text:
    Mary Morrison, Trustee, Appellee, v. Frank Nugent and Margaret Nugent, Appellants. John Edward Mersch, Executor of the Last Will and Testament of Catherine Mersch, Deceased, Appellant.
    Gen. No. 41,665.

      Burke, P. J., dissenting.
    Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed June 25, 1941.
    Rehearing denied October 3, 1941.
    Glenn, Real & Browning, of Chicago, for appellants; J. Roy Browning and Richard Rex Parkin, both of Chicago, of counsel. Howard B. Kerr and Eugene F. Jewett, both of Chicago, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants and intervenor defendant from a judgment entered by the court in favor of plaintiff as trustee and against the defendants, Frank Nugent and Margaret Nugent, in the sum of $4,749.46, the court finding that the intervenor defendant, John Edward Mersch, as executor of the last will and testament of Catherine Mersch, deceased, had no right, title or interest in and to the indebtedness sued on — the subject matter of this suit.

This action at law was commenced by plaintiff, Mary Morrison, trustee under Trust No. 101, as assignee, on a non-negotiable promissory note payable to the order of “Catherine Mersch, or her estate only,” for $4,444 against Frank Nugent and Margaret Nugent, defendants and makers of the note. John Edward Mersch, executor of the last will and testament of Catherine Mersch, was allowed to intervene and file an answer alleging that the note sued on was an asset of the estate of Catherine Mersch, deceased; that said note had not at any time been assigned, transferred or delivered to the plaintiff, but that she had wrongfully come into the possession of the same and refused to deliver the same to him as executor, and praying that the court find title to the note and the rights of property therein to be in him as executor of the last will and testament of Catherine Mersch, deceased.

The note sued on and the subject matter of the trial of the rights of property between plaintiff, as trustee under Trust No. 101, and the intervenor-defendant, as executor of the last will and testament of Catherine Mersch, deceased, is unindorsed and is in the following words and figures:

“$4444.00/00 October 4, 1937
“On demand I promise to pay to the order of Catherine Mersch or her estate — only—Four Thousand Four Hundred Forty Four no/100 Dollars.
“Payable at 6½% interest.
“Value received — not negotiable.
No.......Due-Demand
Frank Nugent
Margaret Nugent”

The case was tried without a jury, and the court found that the plaintiff was trustee under the terms of an agreement dated May 15, 1935, entered into between Catherine Mersch and plaintiff, under which trust agreement one principal promissory note, due on demand, in the sum of $5,000, executed by the defendant, Frank Nugent, was delivered to plaintiff, and that the delivery of said note and trust agreement by Catherine Mersch constituted an irrevocable trust and title to the note for $5,000 vested in the plaintiff as trustee; that payments on said note were subsequently made, and that the note sued on was executed on October 4, 1937, upon which there was a- balance due in principal and interest of $4,749.46; that the indebtedness of the defendants was the subject matter of the suit, and that the intervenor-defendant John Edward Mersch, as executor of the last will and testament of Catherine Mersch, deceased, had no right, title or interest in and to said indebtedness. The court entered judgment on these findings in favor of plaintiff and against defendants Frank Nugent and Margaret Nugent in the sum of $4,749.46 damages, together with costs, and, as we have indicated, from that judgment the defendants and intervenor-defendant appeal.

The complaint at law declares upon a note made and delivered to Catherine Mersch on October 4, 1937, and alleged to have been assigned and delivered to the plaintiff as trustee under Trust No. 101. The defendants’ motion to strike the complaint, which was overruled by the court, sets up as grounds for the motion that the trust agreement attached to and made a part of the complaint was dated May 15, 1935, and described a note of the defendant, Frank Nugent, payable to the order of Catherine Mersch, for the sum of $5,000 and that the note sued on was dated October 4, 1937, and was executed by the defendants, Frank Nugent and Margaret Nugent, in the principal amount of: $4,444, and was payable to the order of Catherine Mersch, or her estate only, and by express terms and provisions was made non-negotiable; that it appears upon the face of the complaint that the note sued upon is not the note described in and purported to be transferred to the plaintiff by the said trust agreement; and that it appears upon the face of the complaint that the plaintiff, as trustee, has no right, title or interest in or to the note sued upon.

The intervening petition and answer of John Edward Mersch, executor of the last will and testament of Catherine Mersch, deceased, alleges that Catherine Mersch was the owner of the note sued on at the date of her death; that she had not at any time assigned, transferred or delivered said note to the plaintiff, and that the plaintiff had wrongfully and without right, title or interest, come into possession of the said note and refused to deliver the same to him as executor.

Defendants, by their answer, after the motion to strike was overruled, denied that the plaintiff was or ever had been the owner and holder, as trustee under Trust No. 101, of the note sued on, and denied that the note was ever assigned, negotiated, transferred or delivered to the plaintiff under the terms and provisions of said trust agreement, and alleged that the note was the sole and absolute property of Catherine Merseh, from the date of its execution until the date of her death, and that the plaintiff obtained the same after the death of Catherine Merseh, without right, title or authority. This the plaintiff denied, and upon these issues the case was tried.

It appears from the record in this case that the parties entered into an oral stipulation,, which appears in the record as follows; “At the suggestion of Judge Epstein, before whom said cause was called for trial, it was stipulated between the parties that the Executor of the Last Will and Testament of Catherine Merseh, deceased, had filed an affidavit in the Probate Court of Cook County for citation to compel the plaintiff, Mary Morrison, to turn over to the estate the note sued on, as it was claimed by the Executor that the note was an asset of the estate, and that trial in the Probate Court was set for the 29th day of November, 1940; that there was no dispute as to the liability on the note, but the only question between the parties was as to the amount due and the ownership of the property, and that at the suggestion of Judge Epstein, the trial of the rights to the property, or ownership of the note, could be tried in this cause, and that the Executor would file a petition or answer to the complaint in the nature of an interpleader, which could be filed at some later date nunc pro tunc as of this date, and that the parties would try in this cause not only the question of the liability on the note, the amount due on the note, but also the rights of property or title to the note.” The executor did file a petition in the nature of an interpleader and the case was tried — upon this stipulation as we have recited it — on the questions which the parties agreed were the proper questions for the court to determine. Upon the trial, the evidence having been presented by the respective parties, the judgment appealed from was entered.

The plaintiff’s theory is that the trial court properly entered its judgment in favor of plaintiff and against defendants, there being no evidence that title to the note in question was not vested in plaintiff; that an irrevocable trust was created by the execution of the trust agreement by Catherine Mersch and the delivery of said instrument, together with the $5,000 note, mentioned therein to the plaintiff; that the $5,000 note constituted the res of the trust; that payments of principal were made on said $5,000 note reducing it to the sum of $4,444, at which time the note for $4,444 was executed by the defendants and delivered in exchange for the $5,000 note; that it was a renewal note and a continuation of the indebtedness, being the balance due on the $5,000 note; that the $4,444 note then became and was the res of the trust, title to it being vested in plaintiff as trustee; and that she is, therefore, entitled to judgment against defendants — the intervening petitioner having no rights as the executor of the will of Catherine Mersch in the subject matter. The theory of the defendants which was advanced is that the note sued on was not in existence at the time the trust agreement was made, and that when it did come into existence it was delivered to Catherine Mersch, payments of interest and principal thereon made to her during her lifetime, and that she never delivered or intended the said note to become a part of said trust, and that said note became a part of her estate at her death and should be ordered delivered to her executor. The defendants contend that the court’s theory — as evidenced by his findings and judgment — was that the indebtedness of Frank Nugent to Catherine Mersch, on the date the trust agreement was entered into, less payments thereon made to Catherine Mersch during her lifetime, was the corpus of an irrevocable trust to plaintiff, and that the balance of said indebtedness, and not the note sued on was the subject matter of the suit and the property of the plaintiff as trustee of an irrevocable trust.

From the testimony of plaintiff, Mary Morrison, it appears that she resides in Evanston, Illinois, and is the daughter of Catherine Mersch, deceased. She testified that she had seen plaintiff’s exhibit 1 (trust agreement) and that it bears the signatures of her mother, Catherine Mersch, and herself; that she received this exhibit from her mother — after the lawyer gave it to her mother, after the date it bears; that at the time her mother gave her the trust agreement she also gave plaintiff a $5,000 note; that the trust agreement was signed on May 10,1935, and that plaintiff’s mother gave it to her the next day, in the presence of plaintiff’s husband, and that she placed the agreement and note in her (plaintiff’s) safety deposit box in the Evanston Trust and Savings Bank the same day; that the $5,000 note she received is the note mentioned in the trust agreement, and that after that date plaintiff gave the $5,000 note to her mother and her oldest brother to take to Mr. Nugent and that plaintiff did not receive it back; and that after that time plaintiff received from her mother as a part of the trust agreement plaintiff’s exhibit 2 (the note for $4,444). The plaintiff offered this exhibit — the trust agreement — in evidence, which was objected to by the defendants. The court admitted the exhibit in evidence subject to defendant’s objection. This trust agreement is in words and figures as follows:

“Trust Agreement No. 101.
“This Trust Agreement, known as Trust No. 101, by and between Catherine Mersch, a widow, of the City of Evanston, County of Cook and State of Illinois, and Mary Morrison, of the City of Evanston, County of Cook and State of Illinois, Witnesseth
“1. I hereby create Mary Morrison Trustee of the trust herein created.
“2. I have transferred and hereby transfer to said Trustee the note of Frank Nugent, payable to my order, for the sum of Five Thousand Dollars ($5,000.00), in trust for the uses and purposes hereinafter set forth.
“3. I reserve the right and power to transfer other property hereinafter to said trustee, and such additional property shall be subject to the terms of this trust.
“4. Said trustee shall devote the principal and income of said trust estate as follows:
“ (a) She shall pay therefrom my funeral expenses, expenses of my last illness and any other just debts owing by me at the time of my death.
‘‘ (b) She shall expend such sum as she shall in her discretion determine for the offering of masses for the repose of my soul.
“(g) She shall expend such portion of the income or if she shall in her discretion determine it to be necessary, of the principal of said trust estate for the care, maintenance and support of my sister, Margaret Jordan, and for the funeral expenses of my said sister, and the expenses of her last illness.
“(d) Upon the death of my said sister, Margaret Jordan, said trustee shall distribute the balance of said estate then remaining in equal shares as follows:
“1/5 to Henry Mersch, and in case he is not then living, to his children.
“1/5 to Edward Mersch, and in case he is not then living, to his children.
“1/5 to Mary Morrison, and in case she is not then living, to her children.
“1/5 to Margaret Nugent, and in case she is not then living, to her children. In case she shall' not leave any children who shall then be surviving, her one-fifth share shall be added to the shares of Henry Mersch, Edward Mersch and Mary Morrison.
“1/5 to Mary Morrison, as Trustee under Trust Agreement No. 100 dated May 8, 1935.
“5. All the terms and provisions of this trust and the powers, duties and discretion of the trustee shall apply to any other property, real or personal, to which said trustee may acquire title and ownership as such Trustee.
■ “6. In case of. the death, refusal or inability to act of said trustee, Mary Morrison, I appoint my son, Edward Mersch, as successor trustee, and said successor trustee shall be vested with the same title to said trust estate in whatever form it may be as is hereby and by said deed of conveyance vested in said Mary Morrison. In case of the death of Edward Mersch before the death of said trustee, Mary Morrison, then the successor trustee shall be such person or trust company as said Mary Morrison shall by instrument in writing, executed during her lifetime, or by her Last Will and Testament shall designate and appoint as her successor in trust. All powers, duties and discretion created or imposed upon said trustee shall inure to and be binding upon said successor in trust.
“In witness whereof I have hereunto set my hand and seal this 15th day of May, A. D. 1935.
Catherine Mersch (Seal)
“I hereby accept the trust granted to me in the above instrument, and accept the conveyance cited in said trust agreement.
“Witness my hand and seal this 15th day of May, A. D. 1935.
Mary Morrison (Seal) ”
The plaintiff further testified that plaintiff’s exhibit 2 (promissory note for $4,444 payable to ‘‘ Catherine Mersch or her estate — only—”) bears the signatures of Frank Nugent and Margaret Nugent; that plaintiff received the note from her mother on October 5, 1937; that plaintiff is a sister to Mrs. Nu-gent ; that on the same date plaintiff received the exhibit, she put it in her box in the safety deposit vault in the bank, and that she did not take it out of the box until July or August after her mother passed away, and then she took it out and gave it to her attorney, Joseph Tyrrell; that she received it back from him and put it back in the box and did not take it out again till she gave it to her attorney; that the exhibit remained in her possession from October 5, 1937, until after the death of her mother, who died on June 1, 1939; that after her mother turned over exhibit 2 to plaintiff, she (plaintiff) had a conversation with her mother in regard to it; and that plaintiff had not received payment for the note and that she never did receive any interest on the note. Plaintiff’s exhibit 2 (promissory note for $4,444) was offered in evidence and objected to by counsel for defendants, and after the court had heard the suggestions offered and reply of counsel for the plaintiff admitted the note in evidence, which is the note in question heretofore incorporated in this opinion in words and figures as appears from the face of the instrument.

It further appears from the cross-examination of the plaintiff that the trust agreement was prepared by attorneys Joseph Tyrrell and Robert James, that it was upon the request of her mother that plaintiff phoned these gentlemen to come to the house, that her mother wanted to see them; that she was present when they saw her mother prior to the time the trust agreement was entered into, and that none of her brothers or sisters was present at that time. It further appears from this cross-examination that the day after the trust agreement was signed the note for $5,000 and the trust agreement were given to plaintiff by her mother; that the note was never out of plaintiff’s possession until she gave it to her mother and brother on October 4, 1937; and that during all of the time plaintiff did not collect any interest on the note nor any of the principal; that she did not tell Mr. Nugent or Mrs. Nugent, the payors of the note, that she had it in her possession, and did not ask them to pay any interest on the note. Plaintiff further stated in her cross-examination that she was not the entire owner of the note and that her mother, according to the trust agreement was to receive the benefit of this note and also of her property, which did not entitle her (plaintiff) to have control of her mother’s money, rents, or note. The plaintiff further stated that she made no objection to somebody else collecting the interest. It further appears from this examination that plaintiff gave the $5,000 note to her brother on October 4, 1937, and received the note for $4,444 on October 5, 1937, from her mother, which note plaintiff put in her box in the bank. This note remained in plaintiff’s box until she took it out and gave it to her lawyer to institute the suit now before us.

The husband of the plaintiff stated that he first saw the trust agreement in his wife’s mother’s home the day after it was made out; that his wife and mother-in-law were present; and that his wife then took it and put it in the bank in the safety deposit box on the morning of May 16, 1936, he accompanying her to the bank. This box was in his wife’s and his name. He also testified that he saw a note for $5,000 handed to his wife at the time she received the trust agreement, and that the note was placed in the safety deposit box at the same time as the trust agreement. He further stated that he saw plaintiff’s exhibit 2 (the note for $4,444) handed to his wife on October 5, 1937, his wife and her mother being present, and that the note was taken right over and put in the safety deposit box on October 5, 1937.

Upon plaintiff’s having rested, defendants renewed their motion and objection to the introduction of the trust agreement and the note and were heard upon the question. The court took the motion under advisement.

It was stipulated that the clerk of the probate court identifies the file of the probate court of. Cook county-in the matter of the estate of Catherine Mersch, deceased. There was offered and received in evidence the (1) petition for admission of will of Catherine Mersch, deceased, to probate (2) oath of executor (3) executor’s bond in the penal sum of $9,000 (4) affidavit of executor that Mary Morrison has in her possession a note payable to the deceased belonging to the estate of Catherine Mersch, deceased, and praying that citation issue, and (5) citation to Mary Morrison to appear before the probate court on November 29, 1940.

The defendants then offered their evidence and Frank Nugent, one of the defendants, was called as a witness and testified that plaintiff’s exhibit 2 being a note for $4,444, dated October 4, 1937, was in his handwriting; that the note was made in the presence of Catherine Mersch, the payee, John Edward Mersch, the witness’ wife, and the witness; that the note is dated October 4, 1937, but was delivered to Catherine Mersch on July 21, 1937, in the presence of John Edward Mersch, the witness’ wife, and the witness; that this note was given as a renewal of an old note at the time the new note was made on July 21, 1937, and given to Mrs. Mersch and she gave the old note to him. This witness further stated that the old note (plaintiff’s exhibit 1) is in the exact condition it was when he received it from Mrs. Mersch, and that the words, “July 21, 1937. Exchanged for new note,” are written across the face of the old note, and were written on that date by John Edward Mersch — oldest son of Mrs. Mersch. This witness further testified that the old note was for $5,000 and the new note was for $4,444; that the difference in the principal amounts was paid on July 21, 1937 — the date of exchange of the notes — as Mrs. Mersch needed the money to pay 'her taxes; that he paid the difference with his personal check, payable to the order of Catherine Mersch for $250; that he was acquainted with Catherine Mersch’s signature, and the endorsement on the back of the check was her signature. There appear in evidence other checks which were delivered to Catherine Mersch in payment of interest. Frank Nugent further testified that the first time he learned Mary Morrison had the note in her possession was after the death of Catherine Mersch, when Mary Morrison called him on the telephone. On cross-examination it appears from this witness that the principal payment of $250, made on July 21, 1937, brought the amount owed to Catherine Mersch down to $4,444, and “that was the reason the new note was made out for that amount and dated October 4, 1937, and that included the interest to that time. ’ ’

The defendant, John Edward Mersch, testified that after his father’s death, he helped his mother transact her business and had occasion to know and see a note that was made payable to his father and later made payable to his mother, signed by Frank Nugent, for $5,000; that he assisted his mother in connection with this note; that he assisted her in helping her to pay her taxes; that he had occasion to go with his mother to the bank from time to time and saw the $5,000 note in her box in the bank; that he remembered the occasion when the old note was transferred for the new note — the subject of controversy in this law suit.

The defendants suggest that the findings and judgment of the trial court are not supported by and are at variance with the pleadings, and proofs and the theory of the action upon which the pleadings were framed and the case tried, and that such judgment is erroneous and should be reversed. They contend that this is an action upon a specialty; that the complaint declares upon a non-negotiable promissory note by an assignee; and that at common law, an assignee of a non-negotiable chose in action could not sue in his own name, and that it is only by virtue of section 22 of our Practice Act that an assignee may sue thereon, the statute providing that in his pleading under oath the assignee must allege that he is the actual bona fide owner thereof and set forth how and when he acquired the title. The complaint did allege that the plaintiff acquired the title from Catherine Mersch by assignment and transfer for value on October 4,1937. Plaintiff’s answer to defendants’ contention is that an examination of the complaint as amended, the proofs, and the judgment entered in this case show that there is no variance as claimed; that this is a trustee’s suit upon a promissory note dated October 4, 1937, for $4,444 executed by the defendants, Frank and Margaret Nugent, and due on demand. It is pointed out that the trust agreement states that Catherine Mersch transferred to plaintiff as trustee a note of Frank Nugent for the sum of $5,000 in trust for certain purposes, and that said agreement reserves the right and power to transfer other property to said trustee, and states that such additional property shall be subject to the terms of said trust; that after the execution and delivery of the $5,000 note and trust agreement in May, 1935, to plaintiff as trustee, it was exchanged for the $4,444 note, which was delivered to plaintiff in October, 1937, the defendants having made payments of principal on said $5,000 note reducing it to $4,444, and that the $4,444 note then became the res of the trust.

The plaintiff also contends that the court did not err in overruling the defendants’ motion to strike the complaint as amended, for the reason that the trust agreement which was a part of the complaint, referred to the $5,000 note, and also provided for the transfer of other property to the trustee, and the complaint alleged that the $4,444 note was negotiated, assigned and delivered to the plaintiff by Catherine Mersch for value, and that plaintiff is the actual bona fide owner thereof and acquired title by assignment and transfer on October 4, 1937. Although the note was not endorsed, the allegation in the complaint was sufficient, as the statute provides that title to an instrument may be transferred by delivery without endorsement. (Ill. Rev. Stat. 1939, ch. 98, sec. 69 [Jones Ill. Stats. Ann. 89.069]). This section is in words as follows :

“Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transferrer vests in the transferee such title as the transferee [transferer] had therein, and the transferee, acquires, in addition, the right to enforce the instrument against one who signed for the accommodation of the transferer and the right to have the endorsement of the transferer if omitted by accident or mistake. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.”

The question that arises upon this subject is whether the transfer was made for value. It'appears from the facts that plaintiff had possession of the $5,000 note, together with the trust agreement, and that, at the time when negotiations were being made for the purpose of adjusting the amount due from the defendants, the plaintiff turned over the possession of the $5,000 note to her mother, Catherine Mersch, now deceased, and her brother, John Edward Mersch. The defendants then executed the $4,444 note, which was delivered to Mrs. Mersch and the $5,000 note was surrendered with the words “July 21, 1937. Exchanged for new note” written across its face. Mrs. Mersch then delivered the new note to plaintiff and plaintiff placed the note in the bank, together with the trust agreement, where it remained until suit was brought. This delivery of the $5,000 note and the memorandum that was written across its face shows a sufficient consideration for the execution and delivery to plaintiff of the $4,444 note. The $4,444 note became an asset of the trust estate. The evidence tends to show that the note was delivered to plaintiff with the intent to transfer the title. It appears from the facts that after delivery of the $4,444 note to the plaintiff, it being a renewal of the old note and a continuation of it, it became and was the res of the trust. We quite agree with the plaintiff that there is nothing in the evidence tending to show that the parties intended to satisfy the debt, but on the contrary it appears tha the new note was given as an evidence of the continuation of the debt. The plaintiff cites upon this question the case of Belleville Sav. Bank v. Bornman, 124 Ill. 200, where the court said:

“. . . the decided weight of authority is, regardless of what the legal presumption arising from the mere fact of renewal is held to be, that, it being the proper subject matter of contract, the intention with which the new note is accepted will control as to whether the original note or draft is paid and discharged by the acceptance of another in renewal of it, or not, and that this may be shown by proof of an express agreement of the parties as to the effect of the renewal upon the indebtedness evidenced by the former note or bill, or by proof of the attendant circumstances, from which the intention of the parties can be inferred.” In Jansen v. Grimshaw, 125 Ill. 468, an action of assumpsit was brought to recover the amount of a promissory note dated February 1, 1881, for the sum of $2,000. When the note matured two years later, the interest was paid and a new note executed for the same amount. When the new note was received the old one was surrendered. The declaration also contained a count on the new note and the common counts. One of the defendants interposed the defense that the plaintiff accepted and received the note of February 1, 1883, in full satisfaction of the note dated February 1, 1881. A judgment was entered in favor of plaintiff for the principal sum of $2,000 plus interest. The court there upon this subject said:
“It is also contended that the court erred in admitting in evidence the note of February 1, 1881, which had been surrendered when the new note was given in renewal. The giving of one promissory note in lieu of another does not necessarily operate as a payment. In order to have that effect it must be so understood and intended by the parties.” See also the case of Keller v. North American Life Ins. Co., 301 Ill. 198, on the question here involved. It is well to have in mind the intention of the parties relative to the exchange of notes. An examination of the evidence discloses that Frank Nugent, one of the defendants, testified that the $4,444 note was in his handwriting, and “that note was made in the presence of Catherine Mersch, the payee, John Edward Mersch, my wife and myself. The note is dated October 4, 1937, but was delivered to Catherine Mersch on the 21st day of July, 1937, . . . This note was given as a renewal of an old note at the time the new note was made on July 21, 1937, and given to Mrs. Mersch. She had the old note and gave it to me. ... It (the old note) is in the exact condition it was when I received it from Mrs. Mersch. The words, ‘July 21, 1937. Exchanged for new note,’ are written across the face of the old note, and was written by John Edward Mersch on that date. . . . On the same date and at the same time, I delivered the new note, . . . plaintiff’s Exhibit 2, to Catherine Mersch, and she gave to me the old note.” John Edward Mersch, a witness for defendants and executor of the will of Catherine Mersch, testified:
“I remember the occasion when the old note was transferred for a new note. That was in Frank Nu-gent’s house. . . . The writing on the note, ‘7/21/37, Exchanged for a new note, ’ is in my handwriting. The writing was put on the note the same time the new note was executed. I saw the new note made out. It is dated October 4, 1937, but was actually made on July 21st, 1937, and was delivered to my mother, Catherine Mersch, and I saw her have it in her possession at that time. I expected to see the note afterwards, but I did not.” The note on its face bears the suggestion that it was exchanged for a new note, and this is supported by the evidence.

The plaintiff contends that a trust properly created by an instrument in writing reserving no power of revocation, and delivery of the property to the trustee, for a definite purpose, cannot be defeated by the subsequent acts of the grantor and trustee. The trust agreement provides that after the payment of debts, expenses of last illness, funeral expense, etc., the principal and income of the trust be used for the care, maintenance, and support of Margaret Jordan, sister of the donor; that upon the death of said Margaret Jordan the trustee distribute the balance in equal shares to her five children, one child’s share being represented by plaintiff as trustee under another trust agreement. It is contended that since the purposes of this trust were not, and could not be carried into completion during the life of the donor, the trust could not be abrogated or changed by the donor and the trustee. As an authority for this principal the case of Williams v. Evans, 154 Ill. 98, in which case the facts are analogous to the instant case, the court said upon the question involved: “ . . . The fact that the property, after the execution of the trust instrument, was found in the possession of Mary Williams, is relied upon by the appellants to establish the fact that she never intended to deliver the papers or property absolutely. Upon the execution and delivery of the trust instrument and the property therein described, by Mary Williams to the trustees, the rights of the parties became fixed, and the trustees, after accepting- the trust, had no authority to deliver the possession of any of the property named in the trust instrument to Mrs. Williams, and the fact that they disregarded their duty in this regard did not affect the validity of the transaction as originally made. If there was a complete delivery of the trust instrument, and the property therein described, to the trustees, as we think there was, the subsequent acts and declarations of Mrs. Williams and the trustees cannot defeat the trust.” This applies with additional force upon the facts as they appear in this case. The defendants here claim that the subsequent acts of Catherine Mersch and the plaintiff are evidence of the fact that she never intended to deliver the property absolutely, but the decision in the Williams v. Evans case supra would seem to dispose of this contention. The court in that case further said:

“There is nothing in the transaction which tends to show that it was designed to take effect as a testamentary disposition of property, but, on the other hand, the property was absolutely disposed of ... so far as her personal property, notes, bonds and mortgages were concerned, she was at liberty to make such absolute transfer of that property as she might think for the best. This she has done, and we think the judgment of the circuit court sustaining the transaction was correct, and it will be affirmed.” In the case of Hubbard v. Budemeier, 328 Ill. 76, an attempt was made to terminate a trust before the purpose of the' trust was carried out. The court in that case cites with approval the Williams v. Evans case supra, and held that the trust could not be terminated by an agreement of the beneficiaries, except in cases where the object of the trust has been practically accomplished and all the interests created by it have become vested. This rule was also followed in Fry v. Pence, 261 Ill. App. 218.

Another contention of defendants is that a condition restraining negotiation of a note to a particular person is a valid condition and makes the note unenforcible in the hands of the persons to whom it is negotiated in violation of the restrictive condition. It is called to our attention that the words “Catherine Mersch — or her estate only” were written into the note for the express purpose of keeping the plaintiff from securing the note, and urged that such a restraint on negotiation is a valid condition and made the note unenforcible in the hands of the plaintiff, in whose possession it came in violation of the agreement between Catherine Mersch and the defendant Frank Nugent that it should not be assigned or negotiated to her. As we have already said in passing upon this question, the plaintiff received the note from her mother in her mother’s lifetime, and nothing was said at that time by the mother to the daughter to the effect suggested by the defendants. While it is true that the note bears the words “not negotiable” on its face, and the well-settled law of Illinois makes the note a non-negotiable instrument which cannot be transferred by indorsement to make the transferee a bona fide holder in due course, still under section 22 of our Practice Act (Ill. Rev. Stat. 1939, ch. 110, sec. 146 [Jones Ill. Stats. Ann. 104.022]) an assignee of a nonnegotiable chose in action may sue thereon provided the assignee in his pleading under oath alleges that he is the actual bona fide owner thereof and sets forth how and when he acquired the title. The amended complaint in the instant case was sworn to and alleged that the plaintiff acquired title to the note by assignment and delivery from Catherine Mersch on October 4, 1937.

There is a question that must be considered concerning the admissibility of certain testimony of defendants relating to conversations with the decedent in her lifetime. The trial court excluded evidence offered by the defendants concerning statements of the deceased at the time the note was made out and delivered by the defendants to the deceased. The defendant Frank Nugent testified:

“Plaintiff’s Exhibit 2, the note sued on, which was given to Catherine Mersch in July, 1937, is in my handwriting, and is payable to the order of ‘ Catherine Mersch or her Estate only.’ Those words were put on the note at the time it was made out by agreement between Catherine Mersch and myself. The words ‘Catherine Mersch or her Estate only,’ the word ‘only’ being underlined, were put on there for the express purpose of keeping Mary Morrison from securing the note, by agreement with Catherine Mersch. Also there was added the words ‘not negotiable’ for the same reason, and there was some conversation held between Catherine Mersch and myself, Edward Mersch being present at the time, and that was the subject of the conversation, to keep Mary Morrison from securing this note.” On motion of plaintiff to strike this evidence the court ruled that “it may be stricken as to the negotiability of the note. That is not ambiguous. As to the word ‘only’ it may stand as to that.” When we come to consider this offer that was made, we find that the words “pay to the order of Catherine Mersch or her estate — only—” were somewhat ambiguous in that the word “only” could refer to the note as being payable to Catherine Mersch or her estate only or to the amount of money — $4,444 only. As to the words “not negotiable,” we believe the court was fully justified in striking these words. There was also a question as to the admissibility of evidence before the court upon the direct examination of John Edward Mersch, who was asked what took" place when the note was made out and in answer stated, “Well, my mother was kind of feeble and she said ‘I won’t be here very long.’ ” Counsel for plaintiff interposed an objection to any statement of the deceased, and the objection was sustained, whereupon defendant then made the following offer of proof:
“I offer to prove by this witness that at the time this note was made, his mother was feeble and she wanted it made so that Mary Morrison could not get it in her possession.” The court sustained a further objection to this offer of proof, and the question is now before this court. John Edward Mersch is executor of the last will and testament of Catherine Mersch, his mother, and the attention of this court is directed to section 2 of the Evidence Act (Ill. Rev. Stat., ch. 51, sec. 2 [Jones Ill. Stats. Ann. 107.068]), the defendants contending that this statute is not applicable where the adverse party is not suing as executor, heir, legatee or devisee of a deceased person. It would seem from the wording of this statute that where he is testifying in his own behalf — as we gather it from the testimony — that the evidence offered was not competent under this section. In the consideration of this question, this section applies and the court did not err in sustaining the plaintiff’s objection (as trustee) to the admissibility of the evidence.

There is one question that we believe should be considered and that is the question as to whether the evidence offered by Frank and Margaret Nugent, his wife, should not properly be confined to establishing a defense to plaintiff’s action. The defendants admit liability on the note in question and seek to avoid the purposes of plaintiff’s action by defending on the ground that payment should be made to John Edward Mersch, as executor. It is the established rule that evidence offered by the defendant must be for the purpose of establishing a defense to the action. This evidence as offered does not tend to establish a defense to the collection of the note, nor to the action. In the case of Popovsky v. Granite City Trust & Savings Bank, 243 Ill. App. 526, the court said:

“It is no defense to an action on a promissory note that the plaintiff, although the holder of the legal title to the note, is merely the nominal party in interest, and that the beneficial interest in the note is in someone other than the plaintiff. It is a matter of no consequence, so far as the defendant is concerned, who may be the equitable holder of the note unless the defendant has a defense as against the equitable owner thereof. (Illinois Conference of Evangelical Ass’n of North America v. Plagge, 177 Ill. 431; Feulner v. Gillam, 211 Ill. App. 348.) So in this case, appellee, being the nominal party in interest and the legal owner of the certificate in question, had the right to bring suit thereon in his own name and it was no defense that the estate of Ajiovsky was the equitable owner of the note, if such was the fact, unless appellant had some defense to the certificate which could be set up, if suit should be brought thereon by the executor of the payee. Such was not the contention of appellant. On the contrary, it contended that the certificate was the property of the estate of the payee. Appellant, however, cannot ayail itself of that as a defense, in this suit, but it will be fully protected by the judgment in this case in favor of appellee, the legal holder, in the event suit should be brought against it by the executor of the payee, even though that estate of the payee was the equitable owner of the certificate.” In the instant case the makers of the note admit liability to pay the note in question. In passing upon the facts regarding ownership of the note, it appears from the evidence that the mother delivered the note to her daughter as a part of the res of the trust estate. The defendants could not avoid liability on the note for the reasons that they have contended. The evidence submitted does not establish a defense that would relieve these defendants from liability on the note, which they have admitted. From the facts we feel that the court was fully justified in entering the judgment, and it will be affirmed.

Judgment affirmed.

Denis E. Sullivan, J., concurs.

Burke, P. J., dissents.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Marguerite O’Brien, Appellant, v. Quin O’Brien, Appellee.
    Gen. No. 41,609.
    Heard in the third division of this court for the first district at the February term, 1941.
    Opinion filed June 25, 1941.
    Rehearing denied September 26, 1941.
    Theodore W. Miller, of Chicago, for appellant.
    McKinley, Price & Quindry and Robert E. Cantwell, Jr., both of Chicago, for appellee; William McKinley, Paul E. Price and Robert E. Cantwell, Jr., of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff brings this appeal from an order entered in the superior court dismissing a bill for divorce which previously had been filed by plaintiff against defendant. During the pendency of the suit the defendant Quin O’Brien died and his heirs at law, because of such death, were made successor appellees by the order of court on March 12, 1941, naming Brendan Q. O’Brien as trustee, grantee of Quin O’Brien. Also, by order of this court counsel for the original defendant, Quin O’Brien, were to stand as the solicitors of record. The defendants so substituted adopted all the proceedings theretofore taken in the above-entitled cause by said Quin O’Brien, deceased.

Plaintiff’s complaint for divorce, filed against the defendant Quin O’Brien, since deceased, alleged that on May 2, 1936, a marriage ceremony was performed between said parties in Louisville, Kentucky, under certain alleged circumstances therein set forth; alleges that at that time plaintiff believed that the person officiating at such alleged ceremony had authority to perform it and that plaintiff participated therein in good faith.

The original defendant filed a motion to strike and dismiss said complaint with prejudice and for judgment in his favor, alleging that it was insufficient to state a cause of action under the Kentucky and Illinois statutes and that a common-law marriage is void, and raising the specific grounds of defense, res adjudicala, laches, fraud, that the plaintiff failed to come into court with clean hands, and that the complaint stated an alleged marriage in Kentucky of residents of Illinois in violation of the Illinois Uniform Marriage Evasion Act.

A hearing was had upon said complaint and motion by the trial court, which found that it had jurisdiction of the subject matter of the cause, and of the parties, that said complaint was insufficient and failed to state a cause of action, and that said motion to strike the complaint for insufficiency in law to state a cause of action and to dismiss said cause for want of equity with prejudice was well founded in law and should be sustained, whereupon the plaintiff elected to stand on and abide by said complaint and refused to file an amended complaint or to plead over, and thereupon the court entered a final decree or order sustaining said motion and dismissing the cause of action for want of equity with prejudice at plaintiff’s costs, which final decree or order states that it shall be treated and regarded and stand in all respects as the final decree in said cause.

The complaint alleges that on May 2, 1936, a marriage ceremony was performed by an actual person purporting to be one Judge Jeffries, at the Brown Hotel, in Louisville, Kentucky, between the parties to this cause and at that time plaintiff believed said person had authority to perform said ceremony and plaintiff participated therein in good faith believing herself married to defendant by virtue of said ceremony and that two other persons witnessed said ceremony; that at said ceremony said person asked the parties to this cause if each would take the other as his and her lawful wife and husband, respectively, to which the parties to this cause answered in the affirmative, and thereupon pronounced said parties man and wife; that she has since been informed, and by defendant himself, in January 1937, that defendant entered into said ceremony in bad faith with a spurious license, defendant intending that the ceremony remain secret and invalid in order to seduce plaintiff; that the Kentucky law in force at the time of the ceremony provided:

Carroll’s Ky. Stats. Bald’s. 1936 Ed., sec. 2102, ch. 66 (husband & wife):

“No marriage solemnized before any person professing to have authority therefor shall be invalid for the want of such authority, if it is consummated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married. (1893, c. 205, p. 925, sec. 7.)"; that the Supreme Court of Kentucky has interpreted the aforesaid statute of Kentucky together with the laws of that State pertaining to marriage licenses by holding that such licenses are directed to the functionaries performing the ceremony and pertain to the authority of the functionary to perform a particular ceremony rather than a grant of permission to two people to be married, as in this State (Illinois), and that a license is unnecessary in Kentucky to effect a valid ceremony and that a common-law marriage in fact is all that need be proved, no authority to perform the marriage ceremony being necessary where the marriage ceremony is consummated with the belief of one of the parties that the person performing the ceremony had the necessary authority and that the parties have been lawfully married.

The moton to strike, dismiss and for judgment alleges that the complaint does not show compliance with Kentucky laws; that sections 2103, 2103a, 2105, 2107, 2109 and 2112 of the Kentucky statutes require a license, which must be issued by the clerk of the county where the female resides; that section 2102 of Kentucky does not validate a marriage solemnized without a license nor excuse for absence of an authorized officiating person required by sections 2097 and 2103; that section 2102 does not provide for nor validate common-law marriages but merely cures irregularities of form pertaining to particular authority of a person generally authorized, such as errors of name, place or date on a license or marriage certificate; that section 2102 does not excuse the return and recording of the marriage certificate required by sections 2107 and 2108; that section 2103a imposes a penalty of a fine (maximum $50) upon license clerics for violation of license provisions; that section 2109 imposes a penalty (maximum one year or $100 fine, or both) upon functionary performing ceremony for failure to make return on license; that section 2112 imposes a severe penalty (maximum $1,000 fine) upon clerk for issuing license for prohibited marriage; that section 2110 makes it a penitentiary offense for a person to solemnize a marriage without authority; that the case of Dumaresly v. Fishly, 10 Ky. 1198, is no longer the law and has been overruled by the Supreme Court of Kentucky and superseded by revised statutes of Kentucky; that the question of the Kentucky marriage which is the subject matter of the complaint was adjudicated against plaintiff in previous suit of Quin O’Brien v. Marguerite Eustice, Cause No. 37S1736, where O’Brien sought to have a pretended marriage on February 3, 1937, at Morrison, Illinois, declared void and that the question of the Kentucky marriage was decided in that case and is res judicata as to the subject matter and claim of plaintiff herein that the parties were married in Kentucky as alleged in the complaint; that plaintiff by having defendant indicted for aiding another, while unauthorized, to perform the Kentucky marriage, she waived and abandoned the theory that the marriage was valid; that plaintiff is guilty of laches by not proceeding on the Kentucky marriage in other suit; that plaintiff is guilty of unclean hands in the matter decided in the former suit pertaining to the “shot gun” wedding there involved.

Plaintiff’s theory as set forth in her brief, is as follows:

“ ... that the parties hereto were married on May 2, 1936, at Louisville, Kentucky; that in January 1937, defendant informed plaintiff that he entered into the ceremony in bad faith with a spurious license in order to seduce her and with the intention of keeping the marriage ineffective until he chose to confirm it by a church marriage after her annulment of a former marriage had been approved by a church annulment and after he had reconciled his son Brendan to his marriage with her; that in consummation of said marriage to defendant she became pregnant and bore a child; that when defendant so informed her in January, 1937, of his deception in regard to the Kentucky marriage she believed him, she having previously believed the Kentucky marriage valid, and a record of a later marriage ceremony (which later ceremony never occurred according’ to the adjudication of both the trial court and this Court in a former suit between the parties) resulted; that the Appellate Court directed the trial court in the former suit to confine that suit to the issues of whether or not the record of. a purported ceremony at Morrison, Illinois, on February 3, 1937, was proper and the trial court and the Appellate Court both found that the particular ceremony never occurred as the record represented and the record thereof was accordingly stricken; the Appellate Court in the former suit for correcting the record of the later ceremony held that the issues in that suit were agreed in open court to be confined to whether or not the later purported ceremony (at Morrison, Illinois, on February 3, 1937) occurred but, after so confining the issues to the question of the later ceremony, the Appellate Court, in its opinion, stated, in an obiter dicta query, that it did not see how the Kentucky marriage could be valid without a license or why the later .ceremony should have been attempted if the earlier one in Kentucky were valid. The position of plaintiff is that, since the reviewing court in the former suit held the issue was confined to the Morrison, Illinois, purported ceremony, what the court said thereafter about the other ceremony in Kentucky was obiter dicta and not binding either as an adjudication or a precedent because, obviously, if no ceremony occurred at Morrison, Illinois, on February 3, 1937, Quin O’Brien was entitled to have the record thereof erased regardless of whether there was a previous ceremony in Kentucky, or not, since the record of the Morrison ceremony was wrong and did not pertain to the previous ceremony in Kentucky. That is to say, the existence of a previous ceremony, or any other would be no defense to an action to erase a wrong public record of a particular ceremony which never occurred.
“The position of plaintiff is, furthermore, that it was Quin O’Brien himself who misled her, several months after the Kentucky ceremony (and after she was pregnant in consummation thereof) into thinking the Kentucky ceremony invalid. She found out from her present counsel, after the trial in the former suit was over, that the previous Kentucky marriage ceremony was valid, whether or not there was any record thereof, and whether or not the officiating functionary was a generally authorized person and whether or not there was a license or return made with certificate thereon. This is so because the marriage laws of Kentucky as to license return with certificate thereon and recording impose a penalty upon officers but do not make the marriage invalid so long as there is a ceremony and plaintiff believed the functionary had authority and that she was married thereby.
“Since the Kentucky marriage was not at issue in the former suit, it was not adjudicated therein. Any defense of laches, equitable estoppel by conduct, unclean hands or waiver by having defendant indicted in a criminal action in Kentucky for aiding a person, unauthorized, to perform the Kentucky ceremony, cannot be raised by motion to dismiss.”

Defendant’s theory is set forth as follows:

“ ... that common law marriages in May of 1936 were void in Kentucky and Illinois; that the Kentucky Statutes require a license to be issued as a condition precedent to a marriage being solemnized by a person with authority, or with pretended authority; that the facts as pleaded in the complaint do not constitute a valid statutory marriage in Kentucky; that the Kentucky Statutes on marriage when construed as a whole provide that a marriage ceremony without a license is void; that even in the absence of words of nullity the Kentucky Statutes on marriage would be construed to provide that a license must issue to constitute a valid marriage; that an alleged marriage is not valid where the only compliance with any of the Kentucky statutes is that one party to a marriage ceremony believed in good faith that the person officiating with pretended authority was authorized to do so. If such a marriage was a valid marriage in Kentucky, which it is not, it would not be recognized in Illinois as both parties were residents of Illinois at the time and such a marriage would be in violation of positive law and in disregard of the statutes of the State of Illinois.
“The complaint fails to state facts which constitute a valid marriage under either the laws of Kentucky or of Illinois, and, therefore, the plaintiff is not entitled to a divorce, and thus, has failed to state a cause of action and the decree of the trial court should be affirmed.
“The defendants’ theory is, also, that the defense of res ad judicata is of itself a complete defense and bars the present action and can be raised by motion to dismiss the complaint; that in the prior case between the same parties evidence was introduced as to the alleged Kentucky marriage and was abstracted and the parties to this suit both briefed and argued the issue of the Kentucky marriage which was decided adversely to the present plaintiff in the appeal to this court, and that the Kentucky marriage was one of the issues in that case. If the Kentucky marriage was not an issue in the prior case, it was an issue that might and should have been raised by way of defense to establish the status of the parties, and it was also an issue that should have been raised as a defense for the reason that if the Kentucky marriage had been established in the prior case, the plaintiff there (Defendant herein) would not have been entitled to the relief he sought, and that case would have been dismissed for want of equity; that the present plaintiff is precluded from bringing the present action, as she cannot take the inconsistent position of claiming that there was a valid marriage in Kentucky in May, 1936, when in the prior case she took the position that there was a valid marriage in Illinois, in February, 1937; that the present plaintiff had knowledge of these facts and raised the legality of the Kentucky marriage in the prior case, which issue was decided adversely to her, and she cannot escape the bar of the defense of res adjudicata by claiming that in May, 1937, her present counsel informed her that in his opinion the alleged marriage in Kentucky was valid.- She filed a motion in the prior case in this court on August 4,1938 in which she alleged that she was rushed to trial and as a result overlooked the fact that the alleged Kentucky marriage was valid, and thus she pleaded, as a matter of law, that this prior alleged marriage was a defense, admitted her knowledge of the facts and attempted to excuse her failure to include this defense of the valid Kentucky marriage on the grounds of ignorance of the law. This court denied said motion, and thus, ruled against her contention that this excuse was valid; and the plaintiff in the present case cannot now retry this issue which was within the issues of the original suit by way of defense and passed on by this court, by starting the present suit after the prior suit had been determined adversely to her.”

No argument is presented in this case by the contending parties as to whether or not on the death of one of the parties to a divorce suit subsequent to the entry of the decree dismissing the complaint for want of equity, the losing party may prosecute an appeal.

It is difficult to determine the claims and rights of the parties herein involved, especially those of the plaintiff, owing to the inconsistencies and incongruities set forth when stating her position in this matter. For instance, in the case formerly before this court, entitled, O’Brien v. Eustice, 298 Ill. App. 510, we found that the plaintiff in the instant case, who was defendant in that ease, with two unknown assistants, had kidnapped O’Brien, bound him hand and foot and taken him to Whiteside county where the plaintiff herein claims a marriage ceremony was performed in. an automobile. Such allegations of the plaintiff herein, who was the defendant in the former suit, were found to be wholly untrue. In the former suit, plaintiff herein set up her rights, claiming the benefit of the so-called Kentucky marriage, which alleged marriage is now under consideration in the case before us. Plaintiff herein contends that the said “marriage” took place in the State of Kentucky prior to the alleged automobile ceremony in Whiteside county, Illinois. This court in its opinion in the former case, said:

“We fail to see the logic in defendant’s effort to maintain that there had been a previous marriage in Louisville, Kentucky. If a valid marriage had been performed in Louisville, Kentucky, then why did defendant go to the trouble of having a marriage performed at Morrison, Illinois? However, defendant asks no relief as to any rights she may claim by virtue of the so-called Kentucky marriage.” She evidently knew at that time, and her position confirmed it, that no valid ceremony of marriage was performed in Kentucky. Thereafter, she was the prosecuting witness before the grand jury in Kentucky and caused Quin O’Brien, defendant appellee, since deceased, and some one else to be indicted under the statute there, accusing said O’Brien of having procured a man to perform a marriage, but that said man was wholly unauthorized to perform same. Her action in appearing as a prosecuting witness against said O’Brien was evidently done because she sought to punish him for having had an alleged illegal marriage' ceremony performed, which marriage she now maintains is legal.

It is contended by plaintiff herein that what this court said in the former suit is obiter dicta and has no effect upon the so-called Kentucky marriage. With this we do not agree. In Schmisseur v. Rebhan, 294 Ill. App. 172, the court at page 175, said:

“It is the undoubted law of this State that where issues have been determined by a competent tribunal, or were such that they might have been presented and adjudged upon in such proceeding, they become res adjudicata and cannot be considered and passed upon in a subsequent action; Webb v. Gilbert, 357 Ill. 340; Phelps v. City of Chicago, 331 Ill. 80.”

In McNamara v. McNamara, 303 Ill. 191, the court at page 197, said:

“The litigation was between the same parties as in this controversy, and the question of the status of John Hamilton McNamara was the subject of the litigation. Where a fact is once determined the finding is conclusive as to that fact in a subsequent suit between substantially the same parties.” See also Prescott v. Fisher, 22 Ill. 390, 393, wherein the vigorous language of Judge Bresse is set forth; Lee v. Hansberry, 372 Ill. 369.

Plaintiff is now in this court seeking to have this court allow her alimony on the theory that the marriage in Kentucky was valid. We do not think further time should "be devoted by this court in an endeavor to analyze the various inconsistent charges which have developed in this case. We have read the bill and the motion to strike, and we think the trial court was right in allowing such motion. The decree of the superior court is, therefore, affirmed.

Decree affirmed.

Burke, P. J., and Hebel, J., concur.


author: Mr. Justice Dove

text:
    Children’s Home of Rockford and Charles Fred Sully, Appellees and Cross Appellants, v. John Andress et al., Appellants and Cross Appellees.
    Gen. No. 9,669.

      Heard in this court at the May term, 1941.
    Opinion filed August 7, 1941.
    Rehearing denied October 7, 1941.
    Frank E. Maynard, of Rockford, for appellants.
    Edgar R. Rombauer, of Seattle, Washington, for appellee Charles Fred Sully; Karl C. Williams and Lisle W. Menzimer, both of Rockford, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Lena M. Barnes owned 525 shares of the capital stock of Barnes Drill Company, a corporation of Rockford, Illinois, makers of machine tools. On October 2, 1934, she sold 285 shares to appellants, and on November 27, 1935, she sold them the remaining 240 shares. After her death, Children’s Home of Rockford, claiming an interest under a contract with Charles Fred Sully, brother and sole legatee and devisee of decedent, filed a complaint in the circuit court of Winnebago county against appellants individually, and two of them as executors, to set aside the transfers and for the return of the stock to the estate upon payment by the executors of all purchase money paid. A money judgment was asked in case the stock had been disposed of. The complaint charged that a fiduciary relationship existed between appellants and Mrs. Barnes; that appellants exercised undue influence over her; that the consideration paid for the stock was wholly inadequate and alleged that Mrs. Barnes was mentally incapacitated at the times the sales contracts were entered into. Charles Fred Sully filed an intervening petition on the same grounds asking the same relief. After the issues had been made up, a hearing was had before the chancellor, resulting in a decree confirming the first sale and granting the relief sought as to the second sale. Appellants appeal from that portion of the decree which adversely affects them, and cross appellants appeal from that part of the decree confirming the first sale.

The pleadings and evidence disclose that the Barnes Drill Company was a close corporation, originally formed by Frank Barnes, and appellant, John Andress in 1907, with a capital stock of $100,000 represented by 1,000 shares, each share having a par value of $100. Shortly thereafter appellants, Albert Johnson and Walter Fairbairn, became associated in the company. Mrs. Barnes acquired this stock, 525 shares, as sole legatee under her husband’s will who died in 1919, having executed his will in 1916. Judge Robert K. Welsh of Rockford was the intimate friend and legal adviser of both Mr. and Mrs. Barnes and he drew the will of Mr. Barnes and the contracts for the sales in controversy. He testified that Mr. and Mrs. Barnes had an agreement when his will was made in 1916 that according to the desire of both Mr. and Mrs. Barnes the stock in this company which he owned should finally go, when he and Mrs. Barnes were through with it, to appellants, who for many years were associated with Mr. Barnes in the Company, and who owned 225 shares of stock therein. The sale of 285 shares by Mrs. Barnes to appellants on October 2, 1934 was at par, payable in ten equal annual instalments, with five per cent interest, the payment thereof being secured by a pledge of the stock under an escrow agreement whereby appellants’ 225' shares were deposited as a guaranty during the lifetime of Mrs. Barnes. The agreement also providing that the 285 shares which they purchased would not be transferred or the management of the corporation changed except as the death of the owners might require. The sale of the 240 shares on November 27, 1935, was also at par, payable in like instalments, with a provision that the death of Mrs: Barnes should cancel all instalments due thereafter. On March 11, 1936, appellants borrowed money from another source, paid in full for the 285 shares, which were then delivered to them, and their own 225 shares were released from the escrow. Payments on the sale of the 240 shares were made up to the death of Mrs. Barnes, which occurred on January 8, 1938.

After the death of Mrs. Barnes, Children’s Home of Rockford claimed her will, executed on November 9, 1937, in which Sully is sole legatee and devisee, was void. It unsuccessfully resisted the probate thereof and threatened to file a suit to contest it as a party in interest under a prior will executed on June 19, 1934, in which it and the Rockford Hospital were the chief beneficiaries. The contract under which the Home claims was then executed. It recites the Home’s claim that Mrs. Barnes was incompetent and that in consideration of forbearance to contest, provides for dividing the net estate, one half to Sully, one fourth to the Home, and one fourth to the Hospital. The complaint in this cause alleges the testatrix was mentally incompetent when the will of November 9, 1937 was executed. The intervening petition denies that allegation. The Rockford Hospital filed no answer in this proceeding and was defaulted.

It is insisted by counsel for appellants that the circuit court had no jurisdiction of this cause on the theory that because the probate court had jurisdiction of the estate its jurisdiction was exclusive. There is no merit in this contention. By the sales, title to the stock was in appellants. The stock could not be ordered returned to the estate unless the sales were set aside. Section 81 of the Administration Act of 1872 (Ill. Rev. Stat. 1939, ch. 3, par. 82 [Jones Ill. Stats. Ann. 110.082]) in force when this suit was begun, contemplated that the decedent, at the time of his death, held or at least claimed, and that his legal representative, since his death, held or claimed, the title to the property of which possession was sought. (Johnson v. Nelson, 341 Ill. 119.) No such situation is presented here. Neither the decedent nor the executors claimed title to the stock. The complaint alleges it was not inventoried and the executors refused to take any action to set the sales aside. It does not ask that the executors be removed, or required to take any such action, and no such proceeding was pending in the probate court. The suit here is by one individual against other individuals. It does not involve any question of administration but sounds in tort. Probate courts have no jurisdiction in tort actions. Howard v. Swift, 356 Ill. 80. In that case it was held that the probate court had no jurisdiction of a claim against an estate involving a tort of the decedent. It follows that the circuit court was the proper tribunal, in the exercise of its general jurisdiction, to entertain this cause.

The record discloses that Mrs. Barnes was 73 years old in January 1934. The testimony as to her mental capacity is voluminous. It shows she had a general arteriosclerosis, .or hardening of the arteries. Late in November of that year she had a fainting spell and fell, and as a result thereof her face and eye were bruised. In February 1935, she had another such spell, and occasionally thereafter every three or four months. On some of these occasions she would fall and bump her head. The attacks lasted from a few moments to half an hour. The doctor who was called at her second attack treated her principally for a bruise above the eye. Two of the treatments were at her home, and the others at his office. He diagnosed the case as cerebral sclerosis, largely from the history obtained from the family doctor. He testified he thought there was a certain amount of childish prattle at some of the visits, and that on the second, four days after the attack, she offered to will him her dining room furniture. He said he felt there was some mental deterioration, but could not say how much or how competent her judgments and actions were, but he felt there was some showing that she was not normal.

The testimony of three other physicians, including her family doctor, characterizes the spells as a slight or minor form of epilepsy, distinguished from the severe type in which the patient has spasmodic jerking, frothing at the mouth and blueness of the face, none of which were present with her. These doctors attributed the spells to the sclerosis, which involves an increase in the fibrous tissues of the brain, resulting in altered circulation. They all agreed that after an attack the patient returns to normal mental condition. One of them likened the attack to that of a man standing on his head for a time, where circulatory distress is manifested. Another testified that after ten or twenty years there might be some definite retardation of mental processes, but for the first tAvo or three years there is very little effect upon the mind. The family doctor, who attended Mrs. Barnes on all of these occasions except the one mentioned, testified that for a few hours, or perhaps two or three days, her mind would wander, after which she seemed normal. None of this testimony was controverted.

■ Appellees produced five bus drivers on the question of mental condition. Mrs. Barnes lived on the opposite side of the street from a bus stop and half a block away. The bus drivers testified she was failing physically. Some of them said she talked disconnectedly; others, that her memory was failing or that she was childish. Two of them said they would sometimes have to tell her where to get off; that she would forget to pay her fare and talked about her falls. One of them said she once fell out of her seat on the bus, but seemed all right immediately afterwards, except that she talked disconnectedly; that he always let her off in front of her house; that at one time she said he was her favorite bus driver and she would have her maid make a pie for him. Another testified she wanted him to stop in front of her house and he told her it was improper. Another testified she was childish and one forenoon, while riding on a pass, she made four trips to town, saying on one of them she wanted to buy a bar of soap as she was completely out; that on the third trip she refused to get off at the bus stop and stayed on the bus another trip, and he then let her off at her house; that the maid told him she had gotten away from her, and that on one occasion as she left the bus she opened a bag and offered him a doughnut.

Mr. and Mrs. Freeman testified Mrs. Barnes came to their house with Mrs. Spaulding too early for a funeral at another house, in November 1935; that she knew where the funeral was to be held but did not recognize the Freeman home or some old apartments across the street; and that she told Mrs. Spaulding, who accompanied her, that she had not sold any stock and did not intend to do so; that she did not read papers she signed, but put her name where appellant Andress told her,

In March 1934 Mrs. Barnes purchased a new automobile through Bengston, a young salesman, who was between 32 and 37 years of age. He often drove it for her and came to her house almost daily, except Sundays, and stayed for lunch. She called him “her boy” and had a picture of him over a desk, decorated with a small artificial flower. She cherished some Indian post cards he sent her while on a fishing trip, and gave him a diamond ring. Her maid testified she frequently gave him money, and started to sell some of her things for that purpose. In March 1935, she disposed of some corporate stocks for $3,268.18. Bengston originated the transaction with the broker and brought the stocks to him. The check in payment therefor was made payable to Mrs. Barnes. Appellees claim Bengston got the money, and the evidence indicates this may be true. In May following, Mrs. Barnes sold some General Motors stock for $9,010.76. Bengston was with her when she delivered the stock to the broker, who communicated the facts to her banker. When Mrs. Barnes came to the bank to cash the check, the banker delayed doing so and communicated with appellant, Andress. E. L. Essly was a dealer in the corporation’s products in Chicago. He and his wife were old friends of Mr. and Mrs. Barnes. Whether Andress communicated with them is not shown, but they came to Bockford from Chicago, and the next day, with Mrs. Barnes and Andress, went to the office of Judge Welsh, where Mrs. Barnes executed a power of attorney to Judge Welsh to conduct her business affairs. She later gave him the check of $9,010.76 saying she did not want the Esslys or Andress to know about it.

Stella Martinson, a niece of Mrs. Barnes, who admitted she had a financial interest in the outcome of this suit, testified Mrs. Barnes acted “plain foolish” on Thanksgiving Day after her fall in November 1934; that on another occasion at the Andress home Mrs. Barnes talked about the beauty of Mrs. Andress’ hair for about an hour; that at the funeral in January 1936, she left her seat and sat by Bengston; and that on Christmas Day in 1935, she said a voice singing over the radio was Bengston’s; that in her opinion she was feeble-minded, not capable of transacting ordinary business, and grew worse mentally and physically. She testified that Mr. Andress told her in January 1936, that Mrs. Barnes had gotten so bad he had to have a conservator appointed for her.

Clarence Steward, who drove her car and did work about the home, testified her memory was bad; that she forgot her niece’s street and number, but recognized the house when they reached it; that she forgot she had told him not to mow the lawn, and would forget that she had been introduced to his wife.

A chiropodist testified he treated her feet from March 1934, to December 1935; that she grew worse mentally and physically; that she paid him before treatment and then forgot she had done so; that she was always accompanied by her maid, and liked to joke and be jolly; that she wore diamond rings, and on each visit said she was going to give him one, and twice told his office girl she would give her one, but never gave either of them a ring.

In addition to Andress and the three doctors, fourteen other witnesses, including Judge Welsh, the maid, a neighbor, and people with whom she transacted business in 1934, 1935 and 1936, testified to various business transactions in which she engaged during that period and that, in their opinion, she was capable of transacting business. It is not suggested that there was any love affair between her and Bengston, or that her so-called infatuation was other than a platonic friendship. While the evidence shows he capitalized upon it, their relations fall far short of showing mental incompetency. Such close friendships, or relations where one is the protege of an aged person of the opposite sex are not so infrequent as to show mental incompetency. They supply companionship, and are sometimes perhaps flattering to the aged, but even coupled with gifts they do not always indicate a lack of or a failing mentality. In claiming that Mrs. Barnes’ friendship for Bengston indicated mental incompetency, the Children’s Home evidently overlooked the fact that the will under which it claims provided a legacy of $2,000 for him.

Mr. Andress denied he told Mrs. Martinson that Mrs. Barnes was so bad he had to have a conservator appointed. None was ever appointed and the record does not show that anybody contemplated such a step. The maid testified Mrs. Barnes told her she told Mrs. Spaulding she had not sold any stocks; that the reason she did so was because it was none of her business and her husband had warned her against such disclosures; that Mrs. Barnes told her one of the bus drivers had refused to let her off in front of the house; that she did not like it because another driver would do that, and that she stayed on the bus another trip. The maid denied she told the driver Mrs. Barnes got away from her. She testified Mr. Essly came to Rockford at Mrs. Barnes’ request the day before she sold the stock to appellants in 1934; that she, Mrs. Barnes, suggested to him the sale at par, asked his opinion of the matter, and that he, Essly, went with her the next day to the office of Judge Welsh.

No witness for appellees testified to any occurrence on or near either of the dates when Mrs. Barnes sold her stock to appellants. Judge Welsh and the Esslys, who were present at both sales, testified that in their opinion she was mentally sound on those occasions. The testimony for appellees is more than matched by the testimony for appellants, both in number of witnesses and in its convincing quality. Loss of memory and forgetting one’s self so far as not to be entirely intelligible are frequently concomitants of old age. While they tend to prove an impaired or weakened mind, they do not prove disease, and are not irreconcilable with sufficient capacity to control or dispose of property by deed or will. (Burt v. Quisenberry, 132 Ill. 385.) Loss of memory, old age, feeble health, or even partial impairment of a vendor’s mental faculties are not sufficient to set aside a conveyance or a business transaction if the seller on the date of the transaction understood his acts and doings. (Turley v. Turley, 374 Ill. 571; Marshall v. Moon, 311 Id. 605; Bordner v. Kelso, 293 Id. 175; Kelly v. Nusbaum, 244 Id. 158.) In Lindsey v. Lindsey, 50 Ill. 79, a grantor had occasional epileptic attacks with results similar to those of Mrs. Barnes. The court upheld a deed where the evidence showed, as here, the influence of the attacks was only temporary, and there was proof that the grantor was able to transact business when the deed was made. To the same effect is Ludewick v. Ludewick, 279 Ill. 26. Even where a grantor is insane, with lucid intervals, a deed made during such an interval is valid. (Turley v. Turley, supra.) While the testimony of appellees’ witnesses is entitled to some weight, it cannot be permitted to overcome the testimony of equally disinterested witnesses who were equally well acquainted with Mrs. Barnes and were present when the sales were made. (Ludewick v. Ludewick, supra.) Their testimony is in no way controverted. It is in harmony with that of the three doctors, and is supported by that of several laymen. In our opinion, it shows Mrs. Barnes was capable of transacting business when she sold her stock to appellants.

As to the claims of fiduciary relationship and undue influence, the testimony shows that after the death of Mrs. Barnes’ husband, Mr. Andress assisted her in much of her business. A safety-deposit box was in both their names, but Mr. Andress never had a key to it, and never visited it except in her company. After her relations with Bengston became a subject of gossip, he talked to her about it, but she resented his doing so and in effect told him she would attend to her own business and he should attend to his. When she gave Judge Welsh a power of attorney to do her business, all of her stocks and securities were put into his control. If Mr. Andress ever occupied a fiduciary relation to Mrs. Barnes, the evidence shows he never took any advantage of it. There is no testimony that even tends to show the other appellants had such a relation to her. Prior to the first sale of stock to appellants, Mrs. Barnes told Mr. and Mrs. Essly what she proposed to do because her salary as an officer of the company, had been cut off or reduced by the business falling off and she desired to arrange a way to have a certain income. They agreed it should be sold if par could be obtained for it, and appellants were then contacted, but only felt able to undertake to buy 285 shares, and when the sale was made, it was so arranged that she was fully protected. Essly was not in the employ of appellants or the corporation, but was operating an independent sales business and sold products of the corporation. He and his wife were old and close friends of Mr. and Mrs. Barnes, and she looked to Mr. Essly for assistance. Just prior to the second sale Mrs. Barnes told Judge Welsh she thought of turning over the balance of her stock to appellants, in compliance with the agreement she had made with her husband. He told her she should not do so without an arrangement to have an income from it, and the second sale was thereafter made on the terms hereinbefore mentioned. The fact that she had a checking account with the corporation, which was kept by the bookkeeper, does not tend to show a fiduciary relation between her and appellants. All her dealings with them as to the stock sales were at arm’s length, initiated not by them but by her and while she was advised and assisted by her friends. Judge Welsh, who prepared the papers in each case was eminently fair, and while he had for years been the attorney for Mr. and Mrs. Barnes, the corporation and appellants, he carefully protected her interests on both occasions. She, not appellants, initiated the overtures for the transactions, with the view of obtaining an income and of carrying out her husband’s wishes and her agreement with' him.

The record shows the corporation had a net loss of $60,804.11 in 1931; $46,774.44 in 1932; $33,538.70 in 1933, and $2,567.88 in 1934, but made a net profit of $8,746.31 in 1935. The latter figure was of course not determinable until after the second sale to appellants. In 1930 the corporation had made a profit of only $1,202.07, while from 1925 to 1929 it made a net profit each year ranging from $29,437.45 in 1925 to $203,738.99 in 1929. A public accountant testified he made a calculation of the value of the stock from an examination of the books over a ten-year period; that he fixed the value of $432 per share in 1934, and $421 in 1935, which in each case was $52 above the book value. A machine-tool manufacturer, whose business was located in Rockford, testified that based on the accountant’s figures, his opinion was that the stock was worth approximately $380 per share. Another machine-tool manufacturer, whose business was similar in size to the Barnes company, testified he knew its physical and financial set up in 1934 and 1935, and fixed the value of the shares at $70. Two dealers in stocks testified they were familiar with the Barnes’ business set up. One of them fixed the value of the stock at $80 per share and the other at from $90 to $115. Mr. Essly, and another accountant, both familiar with the facts, placed the value at $100 per share. It is common knowledge that corporate stocks of all kinds declined in value very largely and rapidly about 1930, and did not begin a recovery until 1935, after which they again slumped. The testimony of the witnesses for appellants manifestly outweighs that of the witnesses for appellees. Under business conditions following the depression, a calculation of values on a ten-year basis, including peak values, is obviously no criterion for fixing stock value. Under the evidence, the sales at par in 1934 and 1935 were not appreciably below the value of the stock.

Some minor points in the evidence are in conflict, and there is much other testimony as to details in connection with the main issues. It would be impracticable and unprofitable to discuss them. None of them is sufficient to change the determinative facts. After a careful review of all the evidence, it is our conclusion that the chancellor correctly upheld the first sale to appellants and erred in setting the second sale aside. Because of this conclusion, it is unnecessary to consider the rights of Children’s Home of Rockford to maintain the action under its contract with Sully.

That portion of the decree confirming the first sale to appellants is affirmed. That portion setting aside the second sale is reversed and the cause is remanded to the circuit court of Winnebago county with directions to enter a decree upholding each sale, and dismissing the complaint for want of equity.

Reversed in fart and remanded with directions.