text:
    Elmer C. Huebner, appellee, v. Goldblatt Bros., Inc., and Henry Merik, appellants.
    Gen. No. 38,865.
    Opinion filed December 30, 1936.
    Robertson, Crowe & Spence, for appellants; Burt A. Crowe, of counsel. Gordon J. DuRand and James H. Turner, for appellee; Roy S. Gaskill, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    The First National Bank of Chicago, appellant, v. John Kostakis et al., defendants. James N. Nichols, appellee.
    Gen. No. 38,874.
    Opinion filed December 30, 1936.
    Tat ge & Tatge, for appellants; Robert F. Kolb, of counsel. Mc-Inérney & Power, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Peter J. Allegretti, plaintiff in error.
    Gen. No. 38,929.
    Opinion filed December 30, 1936.
    Samuels, Greenberg, Wolfe & Solomon, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Richard H. Devine and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Sadie Benik, appellant, v. Walter Benik and Mary Benik, appellees.
    Gen. No. 39,119.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Alee W. Glaskay, for appellant. Milton J. Sabath, for appellees; S. Jerome Johnson, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Charles Kaleta, appellee, v. Archer Coal and Material Company, appellant.
    Gen. No. 39,144.
    Opinion filed December 30, 1936.
    Carl F. Obrzut, for appellant; Julius H. Selinger, of counsel. Thomas E. Kluezynski, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Max Mayron, trading as Max Mayron and Company, appellee, v. Irwin Schulman et al., appellants.
    Gen. No. 39,190.
    Opinion filed December 30, 1936.
    Maurice Weissman, for appellants. Julius L. Kabaker, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    The First National Bank of Chicago, appellant, v. Moses Bush et al., appellees.
    Gen. No. 38,466.
    Opinion filed December 30, 1936.
    Packard, Barnes, McCaughey & Schumacher, for appellant. Nairn an & Naim an, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    In re Estate of John W. Marshall, deceased. Cyrus S. Eaton and Selden E. Kline, trading as Otis and Company, appellees, v. Helen M. Shaddock, as administratrix of the Estate of John W. Marshall, deceased, appellant.
    Gen. No. 38,600.
    Opinion filed December 30, 1936.
    William H. Haight, for appellant. Butler, Pope, Ballard & Biting, for appellees; Beverly B. Vedder and John F. Manierre, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Benjamin D. Frost, appellee, v. Ivan Biggar, appellant.
    Gen. No. 38,721.
    Opinion filed December 30, 1936.
    Andrew J. Farrell, for appellant. Boyal W. Irwin, for appellee,
   Mr. Justice Scanlan

delivered the opinion of the court,


author: Mr. Justice Seanlan

text:
    Dorothy Fitch, appellee, v. Ivan Biggar, appellant.
    Gen. No. 38,722.
    Opinion filed December 30, 1936.
    Andrew J. Farrell, for appellant. Royal W. Irwin, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Rita Mary McManus, by Frank H. McManus, her father and next friend, appellee, v. Supreme Beverage Company, appellant.
    Gen. No. 38,775.
    Opinion filed December 30, 1936.
    Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. Ryan, Sinnott & Miller, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    In re Estate of Peter Repole, deceased. Mary Repole, executrix, appellant, v. Edward L. S. Arkema, appellee. Consolidated with Mary Repole, individually and as executrix of the estate of Peter Repole, deceased, appellant, v. Edward L. S. Arkema et al., appellees.
    Gen. No. 38,806.
    Opinion filed December 30, 1936.
    Lefkow & Lefkow, for appellant. Daniel Anderson, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr, Justice Seanlan

text:
    H. E. Lacy Manufacturing Company, appellant, v. Lacy Products Corporation, appellee.
    Gen. No. 38,854.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Maurice S. Cayne, for appellant; George L. Shapiro, of counsel, Charles A. Boyle and Raymond J. Gengler, for appellee.
   Mr, Justice Seanlan

delivered the opinion of the court,


text:
    John H. Victor, appellant, v. R. Bernard Kurzon et al., appellees.
    Gen. No. 38,862.
    Opinion filed December 30, 1936.
    Thomas D. Huff, for appellant; Herbert A. Huff, of counsel. David Froehlieh, for appellees; Louis Kaplan, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Tony Masinski and Katie Masinski, appellees, v. Tom Dulak and Walter H. Fisher, appellants.
    Gen. No. 39,008.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Maximilian J. St. George, for appellants. Louis T. Herzon, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Edward Bryniarski, by his next friend, Eugene Grajewski, appellee, v. Peoples Finance Company, appellant.
    Gen. No. 39,045.
    Opinion filed December 30, 1936.
    Brodkin & Bieber, for appellant; Irving W. Eiserman, of counsel. Mitchell Kilanowski, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Otto R. Dannies, plaintiff in error.
    Gen. No. 39,181.
    Opinion filed December 30, 1936.
    Ellis & Westbrooks, for plaintiff in error; Richard E. Westbrooks, of counsel. No appearance for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman

text:
    Second District.
    Bahr Cheese Company, appellee, v. Freda Renter, appellant.
    Gen. No. 9,106.
    Opinion filed November 30, 1936.
    L. A. Jayne, for appellant. Heard & Heard, for appellee; Oscar E. Heard and Osear E. Heard, Jr., of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    T. A. Richey for the use of National Fire Insurance Company of Hartford, appellant, v. Hardware Mutual Casualty Company, appellee.
    Gen. No. 9,122.
    Opinion filed November 30, 1936.
    Burrell Barash and Louis Card, for appellant. M. E. Nolan, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Bernice Simmons, appellee, v. Harry E. Nichols, appellant.
    Gen. No. 9,125.
    Opinion filed November 30, 1936.
    Howard E. Smith, for appellant. Robert J. Wing and Arthur L. Puklin, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Michael J. Charley, appellee, v. Victor J. Beaumont, appellant.
    Gen. No. 9,128.
    Opinion filed November 30, 1936.
    H. L. Rieholson, for appellant. Elmer J. Mohan, State’s Attorney, and J. E. Malone, Jr., Special Assistant State’s Attorney, for appellee; Perona & Campeggio and George L. Herbolsheimer, Jr., of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Harry L. Topping, appellee, v. William B. Ward, appellant.
    Gen. No. 9,061.
    Opinion filed November 30, 1936.
    Miller & Shapiro, for appellant. Mayhew & Drolet, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Loretta M. Pendergast, appellee, v. Joseph C. Foster, appellant.
    Gen. No. 9,098.
    Opinion filed November 30, 1936.
    Miller & Thomas, for appellant; Chas. A. Thomas, of counsel. Madden & Laden, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Margaret Bodine, appellant, v. Harry W. Lloyd, appellee.
    Gen. No. 9,130.
    Opinion filed November 30, 1936.
    F. B. Brian, Harry C. Heyl and George W. Hunt, for appellant. E. V. Champion, F. J. Lee and D. J. Hill, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    F. W. Maske, plaintiff, v. Lewis Kock et al., defendants.
    Gen. No. 8,974.
    Opinion filed November 30, 1936.
    Robert C. Hunter and Castle, Williams & McCarthy, for appellant. Large & Reno, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Stone

text:
    Fourth District.
    Jennie Reed, administratrix of the estate of Lincoln Reed, deceased, appellant, v. Cecil Bergin, appellee.

      Opinion filed November 9, 1936.
    Rehearing denied December 14, 1936.
    F. M. Guinn, for appellant. Matheny & Welker, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.


text:
    John Kassly and Victoria Barton (John Kassly, appellee), v. Metropolitan Life Insurance Company, appellant.
    Opinion filed November 9, 1936.
    Kramer, Campbell, Costello & Wieehert, for appellant. Beasley & Zulley, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.


author: Mr. Justice Edwards

text:
    Bert Sansewicz, appellee, v. George Petroff, appellant.
    Opinion filed November 9, 1936.
    W. H. Hart and R. E. Smith, for appellant. Everett Lewis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Helen Kuntz, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Opinion filed November 9, 1936.
    Kramer, Campbell, Costello & Wieehert, for appellant. Frank M. Summers, for appellee; Louie F. Orr, of counsel.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    John M. Karns, administrator of the estate of Carol E. Graves, deceased, appellee, v. Prudential Insurance Company of America, appellant.

      Opinion filed November 9, 1936.
    Kramer, Campbell, Costello & Wieehert and Norman J. G-undlach, for appellant. R. B. Hendricks, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Frances Sursa, appellee, v. City of Centralia, appellant.
    Opinion filed November 9, 1936.
    L. H. Jonas, for appellant. Wham & Wham, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Louise Hagen, Appellee, v. Eames MacVeagh, Appellant.
    Gen. No. 38,744.

      Opinion filed December 30, 1936.
    James J. Barbour, of Evanston, for appellant.
    Stoeeels & Stoeeels, of Chicago, for appellee; Herbert R. Stoeeels, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Louise Hagen, plaintiff, brought a first class action in the municipal court against Fames MacVeagh, defendant, to recover 10 monthly instalments, aggregating $2,500, alleged to be due under the terms of three written contracts entered into between the parties in 1930 and 1933. Trial was had by the court without a jury, resulting in findings and judgment in favor of plaintiff. This appeal followed.

The controversy arises out of a contract dated January 18, 1930, and two supplemental agreements, one made contemporaneously with the principal contract, and the other October 16, 1933. By way of defense it is urged that the principal agreement lacked consideration, being on its face a mere promise by defendant to make gift payments of $250 monthly to plaintiff during her lifetime. A summary of the salient facts leading up to the execution of these contracts is essential to a clearer understanding of the issues involved.

In 1905 plaintiff, then 16 years of age and employed in a shop in Chicago, casually met defendant, many years her senior. This acquaintanceship ripened into a close and intimate association, extending over a period of more than 20 years. From 1905 to 1910 defendant entertained her socially, assisted her financially in several of her business ventures, gained her trust and confidence, and finally prevailed upon her to give up her business activities. In December, 1910, on one of her visits to his home on Lake Shore drive, Chicago, there occurred the first intimate relations between the parties, resulting in the birth of a child December 12, 1911. Defendant arranged to have her spend the later months of her pregnancy in a retreat near Aurora, Illinois, where she was unknown and registered under the assumed name of Mrs. Holt. While there defendant wrote to her frequently, sent her all necessary funds, and finally obtained her consent to giving the child out for adoption. Six weeks after her confinement she returned to Chicago and surrendered the child to a doctor, who met her at the station in company with defendant. She has not seen the child since nor received any information as to its whereabouts, other than that it was receiving the proper care and attention.

After she returned to Chicago defendant continued to show her marked attention, he broached the subject of marriage and presented her with a diamond ring. Later he gave her various other articles of jewelry and a miniature of himself as a boy. He assisted her first in improving her general education, through the study of selected subjects, and later encouraged her to study art. While so doing she resided in an apartment in Chicago, engag’ed for her by defendant. Here the parties frequently met and spent days and nights together. From 1914 to 1918, at defendant’s suggestion and with his financial assistance, she pursued her art studies in New York and Europe. She frequently returned to Chicago, where she met defendant in apartments engaged by him and in the Auditorium Hotel, where they registered as man and wife under an assumed name. While in Chicago plaintiff did not travel in the same society as defendant, but as he stated ‘ she always had a cultivation and charm that would have graced any circle.”

In 1918 plaintiff went to France, served with the Y. M. C. A. during the World War, and remained in the service until she was mustered out at the end. Upon her return she met defendant in Chicago, where their relations were resumed. From 1919 to 1929, the parties were frequently separated. Plaintiff continued to study art and had progressed to the point where she exhibited her paintings in New York and elsewhere and lectured on the subject in-various urban centers. Letters of great length passed between them which, until 1924, indicated mutual affection and esteem.

There is some dispute as to when the intimate relations between the parties ceased. Plaintiff insists that they continued until 1927; defendant fixed the time as 1922. At any rate, beginning in 1924- defendant’s letters became somewhat critical. He complained of her expenditures and seemed perturbed because she had not progressed to the point of supporting herself. Plaintiff attributes this change in attitude to the fact that the letters in these later years were edited by defendant’s counsel, James J. Barbour.

October 10, 1929, while plaintiff was in New York city, two letters were delivered to her studio- by a bell boy from the Pennsylvania hotel, one from defendant and the other from Mr. Barbour, his attorney. Defendant’s letter stated briefly that he was going to Europe and had requested his lifelong friend, Barbour, to discuss certain matters with her. ■ Barbour’s communication merely stated that he would call on plaintiff at her studio early the next morning. He called the following day and after making some references to defendant, he apprised her of the fact that MacVeagh had been married two days previously and had left for Europe on his honeymoon. This news was undoubtedly a great shock to plaintiff, because both sides characterize it as such, and Mr. Barbour suggested that she accompany him to his old home town, Norwalk, Conn., in order that she might compose herself, and then to Atlantic city, where discussions could be had free from the interruptions of her friends. They remained in conference at Atlantic city for several days, where the subject matter of the written agreements was discussed. Later Mr. Barbour drafted the first two agreements and submitted them to plaintiff for her signature.

The principal contract between the parties, made January 18, 1930, is quite lengthy, but inasmuch as it forms the basis of this controversy we set it out in full, as follows:

“Agreement made (18th of January, A. D. 1930), (between Eames MacVeagh, of the City of Chicago, party of the first part, and Louise Hagen, now and for several years past a resident of the City of New York), WITNESSETH THAT:

“Whereas, for many years heretofore and continuously up to the present date, the party of the first part has assisted the party of the second part in pursuing the calling of an artist and has provided for her living expenses continuously, during the period referred to, by monthly allowances and otherwise as her necessities required; and has from time to time heretofore orally agreed to make provision, by means of a trust agreement, for the continuance of monthly payments to the obligee for the period of her natural life; and

“Whereas, on consideration of such support and financial aid rendered by the party of the first part to the party of the second part, the said party of the second part has for the better pursuit of her professional calling, lived away from the City of Chicago, and maintained her residence and studio for said several years last past in the City of New York; and

“Whereas, it is the desire of the party of the second part to now abandon her studio and residence in the City of New York and the pursuit of her profession in the City of New York for a period of at least one year hereafter and to proceed within the next sixty days to establish her residence in Europe and continue to reside abroad and away from the United States of America at least until March 1,1931, to still better pursue her art work, and at the same time to reduce her living expenses; and

“Whereas, it is further the desire of the party of the first part to provide for the payment of the sum of not less than Three Thousand ($3,000) Dollars per year to the party of the second part so long as she shall live, such provision for support of the party of the second part to be in consideration of the agreements and undertakings moving to the party of the first part and here and now entered into by the party of the second part, including the release by the party of the second part, here and now given, of all claim to a certain promissory note dated May 28, 1915, for Five Thousand ($5,000) Dollars, signed by the party of the first part to the order of the party of the second part, and made payable by its terms two months after the death of the party of the second part, which note has been heretofore held by James J. Barbour, for the use and benefit of the party of the second part (which note is accordingly cancelled and destroyed); and in further consideration of the sum of One ($1.00) Dollar herein now paid by the party of the second part to the party of the first part, and of the acceptance by James J. Barbour of the trusteeship herein created; and

“Whereas, further, it is the desire of the party of the second part to accept the provisions herein made for her by the party of the first part and in consideration thereof to release and save him harmless from all claims and obligations that may now exist on his part to her;

“Now, Therefore, it is agreed that the party of the first part for the considerations aforesaid, shall:

“1. Advance and pay to the party of the second part upon the signing of this agreement, a certain sum of money to be receipted for by her as in full satisfaction and payment of her present outstanding liabilities, said sum of money to be used to the extent that it is necessary in the discharge and payment by the party of the second part of all her outstanding bills.

“2. The party of the first part agrees that beginning on the first day of March, A. D. 1930, and for a period of two years thereafter, he will provide for and cause to be paid to the party of the second part the sum of Three Hundred ($300) Dollars monthly, the same to be provided by way of letter of credit or other bank obligation at the convenience of the parties hereto.

“3. On and after the first day of March, 1932, the party of the first part, his heirs, administrators, executors and assigns, shall pay to the party of the second part the sum of Two Hundred and Fifty ($250) Dollars monthly and on the first of each month, said payment to be made in like manner by letter of credit or other bank obligation as may suit the convenience of the parties hereto.

“4. In consideration of the foreg’oing agreements made by the party of the first part to the party of the second part and the fulfillment of the same as the periods of payment shall from time to time mature, and in further consideration of the acceptance by J ames J. Barbour of the trusts and obligations imposed upon him herein, and by the trust agreement hereinafter referred to, the party of the second part herein now agrees:

“1.* To abandon her residence, studio and profession in the City of New York for the period of at least one year after the signing thereof.

“2. Within thirty (30) days after the signing hereof to depart from the United States of America and remain and reside somewhere in Europe until at least March 1, 1931.

“3. To surrender or to account for as a credit on the monthly payments to be made by the party of the first part any sums not yet drawn by the party of the •second part on any letter of credit which she may now, have which has been provided for her by the party of the first part prior to October 1, 1929.

“4. And in consideration of the promises and agreements of the said party of the first part, the party of the second part does hereby release, satisfy and cancel all claims of her, the party of the second part, both legal and equitable, against him, the party of the first part, by her at any time made or had, of every nature and kind down to and including the present date except, of course, the agreements and undertakings assumed in this instrument by the said party of the first part.

“And the party of the first part and the party of the second part both do further agree, each with the other, that in consideration of the covenants and undertakings herein entered into by each of the parties hereto, that neither of said parties will annoy or molest the other party nor expose him or her to publicity or criticism by reason of any matter or thing incident to or growing out of the association or controversy between the party of the first part and the party of the second part hereinabove set forth or with reference to the signing and executing of this agreement and release.

“The parties of the first part and the second part do further agree that James J. Barbour of the City of Chicago, County of Cook and State of Illinois, shall act as Trustee to see to the carrying out of the agreements herein made by the party of the first part to the party of the second part and to act as a medium of communication between the parties hereto of and concerning all matters arising out of this agreement.

“And the party of the first part doth hereby further agree to deliver to and deposit with the Trustee hereinafter named, a certificate for one hundred (100) shares of the stock of the Continental Illinois Bank and Trust Company of Chicago, made out in the name of the party of the first part and by him endorsed in blank for the purpose of transfer.

“And it is further agreed between the parties hereto including the Trustee, that the said certificate of stock shall be held by the Trustee and by his successor in the event of his death or failure or inability to further act as Trustee, to fully secure the carrying out of the undertaking by the party of the first part with the party of the second part.

“It is further agreed that said certificate shall be held without transfer on the books of the said Continental Illinois Bank and Trust Company to the said trustee or to any other person so long as the party of the first part shall live and fully carry out the terms of this agreement as the obligations set forth herein shall mature and so long as the said party of the first part is not in default he shall receive and retain for his own use, all dividends and rights which shall be issued upon the said certificate for one hundred (100) shares of stock in said bank.

“It is further agreed that upon the death of the party of the first part the said certificate shall be transferred to the said trustee to be held by him as trustee or by his successor in trust as a further security for the fulfillment of this contract and agreement so long as the party of the second part shall live.

“Upon the failure and default of the party of the first part, his heirs, administrators, executors or assigns, for a period of four months, to carry out any obligation under this agreement of the party of the first part to the party of the second part that has accrued or matured, the trustee shall proceed to make sale of said one hundred (100) shares of stock or so much thereof as may be necessary from time to time to fulfill and discharge any such default and matured obligation.

“Upon the death of the party of the second part, the said certificate for one hundred (100) shares of stock in the said Continental-Illinois Bank and Trust Company shall be delivered to and become the property of the party of the first part in the event he is then alive; otherwise, to his widow in the event she is then alive; otherwise, to the next of kin of the party of the first part.

“It is further agreed that the obligations of the parties hereto, including the said trustee shall be further declared and set forth in a certain trust agreement to be executed contemporaneously with this agreement and the terms of this agreement and undertaking shall stand as a full and valid consideration for the execution of the said trust agreement.

“This agreement shall be binding in all respects upon the heirs, administrators, executors, and assigns of the parties of the first and second part respectively.

“In Witness Whereof, said parties have hereunto set their hands and seals as of the day and year first above written, the party of the first part actually signing and executing this agreement in the City of Chicago, County of Cook and State of Illinois, on the 18th day of January, A. D. 1930, and the party of the second part signing and executing this agreement in the City of New York and State of New York, on the 20th day of January, A. D. 1930.

“Fames MacVeagh (Seal)
Louise Hagen (Seal)
“And now comes James J. Barbour, the Trustee named in the foregoing agreement, and accepts the trust imposed upon him and agrees to act as the Trustee for the purposes therein stated, it being understood and agreed that his compensation as Trustee shall be paid in the first instance by the party of the first part, and in default of such payment he shall receive reasonable compensation, expenses and outlays for his acts as such Trustee out of the collateral in his hands, to-wit, the certificate for one hundred (100) shares of the stock of the Continental-Illinois Bank and Trust Company.
“It is further agreed and understood that the Trustee may exercise any additional power that shall be granted to him in that certain trust agreement referred to herein and executed contemporaneously with this agreement.
“Signed, Sealed and Delivered, at Chicago, Cook County, Illinois, this 18th day of January, A. D. 1930, by the said James J. Barbour, Trustee, and approved by the parties of the first and second part as further signatures below.
“James J. Barbour (Seal)
Trustee
“Approved: Fames MacVeagh (Seal) Party of the First Part
Approved: Louise Hagen (Seal) Party of the Second Part.”

The second agreement, entered into contemporaneously with the foregoing contract, merely recited defendant’s undertaking in the first agreement to pay out certain sums toward the extinguishment of plaintiff’s outstanding liabilities and the monthly payments to be made to her for the balance of her natural life; that defendant had in the first contract agreed to deposit with James J. Barbour, as trustee, a certificate for 100 shares of the stock of the Continental Illinois Bank & Trust Company of Chicago to secure the fulfillment of the undertakings of that agreement; and it defined the trustee’s duties with reference to the stock thus deposited in trust for plaintiff’s benefit.

The third contract, dated October 16, 1933, again set forth the agreement of defendant to make monthly payments to plaintiff during her natural life, the deposit of 100 shares of the capital stock of the Continental Illinois Bank & Trust Company to secure these payments, that the stock so deposited had constantly declined in value until it was then worth only about $25 a share, and provided that plaintiff was to receive in lieu of said stock $2,500, which was paid to her, and that the 100 shares of stock were to be released from the operation of the trust. The agreement provided that nothing therein contained was intended to release defendant in anywise or affect the obligations assumed by him under the first contract of January 18, 1930, “but, on the contrary, the intention and meaning* thereof is that every obligation assumed by said Barnes MacVeagh, party of the second part in said agreement mentioned, are in full force and effect, except the obligation to furnish and maintain in trust 100 shares of Continental Illinois Bank &¡ Trust Company stock as security for said payments, ...”

Defendant continued to make the payments called for by the contract until February, 1934. Thereafter he took the position that because of his poverty it would no longer be possible for him to continue the payments. No other reason was assigned. Many letters passed between Barbour and plaintiff containing references to defendant’s poverty-stricken circumstances,- but none of these denied the validity of the contracts. Suit was finally instituted December 13, 1934, 10 months after the initial default, and judgment was eventually entered for $2,500. It was not until defendant filed his affidavit of defense that plaintiff was apprised of the contention now made, that these agreements are invalid for lack of consideration and that the payments provided for therein were intended and considered by defendant as mere gifts.

As ground for reversal it is first urged that the principal contract of January 18, 1930, “is illegal and void, inasmuch as the obligations assumed by the defendant thereunder were by way of gift only, and without legal consideration.” It is argued that the agreement fully sets forth all of plaintiff’s claims and that those specified, and from which she intended to release defendant, were the only claims she had; that if she had had a claim for breach of promise of marriage it would have been listed among the others; and that her failure to assert the existence of such a claim indicates that she had none. The gravamen of. the argument is that defendant never promised to marry plaintiff. Inferentiallv it must be conceded that if a valid claim for breach of promise to marry had existed when the contract was made, and had been specifically included among the other claims from which defendant was then being released, it would have constituted a valid consideration for defendant’s promise to pay her $250 monthly during her .lifetime. This involves a consideration of the principal question of fact in controversy, namely, whether there existed a promise of marriage by defendant. The court was evidently of the opinion ’that there was such a promise. There is evidence of three or four instances when marriage was discussed. Plaintiff testified that after the child was given out for adoption defendant first broached the subject of marriage and presented her with a diamond ring. They had dinner together, went to the theatre, and plaintiff stated that defendant said, “it would be so nice if we could be married immediately, but we shall have to wait until some time during the year ’ ’; that his father would object to his marriage and his mother had social ambitions for a brilliant marriage by him.

Again, in 1916, after the death of defendant’s mother, he told plaintiff “how much he would love to marry her, but was afraid he would have to wait because his father would object so strenuously.” Plaintiff further testified that when she returned from Europe after the World War defendant told her “that he wanted so much to marry her, but could not because of the disparity in their positions”; that he could not marry while his father was living. In these various discussions of marriage plaintiff states that in view of the reasons assigned she consented to wait, and if these conversations were had as related by her, in view of defendant’s promises to marry after his father’s death, there would have been no occasion for her again to refer to the matter so long as the elder MacVeagh was alive. Following his mother’s death defendant took plaintiff to the family vault where she assisted him in sorting the family jewels and heirlooms. He left her there, alone, for an hour or two, then returned, and, according to plaintiff, the subject of marriage was again discussed. All of these conversations relating to marriage are denied by defendant, but circumstances lending support to plaintiff’s evidence are not and cannot be denied. Defendant from time to time presented her with various of these articles of jewelry and heirlooms and according to his own testimony he “had a great deal of love and affection for her for a long period of time,” and the assistance he gave her through all the years, the money that he paid to her, “were not given because of the illicit relations.” Defendant’s counsel emphasizes the fact that there was no promise of marriage in writing. This may be explained by plaintiff’s testimony that defendant took many of his letters, written to her, and has not returned them. Her testimony in this respect is supported by the fact that one of these letters was produced by defendant at the trial. There is in evidence a letter postmarked April 10, 1923, where defendant wrote:

“Dearest Grirl:
Thank you again for your incredibly lovely letter. It makes it clear that we can now quickly have things on a basis most conducive to the happiness of both, and make our precious love and affection more worth while than ever and more imperishable. . . .
“I am so sorry, sweetheart, that you have had that little set back, but I pray that all is smooth sailing again now. . . .
“Most lovingly and devotedly, E”

This is but one of many of the affectionate expressions of defendant, and it is difficult to reconcile the language of this document, wherein defendant holds out hope of making “our precious love and affection more worth while than ever and more imperishable, ’ ’ with the contention that he never promised to marry her.

Moreover, defendant’s counsel has insisted all through his brief and the contract of January 18,1930, is predicated upon the theory that the relationship between the parties was purely platonic; that of patron and protegé. If that were true, and no understanding existed between them other than a business association or friendship, it is difficult to understand why defendant did not personally call on plaintiff in 1929 and advise her of his impending marriage. His aversion to meeting his so-called protegé, the suddenness with which his marriage to another was announced through his attorney on the eve of his departure for Europe, and his and Barbour’s apparent eagerness to have her release all claims “by her at any time made or had, of every nature and kind, down to and including the present date,” almost contemporaneously with defendant’s marriage, including the agreement on her part to depart for Europe and remain away for at least a year, can be attributed only to a desire on defendant’s part to be released from some stronger tie between the parties than mere friendship. Plaintiff characterizes it as a troubled conscience and an indication of the desire of defendant to avert what he feared might result in a breach of promise action unless some settlement was made, and we think there is considerable force in the suggestion.

In view of the innumerable letters in evidence expressing defendant’s esteem and affection for plaintiff, the tender consideration that he accorded her during almost 20 years, and their deep and mutual friendship and love, as indicated by the affectionate expressions contained in their letters to each other, it is difficult to believe that this relationship could have existed without some expression and discussion of marriage, as plaintiff states. We think the evidence abundantly sustains the contention that there was a promise of marriage and that the underlying purpose of the agreement was to release defendant primarily from what he considered an obligation to consummate a marriage.

It is next urged that the contract is based on an illegal consideration, and defendant places great emphasis on the effect of the decision In re Greene, 45 F. (2d) 428. In that case Greene, a married man apparently of large means, had lived in adultery with claimant, Leila Trudel, for several years prior to 1926. After their illicit relations terminated the parties executed an agreement under seal wherein Greene promised to pay claimant $1,000 a month, and she in return executed a general release. Subsequently she sued on the contract alleging that the general release was in fact a release by her of Greene’s previous verbal promise to marry. Greene filed a petition in bankruptcy and Ms trustees presented the defenses (1) that since past illicit relations were the motive for the promise the contract was illegal, and (2) that there was no consideration for the promise. The court held that the promise in such a case, to be valid, must be supported by some consideration other than past intercourse and that the past illicit relations between the parties did not furnish a consideration for the agreement. It appears that claimant knew Greene to be a married man during all the years that she lived with him, and upon these facts the court commented as follows:

“ . . . claimant testified that the bankrupt had promised to marry her as soon as he was divorced. Assuming that he did — though he denies it — the illegality of any such promise, made while the bankrupt was still married, is so obvious that no claim could possibly arise from it, and the release of such claim could not possibly be lawful consideration.” (p. 430.)

In this respect the two cases are, of course, not at all similar, and what the court s.aid there would, in view of our conclusions here, have no application to the instant proceeding. While it is true that past illicit relations of the parties would not furnish a consideration for the contract, nevertheless such relations do not invalidate the agreement if it be otherwise supported by valuable consideration. Defendant in this proceeding was a single man, and was able to make a valid promise of marriage, as distinguished from the illegal promise attributed to Greene, a married man, known to be such by claimant. The release of a valid promise to marry by MacVeagh, if one existed, would constitute a valuable consideration for the agreement in this proceeding, as would any one of the other considerations recited therein.

Among the other considerations stated was the promise of plaintiff to abandon her residence in the United States and remain abroad for a period of at least a year. A similar promise was held to be a valid consideration for an agreement in Evans v. Moore, 247 Ill. 60, wherein Evans, a resident of Dixon, Illinois, on several occasions wrote to his nephew, the plaintiff, a resident of Wales, that if he would give up his residence and come to Dixon and become a citizen of this country, defendant would will all his property to him. The nephew, in response to his uncle’s request, came to Dixon, became a citizen, and in commenting on the validity of the consideration for the agreement, the court said:

“It was not a case of a promise to make a gift without consideration, but was an agreement made upon a legal, valid consideration, and when performed by complainant the agreement became binding upon David L. Evans and the law imposed upon him the obligation of performing’ it. (Shutt v. Missionary Society, 41 N. J. Eq. 115; Bush v. Whitaker, 91 N. Y. 616; Spencer v. Spencer, 25 R. I. 239.)”

Another consideration recited in the agreement was plaintiff’s promise to surrender the balance due on a letter of credit held by her for which defendant was obligated. Defendant’s counsel maintains that when the contracts were executed this letter of credit had been exhausted, but he is evidently mistaken, because in one of his letters to plaintiff, he wrote “I cannot recommend the added allowance of the uncollected portion of your letter of credit. ’ ’ This item constituted a money consideration passing from plaintiff to defendant, and would tend to support defendant’s promise to pay.

The words of release in this contract are so broad as to include any and every claim that plaintiff had, and might well have included the promise to marry, even though that claim was not specifically enumerated. It is inconceivable that Barbour would, at the behest of the defendant, have spent the time and incurred the expense required to induce plaintiff to release all her claims ‘ ‘ of every kind and nature against defendant, ’ ’ if, as a matter of fact, she had no enforceable claims other than the right to collect a $5,000 note executed by defendant in 1915 and payable to plaintiff after defendant’s death, which Barbour insists was legally uncollectible, and the surrender of the balance due on the letter of credit which defendant’s counsel maintains had been exhausted when the agreement was made. If the contract be given the interpretation of a pure gratuity, it is difficult to understand why it was made at all. Defendant had been paying plaintiff’s expenses during all these years, and if he merely wished to continue making her monthly payments in the nature of gifts, it was not necessary to make any contract. Certainly the promise to pay $250 monthly during plaintiff’s lifetime is all out of proportion to any benefit that defendant could have received from a cancellation of the $5,000 note and the surrender of the small balance remaining unused on the letter of credit. The obvious conclusion is that he had in mind a far more important objective, namely, the settlement of a claim which he thought plaintiff had against him and feared that she might assert when she learned of his marriage to another, namely the breach of his promise to marry her.

Mr. Barbour, an able and experienced member of the bar, drew these contracts. On oral argument, in response to the court’s question, he asserted that they were prepared in all good faith and in the belief that they were valid and binding legal documents, to be carried out by the parties thereto. We have no reason whatsoever to doubt these statements, and in fact the covenants of these agreements were faithfully performed on both sides for about four years. Plaintiff did all that she was required to do up to the time suit was instituted, and defendant, after acquitting her outstanding obligations, made the monthly payments stipulated in the agreements until, as Mr. Barbour says, defendant became financially unable to perform, and it was only then and because of defendant’s poverty that Mr. Barbour, upon a careful re-examination of the contracts, concluded that they were invalid and void and invoked the defenses here interposed. Plaintiff had no legal advice during the conferences that led up to the preparation of the contracts, because Mr. Barbour had counseled against it, and although she had the documents in her possession for some time before they were signed, she states that she had no legal advice. These considerations lead to the inescapable conclusion that the defense interposed is an afterthought.

Various other points are raised by defendant’s counsel, challenging the validity of these agreements, but in view of the conclusions here reached we think it unnecessary to further prolong this opinion by discussing them.

During the pendency of this cause plaintiff made a motion to dismiss the appeal, which-was reserved to the hearing. Inasmuch as we have considered and decided the case on its merits, the motion will be denied.

After a careful consideration of all the facts and an examination of the agreements in question, we have reached the conclusion that the contracts are valid and enforceable, and that the court properly held that plaintiff was entitled to recover the sum of $2,500, representing 10 monthly instalments then in default. ,

The judgment of the municipal court is affirmed.

Affirmed.

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


text:
    Chicago Title and Trust Company, Plaintiff, v. Jennie Waldman et al., Defendants. Modern Woodmen of America, Appellee, v. Frank Fishman, Appellant.
    Gen. No. 38,856.

      Opinion filed December 30, 1936.
    Bernard J. Brown, of Chicago, for appellant.
    Solomon P. Roderick, of Chicago, for appellee; Michael B. Roderick, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In a foreclosure proceeding then pending in the superior court, Modern Woodmen of America, hereinafter referred to as petitioner, became the purchaser at a master’s sale of the Granville Apartment Hotel in Chicago. After the master’s certificate had issued, petitioner invoked the court’s jurisdiction to determine whether certain gas ranges, mechanical refrigerators and inador beds contained in the hotel were part of the realty purchased by petitioner. Frank Fishman, hereinafter referred to as respondent, claims to have acquired title to the personal property and furniture contained in the hotel, including the gas ranges, refrigerators and inador beds. The petition and Fish-man’s answer were referred to a master, who found that the court had jurisdiction to entertain the petition, and recommended a decree adjudicating the items in question to be' part of the realty. Exceptions to the master’s report were overruled, and a decree was entered in accordance with the master’s findings and recommendations. This appeal by respondent followed.

The Granville Apartment Hotel is located at 6241 N. Winthrop avenue, Chicago. It is a so-called kitchenette apartment hotel, consisting of 69 units, fully furnished. Each apartment contains an Electrolux ice box, installed in a recess on one side of the kitchen sink, and a gas stove on the other. A cabronette, which is part of the gas stove unit, is bolted to the gas stove and extends across the other side so as to rest on top of the refrigerator. The cabronette is attached to the building by wooden supports and braces. The refrigerators and stoves are attached to the gas supply pipes of the building, and the refrigerators to the water supply, as well. The inador beds are bolted to doors in the apartments, through the medium of metal braces, and are also attached to the doors in each instance by compensating levers fastened with screws to the door and to the beds.

Petitioner, the owner of $70,000 in bonds of an issue paid off down to $238,000, purchased the property at the master’s sale held pursuant to the foreclosure of this bond issue, and received the master’s certificate. Chicago Title & Trust Co. was appointed receiver, and May 26, 1930, filed its inventory, which listed the property contained in each of the apartments, including the gas stoves, refrigerators and inador beds.

Paul C. Loeber, Charles E. Fox and Albert W. Swayne, who were known as the Leight trustees, acting on behalf of the owner of the equity of redemption of the premises, had purchased the mechanical refrigerators for the hotel, under a contract dated September 28, 1929, from Utility Appliance Corporation, for the stipulated sum of $11,276, upon which there had been paid at the time of the appointment of the receiver, $4,710.40, leaving a balance due of $6,565.60. The purchase contract provided, among other things, that title and ownership of these refrigerators should remain in Utility Appliance Corporation until the indebtedness was fully paid, and that the equipment should not become a part of the realty. Pursuant to a petition filed May 1, 1930, the receiver was authorized and directed by court order to compléte the purchase of these refrigerators by paying the balance of the purchase price in monthly instalments. Payments were made, as provided in the order, and the receiver ultimately obtained a receipt for the purchase from the seller.

November 3, 1933, the Height trustees filed a petition in the superior court, pursuant to which an order was entered April 13, 1934, finding that the trustees were the owners of the furniture and personal property set forth in the inventory filed by the receiver; that since its appointment the receiver had used the furniture, and that the trustees were entitled to compensation for the use thereof; directing the receiver to pay the trustees $2,400 as reasonable compensation for the use of all of the furniture and personal property, from the date of the receiver’s appointment, March 17, 1930, to and including March 31, 1934. The appearance of Solomon P. Roderick, as attorney for petitioner, was filed August 28, 1933, but he received no notice of the application for the entry of the order.

May 5,1934, an order was entered finding that Frank Fishman, respondent, had on April 3, 1934, purchased from the Height trustees the furniture and personal property described in the order of April 13, 1934; that the fair and reasonable rental for the use thereof by the receiver was $150 a month, and the receiver was thereupon directed to pay to respondent the sum of $150 a month, commencing April 1, 1934, and so long as the receiver continued in possession of the said property and until the further order of the court. This order was approved by attorneys for the receiver, petitioner, and respondent herein.

September 8, 1934, another order was entered by the court, reciting the previous orders of April 13, 1934, and May 5, 1934, and directing petitioner to pay to respondent, within 10 days, $300 to cover the rental of furniture and personal property for the months of August and September, 1934, and $150 for each and every month that the furniture was used; that' petitioner “deliver possession to said Frank Fishman on or before the first day of January 1935, of all of the furniture and personal property hereinbefore referred to and specifically described and mentioned in the inventory of said Chicago Title & Trust Co.”; and that respondent have access to and use of the elevators of the hotel for the removal of his furniture and personal property. This order was likewise approved by attorneys for petitioner and respondent.

Petitioner entered into possession of the hotel on or about July 12, 1934, pursuant to the filing of a bond for that purpose, and the receiver was discharged. January 25, 1935, petitioner initiated the proceeding which is the subject of this controversy, by filing its petition which set forth in substance the foreclosure proceeding, the purchase of the Electrolux ice boxes, the entry of the various orders herein-before specified, the purchase of the premises at the foreclosure sale by petitioner, and its entry into possession of the hotel premises. Petitioner alleged that it had discovered among the items listed in the receiver’s inventory the gas ranges, the refrigerators and inador beds, and averred that these items are permanently attached to the realty, are fixtures and not personal property, and requested an order defining and specifying that the items in question are permanently attached to the realty as fixtures and not subject to removal from the premises. Petitioner also' asked for vacation or modification of the orders hereinbefore set forth, and for such other relief as the court might see fit to allow. This petition, together with Fishman’s answer thereto, were thereafter referred to a master, who, after an exhaustive hearing, found in favor of petitioner and recommended an order or decree in its favor, which the chancellor entered accordingly.

As ground for reversal respondent relies principally upon the following propositions: (1) that the orders of April 13, May 5 and September 8, 1934, were final orders, and the court was without jurisdiction to modify, vacate or set them aside, after the expiration of thirty days; (2) and that the orders of those dates are res adpidicata of the question whether the items mentioned in the receiver’s inventory are personal property or realty.

As to the first point it is argued that the foreclosure had proceeded to a sale, the receiver had been discharged, the purchaser at the sale was in possession of the property, the funds realized from the sale had been distributed by the master and the period of redemption had expired; that nothing remained for the court to do in connection with the original bill to foreclose, and the court therefore had no jurisdiction to enter any order on the petition in question. While it has been generally held that a decree of foreclosure and sale is a final order, it does not necessarily follow that the court lacks jurisdiction to enter supplemental orders necessary to carry out its decree. It was so held in Eggers v. Adler, 248 Ill. App. 118, where the question arose as to whether the court had jurisdiction to entertain a cross-bill, the term of court at which the original decree of foreclosure was entered and the master’s report of sale approved and confirmed having expired. It was there said that:

“As to undisposed of matters, the jurisdiction of the court would continue until the whole matter is disposed of, although., of course, further proceedings would not be allowed to change or modify in any way the final decree theretofore entered. The jurisdiction of the court of chancery over undisposed of matters does not end at the expiration of the term at which a particular final decree may be entered. We think the court was not without jurisdiction, and that the order was equitable and just, and it is affirmed. ’ ’

In Chicago Title S Trust Co. v. Bamburg, 278 Ill. App. 1 (reversed by the Supreme Court on other grounds) the jurisdiction of the court was similarly challenged, and in discussing the question the court said (p. 12):

“It is the general rule, as appears from the cases cited in the briefs, that the limitation of control of the court to the term at which the decree was rendered does not apply to the provisions inserted for the purpose of carrying the decree into effect. Sterling Nat. Bank v. Martin, 213 Ill. App. 566. To the same effect are Mariner v. Ingraham, 230 Ill. 130, and Totten v. Totten, 299 Ill. 43.”

In the Totten case, 299 Ill. 43, the decree provided for the payment of certain money found due under a warranty deed which was held by the decree to be a merger. After prosecuting an appeal from the decree, which was affirmed, a petition was filed in the circuit court to extend the time within which to pay the sum specified in the decree, and the court granted the extension. It was there contended that the chancellor was without jurisdiction of the subject matter and had no authority to extend the time for payment, because the term at which the original decree was entered had expired. It was held that while usually courts of equity have no power, after final decree, to amend, modify or alter the principles of their decrees, they retain jurisdiction and power to control the time and manner of the execution of their judgments and decrees.

The principle enunciated in the foregoing decisions is fully discussed and approved in 10 Ruling Case Law, p. 567, sec. 355, under the heading “Bill to Effectuate Decree,” where it is said:

“When an irreversible, unreviewable, and unimpeachable decree has been finally obtained, numerous contingencies may yet arise to prevent the party who is entitled to enjoy the benefit of the decree from obtaining the fruits of it; and under certain conditions, such a party is entitled to maintain a bill to carry the decree into effect. Such a bill is a supplemental bill, founded on new matter arising after the entry of the decree. The power of the court of chancery to entertain a bill to enforce and carry into effect a prior decree is one of its original and undoubted powers, and it is well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees, and judgments, which remain unreversed, when the subject matter and the parties are the same in both proceedings. The frequency with which such bills have been entertained is possibly due, in a measure, to the fact that formerly the ordinary legal process by writ of execution available for enforcing judgments could not be used to enforce decrees, and consequently the chancery court was largely left to its own resources to enforce its decrees. The supplemental bill, after decree, is not infrequently resorted to by the vendee or transferee of property, the title to which has been the subject of prior litigation. By this means the transferee gets the effectual benefit of the previous decree without being compelled to' go to the expense of an entirely new litigation.”

In the instant proceeding the original decree of foreclosure directed a sale of the property by the master, and petitioner became the purchaser at the sale. It thereby acquired, not only the real estate involved with the improvements thereon, as. described in the certificate of sale, but also “all improvements and appurtenances thereto attached or belonging, including all . . . ranges, . . . and all other fixtures ’ ’ contained in the premises. When some time later petitioner ascertained, as it states in its petition, that the refrigerators, ranges and inador beds were attached to the premises, and learned that an adverse claim thereto was made by respondent, it certainly had the right to invoke the court’s jurisdiction to hear and determine whether or not these items belonged to the realty, and, if so, to enter a supplemental order or decree protecting petitioner against the adverse claimant and safeguard the property which petitioner had purchased at the master’s sale. We think this situation comes squarely within the authorities holding that the court may, after the term in which the final decree is entered, make all orders necessary to give effect to its decree. The order appealed from merely determined that petitioner had purchased these items with the real estate and ivas entitled to be possessed thereof as against the claims of respondent. Circumstances may, and frequently do, arise in which the purchaser at a foreclosure sale may claim that items attached to the realty as fixtures became part of the realty, and the mere fact that the foreclosure proceeding itself had been terminated and a certificate issued ought not to preclude the purchaser from invoking the court’s jurisdiction to protect him in a purchase made at the court’s direction and under the court’s decree.

Certainly, so far as the mechanical refrigerators are concerned, respondent has no claim to them whatsoever. These refrigerators were purchased by the height trustees, on behalf of the owner of the equity, from the Utility Appliance Corporation, under a conditional sales contract, and when the receiver went into possession of the hotel he was directed by the court to cany out the terms of the purchase contract and pay, from the income of the property, the unpaid balance. The receiver complied with this order and thereby acquired title to the refrigerators from the Utility Appliance Corporation. The height trustees had never acquired title, because the conditional sales contract specifically reserved title to the ice boxes in the seller, and when the contract of purchase was completed by the receiver the estate became the owners of the ice boxes. Since the height trustees never owned the refrigerators, they could not have sold or conveyed any better title thereto to respondent than they themselves had. It logically follows that respondent, although he purchased the personal property and furniture contained in the hotel from the Leight trustees, never acquired title to the refrigerators.

Under respondent’s second point it is urged that by the orders of April 13, May 5 and September 8, 1934, the court found that the Leight trust was the owner of all the personal property and furniture mentioned in the inventory, and that the ice boxes, stoves and inador beds were necessarily included. However, these orders were general in their character. They were entered pursuant to petitions which sought to fix the rental value of these chattels while the property was in possession of the receiver. The title to real or personal property was never an issue under these petitions. It did not become an issue until petitioner herein invoked the court’s jurisdiction, after it assumed possession of the hotel, to determine whether the items in question were personalty or realty. Respondent relies on the language employed in these various orders which describes the personal property and furniture as that “mentioned in the inventory,” but we think this language refers only to items which were actually furniture and personal property, and does not necessarily include the entire contents of the inventory. At best, the inventory was only a clerical compilation filed by the receiver and was binding on neither the petitioner nor the respondent, so far as it had reference to a classification of realty and personalty, and there was no judicial determination by these orders as to what items in the inventory constituted personalty and what was real property.

It was pointed out on oral argument, and it is argued at great length in petitioner’s brief, that when Roderick approved the orders in question he had never seen the inventory and did not know that it included the items in controversy. The inventory had been taken from the court files, and, after many months, was found in the possession of respondent’s counsel, who had it in his office, and access thereto could not be had by any of the other parties to the proceeding. That seems to us a plausible explanation of the approval of these orders.

It appears from the record that respondent ultimately removed all the personal property and furniture from the hotel, and petitioner was required to refurnish the various apartments. The respondent had purchased these chattels from the Leight trustees for approximately $2,500, and he received substantially that much from the receiver and petitioner while they were in possession of the premises, by way of rental for the furniture. The value of the refrigerators, ranges and inador beds, when purchased, approximated some $35,000, and constituted a valuable part of the hotel property. The hearing of the master discloses that the items in question were built into the apartments in a special space provided for that purpose, and attached to the building in such a way as to constitute fixtures, and became a part of the realty. (Chappel v. Burwell, 273 Ill. App. 348, 352; Guardian Life Ins. Co. v. Swanson, 286 Ill. App. 278; Lyle v. Rosenberg, 192 Ill. App. 378.) The master’s findings are not challenged, and the only reasons urged for reversal are the two propositions hereinbefore stated and discussed. Holding as we do that the court had jurisdiction and that the orders of April 13, May 5 and September 8, 1934, were not an adjudication of the classification in the inventory of items of realty and personalty, it follows that the supplemental decree or order of the superior court should be affirmed. It is so ordered.

Affirmed.

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


author: Mr. Justice Soanlan

text:
    C. N. Wilson, Trading as Wilson and Company, Appellant, v. John Griffith and Mary Griffith, Appellees.
    Gen. No. 38,741.
    Opinion filed December 30, 1936.
    Strawn & Mitchell and Sims & Stransky, all of Chicago, for appellant; Chester Strawn, Wilbur A. E. Mitchell and Otto W. Berg, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellees; Joseph B. Fleming, David Fisher and Thomas M. Thomas, all of Chicago, of counsel.
   Mr. Justice Soanlan

delivered the opinion of the court.

Plaintiff sued defendants, in the circuit court of Cook county, on a contract for professional services alleged to have been rendered defendants. The suit was filed August 8, 1935, and a summons was served returnable to the third Monday of September, 1935, being September 16, 1935. As defendants did not appear on or before the return day plaintiff caused a default to be entered against them on September 17, 1935, at 10 o’clock a. m. On the same day, at 4:22 o’clock p. m., defendants filed a special appearance; also a motion to quash the service of summons and an affidavit in support thereof. On October 21, 1935, plaintiff filed a motion to strike the defendants’ special appearance and motion to quash and affidavit in support thereof, and also filed a petition in support of the motion. On November 29, 1935, plaintiff’s motion came on for hearing. The material part of the affidavit in support of defendants’ motion to quash the service of summons is as follows:

“Frank J. Hoffman, being first duly sworn, on oath deposes and says that prior to and on August 23, 1935, he resided in the county of Lake, State of Illinois, and that at no time was he a resident of, nor was his place of abode in, the county of Cook.

“Affiant further states that the defendants, John Griffith and Mary Griffith, prior to and on August 23, 1935, did not reside in the County of Cook nor was their place of abode in the said County of Cook, but that they resided in the County of Lake and State of Illinois.

“Affiant further states that a summons issued in the above entitled cause was not served on John Griffith or Mary Griffith by leaving a copy of the same with this affiant in the County of Cook.

“Affiant further states that John Griffith, doing business as John Griffith & Sons, prior to and on August 23, 1935, had his place of business in Lake Forest in the County of Lake and State of Illinois.”

The return of the sheriff showed that the summons was served on the defendants on August 23, 1935, by leaving a copy of the same at their usual place of abode in Lake county with F. J. Hoffman, a son-in-law and a person of their family of the age of 10 years or upwards, and informing such person of the contents thereof. Defendants’ counsel admitted that the return was regular; that they would not attack it as they could not impeach it. At the outset of the hearing on November 29, 1935, a lengthy colloquy took place between the trial court and counsel for both sides during which the trial court announced that in his opinion plaintiff selected the wrong venue in which to commence his suit; that as the defendants lived in Lake county plaintiff should have sued them there. Counsel for plaintiff called the attention of the court to the fact that the only issue before the court was whether or not the motion to quash the service of summons should be sustained or overruled, to which the trial court replied that in his opinion any judgment plaintiff might obtain against defendants would be worthless because plaintiff had selected the wrong venue, and that, therefore, he was going to end the proceedings. The trial court thereupon entered the following order:

“This cause coming on to be heard for further hearing on plaintiff’s motion filed October 21, 1935, and for hearing on defendants’ motion to quash service of summons, and the court having heard the arguments of counsel,

“It Is Hereby Ordered, upon motion of the court, that the order of default taken by the plaintiff in this case on Tuesday, September 17, 1935, at 10:00 o’clock A. M., against John Griffith and Mary Griffith, his wife, be and the same is hereby vacated, and this cause is hereby dismissed for lack of proper venue and for want of jurisdiction of this court over the parties John Griffith and Mary Griffith, his wife, defendants, said parties being residents of Lake County and served in said county ;

“And It Is Further Ordered, upon motion of the court, that the service of summons herein against John Griffith and Mary Griffith, his wife, defendants, be and the same is hereby quashed because of wrong venue; and therefore, upon motion of the court, this cause be and the same is hereby dismissed on the strength of the special and limited appearance of the defendants John Griffith and Mary Griffith, his wife, and their written motion to quash the service of summons and their affidavit in support thereof, all three filed on September 17, 1935, at 4:22 P. M.”

Plaintiff raises seven points in support of his contention that the judgment order should be reversed, but in our view of this appeal it is only necessary to refer to four:

“Court erred in sustaining motion to quash service of summons after having found that the service of summons and Sheriff’s return thereon was good.

“Court erred in dismissing the suit on the ground of wrong venue, where defendants failed to raise that point by proper pleading in the record.

“Court erred in dismissing the suit on the ground of wrong venue without any regard as to where the transaction, or some part thereof, occurred.

1 ‘ Court erred in vacating the order of default, when defendants had not shown a meritorious defense and had not shown that they had been diligent.”

These points are all meritorious. The sole motion before the trial court was the one filed by plaintiff heretofore referred to. No contention was made by defendants that the return of the sheriff on the summons was defective in any way. Indeed, they stated that they could not impeach it and would not attack it. No motion to dismiss the suit was filed, nor was the question of venue raised in any apt way, and the trial court had no right to dismiss the suit of his own motion on the ground of wrong venue without regard to where the transaction or some part thereof occurred. Had the question of venue been raised by motion, supported by an affidavit, that the transaction out of which the cause of action arose did not occur in the county of Cook, then plaintiff would have had an opportunity of joining issue on that question. As counsel for plaintiff stated to the trial court, if the question of venue were raised plaintiff would be able to prove that the transaction occurred in Cook county and was performed there. Upon the oral argument in this court counsel for defendants practically conceded that the trial court erred in entering the order in question.

Both parties have seen fit to argue the question as to whether or not plaintiff had the right to default defendants on September 17, 1935, at 10 o’clock a. m. That question was not properly before the trial court and it is unnecessary for us to pass upon it.

The judgment order of the circuit court of Cook county entered November 29, 1935, is reversed and the cause is remanded.

Judgment order of November 29,1935, reversed and cause remanded.

John J. Sullivan, P. J., and Friend, J., concur.


author: Mr. Justice S garlar

text:
    Hazel C. Austin, Executrix of the Estate of Alva C. Austin, Deceased, Appellant, v. City Bank of Milwaukee, Appellee.
    Gen. No. 38,761.

      Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Hector A. Broitillet, of Chicago, for appellant; Abraham Miller, of Chicago, of counsel.
    SoRRERSCHEIR, BeRKSOR, LaUTMARR, LeVTRSOR & Morse, of Chicago, for appellee; I. E. Fergiisor, Richard M. Gtjdemar and Homer Kripke, all of Chicago, of counsel.
   Mr. Justice S garlar

delivered the opinion of the court.

Appellant, executrix of the estate of Alva C. Austin, deceased, appeals from an order of the circuit court of Cook county denying her petition to reclassify a claim of appellee, City Bank of Milwaukee, for $1,870.87, filed against the estate in the probate court of Cook county, on March 31, 1930. On June 9, 1930, it was allowed in the sum of $2,770.07, as a sixth class claim. On February 28, 1935, a verified petition in behalf of the executrix was filed in the probate court. It alleges, in substance, that letters of administration were issued to her as executrix on November 22, 1928; that the year for filing claims against the estate expired November 21, 1929; that the claim of appellee was filed on March 21 [31], 1930; “that this claim showed upon its face that it was filed after the year of expiration and that the same should have been classed in class seven or in that class wherein it became necessary for the claimant to find assets not inventoried; . . . that a notice was served upon the attorneys representing the City Bank of Milwaukee on October 18, 1930, for the purpose of having said claim reclassed and at that time the motion was stricken upon the agreement of counsel to await the final decision of a claim filed by Lester Kulp against said estate and that said claim went to the Supreme Court wherein the claim was disallowed; . . . that all of the assets of said estate were inventoried and that there is no property or assets with which to pay the aforementioned claim of the City Bank of Milwaukee.” The petition prays that the claim “be reclassed as provided by statute.” Appellee’s verified answer to the petition states: “Respondent admits that Letters Testamentary were issued to said Executrix on November 22, 1928, and that the claim of this respondent was filed on March 31, 1930; . . . that although said Letters Testamentary were issued on November 22, 1928, the adjudication with respect to claims was not entered until April 1, 1929, so that the claim of this respondent was filed within one year from the adjudication date of said Estate; . , , that the reason for the delay in filing the claim was that this respondent had no knowledge of the death of the decedent until February 1930; that its information at that time was to the effect that said decedent had died in May 1929; that it, accordingly, proceeded to file the claim in question and then notified the attorney for the' Estate of the action that it had taken; that as soon as the knowledge of the death of the decedent reached respondent, it used all due diligence in filing its claim; . . . that its claim was allowed as a Sixth Class claim in the sum of $2,770.07 on June 9, 1930, by this court; . . . that ... on August 26, 1930, the attorney for the Estate moved to have this claim re-classified, but the motion was denied on the ground that the attorney should file a petition with respect to same in order that a full hearing might be had. On October 20, 1930, the attorney for the Estate presented the identically same motion, and this court again advised him that the matter should be presented by petition. At that time his Honor, Judge Henry Horner, who was presiding in the Probate Court on that date, asked the attorney for the Estate why the claim should not be paid since it was, apparently, a valid claim and there were assets out of which to pay it; . . . that according to the Inventory filed in this court, the assets of said Estate totaled $55,365.78 and consisted, principally, of $49,590.00 designated as ‘National Bank of Republic —insured trust insurance’; that the claims against said Estate totaled, approximately, $80,000.00 but of this sum one claim filed by one Lester Kulp was for $62,329.76; that this respondent is advised, and believes the fact to be, that the claim of Lester Kulp has now been disallowed and is no longer pending against said Estate, so that the total claims are not in excess of $18,000.00; that as a result on the face of the record in this court, there are more than sufficient assets to pay all of the claims filed and allowed against the Estate, including this respondent’s claim; . . . that the term at which respondent’s claim was allowed on June 9, 1930, has long since expired, and that it is, therefore, improper for the Executrix to seek to re-classify it at this time; . . . respondent prays that its claim be permitted to stand as a Sixth Class claim.” After a hearing the probate court entered. an order denying the petition of the executrix to reclassify the claim and ordering that the allowance of the claim on June 9, 1930, for $2,770.07 as a sixth class claim be affirmed in all respects. Appellant appealed from that order to the circuit court and upon a hearing de novo that court entered an order denying the petition of the executrix to reclassify the claim. This appeal followed.

The facts material to our decision are undisputed. Appellee admits in its sworn answer that letters testamentary were issued to the executrix on November 22, 1928; that its claim was filed on March 31, 1930, and allowed on June 9, 1930. It does not deny, in its answer, the allegation in the petition that all of the assets of the estate were inventoried by the executrix. Moreover, the executrix is presumed, in the absence of evidence to the contrary, to have performed her duty of inventorying and accounting for all of the assets of the estate. (See Beebe v. Kirkpatrick, 321 Ill. 612, 618.) The estate is still in course of administration. Under what circumstances appellee’s claim was originally allowed as a sixth class claim does not appear from the record.

Appellant contends that “the order of the Probate Court, designating the claim involved herein as a sixth class claim, is contrary to Section 70 of the Administration Act and is null and void, (a) Under the said act, a claim against a decedent’s estate not exhibited within one year from the granting of letters is forever barred as to property which has been inventoried or accounted for by the executrix, (b) Where a claim against a decedent’s estate is filed and allowed after one year from the granting of letters, the order or judgment allowing the same must be special and payable only out of subsequently discovered assets, (c) The Probate Court has no authority to allow a claim against a decedent’s estate, except in accordance with the provisions of the said Act”; that “the Circuit court, on the appeal from the Probate court, could not exercise any power save that which the Probate court had. (Chapman v. American Surety Co., 261 Ill. 594, 603.) ” After a careful consideration of the instant contention we have reached the conclusion that it must be sustained. Section 70 (Ill. State Bar Stats. 1935, ch. 3, 1171; Jones Ill. Stats. Ann. 110.071) provides:

“All demands against the estate of any testator or intestate shall be divided into classes in manner following, to-wit:

“First. Funeral expenses and necessary cost of administration.

“Second. The wddow’s award, if there be a widow; or children, if there are children and no widow.

“Third. Expenses attending last illness, including physician’s bill, and demands due common laborers or household servants of deceased for labor.

“Fourth. Debts due the common school fund or township.

“Fifth. Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for.

“Sixth. All other debts and demands of whatever kind without regard to quality or dignity, which shall be exhibited to the court within one year from granting of letters as aforesaid.

“All claims and demands of whatever class not exhibited to the court within one year from the granting of letters as aforesaid shall he forever barred as to property and estate of the deceased which has been inventoried or accounted for by the executor or administrator ; and if the executor or administrator shall thereafter file any inventory listing other estate not previously inventoried or accounted for, and shall cause notice to be published in the manner provided by section 60 of this Act, or give such other notice as the court may direct, of a day fixed upon, which shall be not less than three months after the date of such first publication, for the filing and exhibiting of further claims against said decedent, all claims not exhibited to the court prior to the date so fixed shall be forever barred as to the property and estate listed in such inventory, and the amount remaining due on all claims exhibited to the court on or prior to the day so fixed upon as aforesaid, including those filed within one year from the granting of letters, shall be paid pro rata out of such subsequently inventoried estate, saving, however, to infants, persons of unsound mind and persons in the employment of the United States or of this State and residing outside of the United States, the term of one year after their respective disabilities are removed to exhibit their claims.”

It is conceded that appellee’s claim was not filed within one year from the granting of letters testamentary. The time for filing* claims is computed from the date of the letters. (See Wener v. Freilich, 268 Ill. 58.) The allegation in the answer that the claim was not filed within the time fixed by the statute because appellee had no knowledge of the date of the death of the decedent until a certain time, does not, of course, avoid the plain mandate of the statute. Indeed, an executor or administrator cannot waive the presentation of a claim within the time fixed by the statute; nor can the distributees or legatees of the estate. (See Alderson v. Alderson’s Estate, 226 Ill. App. 176.) In Sanders v. Merchants State Bank, 349 Ill. 547, 566-7, the conrt said:

“However, the sixth clause of section 70 of the Administration act provides that all demands not exhibited to the court within one year from the granting of administration shall be forever barred unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate. This provision creating a limitation upon the time for filing claims against an estate is not a general statute of limitations. The purpose of the act in regard to the administration of estates was to facilitate their early settlement, and the limitation for the exhibition of claims to two years (a time afterward reduced to one year) had that particular purpose in view. A claim not exhibited within the time fixed is not absolutely barred but its right to participate in the distribution of the assets of the estate actually inventoried or accounted for is lost. (Waughop v. Bartlett, 165 Ill. 124; Gross v. Estate of Thomson, 286 id. 185; Durflinger v. Arnold, 329 id. 93.) . . .It was held in Ryan v. Jones, 16 [15] Ill. 1, that the personal estate of a decedent is primarily liable for the payment of his debts and must be exhausted before resort can be had to the real estate. 'Demands against the estate of a deceased person must .be exhibited within two years from the grant of administration. A creditor free from, disability who fails to present his claim within that time is not allowed to participate in. the proceeds of the personal estate previously inventoried or accounted for by the executor or administrator. He must satisfy his debt out of property subsequently discovered or inventoried.’ ” Roberts v. Flatt, 142 Ill. 485, 490; Waughop v. Bartlett, 165 Ill. 124, 131; Strauss v. Phillips, 189 Ill. 9, 23; Morse v. Pacific Ry. Co., 191 Ill. 356, 361; Beebe v. Kirkpatrick, 321 Ill. 612, 618, supra; Durflinger v. Arnold, 329 Ill. 93, 99; and In re Estate of Duffield, 258 Ill. App. 78, 85, also hold that where a claimant fails to file his claim within the time fixed by the statute he can have his claim satisfied only out of property not inventoried.

“Nor did the county court have power to authorize the payment of an alleged claim against an estate contrary to the provisions of the statute. County courts have no judicial power in directing the administration of estates except such as conferred upon them by the statute. Chapman v. American Surety Co., 261 Ill. 594. A county court could not therefore authorize an administrator to pay the claim after the claim was barred from payment by the statute. To authorize payment under these circumstances would in effect nullify the provision in the statute.” (Yaple v. Mahy, 241 Ill. App. 446, 453. See also Depue v. Heberling, 250 Ill. App. 82, 88.)

Where a claim against an estate is filed and allowed after one year from the granting of letters the order or judgment allowing the same must be special, ordering payment only out of assets which have not been inventoried or accounted for by the administrator. (People v. Small, 319 Ill. 437, 447-8; Morse v. Pacific Ry. Co., 191 Ill. 356, 363-4, supra; Waughop v. Bartlett, 165 Ill. 124, 128, supra.)

Appellee argues that as the probate court has the statutory duty to pass upon the validity and classification of claims, it has jurisdiction to do so, and, therefore, neither the allowance nor the classification of a claim may properly be set aside, after term time, except for fraud, accident or mistake. The validity of appellee’s claim is not questioned by appellant, and it will be conceded that where a claim is filed within the period fixed by the statute the probate court has jurisdiction to determine to which of the six classes it belongs. If the court erroneously classifies the claim the judgment order is not void, and it cannot be vacated or modified after term time merely because it is erroneous. The action of the probate court in entering the order in question in the instant case cannot be treated as a mere error in judgment, in a matter wherein the court had jurisdiction. Section 70 forever bars appellee’s claim except as to subsequently discovered assets. The status of the claim was fixed by the statute. The court had no power save to carry out the mandate of the law, and the order allowing the claim as a sixth class claim was in direct violation of the section and the court had no juris-. diction to enter the same. To hold otherwise would be to permit, in effect, a nullification of the statute.

“The Administration act is a specific act adopted for the particular purpose of facilitating the early settlement of estates of deceased persons. (Waughop v. Bartlett, 165 Ill. 124; Union Trust Co. v. Shoemaker, 258 id. 564.) ” (Gross v. Estate of Thomson, 286 Ill. 185, 189. See also Durflinger v. Arnold, 329 Ill. 93, 98, supra.)

Appellee contends that Ford v. First Nat. Bank, 201 Ill. 120, is squarely in point and decisive of the present appeal. At the time of that decision the statute provided for seven classes of claims. There the appellants filed certain claims against the estate of decedent in the county court and they were allowed as claims of the sixth class upon the ground that they were for moneys received by the deceased in trust. From the opinion of the Appellate Court in that case (Ford v. First Nat. Bank, 100 Ill. App. 70, 71) it clearly appears that the claims were filed within the period fixed by the statute. Sometime after the expiration of the term at which the claims were allowed, but still within the period for filing claims (see Ford v. First Nat. Bank, 100 Ill. App. 70, 71), a creditor whose cl aim had been allowed as one of the seventh class filed a petition praying that the claims of the appellants be reclassified as seventh class claims. The petition was denied by the county court and on appeal to the circuit court an order was entered that the claims be reclassified as of the seventh class. Upon the appeal to the Supreme Court it was held that the classification of claims by the county court is as much a part of the judgment as is their allowance, and that so far as the personal estate is concerned such classification cannot be set aside by the county court at a subsequent term in the absence of fraud, accident or mistake. That decision was based upon a record that showed that the claims were filed within the statutory period, and it is, therefore, not in point. The same situation was present in Ward v. Durham, 134 Ill. 195, and in Wolfley v. McPherson, 61 Kan. 492, also cited by appellee in support of its position. Appellee has not called to our attention any case akin to the one before us that sustains its position.

Counsel for appellee contend that no equitable reason is urged by appellant why the claim should not be paid. Appellant, as executrix, very properly insisted that the claim must be paid in accordance with the provisions of the statute, out of subsequently discovered assets, and that to pay it as a sixth class claim would amount to a nullification of the plain provisions of the statute. It is the duty of the executrix to interpose proper defenses to any claim, and if she is delinquent in that regard the heirs will have -a remedy on her bond. (See Ward v. Durham, 134 Ill. 195, supra.)" Nor is it for this'court to pass upon the so-called equities of the claim. , The only question that we can consider is whether or not the probate court, when it entered the order of June 9, 1930, had the power or jurisdiction to allow .the claim as a sixth class claim. (See Alders on v. Alderson’s Estate, 226 Ill. App. 176, 178, supra.)

The judgment order of the circuit court of Cook county is reversed, and the cause is remanded with directions to the circuit court to treat the probate court order of June 9, 1930, as a void judgment, and to enter a special order allowing appellee’s claim but ordering that it be paid only out of assets which have not been inventoried or accounted for by the executrix.

Judgment order reversed, and cause remanded with directions.

John J. Sullivan, P. J., and Friend, J., concur.