author: Mr. Justice Allaben

text:
    Virgil L. Rosenberger, Appellant, v. The Lincoln National Life Insurance Company et al., Appellees.
    Gen. No. 8,907.

      Opinion filed October 10, 1935.
    Guy L. Smith, of Pana, and Oscar J. Putting, of Springfield, for appellant.
    Webber & Webber, of Decatur, B. P. Baird and Clyde J. Cover, both of Ft. Wayne, Indiana, for appellee Lincoln Nat. Life Ins. Co.
    John J. Baker, of Shelbyville, for certain other appellees.
   Mr. Justice Allaben

delivered the opinion of the court.

■ On October 1, 1917, the Merchants Life Insurance Company of Des Moines, Iowa, Issued a policy of life insurance on the life of Dan J. Eosenberger, for $4,000, and on July 10, 1919, issued another for $12,000. Dan J. Eosenberger died on September 12,1927. The original beneficiary of both policies was Effie B. Eosenberger. On August 11, 1927, the insured had the beneficiary changed to Virgil L. Eosenberger, a minor son. During his lifetime the insured made certain loans on the policy, so that upon his death there was due $14,791.98. Proper proof of death was made, and the minor son, Virgil L. Eosenberger, claimed the proceeds of the policies. The Ayars State Bank, Essie Adams, Ealph Ayars, and M. S. Ayars claimed an interest in the proceeds of these two policies, and protested the payment to Virgil. Because of these conflicting claims, on November 1, 1927, the Merchants Life Insurance Company of Des Moines, Iowa, filed its bill of inter-pleader, making Effie B. Eosenberger, individually, and as guardian of Virgil L. Eosenberger, a minor, Ayars State Bank, Essie Adams, Ealph Ayars, M. S. Ayars and Virgil L. Eosenberger, a minor, parties defendant. The above facts were set out in the bill, and there was a prayer that a guardian ad litem be appointed for Virgil L. Eosenberger, a minor, and that .the defendants interplead, and that the complainant be decreed to pay said sum into court, subject to the order of the court, and that it be discharged. Ayars State Bank, Essie Adams, Ealph Ayars, and M. S. Ayars answered the bill, alleging that they claimed an interest in the proceeds of the policies on account of an oral agreement by the deceased during his lifetime with the consent of Effie B. Eosenberger to assign the policies to the defendant; alleging that the deceased was mentally incompetent to make the change of beneficiary, and praying that the change of beneficiary be canceled, and that they be decreed to be the legal holders of the policies, or, in the alternative, that Effie B. Rosenberger be declared to be the beneficiary, subject to the equitable rights of the defendant to a lien upon the proceeds.

Effie B. Rosenberger filed separate answer admitting many allegations of the bill, including the allegations concerning the change of beneficiary; that she had become liable with her husband for a large amount of money, and -prayed that the court determine the rights of the parties to the proceeds of the insurance policies, and that if she be declared to be the rightful beneficiary that the court direct such application of the proceeds as would be just and equitable. Effie B. Rosenberger filed her answer as guardian of Virgil L. Rosenberger stating that she was the guardian of Virgil at the time the bill was filed, but had since resigned and her resignation had been accepted by the county court, and she had been discharged. The court appointed George B. Rhoads guardian ad litem for Virgil L. Rosenberger, who filed a short form answer concluding with a claim on behalf of the minor of the money as his own property and right. On December 19, 1927, an interlocutory decree was entered which found that the court had jurisdiction of the parties and subject matter, and ordered the insurance company to pay the sum of $14,791.48 to the clerk of the court, and upon so doing be discharged from further liability under said policies.

On December 22, 1927, a further decree was entered, as follows:

“And now, this cause coming on to be heard upon the order of the court directing the several defendants to interplead, and the defendant, Effie B. Rosenberger having filed her claim to the proceeds of said policies of insurance, and the defendants, Ayars State Bank, a corporation, Essie Adams, Ralph Ayars and M. S. Ayars, having filed their answers, claiming the proceeds of said policies of insurance; and the defendant, Virgil L. Rosenberger, a minor, having answered by George B. Rhoads, Esq., his guardian ad litem; and the cause coming on to be heard upon the several claims of the respective parties before the Hon. Wm. B. Wright, presiding judge of said court:

“And it appearing to the court here, from the writs issued herein to the sheriff of Shelby county, Illinois, and the returns thereon, that all of the defendants have been regularly served with process herein more than ten days prior to the first day of the present term of this court;

“The court finds that it has jurisdiction of the subject matter, and of all the parties to said proceedings, and hereby confirms the interlocutory decree heretofore entered in said cause;

“And thereupon, this cause coming on for a final hearing upon the separate answer of Effie B. Rosenberger, who appeared by S. S. Clapper, her solicitor, and the joint and several answer of Ayars State Bank, a corporation, Essie Adams, Ralph Ayars and M. S. Ayars, who appeared by Leslie J. Taylor, Ralph W. Adams, and J. J. Baker, their solicitors, and the answer of Virgil L. Rosenberger,-a minor, who appeared by George B. Rhoads, his guardian ad litem, and the testimony of the witnesses heard in open court; and, the court, being fully advised in the. premises, doth find:

“That, on or about October 1, A. D., 1917, Merchants Life Insurance Company, a corporation of Des Moines, Iowa, issued its policy of insurance, No. 72042, for Four Thousand Dollars ($4,000.00), on the life of Dan J. Rosenberger; and, thereafter, on July 10, A.. D., 1919, issued its policy of insurance, No. 78347, for Twelve Thousand Dollars ($12,000.00), on the life of the said Dan J. Rosenberger; and that, during his life-' timé, the said Dan J. Rosenberger borrowed the sum of Five Hundred Sixty-Two Dollars ($562.00) on said first mentioned policy, and the sum of Seven Hundred Thirty-Two Dollars ($732.00) on said last méntioPed policy.

“That the said Dan J. Rosenberger died on the 12th day of September, A. D. 1927, and that, by the terms of said policies of insurance, there was-due, under policy No. 72042, the net sum of Three Thousand, Four Hundred Thirty-Eight and 84/100 Dollars ($3,438.84); and that there was due, under policy No. 78347, the net sum of Eleven Thousand, Three Hundred Three and 14/100 Dollars ($11,303.14), which the court heretofore directed should be paid to the clerk of this court, pending the final order and decree in this cause;,

“The court further finds, from the evidence of five witnesses heard in open court, that the said Dan J. Rosenberger, in the fall of 1926, became seized with a fatal illness. That said disease progressed with increased severity, and that, due to said disease, the said Dan J. Rosenberger became greatly weakened in body and mind; and that for more than three months, prior to his death on the 12th day of September, A. D. 1927, the said Dan J. Rosenberger had become so diseased, both physically and mentally, that he was incompetent to transact business affairs, and was mentally incapable of knowing and understanding the nature and character of his business affairs.

“The court further finds, that, on or about the 11th day of August, A. D., 1927, the said Dan J. Rosenberger attempted to change the beneficiary on said policies of insurance from his wife, Effie B. Rosenberger, to a minor son, Virgil L. Rosenberger, one of the defendants in this cause, and that the complainant, without knowledge of the incompetency of the said Dan J. Rosenberger, consented to said transfer, and noted the same on its records and upon said policies.

‘ ‘ The court further finds, from the evidence, that the said Dan J. Bosenberger, left surviving him his widow, Effie B. Bosenberger; Virgil L. Bosenberger, defendant and two other younger children, his only heirs at law; that all three of said children were issue of said marriage between the said Dan J. Bosenberger and Effie B. Bosenberger; that the entire family lived together in harmony, and that there was, in fact, no reason for preferring the said Virgil L. Bosenberger over the wife and other children, in the attempted change of beneficiary of said policies of insurance. The said Virgil L. Bosenberger being the only one of said children, at that time, capable of self support.

“That said change of beneficiary was without consideration and was attempted to be made by the said Dan J. Bosenberger as a result of his diseased mental condition, and that said change would not have been attempted by the said Dan J. Bosenberger had he been of sound mind and memory, and capable of transacting his business with knowledge and understanding.

‘‘ The court further finds that the said Effie B. Bosenberger had joined with Dan J. Bosenberger in the execution of numerous notes, representing obligations of the said Dan J. Bosenberger, and that she had joined in mortgages of the real estate owned by the said Dan J. Bosenberger, and had, likewise, mortgaged her interests in land which she inherited from her father; and that said policies of insurance were secured by the said Dan J. Bosenberger and Effie B. Bosenberger for the purpose of protecting the estate of the said Dan J. Bosenberger, and the said Effie B. Bosenberger and the various creditors, in the event that the said Dan J. Bosenberger should depart this life prior to the payment of said obligations.

‘‘ The court further finds that the defendants, Ayars Slate Bank, Essie Adams, M. S. Ayars, and Balph Ayars, are creditors of the said Dan J, Bosenberger and Effie B. Rosenberger, for the various amounts set forth in said answer, and that Effie B. Rosenberger is jointly liable with the said Dan J. Rosenberger for the payment of said obligations, and, likewise, other obligations evidenced by notes and mortgages; and that it was understood and agreed by and between the said Dan J. Rosenberger, Effie B. Rosenberger, the Ayars State Bank, Essie Adams, M. S. Ayars and Ralph Ayars, that said policies of insurance should be made payable to the said Effie B. Rosenberger, who should hold the same and the proceeds thereof, in the event of the death of Dan J. Rosenberger, for the protection of herself and the payment of the joint obligations of the said Dan J. Rosenberger and Effie B. Rosenberger.

“The court further finds that the verbal undertaking of the said Dan J. Rosenberger to assign said policies to the said creditors is without legal force and effect, and the prayer of the Ayars State Bank, Essie Adams, M. S. Ayars and Ralph Ayars, to have them declared the equitable owners of said policies of insurance and the net proceeds arising therefrom, is denied.

“The court further finds, from the evidence, heard in open court, that the change of beneficiary of said policies of insurance from Effie B. Rosenberger to Virgil L. Rosenberger was without consideration, made at a time when the said Dan J. Rosenberger was incapable of knowingly and understandingly transacting such business, and such change of beneficiary was in violation of the rights of Effie B. Rosenberger and is null and void and of no effect and the said Effie B. Rosenberger is entitled to the proceeds of said policies of insurance, and each of them.

“It is, therefore, ordered, adjudged and decreed by the court, that Virgil L. Rosenberger shall take no part or portion of the proceeds of the policy of insurance No. 72042, issued by the Merchants Life Insurance Company, of Des Moines, Iowa, on the life of Dan J. Bosenberger, and shall take no part or portion of the proceeds of the policy of insurance, No. 78347, issued by the Merchants Life Insurance Company, of Des Moines, Iowa, on the life of Dan J. Bosenberger; and that the attempted change of beneficiary be, and the same is, hereby declared null, void and of no effect.

“It is further ordered, adjudged and decreed by the court that the clerk of this court be, and he is, hereby directed to pay the proceeds of policy No. 72042, in the sum of Three Thousand, Four Hundred Thirty-Eight and 84/100 Dollars ($3,438.84), and the proceeds of policy No. 78347, in the sum of Eleven Thousand, Three Hundred Three and 14/100 Dollars ($11,303.14) to Effie B. Bosenberger, claimant herein, "or to S. S. Clapper, of Moweaqua, Illinois, her solicitor in this proceeding, taking a receipt for said monies. Said receipt being in full discharge of further liability of said clerk of said court.

“It is further ordered, adjudged and decreed that the said claimants, Ayars State Bank, a corporation, Essie Adams, Balph Ayars and M. S. Ayars, take no part or portion of the proceeds of said policies of insurance, and that they pay the costs of this proceedings within twenty (20) days from the entering of this decree; failing such payment that execution issue therefor.

“It is further ordered, adjudged and decreed by the court that the payment of the monies heretofore ordered to be paid by the Merchants Life Insurance Company of Des Moines, Iowa, complainant, to the clerk of this court, shall be a full, complete, settlement, • satis-, faction and discharge of said Merchants Life Insur-, anee Company from any further liability under said policies of insurance to any person^ persons, firm corporation.” ...

On August 5, 1931, Virgil L. Bosenberger, the minor referred to in the above decree, having become of age, filed a petition asking leave of the circuit court of Shelby county to file a bill of review, on the same date leave was granted to file a bill of review, and a bill of review was filed. This bill set forth all of the facts heretofore set forth, all of the pleadings in the bill of interpleader, and the decree above set out; also all of the process and the sheriff’s return thereon. The return of the sheriff as to the service of process on Effie B. Rosenberger, Effie B. Rosenberger, guardian of'Virgil L. Rosenberger, a minor, Essie Adams, Ralph Ayars and M. S. Ayars, and as to Virgil L. Rosénberger, is as follows :

‘ ‘ State of Illinois,
Shelby County — ss.
“I have duly served the within by reading the same to the within named, Effie B. Rosenberger, Effie B. Rosenberger, guardian of Virgil L. Rosenberger, a minor, Essie Adams, Ralph Ayars and M. S. Ayars, and at the same time delivering to each of them a true copy thereof, this 2nd day of November, 1927.
Wm. T. Biggs, Sheriff.”
“I duly served the within upon the within named Virgil L. Rosenberger by leaving a true copy thereof for him at his usual place of abode, with Effie Rosenberger, a person of the age of 10 years and upwards and a member of the family of the within named Virgil L. Rosenberger, and at the same time making known to her the contents thereof, this 2nd day of November 1927, as I am therein commanded. All other defendants herein not found in my county.
Wm. T. Biggs, Sheriff.
By A. D. Herten, Deputy.”

This bill further charged that Effie B.'Rosenberger and Effie Rosenberger were one and the same person; that the interests of Effie B. Rosenberger in the result of the bill of interpleader were diametrically opposed to the rights and interests of Virgil L. Rosenberger because the issue involved in said bill of interpleader was whether the proceeds of the insurance policies should go to Effie B. Rosenberger and her creditors, or to Virgil L. Rosenberger; that at the time of the service of summons on Virgil L. Rosenberger as recited by the sheriff he was of the age of 19 years; that he did not become 21 years of age until the 6th day of August, 1929; that at the time of the hearing of the bill of interpleader he was unadvised, entirely ignorant and uninformed of the proceedings, and of his rights j that he never advised with the guardian ad litem appointed by the court to represent him; that he was only recently advised of his rights, and of the further fact that no proper service was ever had upon him; that because the interests of Effie B. Rosenberger were opposed and contrary to his rights and interests that service could not be had upon him by leaving a copy of the summons for him with Effie Rosenberger, although she was a person of the age of 10 years and upwards, and a member of the family, and left at his usual place of abode, and Effie Rosenberger was made acquainted with the contents of the summons; and that therefore the decree was null and void. The bill of review then sets out that after the entry of the decree the money was paid by the insurance company to S. S. Clapper, solicitor for Effie B. Rosenberger who distributed the money to the other defendants named in various amounts in discharge of certain obligations. It further set out the policies heretofore mentioned and change of beneficiary; that no pecuniary consideration was necessary for such change, and that Dan J. Rosenberger was at the time of the making of the change of full and legal competency; and prayed that Ayars State Bank, Essie Adams, Ralph Ayars and M. S. Ayars, and Effie B. Rosenberger refund all money received from the Merchants Life Insurance Company, and upon the failure of said parties to refund, the Merchants Life Insurance Company of Des Moines, Iowa, or the Lincoln National Life Insurance Company of Fort Wayne, be ordered to pay the indebtedness due him as beneficiary under said life insurance policies.. The bill further set up that since the entry of the decree in the bill of interpleader the Merchants Life Insurance Company had been merged in and absorbed by the Lincoln National Life Insurance Company, whereby the latter acquired all the rights, interests, liabilities and obligations of the former.

Service was had on all of the defendants. All defendants filed joint and several demurrers, all of which demurrers were overruled. Whereupon all defendants filed answers. The answer and amended answer of the Lincoln Life Insurance Company admitted the fact of the filing of the bill of interpleader, and the answers thereto, and the decree entered, denied that the decree was erroneous, and ought to be reversed and set aside, averred that it was never a party to the said suit, and that it purchased for value certain assets and property of the Merchants Life Insurance Company in good faith; that Effie B. Rosenberger and Effie Rosenberger were not one and the same person; denied that the interest of Effie B. Rosenberger was diametrically opposed to the rights of Virgil L. Rosenberger; averred that the record shows that the service on Virgil L. Rosenberger was proper; denied that Virgil L. Rosenberger became of age on the 6th day of August, 1929, but averred that he became of age on the 5th day of August, 1929. The answer further set up other matters of defense which, in the view of this court, for the purposes of this opinion it is not necessary to set out.

The joint and several answer of all of the other defendants admitted the filing of the bill of interpleader, the various answers filed, and the interlocutory order, and the decree; denied that the decree was erroneous, or that the same ought to be reviewed, reversed or set aside for any apparent errors and imperfections; denied that Effie B. Bosenberger and Effie Bosenberger were one and the same person; denied that Effie B. Bosenberger had interests in the result of the chancery proceeding diametrically opposed to the rights and interests of Virgil L. Bosenberger; averred that Virgil L. Bosenberger was regularly served with process, and averred that by the .final decree all of these defendants were denied any relief; denied that Virgil L. Bosenberger became 21 years of age on August 6, 1929, but averred that he became 21 years of age on August 5, 1929; denied that no proper service was ever had upon Virgil L. Bosenberger, and denied that the court did not at the time of the rendering of its decree have jurisdiction of the said Virgil L. Bosenberger; denied that no order or decree should have been entered until different or further service should have been had upon said Virgil L. Bosenberger. Their answers then set up other matters of defense which, in the view of this court, for the purposes of this opinion, it is not necessary to set out.

Beplications were filed as to all answers, and hearing was had, at which time all the records in the inter-pleader proceeding were identified and admitted in evidence. Considerable testimony was taken. Proper objection was made to the admissibility of this evidence and proper motions to strike the testimony were made after the testimony was given. The testimony was admitted by the court subject to objection. We will not set out this testimony because it is the view of this court, for the purposes of this opinion, that it is unnecessary.

On June 20, 1934, the court entered the decree on the bill of review, finding that it had jurisdiction of all the parties and of the subject matter, the defendant, Effie B. Bosenberger, having been defaulted, and further finding that the complainant had not maintained the allegations in his bill of complaint, and finding the issues for the defendants, and against the complainant, and that the equities were with the defendants, and that the bill of complaint should be dismissed for want of equity, ordering that the bill of. complaint be. dismissed for want of equity and taxing the costs against the complainant. It is from this decree that the complainant has prosecuted this appeal, assigning the following reasons for reversal: First, that the court erred in holding that it had jurisdiction of the person of Virgil L. Rosenberger, in the original suit sought to be reviewed; second, that the court erroneously held that the service of summons on Virgil L. Rosenberger, by leaving a copy with Effie Rosenberger, a member of the family, was valid; third, that by finding in the decree that the court had jurisdiction in the original proceeding was tantamount to holding that there was no conflicting interest between Effie Rosenberger and Virgil L. Rosenberger, when in fact their interests were diametrically opposed; fourth, that the court erroneously held that a suit for review and other relief to set aside the decree in the interpleader suit could, not be sought at any time where third-parties’ interests did not intervene; fifth, that the court erroneously held that Dan J. Rosenberger was incompetent to transact business on August 11 and 12, 1927, when he changed the beneficiary of the insurance policies in litigation from his wife to his son; sixth, that the court erroneously held that such change of beneficiary was-invalid; seventh, that the- court erred in failing to hold that appellant was not estopped to bring this suit; .that he did not subsequently ratify the change of beneficiary, and the disposition of the moneys involved, and that he was not guilty of laches; eighth, that.the. court erroneously found that the appellant’s birthday was August 5, 1908, and.that the statute, of limitations' was a bar to his right to bring this, suit; .ninth, that -tfie court erroneously failed to hold that the. bill filed was a bill of review, and for other relief ; and tenth, that the decree was against the law and the

While all of the above errors were cited as cause for reversal, the only one that it is claimed appears upon the face of the proceeding is the question of the lack of jurisdiction of the court over the person of a minor upon whom service was obtained by substitution. The question of whether or not the hill filed in this case called a bill of review strictly conforms to the requirements of such a bill is important as to substance only, and not as to form. Decisive of this point we think is the language used in the case of Harrigan v. Peoria County; 262 Ill. 36, where our learned Supreme Court said: “Some discussion is found in the briefs as to whether this is a bill of review or a bill in the nature of a bill of review. As the same principles are generally applicable in this country to all varieties of 'this species of bills . . . it is unnecessary to discuss this point. ”

The principal question with which we are concerned, therefore, is whether the court obtained jurisdiction of the minor, Virgil L. Eosenberger. In answering this question we must be confined strictly to what appears on the face of the record in the original proceeding, and the presumptions permissible therefrom. The sheriff’s return upon the summons in the interpleader suit stated that a copy of the summons was left with Effie Eosenberger, a member of Virgil L. Eosenberger’s family, etc. It is claimed that Effie Eosenberger and Effie B. Eosenberger are the same person. We point out in this connection that the name “Effie B. Eosenberger” who has been clearly identified as Virgil L. Eosenberger’s mother, appears approximately 70 times in the record, whereas the name “Effie Eosenberger” appears only in one instance, and that is upon the sheriff’s return.

It is contended by appellant that the name “Effie Rosenberger” as used in the summons and “Effie B. Rosenberger” as used elsewhere in the record, obviously, from the face of the record, refer to the same person. This contention is based upon the rule that the middle name or initial constitutes no part of the name, and also on the finding of the court that the family consisted of Effie B. Rosenberger, Virgil L. Rosenberger, the appellant, and two other minor children. In support of the first contention relative to middle names or initials appellee cites the case of Humphrey v. Phillips, 57 Ill. 132, which case held that the omission of a middle initial in the name of a plaintiff in filing a plea of abatement in a suit was of no importance. Obviously this is not the case at bar because the identity of the persons in the cited case could easily be established by other parts of the pleadings. In the instant case the sole question is that of identity. In practically all of the cases cited there appears to be no question of identity involved, so that the mere fact that'a person is named “A. C.” in one instance and “A. B. C.” in another, does not mislead anyone as to whom the reference is made, but where the question of identity is involved the general rule which is urged that the middle initial is no part of the name obviously does not apply, and the middle initial or name, or any other characteristic about the name may become very important for the purpose of establishing identity. It is further contended, and we think rightfully so, that the cases cited by appellant in support of the general rule are all instances where the jurisdiction of the court was attempted to be upheld, and not where the application of the rule would destroy it. In any event, it is a mere presumption, and not evidence. The court in its decree found from the writs that it had jurisdiction of the parties. Every presumption favors that finding. (People v. Culver, 281 Ill. 401; Denk v. Fiel, 249 Ill. 424; Harrow v. Grogan, 219 Ill. 288; Waterbury Nat. Bank v. Reed, 231 Ill. 246; Peters v. Dicus, 254 Ill. 379; Dickinson v. Belden, 268 Ill. 105; Bannon v. People, 1 Ill. App. 496.) The court appointed a guardian ad litem for the minor. This also raises the presumption the court had jurisdiction. (Horn v. Horn, 234 Ill. 268.) In the light of these presumptions, so that it can be positively said that there is affirmative evidence from the record that Effie Rosenberger and Effie B. Rosenberger are the same person appellant tries to supply this fact by the finding of the court in the decree that:

“The court further finds, from the evidence, that the said Dan J. Rosenberger, left surviving him his widow, Effie B. Rosenberger, Virgil L. Rosenberger, defendant and two other younger children, his only heirs at law; that all three of said children were issue of said marriage between the said Dan J. Rosenberger and Effie B. Rosenberger; that the entire family lived together in harmony,” claiming that thereby the court found that there was no Effie Rosenberger, a member of the family, at the time of the substituted service on Virgil L. Rosenberger, except Effie B. Rosenberger, his widow. It is to be noted that the court did not find the name, age, or sex, of either of the “two other younger, children,” except that they were younger than Virgil L. Rosenberger, who the court found to be a minor. Such finding does not exclude the idea that there may have been a female named Effie Rosenberger over 10 years of age, and a member of the family in which Virgil L. Rosenberger resided on whom service might have been had. Appellant cites the case of Sharp v. Sharp, 333 Ill. 267, and relies on that case that the finding of the court that certain parties were members of the family excludes all others. In that we agree, but the finding of the court in the Sharp case was: ‘ ‘ That the said Henry Sharp and Larkin Sharp are the only children or descendants of children which the said Virgil Sharp now has or had at the time of the executing of the instrument above set forth, and that said Virgil Sharp is married and now lives upon said premises with his wife and the two infant defendants above named, who are the children of the wife of said Virgil Sharp.”

The contention there was that service might have been had by leaving the summons with a Virgil Sharp other than the father. This, of course, was directly negatived by the finding above set out, wherein all the members of the family are named, whereas the finding in the instant case, as previously mentioned, the name, age and sex of each of the “two other younger children” was not found by the decree, other than that they were younger than Virgil who was a minor. We deem the latter finding not such affirmative evidence as will nullify the presumptions raised by the finding of the court that it had jurisdiction of the parties, and the fact that a guardian ad litem was appointed.

The trial court in his written opinion found that the record did not show that Effie Rosenberger who received the summons in this case for Virgil Rosenberger was the Effie B. Rosenberger the mother of Virgil, or the same person as Effie B. Rosenberger. We are in accord with the finding of the trial court on that issue. The complainant having failed to establish by thé record that he was not properly served in the original case he could not maintain this present proceeding. The decree entered in this case found that the complainant had not maintained the allegations in his bill and that the bill of complaint should be dismissed for want of equity, at the cost of complainant, and then ordered the bill of complaint dismissed for want of equity, at complainant’s cost. Numerous other errors relied upon for reversal were set out by the appellant, but same will not be considered for the reason that the complainant failed to establish from the record that he was not properly served and that the court in the original proceeding had no jurisdiction over him, which disposes of this appeal. The decree of the trial court is hereby affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Anna B. Dale et al., Appellees, v. Hancock County Mutual Life Association et al., Defendants. Laurence Lord Taylor, Appellant.
    Gen. No. 8,887.

      Opinion filed October 10, 1935.
    Rollo Six, of Pittsfield, for appellant.
    Edward S. Martin, of Carthage, for appellees; William H. Hartzell, of Carthage, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Hancock county awarding an injunction and other relief to the appellees. The complaint was filed by appellees in their own behalf and in behalf of others similarly situated against Hancock County Mutual Life Association, its officers and directors and Laurence Lord Taylor, the appellant. The bill challenged the legality of certain proceedings held on behalf of the association on December 19, 1933, whereby the association adopted a new constitution and by-laws, made amendments to the articles of association, and entered into a contract with the appellant Taylor, whereby he was to assist the association in its reorganization and change the plan of the association from that of assessment benefit society to that of a legal reserve system basis.

The Hancock County Mutual Life Association is a fraternal benefit society, organized under the law of June 22, 1893, having a lodge system and a representative form of government. The governing body of the association was known as the “Grand Union.” Under the constitution and by-laws in force January 1st, 1930, under section one, article two, it is provided:

“The Grand Union shall consist of the Grand Officers, the Board of Directors and one or more delegates from each local union. Bach local union being entitled to one delegate for each one hundred members or major part thereof, but any union whose membership is less than one hundred members, is entitled to one delegate. The officers and delegates of the Hancock County Mutual Life Association shall be allowed to vote only in person and in no event shall votes be cast by proxy. A majority of the officers and delegates constitute a quorum.”

Under article 11 of the same constitution, it is provided :

“Any part of this Constitution may be altered or amended by a two-thirds vote of all the members of the Grand Union.”

On the 19th day of December, 1933, the association held a meeting of its Grand Union to adopt certain amendments to its charter, by-laws and constitution to authorize the association to operate on a legal reserve basis, which involved an increase in rates. The amendments made by the association at said meeting were certified by proper officials and submitted to the director of insurance of the State of Illinois, and by . said director approved and filed January 12, 1934.

It is conceded by appellant that more than one-third of the delegates to the Grand Union were irregularly and informally selected, and the proof shows •that no record was made of a two-thirds vote in favor of changes to the constitution and by-laws. It was the contention of appellees that not only was a two-thirds vote required, but the records of the association must show such two-thirds vote. At the meeting on December, 19, 1933, and after the new constitution and .by-laws had been adopted, the board of directors met and resolved to change the articles of association of the society so that the association might operate on a legal reserve basis rather than the assessment plan. Appellees urge that at the time the new constitution and by-laws were adopted, the association was still operating under the old articles of association, and had no power to adopt the new constitution until the amendments and changes to the articles of association had been approved by the director of insurance of the State of Illinois, and that all action taken at said meeting of the board of directors was void.

The plaintiffs were members of Carthage Union No. 1. All payments of benefit assessments were to be paid by each member to the secretary of the local union and the secretary then reported to the main office. Each of the plaintiffs, during the month of December, 1933, paid the local secretary the amount due from each of them respectively for the December benefit assessment and the per capita tax; and during the month of January, 1934, similar payments were made by each of the plaintiffs to said secretary. At the time of such payments each of the plaintiffs told the local secretary to hold the funds so paid in and if the association succeeded in reorganizing under the new constitution, plaintiffs wanted their money hack. Two of the- plaintiffs received their money hack from the local secretary, hut the local secretary retained the money ,of the other two plaintiffs, and held the same subject to the order of such plaintiffs. None of it was transferred to the head office and the plaintiffs’ memberships were marked suspended on the books of the association shortly prior to the filing of this suit on January 26, 1934.

The appellant disputes the right of the plaintiffs to bring this suit and insists that it could only be instituted by the attorney general for the director of insurance in the name of the people, because of an act of the legislature approved July 10, 1933, adding section 8a to an act in relation to delinquent insurance companies, associations and societies, which reads as follows:

“Section 8a. No order, judgment or decree for an accounting or enjoining, restraining or interfering with the prosecution of the business of any domestic insurance corporation subject to the supervision of the Director of Trade and Commerce, or appointing a temporary or permanent receiver thereof, shall be made, or granted otherwise, than upon the application of the Director of Trade and Commerce, represented by the Attorney General, except in an action by a judgment creditor or in proceedings supplementary to execution after notice thereof has been served upon the Director of Trade and Commerce of final judgment, at least thirty days prior to the filing of such bill.” Ill. State Bar Stats. 1935, ch. 73, ¶ 105(8a).

In suits attempting to dissolve an insurance corporation, or for an injunction to prevent a company from doing business for failure to comply with the statute, or for the appointment of a receiver, such as the case of People ex rel. Palmer v. Niehaus, 356 Ill. 104, or Steenrod v. Gross Co., 334 Ill. 362, cited by appellant, we believe policyholders were without right to maintain action for injunction in a private suit, but in a controversy like this between the individual members and the corporation or its officers to prevent the accomplishment of an act contrary to the articles of association, and the constitution and by-laws of the society, our courts have held that members having an interest in the association and its property have a right to challenge such action by bringing a suit of this character. Bastian v. Modern Woodmen of America, 166 Ill. 595. In that ease members of the association sought to enjoin the moving of the principal office because the action taken in regard to moving said office was illegal, having been taken at a meeting held outside of the State of Illinois, in violation of the fundamental laws of the society. The court held that if the action was unlawful and in violation of the contract between the members and the corporation, the members were entitled to prevent its consummation.

Appellant also insists that the contract of insurance between plaintiffs and the association was forfeited because of their failure to pay an assessment and per capita tax for December, 1933, and thereby they ceased to be members of the association and their rights were lost and at an end before this suit was filed. However it seems clear that if the change in assessments was illegal, and the appellees were members in good standing oh November 30, 1933, which is admitted by the answer, that all they were required to do was to pay the amount regularly due to the local secretary, which was done by each of the plaintiffs. Until they were in default in accordance with the provisions of the constitution and by-laws, they were not to be subjected to suspension and forfeiture, and it is incumbent on the appellant to show that such suspension and forfeiture were made in accordance with the constitution and by-laws of the society. Polish Homan Catholic Union v. Warczak, 182 Ill. 27.

While the courts do not look with favor upon mere technical objections in cases of this character and endeavor to carry out the will of the members although informally or irregularly expressed, yet there must be a substantial compliance with the law. Because the meeting of the Grand Union in this case on December 19, 1933, was illegally organized; because the record of such meeting does not show a vote of two-thirds of the delegates in favor of a change in the constitution and by-laws or on amendments to the articles of association; because there is no proof to show that such changes were approved by a two-thirds vote of such delegates and because by reason of such irregularities the board of directors lacked the power to change the articles of association so that it might operate on a legal reserve basis rather than the assessment plan, it is our opinion that the methods and manner employed at the meeting of December 19,1933, were not in substantial compliance with the laws of said society and that the action of the Grand Union at such meeting was illegal and void.

Appellant Taylor insists, however, that his contract was made with the board of directors and officers of the association: that he acted in good faith and had a right to enter in the contract for services to be rendered the society regardless of the changes made at the meeting of December 19, 1933. While the contract did contemplate the solicitation of new members, adjustment of death claims, and other incidental services for the association, it is clear from reading the agreed ment and from the proof that appellant was an expert called in to assist in changing this company, which was on the decline, over from an assessment society to the legal reserve system plan. He was present and participated in the meeting on December 19, 1933, and had previous experience in changing assessment companies over to this new plan. Par. 503 of ch. 73, Cahill’s Illinois R. S. 1933, provides as follows: “Such societies shall not employ paid agents in soliciting or procuring members, except in the organizing and building up of subordinate bodies or granting members inducements to procure new members. ’ ’ The services of appellant were not for the purpose of organizing subordinate bodies, and he was not a member of the society. He undertook to contract for services which the statute prohibited the association from employing him to perform and the agreement was void. It was proper for the trial court to enjoin the officers of the company from paying over monies or anything of value to appellant for services under said contract. First Nat. Bank of Marshalltown v. Church Federation of America, 129 Iowa 268, 105 N. W. 578.

For the reasons assigned, the decree of the circuit court is affirmed. .

Affirmed.


author: Mr. Justice Huffman

text:
    Ethel McClary, Administratrix of the Estate of Amel McClary, Deceased, Appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, Appellant.
    Gen. No. 8,819.

      Opinion filed October 15, 1935.
    Gower, Gray & Gower and W. H. Dyer, all of Kankakee, for appellant.
    Frank J. Burns and James T. Burns, both of Kankakee, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant issued a beneficiary certificate to Amel W. McClary on June 17, 1919, entitling him to the rights, privileges and benefits of membership, and to participate in the beneficiary department designated as “class-D” of appellant Brotherhood. There were seven classes of beneficiary certificates provided by the constitution of appellant. Class-D was fixed at $2,800, and it was provided that the full amount should be paid upon the death of the member insured, or upon his becoming totally and permanently disabled within the meaning of sec. 68 of the constitution. This last named section set out certain things that would be considered as total and permanent disability. Among these was the complete and permanent loss of sight of one or both eyes.

Amel W. McClary brought his suit to the Octobei term, 1931, under said benefit certificate claiming the benefits as above provided therein under the constitution and by-laws, for loss of sight. After the bringing of this suit and before trial, the insured died, and appellee administratrix substituted as plaintiff. At the close of all the evidence in that case, the trial court instructed the jury to find a verdict in favor of plaintiff administratrix, and a judgment for $2,800 was rendered against the Brotherhood. The. benefit society prosecuted an appeal to this court from that judgment, urging that the insured gave a false and untrue answer in his application in that he stated he had never had inflammation or other disorder of the spine; claiming that at the time of making such application he was afflicted with arthritis of the spine, and that this rendered the beneficiary certificate void, and no liability existed against the Brotherhood because of such insurance contract. The loss of sight was also disputed. This court held that due to disputed questions of fact involved upon the trial of that case, the trial court erred in directing a verdict, and the cause was. reversed and remanded for another trial. McGlary v. Grand Lodge Brotherhood of Railroad Trainmen, 269 Ill. App. 658 (Abst.).

After the case was remanded to the trial court, there followed a series of pleadings, amendments, and demurrers. Appellant makes complaint regarding the replications filed by appellee, claiming they do not traverse the pleas. The replications are quite general, but they allege that nothing pleaded by the defendant avoids the cause of action of the plaintiff as set forth in the declaration. We think the issues were fairly and clearly made by the declaration, pleas, and replications. So many pleadings and demurrers were filed by the respective parties, as to make it impractical to list or discuss them at this time. This also applies to the many points raised by the appellant. The record contains 450 pages, of which 198 pages are devoted to testimony and exhibits.

This case is not without its perplexities. The pleadings subsequent to the first trial injected every available point into the case, and served to add to an otherwise already complicated situation. However, a record need not be free from all error, but only such error which might be prejudicial to the defendant’s rights. The object of the review of judgments of trial courts is not to determine whether the record is free from all error, but is to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, after a trial in which no error has occurred which might be prejudicial to the defendant’s rights.

Appellant urged that the insured at the time of making application for the benefit certificate was suffering from arthritis of the spine, and also denied loss of sight by the insured. It is claimed by appellant that under the provisions of the benefit certificate, the application therefor, and the constitution and by-laws of the Brotherhood, if the appellee was afflicted with arthritis of the spine at the time of making such application, then by the terms of the contract of insurance, the same became null and void and no liability arose thereby. Appellant claimed the insured gave a false and untrue answer to question No. 5 contained in the application for this policy, which question is as follows: “No. 5. Have you ever been afflicted with any of the following complaints or diseases! Insanity, apoplexy, palsy, or paralysis, vertigo, fits or convulsions, delirium tremens, sunstroke or congestion, inflammation or any other disorder of the spine, brain or nervous system!” To which question the said insured answered “No.” Appellant urges that under the contract, all statements and answers to questions made pursuant to the application therefor, were warranties and warranted to be true, and not mere representations.

The settled rule of law is that where an application for insurance is expressly declared to be a part of the contract and the statements therein contained are warranted to be true, such statements will be deemed material whether they are so or not, and if shown to be false, there can be no recovery on the contract however innocently the statements had been made. Crosse v. Supreme Lodge Knights & Ladies of Honor, 254 Ill. 80, 84; Hancock v. National Council of Knights & Ladies of Security, 303 Ill. 73. This rule has long been recognized. Jeffries v. Economical Mut. Life Ins. Co., 89 U. S. 47, 22 L. Ed. 833. Warranties are not favored in the law, and if there is anything to be found in the application or certificate tending to show that the answers and statements were not intended by the parties to be regarded as warranties, then such answers or statements as are not material to the risk and were honestly made in the belief that they were true, will not present an obstacle to recovery. Continental Life Ins. Co., v. Rogers, 119 Ill. 474; Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273.

The application required by appellant to be completed by the insured made inquiry as to when the applicant had been treated by a physician, to which it is stated that he was treated for influenza in October, 1918. The application further asks that the present condition of. the applicant be stated. The answer to this question is: “Patient is absolutely normal.” This answer was evidently stated in the words of appellant’s examining physician following his examination of the patient. Question No. 5 was to the effect if the applicant had ever been afflicted with certain complaints or diseases among which we find the following: Insanity, apoplexy, palsy, paralysis, vertigo, fits or convulsions, delirium tremens, sunstroke or congestion, inflammation or' any other disorder of the spine, brain, or nervous system, asthma, bronchitis, pneumonia, pleurisy, consumption, spitting of blood, habitual cough or expectoration, shortness of breath, palpitation or any disease of the throat, heart or lungs, jaundice, chronic diarrhoea, constipation, fistula, piles, gallstones or gravel, renal or hepatic colic, dropsy, syphilis or stricture, or any disease of the alimentary, genital or urinary organs, cancer or tumor, scrofula, discharge from the ear, ulcers or open sores, chronic rheumatism, gout, varicose veins, or any malformation. It is obvious that many of these could have no connection' with the function of the eye. However, they include about every vital organ of the body. Upon reaching maturity, man has come to the place in life where by virtue of the natural processes alone, dissolution has set in. And no one is more aware of this than the actuaries of insurance companies. A man at mature age is fortunate indeed if he is not afflicted in some degree with a number of the disorders and human frailties that are set forth in the above list.

In construing the language of the application for an insurance policy, distinction has been made between statements that are called warranties and those styled representations. Very marked differences result by virtue of the conclusions reached. The decisions have been numerous and conflicting in cases relating to applications for insurance, and it is difficult to lay down general rules which will apply in all cases. More recent jurisprudence tends to grant liberality of construction in favor of maintaining the contract. Therefore, insurance contracts are liberally construed in favor of the insured. The companies are responsible for the language used in the contract and policies. The same is generally intricate in the wording, and the liability thereunder hedged in and restricted by a multiplicity of covenants and conditions, whereby the insured is frequently tied down by so many warranties concerning matters that may be wholly immaterial, that they only serve to afford an avenue of escape, should the company wish to avoid responsibility. The time came when technical constructions placed in contracts of this kind by the companies, blocked the pathway to justice, and led to decisions which relieved the insurer of liability because of a rigid adherence to forms of words rather than the intent of the parties. The business of insurance has increased in such magnitude, due to the activities of the companies in persuading people to enter into insurance contracts, that it has become essential that the rules of law declared to be applicable to such contracts should be based upon just and equitable principles and administered in a manner in harmony with the doctrines of an enlightened jurisprudence.

Warranties are not favored in law, and statements in an application for a policy of insurance such as this one, will not be construed as warranties unless the provisions of the application and policy, taken together, leave no room for any other construction. Spence v. Central Accident Ins. Co., 236 Ill. 444; Weisguth v. Supreme Tribe Ben Hur, 272 Ill. 541. It is not always easy to determine just what language amounts to a warranty. If the contract however declares that the statements made in the application touching the subject of the insurance are warranted to be true, and that the policy shall be void if they are untrue, the falsity of any such statement will defeat the insurance. The parties being free to agree upon whatever terms and conditions they choose, and having so agreed by their contract, the courts have no other alternative than to give effect to the contract of the parties as written. Under such circumstances, the truth of the fact warranted is a condition precedent to recovery, and it is immaterial whether the applicant believed the statement to be true or not. Crosse v. Supreme Lodge Knights & Ladies of Honor, supra; Hancock v. National Council of Knights & Ladies of Security, supra; Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496.

The application in this case expressly provided that all statements and representations were material and warranted to be true, and in the event any of them were not, the contract would thereby be rendered null and void. We thus see that the statements contained therein are warranties. The application further provided that it formed the basis of the contract. It is referred to in the beneficiary certificate and is made a part of the contract together with the constitution, rules and by-laws of the defendant Brotherhood. We thus find the -application is a part of the benefit contract. Spence v. Central Accident Ins. Co., supra.

Over the objections of appellant, the court instructed the jury that the burden was upon the defendant to prove by a preponderance of the evidence that the alleged false statements were false at the time given, that the applicant then knew them to be false, and that he made them for the purpose of deceiving the defendant. In view of Crosse v. Supreme Lodge Knights é Ladies of Honor, Hancock v. National Council of Knights & Ladies of Security, and Western & Southern Life Ins. Co. v. Tomasum, supra, this was error. The established rule in this State appears to be that if the truth of the fact warranted is a condition precedent to recovery, it is immaterial whether the applicant knew the statement to be false.

In addition to objections to the instructions of the court with reference to the applicant’s knowing the falsity of the statements made in the application, appellant further objects to the instruction of the court that the burden of proof was upon the defendant to show the breach of a condition precedent. The court instructed the jury that the burden of proof was upon the defendant to establish the falsity of the statements complained of. Since it will be necessary to reverse and remand this case for another trial for the error above indicated, we are confronted with the further question involved regarding the burden of proof with reference to the falsity of the statements. Appellant urges that it is incumbent upon the plaintiff to establish a compliance with conditions precedent to right of recovery. Courts of the various jurisdictions are not in accord in this respect. It is generally conceded in all jurisdictions that an expressed warranty, if made a part of the contract, is a condition precedent. Some jurisdictions hold that warranties are in the nature of conditions precedent, and that upon a strict compliance with them depends the rights'of the'insured, and when the same are put in issue by the defendant, the burden remains upon the plaintiff to establish his case by a preponderance of the evidence, and therefore it is incumbent upon plaintiff to prove a compliance with the conditions precedent so put in issue by plea of the defendant. Other jurisdictions, while recognizing that warranties are conditions precedent, follow the rule that in order for the defendant to defeat recovery on the grounds of an alleged breach of warranty, that it is incumbent upon such defendant to allege the breach by proper plea and to prove such breach as alleged. Joyce on Insurance, Vol. 3, sec. 1977, p. 3250; Vance on Insurance, sec. 104, ch. 8, p. 285 et seq; Bacon, Life and Accident Ins., Vol. 1, ch. 6.

The rule applied in the usual life insurance contract containing the two-year incontestable clause cannot be applied as to mutual benefit certificates, such as we have before us in this case. Neither can the rule that is applied in such a case as Globe Mut. Life Ins. Ass’n v. Ahern, 191 Ill. 167, be applied in the instant case, because in that case knowledge of the true facts and circumstances was furnished the agent of the company and he failed to properly represent the same to the company. The rule applied in cases of that nature is based upon the error or fraud of the insurer’s agent in preparing the application, after he has been furnished with a true statement of the facts. The duty of the agent of a benefit society to truthfully represent the facts upon the application, as they were furnished him by the applicant, has always been recognized in this State. Weisguth v. Supreme Tribe Ben Hur, supra; Guter v. Security Benefit Ass’n, 335 Ill. 174 (which case we will hereafter refer to).

Mutual benefit societies are governed by their constitution and by-laws. . Power to enact by-laws is inherent in every private association. A constitution and by-laws requiring an application to be made by the insured prior to. his contract, and which provide that the statements therein made shall be warranties and the falsity thereof shall void the policy, do not violate the right of,.contract. Under such conditions, the courts cannot do other than accept the contract as entered into by the parties.

A warranty in an insurance contract enters into and forms a part of the contract itself. It defines, by way of description, conditions, or otherwise, the precise limits of the obligation which the insurer undertakes to assume. No liability can arise except within those limits. In order to charge the insurer, the terms which define its obligation must be satisfied by the facts which appear in evidence. From the very nature of the case, the party seeking to enforce the contract must bring his claim within the provisions of the instrnment he is undertaking to enforce. The burden of proof is upon the plaintiff to present a case in all regards conforming to the terms under which the risk was assumed: The rule that a warranty in an insurance policy is a condition precedent to recovery thereunder and the burden of proving performance rests upon the assured, is one of long standing. McLoon v. Commercial Mut. Ins. Co., 100 Mass. 472, 97 Am. Dec. 116; Sweeney v. Metropolitan Life Ins. Co., 19 R. I. 171, 38 L. R. A. 297.

It is hard to conceive how the contract can be legally binding upon the defendant if the plaintiff has failed to comply with conditions precedent thereto, or shows a waiver of same on the part of the defendant. A different rule applies when the defendant pleads breach of conditions subsequent, and this is recognized in the case of Benes v. Bankers Life Ins. Co., 282 Ill. 236, 243. We are of the opinion, however, that conditions precedent to the legal inception of the contract are on a different plane than a breach of conditions subsequent. The defense' by an insurance company for the breach of a condition subsequent necessarily admits thé Validity of the contract in its inception, and seeks to' avoid what is admitted to have once been a binding agreement, by some subsequent breach thereof. We believe'that the burden is upon the plaintiff to establish by a preponderance of the evidence a compliance with conditions precedent to the inception of the contract sued on, and in the event the defendant denies such compliance, that the burden remains upon the plaintiff to prove samé, or waiver théreof on the part of the defendant. It is true that if such question is not put in issue by plea of the defendant, the plaintiff may be saved the hardship of being required to furnish full evidence of the truth of the answers in the application, by making out a prima facie case such as is recognized in Benes v. Bankers Life Ins. Co., supra. The fact that a denial by a defendant of the compliance with a condition precedent may affect the amount of evidence to be required of the plaintiff in the first instance should not change the rule as to who has the burden of proof. The warranty is equally a condition precedent whether it be admitted or denied by the defendant, the performance of which must be proved by the plaintiff in order to maintain his action on the policy.

We are aware of but one instance in which the Supreme Court has made any definite expression upon the question above discussed. It is in the case of Guter v. Security Benefit Ass’n, supra. In that case the beneficiary brought suit against the association under a benefit certificate which had been issued to her brother. The declaration was in the usual form. The defendant filed special pleas alleging certain false statements made by the applicant, to answers in his application, which statements by the contract were made warranties such as to defeat the policy. The court in that case on page 177' of its opinion, in referring to where the burden of proof lay under those circumstances, makes the following statement: “The burden of proof, under the pleas, was upon plaintiff in error.” The plaintiff in error in that.case was the beneficiary named in the policy and plaintiff in the trial court. We are aware of the diversity of opinion in the various jurisdictions on this question of the burden of proof as to conditions precedent, when the defendant raises same by special plea. Conditions that are made precedent by the terms of a contract before the same shall become operative go to the legality of the instrument at its legal inception. If the established rule is that the plaintiff must make due proof of compliance with conditions precedent, or show a waiver thereof before recovery can be had, we see nothing to shift the burden of proof to the defendant, if such defendant does- not see fit to admit of the complianee of such conditions by permitting the plaintiff to merely establish a prima facie case. The fact that the defendant sees fit to deny the compliance of a condition precedent should not relieve plaintiff of the burden of establishing same. It is not to be unexpected that the defendant, when raising the issue by plea, will offer some evidence regarding the matter, but the fact that the evidence of defendant and plaintiff may be in dispute and conflicting does not of itself change the rule as to the burden of proof. It would be an' anomaly, indeed, to say that the burden of proof upon a disputed question of fact rested upon the plaintiff to establish, and at the same time rested upon the defendant to prove. It must necessarily rest upon one or the other of the parties litigant, and as stated in the case of Guter v. Security Benefit Ass’n, supra, we are of the opinion that the burden is upon the plaintiff. The above question is somewhat unsettled and involves the property rights of many people. It is therefore one that should be definitely determined by the court of last resort.

We are of the opinion that the trial court erred in instructing the jury first, that the burden of proof was upon the defendant to establish the fact that the applicant knew the answers were false at the time he made them; and second, that the burden of proof was upon the defendant to establish lack of compliance by plaintiff with conditions precedent to the valid incepton of the contract.

For these reasons, the judgment herein is reversed and this cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Scanlan

text:
    Elizabeth Pearsons, Defendant in Error, v. Harry P. Pearsons, Plaintiff in Error.
    Gen. No. 37,688.

      Opinion filed November 5, 1935.
    Rehearing denied November 22, 1935.
    Lloyd G. Whitman, of Chicago, for plaintiff in error.
    Frank E. Cantwell, of Chicago, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

By this writ of error defendant seeks a reversal of a decree granting separate maintenance to plaintiff.

The case was tried by an able and experienced judge and no complaint is made that he erred in the admission or exclusion of evidence, or that he manifested, in any way, prejudice against defendant. The opinion he delivered after due consideration of all the evidence shows that he had a clear understanding of the issues involved and of the evidence bearing upon the same. He found that the equities were with plaintiff, that she had established the material allegations of her bill, that she was living separate and apart from her husband “without any fault or desire on her part so to do but solely by reason of the fact that the defendant abandoned her and refused to live with her or let her live with him.” While defendant does not contend that the finding of the trial court is against the weight of the evidence on the main issues, we feel impelled to say that after a careful reading of the evidence we find ourselves in entire accord with -the findings and decree of the trial court. In our opinion- it would have been a miscarriage of justice had the trial court refused to grant plaintiff separate maintenance.

Confronted with a case wherein the equities on the main issue are with plaintiff, the able and ingenious counsel for defendant has raised a number of technical points in support of his claim that separate maintenance should not have been allowed. Plaintiff’s bill charges that in May, 1930, defendant committed adultery with a certain woman and proof was introduced in support of the charge, but before the entry of the decree plaintiff was granted leave to strike from the bill the paragraph that charged adultery. While plaintiff was testifying, the following occurred: “Mr. Cant-well (attorney for plaintiff): Have you been willing that your husband return to you or make a home for you, or have you been willing to go to his home? Mr. Whitman (attorney for defendant): Objected to, it is incompetent. The Court: Overruled. She may answer. A. I would be very pleased to go back to my husband if he could let other women alone. Mr. Cantwell: If he would give you that assurance, would you? A. Yes. Q. You would go back to him? A. Yes, I would.” Defendant, although he objected to the questions as incompetent, now contends that because of these answers the case should end, unless we find that the alleged adultery was proven. We find no force in the contention. The issues in a suit for separate maintenance and a suit for divorce are not the same. The essential elements of a decree for separate maintenance are, 1st, residence of the parties; 2d, the wife’s living separate and apart from her husband without fault on her part; 3d, that she is in need of the husband’s support which he is able to give and fails so to do. It was not necessary to prove the alleged adultery, and under the facts disclosed by the evidence and the law bearing upon the same plaintiff was not bound to return to defendant unless he assured her that he would “let other women alone.” Such would be the rule even if defendant had asked plaintiff to return. (McCarthy v. McCarthy, 219 Ill. App. 369; Cash v. Cash, 201 Ill. App. 151; Johnson v. Johnson, 125 Ill. 510; Porter v. Porter, 162 Ill. 398, 400.) In the instant case, however, defendant had persistently refused to allow plaintiff to live with him in his home, and on one occasion, when plaintiff went to his home and told him that she wished to be maintained in his home and that she had a right to be there, he testified that he replied to her as follows: “I told her very firmly that she had not (a right to be in his home) and that she knew it as well as I did, and that I would like to have her leave without any further ado, or further trouble. She persisted in staying, and the police officers took her away! ’ ’ Defendant, who had been mayor of Evanston for many years, admitted that he sent for the police and had them eject plaintiff from his home and take her to the police station. Plaintiff testified that she was roughly handled by the police on that occasion. Upon cross-examination defendant stated: “I do not want my wife now. ’ ’ His attitude throughout was that he would not allow her to live in his home, would not live with her elsewhere, and on an occasion when the. plaintiff went to his home and begged him to acknowledge the marriage and allow her to live with him, he not only refused to grant her request but treated her with scorn and contempt. Not only her evidence, but his evidence shows that she made repeated, sincere efforts to live with him. The home of defendant was also the home of his father. The trial judge was justified in finding that immediately after the marriage ceremony defendant asked plaintiff to keep the marriage a secret because of his aged father’s severe illness and because his daughter and her little girl were coming to spend the summer with him at his home; that he told her to move into one of six houses, located in Evanston, that he owned, and promised her that he would announce the marriage later in the summer or in the fall, at which time she could move into his home; that thereafter, upon one pretext or another, he deferred the announcement and in March, 1929, plaintiff, over his angry objections, announced the marriage; that he refused to contribute anything toward her support and advertised in the public press that he would not be responsible for her debts. In support of defendant’s present contention he cites Hoffman v. Hoffman, 316 Ill. 204, 212-4. There it appears that the wife voluntarily abandoned her husband without good cause and filed a bill against him charging that he was a man of ungovernable temper and had treated her with cruelty and abuse. There was a finding that her charges were not sustained and the bill was dismissed. She thereupon offered to return to her husband’s home and make amends for past occurrences. The trial court held that the evidence showed her offer to return was not made in good faith, and the Supreme Court sustained that finding and held that while it is the duty of a husband to receive back his wife upon her offer to return, even though the original separation was without his fault, the preponderance of the evidence must show that the offer was made in good faith. That case, in principle, is against defendant.

The bill alleges that plaintiff was lawfully married to defendant on June 16, 1928, at Ottawa, Illinois, “and from thence hitherto until on or about to-wit, the 20th day of August, 1929, your oratrix and the said defendant lived and cohabited as husband and wife.” Defendant, assuming that the allegation, “lived and cohabited as husband and wife,” the period of which living and cohabiting is laid under a videlicet (see Collins v. Sanitary District, 270 Ill. 108, 111), is a material one, contends: “The parties never lived and cohabited’ as husband and wife, if, as we contend, living and cohabiting together as husband and wife means the living together of a man and woman in a common dwelling, ostensibly as husband and wife.” In support of this contention counsel cites such cases as Robinson v. Robinson, 188 Ill. 371, 379, 380, and McKenna v. McKenna, 180 Ill. 577, 587, which involve alleged common law marriages; and also cites cases like Cannon v. United States, 116 U. S. 55, and Commonwealth v. Lucas, 158 Mass. 81, which involve criminal prosecutions for polygamy. Living together in a home is one of the methods of proving a common law marriage or a charge of polygamy. In the instant case the parties were legally married.

“The word cohabit is of large and flexible signification, having several meanings. The ideas which accompany the use of the word determine its import. The subject to which it is applied contracts or expands its meaning; so that in order to give it proper effect in any given case regard must be had to the subject matter to which it relates, to the situation and conditions in respect to which it is used, and to the explanatory and qualifying language accompanying it.” (11 C. J. 950.)

‘ ‘ The word is hot one of a certain meaning. ” (State v. Chandler, 96 Ind. 591, 592.)

“The acquired meaning varies, necessarily, with the connection in which the word is used.” (State v. Freddy, 117 La. 121, 124.)

Cohabitation does not necessarily mean living under the same roof. (See Bohvier’s Law Diet. (3rd Rev.) Vol. 1, p. 519.) Defendant concedes that “the term is sometimes construed as implying sexual intercourse.” Defendant’s contention, if it be carried to its logical conclusion, and tested by the facts of the case, amounts to this: After he had legally married plaintiff he could give her a home and there repeatedly hold intercourse with her, but that if he by trickery or force prevented her from living in “his home” she could obtain no relief under the separate maintenance act. A mere statement of the position is a sufficient answer to it. Defendant testified that after the marriage he asked plaintiff “if it would be possible for her to come to Evanston to live and of course we would be nearer to each other.” Upon his' request plaintiff, the latter part of June or the first of July, 1928, moved from her old home, with her furniture, to a house in Evanston owned by defendant, which he told her would be a suitable home for her. He came there frequently, had his dinner-there “every day or-every other day,” and the parties “spent a great deal of time together.” He finally admitted that from the time of the marriage until about Christmas, 1928, they frequently held intercourse. This testimony was contrary to his original position. While defendant in one answer stated that he was never in love with plaintiff, upon cross-examination he admitted that she was a very charming woman, that they were very happy until the fall of 1928, and that his feelings changed because in the latter part of that year she was constantly accusing him of paying attention to other women. There is evidence, oral and documentary, that clearly shows that at the time of the marriage and for some time thereafter he was very fond of plaintiff. Plaintiff testified that sometime after the marriage defendant told her “that he had been fooling me all summer; that he was interested in this other woman, there was no use of us going on, that he no longer cared for me.” As stated by the trial court, in his opinion, for some reason best known to defendant his ardor and love cooled. The trial court was fully justified in refusing to believe the testimony of defendant to the effect that at the time of the marriage the parties had an agreement that they should always live separate lives and keep the marriage a secret, that an abortion was to be performed on plaintiff and that after the operation they were to “arrange a separation or a divorce.” The trial court was also justified in finding that defendant’s testimony in reference to the alleged pregnancy and abortion was made out of whole cloth and was injected into the case to serve as an excuse for his unhusbandlike conduct toward plaintiff after the marriage. The concluding part of defendant’s brief is so scandalous in its nature that had counsel for plaintiff, in apt time, called our attention to the same, the brief would have been stricken from the record. The reply brief is also subject to the same grave criticism. In order to explain documentary evidence tending to prove that defendant was in love with plaintiff before the marriage defendant argues that his feelings were “the warm affection a man would have for his mistress, ’ ’ and that ‘ ‘ the fact that a man is passionately attached to his mistress is no proof that his intentions are honorable.” Defendant willingly tars himself in the hope that some of it may attach to plaintiff. His position seems to be that if he can convince the court that the parties held intercourse from time to time before the marriage, plaintiff should be denied separate maintenance, regardless of what transpired after the marriage.

After defendant had filed his brief in this court he entered a motion in which he set up that the decree entered was “void in toto, on the face of the record, for lack of jurisdiction in the trial court to enter the same,” and he asked for leave to file an additional brief setting up the jurisdictional point and authorities in support of it. We granted the motion. In the additional brief, after stating the well known principle that in a separate maintenance case the court is without jurisdiction to decree it except where the proof shows that the wife is living separate and apart from her husband without her fault, counsel calls attention to the testimony of plaintiff, to which we have already specifically referred, to the effect that she would be pleased to go back to her husband if he would give an assurance that he would “let other women alone,” and argues that because of that testimony plaintiff has failed to prove that she is living separate and apart from her husband without her fault, and that therefore the court was without jurisdiction to enter the decree in question. What we have heretofore said upon the subject matter of that testimony sufficiently answers the instant unmeritorious contention.

After the trial court had rendered his decision in the case defendant filed a motion “to reopen proofs as to defendant’s financial worth, resources and income.” The motion was allowed and an order was entered “reopening proofs as to defendant’s financial worth, resources and income,” and “the matters as to which proofs were opened” were referred to a master to take further testimony and report the, same to the court with his conclusions. The master, after hearing evidence, filed a report which contained the following findings :

“1. That the defendant, Harry P. Pearsons, is the owner of the following described premises:—

“(a) 1714 Chicago Avenue, Evanston, Illinois.

(b) 1718 Chicago Avenue, Evanston, Illinois.

(c) 115.04 acres of land in Cook County, Illinois.

(d) 393.19 acres of land in Polk County, Minnesota.

(e) 160 acres of land in Swift County, Minnesota.

(f) A beneficial interest in Trust No. 121 of which the City National Bank of Evanston is Trustee, covering any other premises, No. 2752 Garrison Street, Evanston, Illinois; upon which there is due the sum of $3922.00 to Harry P. Pearsons.

“2. I further find from the testimony of Harry P. Pearsons, that his receipts and expenditures from his business and property during the year, 1931, were as follows:

“Receipts

Net from sale of 1816 Chicago Avenue,

Evanston, Ill............................$3,560.53

Net from sale of 1718 Chicago Avenue,

Evanston, Ill............................ 1,524.22

Rent from 1718 Chicago Avenue, Evanston,

Ill...................................... 271.16

Net from Minnesota farm.................. 193.06

Gross from law practice................... 399.35

Total Receipts......$5,948.32

“Expenditures

Cook County Farm, Operating Loss .$126.90

Office Expense................... 663.85

Total Expenditures......$790.75 $ 790.75

Net Receipts $5,147.57

“I further find that there is no testimony in the record to justify the charge of an operating loss of $299.40 on the Minnesota farm nor a loss of $364.40 on 1714 Chicago Avenue. I further find that the giving of a bond on the sale of 1816 Chicago Avenue, Evanston, Illinois, to indemnify the purchaser against the dower rights of the Complainant herein, is not a proper charge and should be disregarded.

“3. I further find from the testimony of Harry P. Pearsons that the total unpaid taxes for the years 1929 and 1930 on the premises owned by him as above set forth, aggregates the sum of $2,410.70.

“á. I further find that the present rental value of the premises, 1718 Chicago Avenue, Evanston, Illinois, is $1,200.00 per annum. That as a part of the consideration for said rental, the defendant pays the sum of $315.16 per annum to the Public Service Company for heating the said premises. That the general taxes thereon average the sum of $550.00 per year.

“5. I further find the encumbrances on the premises with the rates of interest payable thereon are as follows :—

(a) 1714 Chicago Avenue,

Evanston, Illinois... .$15,000.00 at 6% interest.

(b) 1718 Chicago Avenue,

Evanston, Illinois.... $12,500.00 at 6% interest.

(c) 160 acre farm in Swift

County, Minnesota.. .$ 6,000.00 at 5% interest.

“6. I further find that all the premises owned by the defendant were conveyed by him in Trust to the Commercial Trust & Savings Bank of Evanston, Illinois, under Trust Humber 70, by deed dated February 24th, 1928; which deed was recorded in the Recorder’s Office of Cook County, on the 23rd day of June, 1928, subsequent to the marriage of the Complainant and Defendant; that the defendant was the sole beneficiary in said trust; that on August 4, 1931, the said premises were conveyed to Katharine P. Hadden, a relative of the defendant, upon his written instruction to the said Commercial Trust and Savings Bank, and that on the 4th day of August, 1931, the said bank was in liquidation and disposing of all its Trust Estates.

“7. I further find that by deed dated February 24th, 1928, but recorded on the 17th day of August, 1928, subsequent to the marriage of the Complainant and Defendant, the said defendant conveyed a valuable piece of property to his daughter, Frances P. Bust, described as follows:— (Here follows the legal description.)

“8. I further find from the report of the Public Accountant for the defendant and from her testimony that the defendant is Trustee for a Trust Fund created on October 15, 1926, consisting of funds in Pearsons’ Investment Company, farms, H. A. Pearson’s pension, notes receivable, and mortgages; that said trust fund received the total sum of $123,311.99 and expended the sum of $123,324.57 from January 1, 1928 to May 31, 1932; that said receipts were obtained from sales of land, receipts from mortgages, notes, pensions, stocks, farm products, loans, etc.; that among said receipts, there was deposited to the personal account of the defendant, Harry P. Pearsons, from January 1, 1928 to May 31, 1932, the sum of $46,754.30; that in addition thereto Harry P. Pearsons deposited to his account the further sum of $20,308.25 income from interest, rentals, lawyers, fees, sales of stock, loans, legacies, etc. That among the sums deposited to his checking accounts were items of $3,266.90, ‘in and out’ business through his office. I further find that the defendant, Harry P. Pearsons, in addition to said sums deposited to his account, received the sums of $2,655.00 from January 1, 1928 to May 31, 1932 in cash by checks from the Trustee Account.

“I therefore find that the defendant, Harry P. Pear-sons, received as deposits to his personal account and from cash, from January 1, 1928 to and including May 31, 1932, the following sums:—

From Trust Fund payable by checks to himself ...................................$46,754.30

From Trust Fund payable by checks to cash 2,655.00

From interest, rentals, fees, sales, loans, legacies, etc............................ 20,308.25

$69,717.55

Deduct ‘in and out’ items......... 3,266.90

Total.................$66,450.65

“I therefore find from the audit and testimony of Defendant’s witnesses, that the defendant’s combined income, including capital receipts, receipts from loans on real estate, sales of real estate, stock, legacies, earned income, etc., averaged for the period commencing January 1, 1928 and terminating May 31, 1932, the sum of $12,556.72 per year.

“8. I further find that although the defendant contends that the said Trust Fund is to be distributed one-seventh to himself and six-sevenths to his father, H. A. Pearsons, the defendant, as Trustee, has full power and authority to withdraw funds therefrom, has been utilizing the said fund as his own personal fund, and has deposited therein, from time to time, sums of money received by him from sales of premises admittedly owned by him.

“9. T further find that the defendant resides with his aged father, H. A. Pearsons, in one of the pieces of property owned by him at 1718 Chicago Avenue, Evanston, Illinois, and that all funds for the support of his father and himself are withdrawn from said trust fund; that out of said sum is paid all household expenses and salaries of nurses, at the present time of $45.00 per week; that in the years, 1928 and 1929, the defendant had a Japanese servant to whom he paid a weekly salary of between $25.00 and $30.00 a week and entertained his guests lavishly in country clubs and in his home; and that from January 13, 1928 to and including November 18, 1931, he paid out the total sum of $1,346.90 for intoxicating liquors. I further find that the defendant is the owner of stock in the Commercial Trust & Savings Bank of Evanston, Illinois, was a director thereof until the date of its liquidation and that the value of said stock, if any, cannot be determined until said bank is completely liquidated. I further find that the defendant, Harry P. Pearsons, has acquired a high standard of living due to his splendid social position in Evanston, Illinois, and has been a member of Clubs of high standing in the said community.

“10. I further find that the Complainant, Elizabeth Pearsons, prior to her marrying the defendant, maintained a home for herself and three children by a former, marriage, and did expend the average sum of $600.00 per month in supporting herself and children; that since her marriage with the defendant, she has engaged in speculation in the stock market, has lost all the funds inherited from her deceased husband and is now entirely dependent upon the defendant for support.

“11. I find that the defendant is the owner of considerable real estate, but can make no finding as to its value as no proof has been offered thereof before me. I am of the opinion however, that because of the lack of a present market for real estate and the condition of the real estate loan market at the present time, it would be difficult to secure mortgages thereon, and that the proceeds thereof are considerably lower than they would be in normal times.

“12. I further find that the sum of $300 is a fair, reasonable, usual and customary fee for solicitor for the complainant for the services rendered by him in the hearings had before me, and recommend that said sum be paid the Complainant as Solicitor’s fees for the services of her solicitor on this reference, and I further recommend that all of the costs of this reference, including said solicitor’s fees, Master’s fees and stenographer ’s fees be paid by the defendant.,’ ’

The trial court approved the report of the master and we are in accord with his action in that regard.

Defendant claims that “the allowance to complainant of $40.00 a week alimony was excessive and unfair.” That amount is the same that defendant had been paying for a long time under a temporary order for alimony. From the report of the master and certain evidence heard by the trial court it is clear that the allowance is a moderate one. The argument that defendant is without means to pay anything for the support of his wife accords with the attitude of defendant in his original answer to the bill, wherein he swore “that he is unable to contribute anything to the support of the complainant.” In connection with the instant contention certain findings in the master’s report are illuminating. No suggestion is made as to what would be a reasonable amount to allow, and defendant takes the entirely unreasonable position that he is unable to contribute anything to the support of his wife.

Defendant contends that “the court improperly allowed solicitors’ fees without differentiating between services to the legitimate ends of the suit and services touching matters of which the court had no jurisdiction.” We find no merit in this contention and it appears to be an afterthought. Attorney Cantwell testified as to the services rendered and the various items that made up his claim. No objection was interposed during his testimony. He was not cross-examined nor was there any testimony introduced in rebuttal. From the attitude of counsel for defendant in the trial court it would seem that the trial court would have been justified in assuming that defendant was. not contesting the attorney’s claim for services. The argument now made that ‘ on the record it is .impossible to differentiate between legitimate services and services for Avhich no allowance was proper,” is a general one and our attention is not called to any particular items of which defendant complains.

The decree ordered that defendant pay nine bills OAved by complainant “for necessaries,” one of Avhich is, Lyon & Healy, $790.10. Defendant contends that this item is a balance on a $2,150 piano purchased by complainant on March 30,1927, and under the rule that a husband is not liable for his wife’s antenuptial debts, this item should be disallowed. It is a sufficient answer to this contention to say that the bill was admitted in evidence without objection and that the record fails to show that defendant at any time raised or suggested the point now made. Defendant contends that as to the nine bills the only remedy against the husband is by action of the person who furnished the goods or money against defendant and that the court erred in ordering defendant to pay plaintiff the amount of the nine bills. This contention is also an afterthought, as the record fails to disclose that defendant, in the trial court, made or suggested the point involved in the instant contention.

Defendant contends that “the court improperly decreed complainant dower rights in defendant’s real estate. ’ ’ That part of the decree to which the instant contention applies is as follows:

“It is further ordered, adjudged and decreed by the Court that the complainant retain specifically her dower right in and to any and all of the defendant’s real estate which the defendant OAvned at the time of the marriage — described as follows:” (Then appears the description of the various parcels of real estate to which it applies.)

In connection with the instant contention defendant calls attention to the antenuptial agreement entered into between plaintiff and defendant at the time of the marriage, which provides, inter alia, that plaintiff is to receive from defendant $30,000 in cash or securities “by last will and testament, or other instrument . . . in lieu and in bar of any and all right, or claim, of dower, in and to any and all of the lands, tenements, and hereditaments” of defendant. In a suit for separate maintenance the court is without power to adjudicate the parties ’ property rights unrelated to the statutory object and purpose of the proceedings. (Wolkau v. Wolkau, 158 Ill. App. 341, 343-4; McAdams v. McAdams, 267 Ill. App. 124, 130, 132-3; Spohr v. Kraus, 197 Ill. App. 348, 351-2.) The divorce statute gives power to settle property rights where a divorce is allowed, but the separate maintenance statute grants no such power. The purpose of the separate maintenance act (1933) was to provide for married women “who, without their fault, now live or hereafter may live separate and apart from their husbands, ... a reasonable support and maintenance while they so live or have so lived separate and apart.” The instant contention must be sustained.

Defendant contends that “the court improperly, under all of the circumstances, made the decree a lien on defendant’s real estate until he should give security for faithful performance.” Defendant concedes that such an order would be proper where the facts warrant it, but he argues that he is virtually without income save from the real estate, “most of it already heavily encumbered, which the court thereby hopelessly further entangled.” It is the settled law of this State that in decreeing the wife a separate maintenance the court may, if the circumstances warrant it, make it a lien on defendant’s real estate, and award execution for the collection of the instalments as they become due; that the right to enforce its decrees is inherent in courts of chancery. (Johnson v. Johnson, supra, 125 Ill. 510.) While it is true that a court should not unnecessarily incumber a defendant’s property and that no more of his lands should be tied up by a decree than is reasonably ample security for the payment required, we are satisfied that the trial court, in the instant proceeding, acted properly and wisely. Defendant argues that all of the real estate is so heavily incumbered that he is virtually without income from it. Under the evidence the court was justified in concluding that if he did not make the decree a lien on defendant’s real estate the latter, to prevent plaintiff from enforcing her allowance, would dispose of his property. In this connection certain provisions of the ante-nuptial agreement must be borne in mind.

That part of the decree that adjudges that plaintiff retain her dower right in and to any and all of defendant’s real estate which he owned at the time of the marriage, is reversed. The remainder of the decree is affirmed.

Decree reversed in part and affirmed in part.

Sullivan and Friend, JJ., concur.