Will is to stand as originally drawn. ’ ’

• The testator died March 31, 1935. Letters testamentary were issued to Helen Marti, his second wife, who was made executrix by the terms of his will. There were insufficient funds in the personal estate to pay the legacies mentioned in the codicil. When the executrix filed her final report for the purpose of completing administration of the estate, appellants (two of the children by the first marriage, and legatees in the codicil) filed objections thereto, contending that the legacies so granted appellants were liens upon the real estate of the testator, and that the executrix should take the necessary steps to subject such land to sale to pay same.

The probate court sustained appellants’ objections, found that the legacies under the codicil constituted liens upon the real estate, and ordered the executrix to proceed to sell the land to pay such legacies. She appealed from this judgment of the county court to the circuit court of Will county, where' the objections of appellants were overruled and denied, and the final report of the executrix approved. Appellants (the objectors below) bring this appeal from the judgment of the circuit court.

Appellants base their right to subject the land to the payment of the legacies on the ground, that by the third paragraph of the will, the testator created a general residuary clause. They urge that the rule is recognized in most States, including Illinois, that if legacies are given generally, and the testator creates a general residuary clause wherein the residue of the real and personal estate is afterwards given in one mass, the legacies will be considered a charge on the residuary estate, including both real as well as personal property. In the absence of an expressed intention of the testator to the contrary, such rule does prevail in this jurisdiction. In re Estate of Schwarts, 275 Ill. App. 374; Williams v. Williams, 189 Ill. 500.

The only question to be determined herein is whether the third paragraph of the testator’s will shall be construed as creating a residuary clause such as to give application to the rule urged by appellants.

Beal estate cannot be charged with payment of general legacies unless there is something in the language of the will which would authorize such charge. Wentworth v. Read, 166 Ill. 139. Proper application of the rule urged by appellants and the reason therefor, is illustrated in the cases of Stickel v. Crane, 189 Ill. 211, and Simonsen v. Hutchinson, 231 Ill. 508. It will be observed therefrom that there must be a devise of a residuary estate after prior gifts, which would mean a devise of what is left after satisfaction of such gifts, thus giving rise to the familiar expressions of “rest, residue and remainder,” and other similar terms.

A residuary devise or bequest is one which embraces the testator’s property not otherwise disposed of by his will. It covers the residue or remainder of the estate and necessarily presupposes prior legacies or devises to be first satisfied. A residuary devise or bequest is generally limited to the residue only, and a devise of the whole of an estate cannot be considered as a residuary devise. In the will before us, the testator, by the third paragraph, devised and bequeathed his entire estate to his four sons in equal parts. Another mark of distinction between a specific devise or bequest, and such by way of residue, is, that the first shows the testator intends the devisee or legatee shall have a thing certain, while by a residuary devise or bequest, the devisee or legatee shall have something which is uncertain or which cannot be described with certainty by the testator, as it is limited to that which will comprise the surplus of his estate.

Personal property is the primary fund out of which legacies must be paid. They are not a charge upon real estate where there is no express language to such effect, and no residuary clause devising the residue and remainder of the testator’s estate in such a manner as to give rise to the application of the rule urged by appellants. Haynes v. McDonald, 252 Ill. 236; Jenne v. Jenne, 271 Ill. 526; Wentworth v. Read, supra.

Here, the testator after providing for payment of funeral expenses and claims against his estate by the first paragraph of his will, gives to his wife the use and income of his estate for her life. She is given no power of disposal, nor is any part of the estate devised or bequeathed to her other than the use, and income therefrom. The testator by the third paragraph of his will, for the first time, makes a definite disposition of the corpus of his estate. Here, he devises and bequeathes his entire estate to his four children there named. We find no residuary clause in the will, nor do we find where the legacies set out in the codicil are made any charge against the real estate.

The judgment herein is affirmed.

Judgment affirmed.


author: Opinion by Justice Hebel.

text:
      J. A. Lavery Motor Company, Appellee, v. J. H. Weil et al., Appellants.
    Gen. No. 41,429.

      Heard in third division, first district, this court at October term, 1940;
    opinion filed June 25, 1941.
    Frank H. McAleer and Thomas M. Morris, for appellants; Rothbart & Rosenfield, for appellee.
   Opinion by Justice Hebel.

“Not to be published in full.”


author: Opinion by Presiding Justice Hebel.

text:
    John Krautseider, Appellee, v. C. R. Miley, Appellant.
    Gen. No. 41,508.
    Heard in third division, first district, this court at October term, 1940;
    original opinion filed April 23, 1941;
    rehearing opinion filed and rehearing denied June 25, 1941.
    Frank Moland, for appellant; Harry I. Kronenberg, for appellee.
   Opinion by Presiding Justice Hebel.

“Not to be published in full.”


text:
    William Gnat, Appellant, v. Guy A. Richardson et al., Receivers, Trading as Chicago Surface Lines, Appellees.
    Gen. No. 41,585.

      Heard in third division, first district, this court at December term, 1940;
    opinion filed June 25, 1941.
    Epstein & Steinberg, for appellant; Abraham Miller, of counsel; Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Opinion by Justice Hebel.

“Not to be published in full.”


text:
    Earle G. Krumrine, Trading as E. G. Krumrine & Company, Appellee, v. Wilbur E. Howett Company, and Wilbur E. Howett, Appellants.
    Gen. No. 41,622.
    Heard in third division, first district, this court at February term, 1941;
    opinion filed June 25, 1941.
    Alden, Latham & Young, for appellants; Wm. Tracy Alden and Sidney F. Moody, of counsel; Feigen & Feigen, for appellee; Arthur Feigen, of counsel.
   Opinion by Justice Hebel.

“Not to be published in full.”


author: Opinion by Justice Denis E. Sullivan.

text:
    Harriet Kowbel, Plaintiff, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,440.
    Heard in third division, first district, this court;
    opinion filed June 25, 1941.
    George N. Welsh, for appellant; Frank L. Kriete, Thomas M. Morris and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Opinion by Justice Denis E. Sullivan.

“Not to be published, in full.”


author: Opinion by Justice O’Connor.

text:
    Molly Encimer et al., Appellees, v. Grand Carniolian Slovenian Catholic Union of the United States of America, Appellant.
    Gen. No. 41,675.
    Heard in first division, first district, this court at April term, 1941;
    opinion filed June 30, 1941.
    Frank J. Jones, for appellant; Hershenson & Hershenson, for appellees.
   Opinion by Justice O’Connor.

“Not to be published in full.’’


text:
    Lawndale National Bank, Trustee, Appellee, v. Hawthorne Roofing Tile Company et al. Anna F. Carlson, Appellant.
    Gen. No. 41,698.
    Heard in first division, first district, this court at April term, 1941;
    opinion filed June 30, 1941.
    De Witt B. Bayer, for appellant; Kerner, Jaros & Tittle and Baumann & Laux, for appellee.
   Opinion by Justice O’Connor.

“Not to be published in full.’’


author: Opinion by Presiding Justice Friend.

text:
    George Christian, Appellee, v. Peter Smirinotis, Appellant.
    Gen. No. 41,011.
    Heard in second division, first district, this court at December term, 1939;
    opinion filed July 1, 1941.
    Walter B. Prendergast, for appellant; James F. Lyons, for appellee; Elwyn E. Long, of counsel.
   Opinion by Presiding Justice Friend.

“Not to be published in full.”


text:
    Mansfield William. Morgan, Plaintiff, v. Joseph Ludwig, Trading as The Cornelia Tavern, and Sam Vold, Defendants. Sam Vold and Shand Vold, Appellants, v. Mansfield William Morgan and Joseph Janssen, Sued as Joseph Ludwig, Trading as The Cornelia Tavern, Appellees.
    Gen. No. 41,067.
    Heard in second division, first district, this court at December term, 1939;
    opinion filed July 1, 1941.
    Ekern & Meyers, for appellants; Donald L. Thompson and Vernon A. Forsberg, of counsel; Andalman & Aarons and Samuel Shamberg, for appellee; Maxwell N. Andalman, of counsel.
   Opinion by Presiding Justice Friend.

“Not to be published in full.”


text:
    Paul Ray and Douglas M. Ray, Appellees, v. Samuel Hasterlik et al., Appellants.
    Gen. No. 41,287.

      Heard in second division, first district, this court at June term, 1940;
    opinion filed July 1, 1941.
    Charles H. Borden, for appellants; Charles H. Borden and Paul F. Pomeroy, of counsel; Winston, Strawn & Shaw, for appellees; James H. Cartwright and Frank B. Gilmer, of counsel.
   Opinion by Presiding Justice Friend.

“Not to be published in full.’’


text:
    Claude Wayland, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,411.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed July 1, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, Adam E. Patterson, L. Louis Karton, Sydney R. Drebin and Louis H. Geiman, Assistant Corporation Counsel, of counsel; Irving G. Zazove and Charney & Servos, for appellee.
   Opinion by Presiding Justice Friend.

“Not to be published in full.’’


text:
    University State Bank, Appellee, v. W. S. Kelly, Appellant.
    Gen. No. 41,600.
    Heard in second division, first district, this court at February term, 1941;
    opinion filed July 1, 1941.
    Walter F. Boye and Alfred Bosworth, for appellant; Philip A. Weinstein, for appellee.
   Opinion by Presiding Justice Friend.

“Not to be published in full.”


text:
    Prairie State Bank, Appellee, v. Herbert Baer et al., Appellants.
    Gen. No. 41,612.
    Heard in second division, first district, this court at February term, 1941;
    opinion filed July 1, 1941.
    Joseph Rosenstein, for appellants; Joseph B. Bergman and Samuel J. Sherman, for appellee; Joseph B. Bergman, of counsel.
   Opinion by Presiding Justice Friend.

“Not to be published in full.”


text:
    People of State of Illinois, Defendant in Error, v. Robert Schuessler, Plaintiff in Error.
    Gen. No. 41,625.
    Heard in second division, first district, this court at February term, 1941;
    opinion filed July 1, 1941.
    George B. Holmes, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by Presiding Justice Friend.

“Not to be published in full.”


author: Opinion by Justice Scanlan.

text:
    Walter S. Auerbach et al., Plaintiffs, v. Biltmore Theatre Co. et al., Appellees. Anna A. Goodman, Appellant.
    Gen. No. 40,929.

      Heard in second division, first district, this court at October term, 1939;
    opinion filed July 1, 1941.
    Schwartz & Cooper, for appellant; Edward A. Cooper and Max C. Liss, of counsel; Slottow & Leviton, for appellees; Charles Leviton and Harold P. Shane, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.”


text:
    Ella Jane Dymond, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,203.
    Heard in second division, first district, this court at April term, 1940;
    opinion filed July 1, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa and Sydney R. Drebin, Assistant Corporation Counsel, of counsel; Charles E. Newton and H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Opinion by Justice Scanlan.

“Not to be published in full.’’


text:
    Joseph Koscher, Appellee, v. Ralph M. Gately et al., Defendants. Ralph M. Gately et al., Appellants.
    Gen. No. 41,233.

      Heard in second division, first district, this court at June term, 1940;
    opinion filed July 1, 1941.
    Ekern & Meyers, for appellants; Donald L. Thompson and Vernon A. Forsberg, of counsel; no appearance for appellee.
   Opinion by Justice Scanlan.

“Not to be published in full."


text:
    Sol D. Golby, Appellee, v. Security Mutual Life Insurance Company of New York, Appellant.
    Gen. No. 41,265.
    Heard in second division, first district, this court at June term, 1940;
    opinion filed July 1, 1941.
    Bobb, Spoerri, Bourland & Harris, for appellant; William L. Bourland and Stanley K. Feinberg, of counsel; Charles P. R. Macaulay, for appellee.
   Opinion by Justice Scanlan.

“Not to be published in full.”


author: Opinion by Justice John J. Sullivan.

text:
    Stanley Mruk, Appellee, v. Mike Mruk and Marie Mruk, Appellants.
    Gen. No. 41,123.

      Heard in second division, first district, this court at February term, 1940;
    opinion filed July 1, 1941.
    Joseph Lustfield, for appellants; Ode L. Rankin, of counsel; Charles E. Loy, for appellee.
   Opinion by Justice John J. Sullivan.

“Not to be published in full.”


text:
    M. S. Reichelt, Appellant, v. Chapin Motor Sales, Inc., and United States Fidelity and Guaranty Company, Appellees.
    Gen. No. 41,178.
    Heard in second division, first district, this court at April term, 1940;
    opinion filed July 1, 1941.
    James G. Barber and Samuel Saxon, for appellant; Hurford & Feigenholtz, for appellees; Harold L. Feigenholtz and Eugene A. Busch, of counsel.
   Opinion by Justice John J. Sullivan.

“Not to be published in full.”


text:
    Samuel P. Miller, Trading as All-Vac Steam Control System, Appellant, v. 110 South Dearborn Street Corporation, Appellee.
    Gen. No. 41,231.

      Heard in second division, first district, this court at June term, 1940;
    opinion filed July 1, 1941.
    Teller, Levit, Silvertrust & Levi, for appellant; Julian I. Silvertrust and H. J. Goldberger, of counsel; Decker & Golden, for appellee; Herbert Decker and Seymour R. Blankstein, of counsel.
   Opinion by Justice John J. Sullivan.

“Not to be published in full.’’


text:
    Stanley Mruk, Appellee, v. Mike Mruk and Marie Mruk, Appellants.
    Gen. No. 41,484.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed July 1, 1941.
    Joseph Lustfield, for appellants; Ode L. Rankin, of counsel; Charles E. Loy, for appellee.
   Opinion by Justice John J. Sullivan.

“Not to be published in full.’’


author: Opinion by Presiding Justice Wolfe.

text:
    John C. Heeb et al., Plaintiffs v. Walter W. Graff, Defendant.
    Gen. No. 9,646.

      Heard in this court at February term, 1941;
    opinion filed July 9, 1941.
    George M. Schatz and Marvin F. Burt, for plaintiffs; George M. Schatz, Marvin F. Burt and Ira S. Kolb, of counsel; Burrell & Burrell, for defendant.
   Opinion by Presiding Justice Wolfe.

“Not to be published, in full.”


author: Opinion by Justice Huffman.

text:
    Joseph Antosz et al., Appellees, v. Goss Motors, Inc., and Carl L. Brown, Appellants.
    Gen. No. 9,630.
    Heard in this court at February term, 1941;
    opinion filed July 9, 1941.
    Edgar Elliott and John A. Bloomingston, for appellants; M. George Livingston and Hadley & Leren, for appellees; Charles W. Hadley and Palmer Leren, of counsel.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    First National Bank of Cullom, Appellee, v. Alfred H. Chandler, Appellant.
    Gen. No. 9,685.
    Heard in this court at May term, 1941;
    opinion filed July 9, 1941.
    C. G. Hirschi and W. H. Dyer, for appellant; M. H. Scott, for appellee.
   Opinion by Justice Huffman.

“Not to be published in full.”