author: Mr. Justice Allabek

text:
    D. F. Vandeventer et al., Appellees, v. Lincoln Bailey et al., Appellants.
    Gen. No. 8,903.
    Opinion filed July 17, 1935.
    Rehearing denied October 1, 1935.
    Whitmore & Whitmore, of Bloomington, for appellants.

      Wirt Herrick, of Clinton, Costigak & Wollrab and Stoke & Wright, all of Bloomington, for appellees.
   Mr. Justice Allabek

delivered the opinion of the court.

The pertinent facts involved in this case are as follows : That J. Keenan’s Bank of Le Boy, Hlinois, was by direction of the auditor of public accounts obliged to close its doors. Before undertaking to liquidate its assets and to surrender its charter, or call a stockholders’ meeting for such purpose, a contract was negotiated by the terms of which the Le Boy State Bank agreed to take over all of the assets of the Keenan Bank, and further agreed to liquidate all of its liabilities except those to the stockholders. In order to effect this contract plaintiffs appellees and others entered into a contract guaranteeing that the assets turned over to the Le Boy State Bank were sufficient to liquidate the indebtedness of the Keenan Bank. Had it not been for this guarantee the Keenan Bank would have been forced to liquidate. The contract was executed so far as the transfer of the assets was concerned, and the Keenan Bank ceased to do business as such. Subsequently the Le Boy Bank paid the indebtedness of the Keenan Bank. At the end of three years, and in accordance with the contract, the Le Boy Bank not having been able to realize from the Keenan Bank assets all of the money expended to pay the liabilities of the Keenan Bank, a suit was brought against the individual directors of the Keenan Bank who signed the contract as guarantors, which suit resulted in a judgment for $71,042.74, on June 7, 1930. One-half of this judgment was finally paid by D. F. Vandeventer, one of the guarantors, and the other half by the heirs at law of Charles J. Null, another guarantor. The undisposed assets of the Keenan Bank, which were approximately $1,600, were turned over to plaintiffs appellees. Plaintiffs appellees then brought suit against defendants appellants, and other stockholders of the bank to attempt to enforce their constitutional and statutory liability as stockholders of the Keenan Bank, alleging that plaintiffs appellees were creditors of the Keenan Bank to whom the stockholders were liable. Defendants appellants interposed a general and special demurrer to the bill, which the court overruled, and defendants appellants thereupon filed their several answers in which they denied that the indebtedness which plaintiffs appellees soug’ht to recover was indebtedness of the Keenan Bank, and averred that it was in fact an independent obligation, and that plaintiffs appellees were not creditors of the Keenan Bank.

On December 3, 1934, the trial court entered its decree finding that the plaintiffs appellees were entitled to recover from the defendants appellants the several sums of money representing the par value of the shares of stock held by them in the Keenan Bank, and therein entered judgment for plaintiffs appellees. From this decree defendants appellants appeal, contending that plaintiffs appellees have not shown that they were creditors of the Keenan Bank, which is necessary under the constitution and law of this State, to sustain the decree which was entered; that the facts show no right of subrogation; that stockholders ’ liability imposed by the constitution and law of this State is limited to obligation of the bank contracted in the ordinary course of business, and that to construe the contract as a guarantee by the Keenan Bank of its assets would make the contract ultra vires.

Defendants appellants ’ chief contention is that plaintiffs appellees are not creditors of Keenan Bank because the indebtedness which was paid by them was Pot an obligation of the bank or for its benefit, and as stated by defendants appellants, this contention is allegedly based upon the case of American Nat. Bank v. Holsen, 331 Ill. 622. The court held in that case, which, so far as the facts were concerned, closely parallels the case at bar, that the bank which assumed the liabilities and took over the assets of the failing bank was not a creditor of the failing bank under that contract and, therefore, could not sue the stockholders of the failing bank. In the case at bar the Le Boy State Bank is not' trying to enforce the liability of the stockholders of the Keenan Bank. This suit is brought by the guarantors against whom the Le Boy State Bank had obtained a judgment upon their guarantee.

It appears to us to be obvious from the facts in this case that in order to salvage for the Keenan Bank as much as possible from its assets the guarantors, plaintiffs appellees here, were induced to enter into the contract for the benefit of the Keenan Bank, and its stockholders who accepted the benefit of the guarantee, since it was obviously upon the strength of this guarantee that the Le Boy Bank was willing to undertake to liquidate the assets of the Keenan Bank and to pay all of its liabilities. It, therefore, logically follows that an implied agreement arose in favor of the guarantors which would afford them the right to recover back moneys which they had been compelled to pay by reason of their entering into the contract as guarantors at the instance of the Keenan Bank. (Snell v. Warner, 63 Ill. 176; Scott v. Norton Hdw. Co., 54 F. (2d) 1047.) In the opinion in the Eolsen case, cited by defendants appellants, we find the following language: “If the transfer of the assets of the bank going into liquidation is an outright sale in consideration of the assumption of all its liabilities by the other bank, no debt is created, and no liability of stockholders exists, but, if the transfer is for the purpose of giving security for the repayment of money advanced, the liability of the stockholder attaches.”

In the case at bar, the language of the contract wherein the guarantors in consideration of the covenants and agreements of the other two parties guarantee that the assets taken over by the Le Boy Bank shall satisfy the liabilities of the Keenan Bank reads, in part, as follows: “And do hereby fully guarantee said party of the first part that said assets so taken by it from said party of the second part shall be sufficient to liquidate the liability assumed by said party of the first part.” This does not appear to us to be an unqualified assumption of the liability of the Keenan Bank so as to make such assumption' tantamount to a sale. The words “liquidate the liability assumed” would tend to indicate a loan rather than a sale of the assets, and this, accompanied by the further provision of the contract that the Keenan Bank account was carried in a separate account under that name, and not in the name of the Le Boy Bank further supports that position. The guarantee incorporated in the contract clearly indicates to our minds that a complete satisfaction for the assumption of the liabilities of the Keenan Bank was not intended or anticipated by the transfer of its assets to the Le Boy Bank. In fact the terms of the contract further provide that at the end of a three-year period the guarantors upon demand will withdraw under the contract the assets not then liquidated and pay in cash sufficient to liquidate all remaining liabilities, and it is further significant we think that this whole arrangement was made before any steps were taken in the dissolution of the Keenan Bank.

As to the argument of defendants appellants that a right of subrogation is not shown it need only be said that since this court decides that the transfer of these assets was not a sale the right of subrogation would exist. The contention of defendants appellants that stockholders’ liability can only be imposed where the obligation arose out of the ordinary course of business is, we think, without merit, since it cannot be successfully argued that the liabilities of the Keenan Bank, which the guarantors agreed to pay if not liquidated by the assets of the Keenan Bank, certainly grew out of the transactions of the Keenan Bank in the ordinary course of "business. Likewise, the further argument that the contract cannot be construed as a guarantee by the Keenan Bank of its assets because such action would be an ultra vires act is disposed of by the obvious fact that the guarantee was not made by the Keenan Bank, but by certain individuals who operated it.

For the reasons given the decree of the trial court is hereby affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    Corn Belt Bank, Appellee, v. Maryland Casualty Company, Appellant.
    Gen. No. 8,876.

      Opinion filed July 17, 1935.
    Whitmore & Whitmore, of Bloomington, for appellant.
    Dahiel D. Tuohy, of Bloomington, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Appellee, the Corn Belt Bank, trustee, recovered a judgment in the circuit court of McLean county for the sum of $1,000 against the Maryland Casualty Company, appellant, in an action of debt on an indemnity bond executed by appellant, as surety for L. F. Mostoller, from which judgment this appeal was taken.

From the stipulation entered into by said parties it appears Lincoln F. Mostoller was the owner of the south 60 feet of Lot 16, in Dimmetts Addition to the City of Bloomington, County of McLean, State of Illinois, known as 203-203% So. Evans street.

On August 11, 1930, Georg-e H. Cox lent said Mostoller the sum of $2,000, for which he received a note of that date which was secured by mortgage upon said premises, and on August 14,1930, he loaned him a further sum of $1,000 which was evidenced by the promissory note of said Mostoller and was also secured by mortgage upon said premises.

On September 19, 1930, said Lincoln F. Mostoller, as principal, and the Maryland Casualty Co., as surety, executed and delivered to the Corn Belt Bank, as trustee, a certáin indemnity bond. On September 20,1930, George H. Cox made a third loan of $2,000 to Mostoller and took a principal note for $5,000, signed by Lincoln F. Mostoller and Lula G. Mostoller, dated September 20, 1930, and payable to the order of “ourselves” and due September 20, 1933, and by them duly indorsed in blank. The $5,000 note included all of the money loaned by George H. Cox to Lincoln P Mostoller, and upon receipt of the note George H. Cox released the two mortgages of record. Upon the execution of the $5,000 note Lincoln P. Mostoller and his wife, Lula, executed and delivered to George H. Cox a trust deed of even date with said note, in which the Corn Belt Bank, trustee for the use of the legal holder of said note, was named as grantee.

The Corn Belt Bank, named as obligee in the indemnity bond, never lent any money to Lincoln F. Mostoller, as recited in said bond, and George H. Cox lent only the sum of $5,000 and he was the sole and only holder of the notes secured by either the trust deed or the two prior mortgages.

The bond sued on was procured by said Lincoln P. Mostoller from the Maryland Casualty Co. at the instance and request' of George H. Cox and not at the instance and request of the Corn Belt Bank, as trustee, who is named as obligee in said bond. The making of the last $2,000 loan to said Mostoller was on condition that he should furnish additional security to protect against mechanic’s liens upon said real estate. Mechanic’s liens were filed by various persons against said premises in the total amount of $2,500.

Default was made in the payment of the principal and interest on the $5,000 note, and George H. Cox instituted foreclosure proceedings in the circuit court of McLean county, entitled Corn Belt Bank, trustee, and George H. Cox v. Lincoln P. Mostoller and Lula G. Mostoller, and a final decree was entered and the premises sold to said Cox for $6,058.24. Of said sum of $6,058.24 the master in chancery was directed to apply the sum of $2,127.52 in payment of mechanic’s liens filed and proven against said mortgaged premises.

The Corn Belt Bank never had any interest in the mortgaged property or in the trust deed or notes secured thereby, and said loan was made solely by said George H. Cox to said Lincoln F. Mostoller and the notes and trust deed evidencing and securing said loan were given to said Cox individually. The Corn Belt Bank never suffered and never paid out anything for loss, costs, damages, attorney’s fees, or expense of any kind by reason of the mechanic’s liens filed against said mortgaged premises and proved up in said foreclosure suit, by reason of improvements made on said premises by said L. F. Mostoller, and whatever was paid in the discharge of said mechanic’s liens was paid by said George H. Cox.

The cause was submitted to the court for trial upon the stipulation of facts. The only question before this court is whether the plaintiff appellee can recover damages occasioned by the principal in said bond, L. F. Mostoller, permitting the mechanic’s liens to be filed against said mortgaged premises, by reason of the improvements made thereon by him and established in said foreclosure proceeding.

In determining the question presented we must look to the bond in question. The bond must receive a reasonable interpretation; but in order to arrive at the intention of the parties at the time the bond was executed, we must resort to the language used by them in the obligation which they executed. Fitzgerald v. Staples, 88 Ill. 234.

While it is true that bonds given by surety companies to secure the performance of a contract by the principal are to be strictly construed against the companies, in case an ambiguity exists, if there is no ambiguity there is no reason for a construction of the contract of the surety. Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502. A surety cannot be held beyond the express terms of Ms undertaking, and it cannot be extended by implication or construction, and the provisions of the bond form the only basis of the right of appellee to recover. Alexander Lumber Co. v. Aetna Accident & Liability Co., 296 Ill. 500, 504; City of Sterling v. Wolf, 163 Ill. 467.

The bond upon which the plaintiff appellee is seeking to recover damages for a breach of its conditions is as follows:

“Know At.t, Men by These Presents, That we, Lincoln F. Mostoller, of Bloomington, Illinois, as Principal, and Maryland Casualty Company, a corporation under the laws of the State of Maryland, as Surety, are held and firmly bound unto Corn Belt Bank, as Trustee, of Bloomington, Illinois, as Obligee, in the penal sum of One Thousand and no/100 ($1,000.00) Dollars, good and lawful money of the United States of America, well and truly to be made, the said principal binds himself, his heirs, executors, administrators, successors and assigns, and the said surety binds itself, its successors and assigns, firmly by these presents.

“Signed, sealed and dated this 19th day of September, A. D. 1930.

“The Condition of This Obligation Is Such, That Whereas, the said Corn Belt Bank has loaned to the said Lincoln F. Mostoller the sum of Five Thousand Five Hundred and no/100 ($5,500.00) Dollars, secured by the premises known and described as:

“South 60 ft. Lot 16, Dimmetts Addition to the City of Bloomington, County of McLean, State of Hlinois, known as 203r203% So. Evans St.

“Whereas, the said Lincoln F. Mostoller is about to or has improved the above described premises, and the said Corn Belt Bank has granted its permission to make such improvements provided they are secured by a bond of indemnity protecting them from any and all established liens that might be filed against said premises by reason of the improvements mentioned above being made or having been made.

“Now, Therefore, if the said principal does fully protect, defend and save harmless the said Corn Belt Bank, from and against any and all loss, costs, damages, attorney’s fees, and expense of every kind and nature which the said Corn Belt Bank may at any time or times suffer or incur by reason of any and all liens being filed against the above described premises by reason of the improvements made thereon by the said Lincoln F. Mostoller and established in a court of competent jurisdiction, this obligation to be null and void, otherwise to remain in full force and effect.

“Provided, However, that the said Surety shall not be liable for any liens filed after one year from the date of this bond.

“Lincoln F. Mostoller, Principal Maryland Casualty Company, Surety ' By Edmond Madden, Attorney-in-Fact. ”

There is no ambiguity in the language of the bond. From the terms and conditions of the bond it clearly appears that the Maryland Casualty Company obligated itself to pay and keep harmless the Corn Belt Bank, and no one else, from all loss occasioned by the failure of Lincoln F. Mostoller to protect it from all mechanic’s liens filed against said premises by reason of improvements made thereon by said Lincoln F. Mostoller.

Appellee insists that the bond was procured at the instance of the holder of the notes and that the day after the bond was executed the trust deed was made and the notes secured thereby were bearer notes; that it was clearly the intention that the bond should protect the owners of the notes and the beneficiaries under the trust against any loss or money expended to protect the trust deed from mechanic’s liens; that the giving of the bond and the making of the trust deed was one transaction and the reason for the giving of the bond is evident from the stipulation of facts, and the ones intended to be secured thereby were the holders of the notes; that the Corn Belt Bank, trustee, was clearly but an agent for George H. Cox and immediately upon Cox suffering a loss as guaranteed against in the bond a right of action against the defendant arose.

If the bond by its terms and conditions does not express the true intention of the parties a court of law has no power or authority to correct a mistake and reform the contract so as to make it conform to the intention of the parties. Neither can a court of law presume that the contracting parties intended to insert in the bond a provision other or different from that which the plain language would indicate and then give a construction to the bond which would be legitimate if it contained the supposed omitted provision. Fitzgerald v. Staples, supra.

Appellee says that if the obligee in the bond had been designated as the Corn Belt Bank as trustee for the use of the legal holders of the notes secured by the trust deed, there could be no question raised as to the defendant’s liability. Without admitting that this contention is correct, it is sufficient to again point out that the Maryland Surety Company only obligated itself to save and keep harmless the Corn Belt Bank, from loss on account of mechanic’s liens filed, and that the Corn Belt Bank, trustee, appellee, cannot recover any damages that George H. Cox may have sustained by reason of having been compelled to pay such mechanic’s liens so filed against said premises. We are of opinion that to hold otherwise would in effect, be making contracts for parties, which courts are powerless to do.

There is nothing in the language used or any condition to be found in the bond that would indicate that it was for the benefit of George H. Cox or of the holders of the notes secured by the trust deed. To authorize a recovery on behalf of some third person it is necessary that it appear from the terms and conditions expressed in the bond that such third person was to be protected thereby. City of Herrin v. Stein, 206 Ill. App. 339. There being no contention on the part of appellee that the Corn Belt Bank suffered any loss, costs, damages, attorney’s fees, or expense of any kind and nature by reason of liens being filed against the premises described in the bond, on account of improvements made thereon by said Lincoln F. Mostoller, and the stipulated facts having failed to disclose any such loss, the circuit court of McLean county erred in entering judgment against appellant, and said judgment is therefore reversed.

Reversed.


author: Mr. Presiding Justice Wolfe

text:
    The People of the State of Illinois ex rel. Grace Nicholson, Appellee, v. Board of Trustees of the Police Pension Fund of the Village of Hinsdale et al., Appellants.
    Gen. No. 8,949.

      Opinion filed July 30, 1935.
    Rehearing denied September 30, 1935.
    Malcolm Mecartney, of Chicago, for appellants.
    Frank A. McCarthy, Joseph M. Sohaohner and Willard C. Lindsay, all of Chicago, for appellee; Willard C. Lindsay, of Chicago, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal from an order of the circuit court of DuPage county awarding a writ of mandamus against the board of trustees of the police pension fund of the Village of Hinsdale. The parties waived a jury trial and .submitted the issues of fact to the court for decision. The order directs the writ of mandamus to command said board to forthwith pay to relatrix a pension at the-rate of $800 per year, payable in monthly instalments of $66.66 to commence April 29, 1931. The payments shall continue during the lifetime of said relatrix whose name said board shall place on the pension roll of the police pension fund of said village. All these proceedings are in accord with the terms prescribed in the statute governing the police pension fund in cities, villages and incorporated towns having a population of not less than 5,000' and not more than 200,000 inhabitants.

The said board relies upon seven alleged errors for a reversal of the order awarding the writ, the second of which is urged in this court and states that ‘ ‘ There is no competent evidence whatsoever in the record to support the finding of the court that the population of the Village of Hinsdale on January 5, 1926, was 5,732.” To determine this question requires an interpretation of paragraph one of section one of chapter 24 of the amended act of 1909, Cahill’s St. ch. 24, ft 915 (par. 892, ch.-24, Smith-Hurd Rev. St.) which, by an amendment of 1919, provides for a police pension fund in cities, villages and incorporated towns in the State of Illinois having a population of not less than 5,000 and not more than 200,000 inhabitants and reads as follows: “That in all cities, villages and incorporated towns having a population of not less than 5,000 and not more than 200,000 inhabitants, said population to be determined by the United States government statistics, there shall be set apart the following* moneys to constitute a police pension fund.”

The claim of the relatrix as a beneficiary of the pension fund arises out of the following facts which are not disputed by the board: John W. Nicholson, the husband of the relatrix, at the time of his resignation, January 5, 1926, was chief of police of the Village of Hinsdale, and as such a member of the regularly constituted police force of said village. He became a member of said police force in the year 1892 and thereafter continuously remained a member until May, 1908. In May, 1909, he again became a member of said police force and thereafter continuously remained a member thereof in good standing until the day of his resignation, January 5,1926. He was a member of said police force for about 34 years, when he resigned and went to work for the village in a different capacity. He did not make application for a pension. He remained in the employ of the village until the date of his death, March 29, 1931. He was past 64 years of age at the time of his death. The relatrix, after the death of her husband, made proper application to the board for a pension, which was denied by the board on the ground that at the date of the resignation of John W. Nicholson, January 5, 1926, said village did not have a population of 5,000 inhabitants and therefore did not come under the provisions of the statute requiring villages of 5,000 inhabitants and over to establish a fund to pay a pension to policemen or their dependents, when they had served on the force for 20 years or over and had reached the age of 50 years. On April 30, 1934, there was approximately $2,500 in the pension fund of said village. For the year immediately preceding his resignation, John W. Nicholson had received the sum of $1,600 per annum as his pay as chief of police of the village.

The court further found, as a matter of fact, “that in the year 1926, on January 5th, the population of the Village of Hinsdale was five thousand seven hundred and thirty-two. ’ ’ The second alleged error relied upon by the board for a reversal of the order granting the writ is directed at this finding of fact made by the trial judge.

The Village of Hinsdale did not have a policemen’s pension fnnd and a board of trustees of such fund until October 18, 1932, after it had been determined by the United States decennial census of 1930 that the village had a population of 6,923 on April 1, 1930. There is no federal census prior to the decennial census of 1930, stating that the population of the said village was 5,000 or more.

It is conceded by counsel that in order to establish the right of the relatrix as a beneficiary of the police pension fund as provided by statute, it was incumbent upon her to prove that on January 5, 1926, the date when John W. Nicholson resigned as policeman, the village had a population of not less than 5,000 inhabitants, “said population to be determined by the United States government statistics,” according to the meaning and intent of the statute.

It is the contention of the relatrix that to prove the population of Hinsdale as of January 5, 1926, she was not confined to the decennial census taken by the United States Government in 1920; that by the words of the statute, ‘ ‘ determined by the United States government statistics,” the published reports of the United States Census Bureau, supplemented by informal reports of such special census as have been taken, supplemented also by unpublished figures that can be taken from the existing tabulations, are competent evidence to prove the population of Hinsdale on January 5, 1926. The relatrix introduced in evidence Bulletin 138 published by the United States Department of Commerce, which has jurisdiction over the United States Census Bureau, and which the relatrix insists is a part of the United States government statistics. She urges that the method used by employees of the census bureau in compiling the bulletin to estimate the population of the United States, the states, the territories and the cities between the decennial census, should be adopted by this court as in strict compliance with the provisions of the policemen’s pension fund act. This method of estimating population will hereafter appear from the depositions of two employees of the census bureau. To prevent confusion and to present this contention of the relatrix in its single aspect, we digress at this point to say that Bulletin 138 was printed in 1918 and it does not contain any estimate of the population of Hinsdale at any time, being confined to cities having 8,000 or more population on July 1, for the years 1910 to 1917 inclusive. There are no informal reports of a special federal census of Hinsdale at any time; nor any unpublished figures in the form of United States statistics that can be taken from existing tabulations of the United States Census Bureau which show the population of Hinsdale- on January 5, 1926. The contention of relatrix in this behalf rests upon the premise that as the United States Census Bureau employs a method by which the population of cities is estimated between the decennial census by using the decennial census as a factor, this court should adopt that method and thereby determine the population of Hinsdale to have been over 5,000 inhabitants on January 5, 1926, in accordanee with the words of the statute, “determined by the United States government statistics.”

The population of Hinsdale as shown by the Federal Decennial Census of 1910, 1920 and 1930, respectively, and the dates as of which such enumerations were made are: April 15, 1910, 2,451; January 1, 1920, 4,042; April 1, 1930, 6,923.

The following evidence was introduced by the relatrix over the objection of the board: The depositions of Dr. Leon Truesdell and Clarence E. Batschelet, employed as statistician and geographer respectively in the federal census bureau.

Dr. Truesdell and Mr. Batschelet both testified that there were not in existence in the year 1926 any United States Government statistics by which the population of the Village of Hinsdale could have been determined as of that date, other than the Decennial Census of 1920 and prior censuses; that there are not in existence any United States Government statistics which record the population of Hinsdale as of any date between the taking of the 1920 and 1930 Federal Censuses; that neither they nor the Bureau of the Census have ever determined the population of the Village of Hinsdale as of January 5, 1926, or as of any other dates except the dates upon which the federal decennial censuses were taken; and that no federal census prior to that of 1930 showed the population of Hinsdale to be 5,000 or more inhabitants.

Mr. Batschelet further testified that while he could not determine the population of Hinsdale as of January 5, 1926, by the United States Government statistics, he could make an estimate of such population based upon the assumption that the population of the village increased in even annual amounts at. the average annual rate indicated either by the 1920 and 1930 federal censuses (called an intercensal estimate), or by the 1910 and 1920 federal censuses (termed a post census estimate). By this method Mr. Batschelet (on March 8, 1934) made an intercensal estimate of the population of Hinsdale as of January 5, 1926, by computing the average annual increase in the population of the village from the respective dates of the taking of the 1920 and 1930 censuses and applying such average to the period from the date of the taking of the 1920 census to January 5, 1926, and by then adding such estimated increase for that period to the 1920 census figure. On this basis Mr. Batschelet estimated the population of Hinsdale to have been 5,732 on January 5, 1926.

Hr. Batschelet further testified that if an estimate of the population of Hinsdale as of January 5, 1926, were to have been made prior to the return of the 1930 federal census but subsequently to the 1920 census, such estimate would have to have been computed by determining the average annual increase in the population of the village from the respective dates of the taking of the 1910 and 1920 censuses, and applying such average to the period from the date of the taking of the 1920 census to January 5,1926, and by then adding such estimated increase for that period to the population as determined by the 1920 census. Estimating the population of Hinsdale as of January 5, 1926, by this method on the basis of the 1910 and 1920 censuses, such estimated population was 4,864. Hr. Geo. E. Euchty testified that he was a resident of Hinsdale and had lived in Fullersburg nearly all of his life, and lived there at the time it was annexed to Hinsdale; that he was 67 years of age; that during the period from 1920 to 1929 the Village of Hinsdale had grown in population somewhat more than previously thereto; that the village has never had any great influx; it has never been a boom town; but as to just how much the growth had been he could not tell, except to say that there was a natural and steady growth between the years 1920 and 1930, more or less; and that he could not tell whether between the years 1920 and 1930 there was any one or two particular years that had a larger increase than any other years.

It was stipulated (subject to respondents’ objections as to competency, relevancy and materiality) that during the intervening period from the date of the taking of the 1920 federal census to January 5, 1926, there were four annexations to the Village of Hinsdale. Mr. Batschelet testified that there are no statistics in possession of the government showing the number of inhabitants residing within any territory annexed to the Village of Hinsdale since the 1920 decennial census.

As a matter of common knowledge it is usually and generally understood that the population of a country or a section thereof is determined by an enumeration or census of its inhabitants. It has been judicially decided that if a statute classifies cities or counties according to population for the purpose of exercising governmental authority or power, and the statute does not prescribe by what method the population is to be determined, an official census is the only basis for the classification. Town of Maysville v. Smith, 132 Ga. 316, 64 S. E. 131; In re Assessment, etc., City of Passaic, 54 N. J. L. 156, 23 Atl. 517; State v. Brooks, 58 Wash. 648, 109 Pac. 211; Adams v. Elwood, 176 N. Y. 106, 68 N. E. 126. This court does not pass upon the question of the constitutionality of statutes; however, as pertinent to the construction of the statute now under consideration, it may be broadly stated that statutes which are applicable to cities of a certain classification as determined by their populations are general and not special legislation, and are valid. When the legislature enacted the Policemen’s Pension Fund Act and made it applicable to cities and villages having a population of not less than 5,000 and not more than 200,000 inhabitants, it was dealing with a subject where accuracy and dependability are essential, and the legislature intended to state a method of determining the population of cities and villages which is official, definite and dependable. The statute should be given such a construction.

The words of the statute, “the population to be determined by the United States government statistics,” standing alone, are vague and uncertain. The word “statistics,” we are of the opinion, must be held to mean figures or numbers, facts, ascertained by an official enumeration or a government census.

We do not find any cases where the exercise of governmental powers is dependent upon population in which it is not held that population is to be determined by an official census. We are of the opinion that it is a safe and sound proposition to hold that if the legislature grants the right to exercise governmental functions to cities and villages having a requisite number of inhabitants, and the method of determining such number of inhabitants, or population, is not clearly fixed or pointed out in the empowering statute, then the population is to be determined by a method which has been adopted as a policy by the State. This must have been in the minds of the lawmakers when the statute under consideration was adopted. The meaning of words of the statute being uncertain and the policy of the State to be ascertained, we are not confined to the exact words of the statute. Under the established rules of statutory construction we consider other statutes which are not only in pari materia but also those which are upon cognate subjects. People v. Barnett, 319 Ill. 403.

The Policemen’s Pension Fund Act empowers cities and villages, having the requisite populations, to set aside moneys to constitute a police pension fund; which comprises three-fourths of all money received for licenses upon dogs; all moneys received for special detail of police officers; 10 per cent of all fines collected for violation of city ordinances. . . . Also, “The city council or board of trustees of any such city, village or incorporated town shall levy a tax annually of three-twentieths of a mill on the dollar on all taxable property of such city, village or incorporated town,” etc. Cahill’s St. ch. 24, fí 915 (sec. 890, ch. 24, Smith-Hurd Rev. St.). The Village of Hinsdale is incorporated under the provisions of the general Incorporation Act providing for the incorporation of cities and villages. The general Incorporation Act is the charter of the village. The Policemen’s Pension Fund Act is an amendment and a part of the charter of the Village of Hinsdale. L’Hote v. Village of Milford, 212 Ill. 418, 421; People v. Wright, 70 Ill. 388; People v. Briggs, 50 N. Y. 553. Cahill’s St. ch. 24, ¶ 242 (ch. 24, section 136, Smith-Hurd Ill. Rev. St. of the general Incorporation Act) providing for the incorporation of cities and villages provides as follows: “Whenever in this act any provision thereof is based upon the number of inhabitants, (the number of inhabitants) of the city or village shall be determined by reference to the latest census taken by authority of the United States or this State, or of such city or village; and it shall be the duty of the secretary of state, upon the publication of any State or United States census, to certify to each city or village the number of inhabitants, as shown by such census. Any city or village may, by ordinance, provide for the taking of a census of the population thereof, in order to determine the number of such population for any and all purposes of this act. And the several courts in this State shall take judicial notice of the population of any city or village, as the same may appear from the latest Federal, State, city or village census so taken.”

There are many statutory acts which by their provisions are applicable only to cities and villages having the number of inhabitants as designated in the acts and which do not state or indicate the method by which the populations of such cities and villages are to be determined. “Classification with reference to population is of frequent occurrence in legislation. ’ ’ Mathews v. City of Chicago, 342 Ill. 120, 129. If the provisions of these acts are not construed with the general Incorporation Act providing for the incorporation of cities and villages (the charter of the city or village), there is no method which the State has adopted to determine the populations of cities and villages of the State. The meaning of a statute is not determined by judicial flat, but the legislative intent is to be found if possible in the existing statutes. We are of the opinion that the State has adopted as a policy a method of determining the populations of cities and villages as prescribed in the said general Incorporation Act. Construing said general Incorporation Act and the Policemen’s Pension Fund Act, together, we have come to the conclusion, and so decide, that by the words of the statute, “the population to be determined by the United States government statistics” mean “determined by reference to the latest census taken by authority of the United States.” (Town of Maysville v. Smith, supra.)

We are also of the opinion that estimates of the populations of cities of the country, although made by employees of the United States Census Bureau, and published in tabulated form by the United States Department of Commerce, are not statistics. In the case of State v. Brooks, supra, the report of the “Bureau of Statistics Agriculture and Immigration” of the State of Washington, published in 1907, was offered in evidence to prove that the population of the town of Puyallup had been officially determined to be more than 5,000 in 1908. The court in that case said: “While it may be desirable for the bureau, in its report, to give estimates of the population, of the state, its counties, cities, etc., together with other general information, such estimates do not amount to an official determination of population.”

The contention of the relatrix that the population of Hinsdale "exceeded 5,000 inhabitants on January 5, 1926, rests upon an estimate of the population of the village on that date. The estimate is based upon a computation which assumes an increase in population-of the village from the date of the United States census of 1920 to Jan. 5, 1926, at the rate of the average increase in population as shown by the United States census of 1920 to 1930. This is speculative as it was possible for the increase of population of Hinsdale as shown by such census of 1920 and 1930 to have all occurred subsequent to January 5, 1926.

The order awarding the writ of mandamus is reversed for the reason herein stated.

Reversed.


text:
    George Cosgrove, Plaintiff in Error, v. Highway Commissioner of the Town of Rockville, Defendant in Error.
    Gen. No. 8,831.
    Opinion filed August 14, 1935.
    Rehearing denied September 30, 1935.

      Samuel W. King, for plaintiff in error.
    Eva L. Minor, of Kankakee, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On September 23,1929, in the circuit court of Kankakee county, George Cosgrove, the plaintiff, started suit against- the highway commissioner of the town of Rockville in said county. The action is an assumpsit suit to recover for labor, services and materials furnished by the plaintiff to the defendant. The bill of particulars filed by the plaintiff stated that the amount sued for was the balance due the plaintiff on a contract in writing entered into on Oct. 21, 1921, for the building of a hard road; that the contract price was $4,200; that the same had been approved by the county superintendent of highways; that the plaintiff had performed the work which has been fully accepted by the defendant; that warrants and orders were duly issued by the defendant to the plaintiff for the amount due on the contract; that payments were made from time to time and new orders issued by the defendant for the balance remaining due on the contract; that on Aug. 8, 1927, the remaining amount due the plaintiff from the defendant was $2,000 and as evidence thereof, the treasurer delivered to the plaintiff its order No. 322; that this order is drawn on the treasurer of the town of Rockville and directs -him to pay to the order of Peotone Citizens State Bank the sum of $2,000. This order is signed by the commissioner of highways, Lewis Lamore, and by J. B. Shreffler, town clerk. It recites that it is due July 19, 1928.

The defendant pleaded the general issue and seven special pleas. The plaintiff joined issue on the first plea and filed replications to the special pleas. After the issues were made and a jury waived the cause was heard by the court on July 14, 1932. The court found the issues for the defendant and entered judgment in bar of the action, and assessed the costs against the plaintiff. From that judgment an appeal was prayed to this court but never perfected. On July 13, 1934, the plaintiff sued out of this court a writ of error and the record thereof was filed herein on Sept. 8,1934. On motion of the defendant in error during our February term, this court, on March 18, 1935, dismissed the writ of error because no final judgment had been rendered by the trial court. On May 6, 1935, the order dismissing the writ of error was vacated. On May 24, 1935, the plaintiff in error filed in this court his suggestion of a diminution of the record, and entered a motion for leave to file an additional record herein. Objections to this suggestion and motion were filed by the defendant in error, which were taken with the case.

From the additional records it appears that on May 20, 1935, the plaintiff, having given notice to the defendant in error, made a motion in the circuit court of Kankakee county for an order directing the clerk of that court to enter a final judgment nunc pro tunc as of July 14,1932. This was done and a proper judgment entered and the supplemental or additional transcript of the record has been certified to this court by the clerk of the circuit court of Kankakee county. We are of the opinion that the motion to file the additional record should be allowed and should be filed as of September 8, 1934, the same being the date that the original record was filed herein. It is the law that a judgment is rendered by the court at the time it makes its pronouncement and does not depend upon the action of clerk either in recording or expanding the minutes of the judge. The additional record certified to this court shows that the judge on July 14 rendered a judgment against the plaintiff in error and the same became binding from that date. People v. Petit, 266 Ill. 628.

On September 4, 1920, the citizens of the town of Rockville voted under sections 108 and 109 of the Roads and Bridges Act, Cahill’s St. ch. 121, 117,118, to levy special taxes of 66 2/3 cents per $100 assessed valuation of all taxable property in that town for the purpose of constructing some seven miles of a nine-foót macadam road over certain described highways. On the same day they also voted in accordance with the provision of section 112 of said act, Cahill’s St. ch. 121, ÍI121, to issue bonds for road purposes to the amount of $22,000 for building the same nine-foot macadam roads. The contract in evidence between the plaintiff and the defendant in error, on Oct. 21, 1921, provided for the construction of a part of the roads for the payment of which the bonds had been issued and the special tax levied. The plaintiff in error completed his work as required by the contract in July or August, 1922. This suit was commenced on September 23,1929. It is claimed by the defendant in error that all of the money provided by the taxpayers for the building of these hard roads had been paid out by the highway commissioner prior to the commencement of the suit.

It is not disputed by the defendant in error that the plaintiff had fully completed his part of the contract nor that the defendant has received the benefit of his work and material, but they say in their brief, “The question before the court is, is the Highway Commissioner of the Town of Rockville, a corporation, liable to pay the plaintiff in error for the construction of these hard roads out of the general road and bridge fund, or was the plaintiff in error bound to receive payment out of the permanent road fund provided by the taxpayers for that purpose?”

Our courts have frequently held that highway commissioners have no powers except those conferred by statute and they can perform no acts nor impose any burdens except those plainly authorized by the statutes. When they undertake to perform any act that the statute does not say they may do, that act will be void. People v. Hedges, 289 Ill. 378; Ohio & M. Ry. Co. v. People, 123 Ill. 648. It is conceded that the township had authority to enter into the contract in question and that the same was a legal and valid one.

When the town of Rockville voted to issue bonds for the construction of these hard roads and sold the bonds that created the fund known as the permanent or hard road fund, it became a separate and distinct fund from the general road and bridge fund. We so held in the case of Town of Ganeer v. Cleary, 280 Ill. App. 34. In the Third District in the case of Town of Dry Grove v. Otto, 266 Ill. App. 234, the Appellate Court in discussing whether the town treasurer, whom it was conceded was entitled to a commission for the collection and distribution of the permanent hard road fund, could pay himself out of the general or common road and bridge fund says, “It must be conceded that the permanent road fund and the common road and bridge fund are separate and distinct funds. . . . It is unquestionably the law that public funds acquired by taxation or otherwise for one specific purpose cannot be paid out of a tax fund levied for another purpose. ’ ’

The record shows in this case that after the completion of the contract in question the defendant in 1922 issued to the plaintiff a voucher, which on its face showed that it was to be paid out of the hard road fund as payment in full on the contract. This voucher was never paid, but other vouchers were issued each year for the amount that remained due under the original contract. It is conceded by the plaintiff in error that all subsequent orders after the 1922 order were void because the commissioner of highway had no authority to issue such vouchers. It is our opinion that, when the plaintiff accepted the voucher in 1922 in full payment of his contract and the voucher was drawn on the hard road fund in the hands of-the treasurer of the town of Rockville, he accepted that voucher in payment for his contract and was bound to look to the funds designated as hard road or permanent road fund in the hands of the treasurer for payment.

The plaintiff in error insists that this court in a similar case of First Nat. Bank of Braidwood v. Highway Com’r of Rockville, 270 Ill. App. 638 (Abst.), held that the township was bound to pay the amount remaining due because they had accepted the work and the material from the contractor and were bound by the contract. An examination of that opinion discloses that the questions of defense raised in the case we are now considering were not raised in the Braidwood case. It is stated in the Braidwood opinion, “that the defendant by its various pleas, to which a demurrer was not sustained, contends first: that it was not indebted to the plaintiff; second, that the five years statutory limitation applies; and third, that there was no money in its treasury or taxes levied to pay such warrant at the time the contract herein referred to was made.”

It will be observed that the town of Rockville in its present brief has not argued that the statute of limitation applies, nor that there was no money in its treasury or no tax levied to pay such warrant at the time the contract was made. They specifically state that there was money in the treasury sufficient to pay the defendant at the time the contract was made, and insist that he was bound to look to that fund to pay for his work. We see nothing in the Braidwood case that is inconsistent with the defense in this case.

The appellant contends that the defendant cannot raise the defense of payment since they did not plead the same. The appellee replies that they can show payment under a plea of general issue. This court in the case of Surface v. Chicago, M. & St. P. R. Co., 191 Ill. App. 261, held that the general rule is that payment may be pleaded specially, or proven under the general issue. To the same effect is the case of O’Brien v. O’Brien, 75 Ill. App. 263. Proof of payment was proper under the pleas in this case.

We have examined the cases cited by the appellant but find that the defense raised in the present case was not in any of these cited. The principal question in the cited cases is whether there were funds available to pay for the contract when the township had accepted its benefits. We find no reversible error in the case and the judgment of the circuit court is hereby affirmed.

Judgment affirmed.


text:
    Roberts Mann and E. C. Curtiss, Appellees, v. Downers Grove Sanitary District, Appellant.
    Gen. No. 8,922.

      Opinion filed August 14, 1935.
    Rehearing denied September 30, 1935.
    Daniel S. Wentworth and Egbert F. Dewey, both of Chicago, for appellant.
    Bunge & Bunge, of Downers Grove, for appellees; Gustav H. Bunge, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellees, in a trial without a jury, secured a judgment in the circuit court of DuPage county for $5,000 against the appellant as compensation for their services as commissioners in a special assessment proceeding filed and prosecuted by the appellant in the county court of that county. The purpose of the appeal is to determine whether the judgment should or should not be affirmed by this court. It will be necessary to refer to former cases involving the special assessment proceedings wherein the appellees were appointed commissioners, which were tried both in onr Supreme and this court. However, the purpose of this appeal should be borne in mind. References to the former cases are historical of the action at bar.

The appellant (hereinafter referred to as the district) is a municipal corporation organized under the Sanitary Districts and Sewage Act, approved June 22, 1917, Cahill’s St. ch. 42, If 316 et seq. (Smith-Hurd Rev. St. ch. 42). Section 19 of the act, Cahill’s St. ch. 42, If 334(1), provides that proceedings for making, levying and collecting special assessment by the district, shall be made as nearly as possible as prescribed in the act commonly known as “The Local Improvement Act.”

A proceeding to levy special assessments against the lands in the district was instituted in the county court of DuPage county on May 21,1928, by the district filing a petition for the levying of such assessments in pursu- ■ anee of an ordinance passed by the district and known as ordinance No. 19-A. The court proceeding, under this ordinance, was designated in the county court as special proceeding No. 19. The ordinance provided for the construction of a plant for the purification and treatment of sewage and for an outlet sewer and for the condemnation of private property to be taken, all of which was at an estimated cost of $675,000.

On the day the petition was filed, the county court signed an order appointing’ the appellees as commissioners to act with the president of the district in investigating and reporting to the court the just compensation to be made to the respective owners of private property taken or damaged by the proposed improvement; also to act in investigating and reporting what property would be benefited by the improvement and the amount of benefit to each parcel of land. The order provided; “It is further ordered and adjudged by the court that there shall be allowed to said commissioners the sum of $2,500.00 each as just and proper fee for their services in this behalf, which said sum shall be taxed as costs and included in the amount to be assessed herein. This order was in conformity to ordinance No. 19-A which provided that the cost of making and levying the assessments be paid by special assessment. This order was also in conformity with section 14, ch. 24, ft 136, Cahill’s Ill. Rev. St., which provides that commissioners under the Local Improvement Act “shall be allowed a fee for their services which shall be fixed by the court in advance, and the amounts so allowed may be reviewed by the court upon motion, and may be taxed as costs and included in the amount to be assessed.” The appellees as such com-, missioners took their oath of office and on August 6, 1928, filed their report and assessment roll. On June 28, 1929, legal objections to assessment No. 19 were sustained by the county court and the proceeding was dismissed. On June 29, 1929, the district adopted ordinance No. 26-A which repealed ordinance No. 19-A and provided for the construction of an improvement substantially the same as that called for in ordinance No. 19-A. Also on August 12, 1929, the district filed its petition in the county court of DuPage county for the levying of special assessments as provided in ordinance No. 26-A. This proceeding in the county court was designated as special assessment proceeding No. 26. In conformity with ordinance No. 26-A and the statute aforesaid, the county court rendered an order similar to the one entered in special assessment proceeding No. 19 appointing the appellees commissioners and fixing their fees at $2,500 each. Special assessment proceeding No. 26 is undisposed of in the county court of DuPage county and the order fixing appellees’ fees in that proceeding is still subject to review by that court as provided by statute.

The appellees made a motion in the county court of DuPage county to tax as costs their fees as commissioners in special assessment proceeding No. 19 pursuant to the order of that court made on May 21, 1928, fixing their fee at $2,500 each. On May 29, 1930, said county court entered an order which recites, “That this court no longer has jurisdiction of the said cause, nor of the res, nor parties, and the aforesaid motion on behalf of the said commissioners, is therefore denied.”

On October 12, 1929, the district issued its vouchers Nos. 14 and 17. Voucher No. 14 directed the treasurer of the district to pay to the order of Roberts Mann (one of the appellees) $2,500, with interest, from the funds realized for the collection of the first instalment of special assessments levied in special assessment proceeding No. 26, or out of any other fund or funds not otherwise appropriated and available for that purpose. The voucher recites, “This voucher is given on account of services rendered as commissioner, by order of court, in Special Assessment No. 19, in connection with the improvement for which the above mentioned Special Assessment was levied.” Voucher No. 17 is similar to voucher No. 14, except that it is for $500 payable to E. O. Curtiss (one of the appellees herein), and it recites that it is given on account of services rendered as commissioner in special assessments Nos. 19 and 26.

On June 4, 1930, the appellees filed in the circuit court of DuPage county their petition for a writ of mandamus wherein it was alleged that by force of the statute in such case made and provided, the fees allowed the appellees as such commissioners, by the orders of the county court of DuPage county, became due and payable out of the general fund of the district and that the district had no funds with which to pay said judgments; wherefore the petitioners pray for a writ of mandamus directed to the trustees of the district commanding them to appropriate and levy on all of the taxable property in the district, as equalized for State and county purposes, a sufficient amount of money to satisfy said judgments. The writ was ordered by the circuit court, and on appeal the judgment was reversed and the cause remanded by this court. (Mann v. Downers Grove Sanitary Dist., 266 Ill. App. 526.)

In the circuit court of DuPage county, after the decision in 266 Ill. App. 526, the appellees amended their petition for a writ of mandamus by changing the form of the action to assumpsit, and, as before stated, they obtained a judgment against the district for .$5,000 as compensation for their services as commissioners in special assessment No. 19. The appellees introduced in evidence in this case the order of the county court of DuPage county appointing the appellees commissioners and fixing their fees at $2,500 each in special assessment proceeding No. 19; no evidence was introduced showing the value of the services rendered and performed by the appellees as such commissioners, other than the order of the said county court!

In the mandamus case (266 Ill. App. 526) the action was submitted on questions of law on the pleadings. The answer in that case set out ordinance No. 19-A and it was alleged that the ordinance was ultra vires of the district and void. If the ordinance was ultra vires no rights could arise under it. (Steenberg v. People, 164 Ill. 478.) In the case of Bunge v. Downers Grove Sanitary Dist., 356 Ill. 531, decided after 266 Ill. App. 526, it is held that ordinance No. 19-A was not ultra vires. In the case at bar it is not contended that ordinance No. 19-A is void because the district had not power to pass such an ordinance; however, it is now contended by the district that the ordinance was invalid and void on other grounds.

As before stated, in the county court legal objections were made by landowners in the district to the validity of ordinance No. 19-A in special assessment No. 19. The order of the county court sustaining some of the objections has been introduced in evidence in this case now before the court. The county court held that there was a variance between the estimate, the ordinance and the plans. The order states: ‘ ‘ The court is of the opinion that these variances are substantial, and are substantial to such an extent as to make the ordinance void.” The county court dismissed the petition.

It is contended by the district that the ordinance being void, the county court had no jurisdiction of special proceeding No. 19, and such being the case the order appointing the appellees as commissioners and fixing their fees is a nullity and that the order of the county court dismissing the petition annulled the order appointing appellees as commissioners and fixing their fees.

From the order of the county court holding the ordinance void for the reasons stated there was no appeal and it is res adjudicata on the question of the partial invalidity of ordinance No. 19-A. Woodward v. Ruel, 355 Ill. 163. However, it does not follow that because the county court held the ordinance void or invalid, all orders entered by the county court in special assessment proceeding No. 19 were a nullity. It is to be borne in mind that the ordinance was not ultra vires but one which the district had power to enact, and the petition for the improvement filed in the county court gave that court jurisdiction to pass on the question whether it was invalid because there was a material variance between the ordinance and the estimate. Otherwise there would be no valid judgment determining that question. If it should be said without qualification that a void or invalid ordinance prevents county courts from obtaining jurisdiction in special assessment proceedings, there would be no court with power to pass on the validity of the ordinance. The validity of an ordinance because of some inherent defect must' be judicially determined before it can be known whether it is valid or invalid. 6 ‘ The word ‘void’ is used in varied meanings and applied indifferently to a thing which has no legal force or effect and is an absolute nullity, and to that which, by reason of some inherent vice or defect, may be adjudged void by a court when the question is presented to it.” (Sumner v. Village of Milford, 214 Ill. 388, 395.) See also City of Lincoln v. Harts, 256 Ill. 253. We now call attention to the case of People v. Brown, 218 Ill. 375, and first state that an objection to an application for judg’ment against land for delinquent assessments because of the insufficiency of the ordinance, under which they were made, is a collateral attack on the judgment of confirmation of them: (People v. Lingle, 165 Ill. 65.) In the case of People v. Brown, supra, a landowner objected to the application for judgment and order of sale of his land because of delinquent special assessments against it. In that case one of the objections was that the ordinances were void for uncertainty and indefiniteness, since they did not sufficiently set forth the nature, character, location and description of the improvement therein proposed to be made. The Supreme Court, in that case, held that the judgment of confirmation. could not be thus attacked except for matters affecting the jurisdiction of the county court rendering the judgment of confirmation, and that the objection to the insufficiency of the ordinance was not of that character, and was one that must be determined in the proceeding to confirm the special assessment. In the Brown case the Supreme Court says: “In the case of Perry v. People, 206 Ill. 334, this court held that an objection to a petition for the confirmation of a special assessment on the ground that the ordinance under which the assessment was made failed to specify the width of the street to be paved should be sustained. but that when an objection was made on that ground to the application of the collector for judgment it cannot be considered. It was there said in discussing the question whether the omission in the ordinance rendered it void and deprived the court of jurisdiction: ‘An ordinance which does not attempt to comply with the requirements of the statute that it shall contain the description of the improvement is a nullity. If an ordinance on which an application for a judgment of confirmation is based contains sufficient allegations descriptive of the proposed improvement to challenge the attention of the court, jurisdiction attaches in the court to judicially determine as to the legal sufficiency of the description, and the decision and judgment of the court thereon, however erroneous, is not void, nor can it be attacked as for error in a collateral proceeding, ’ ” In this case now at bar, the ordinance not being ultra vires, we do not think that it can be said that the county court of DuPage county did not have jurisdiction of special assessment proceeding No. 19 in which the order was entered appointing the appellees as commissioners and fixing their fees. The ordinance was not absolutely void. City of Lincoln v. Harts, supra. In other words, that order cannot be collaterally attacked in this case on the ground that the county court did not have jurisdiction. Sumner v. Village of Milford, 214 Ill. 386, explaining City of Chicago v. Nodeck, 202 Ill. 257; People v. Brown, supra; Bunge v. Downers Grove Sanitary Dist., 356 Ill. 531; Mann v. Downers Grove Sanitary Dist., 266 Ill. App. 526; People v. Kaul, 302 Ill. 317..

As above stated it is contended by counsel for the district that the order of the county court of DuPage county dismissing the special proceeding No. 19 because of the insufficiency of the ordinance annulled what was done by that court in that proceeding. The district relies on the statement in the case of Bass v. City of Chicago, 195 Ill. 109, which is quoted from the case of Loeb v. Willis, 100 N. Y. 235, and is as follows: “By discontinuance of an action further proceedings in the actions are arrested not only, but what was done therein is also annulled, so that the action is as if it had never been.” In our opinion the expenses of assessing and levying special assessments under the Local Improvement Act are part of the costs of that proceeding. Those expenses are assessed against the lots and parcels of land which will be benefited by the improvement; they are so assessed as costs and not as benefits. Rielter v. City of Danville, 204 Ill. 191; Kimble v. City of Peoria, 140 Ill. 157; Gray v. City of Joliet, 287 Ill. 280. Section 14 of the Local Improvements Act, Cahill’s St. ch. 24, 136. If such expenses are not collected from the special assessments because the proceeding is terminated, they must be paid from the general fund of the municipality which is the petitioner in the proceeding. Bunge v. Downers GrovSanitary Dist., 356 Ill. 531; Mann v. Downers Grove Sanitary Dist., 266 Ill. App. 526. The proviso in section 94 of the Local Improvements Act, Cahill’s St. ch. 24, U 226, does not apply in this case. The county court of DuPage county had jurisdiction to render the order appointing the appellees as commissioners in special assessment proceeding No. 19 and to fix their fees in advance. The appellees, as such commissioners, performed the services required as provided by the order. We do not think that it is equitable or just either to the district or the appellees that a recovery for their services should rest upon an action of quantum meruit on a trial of which such fees might be increased or reduced from the amount fixed in the order. The order of the county court dismissing special proceeding No. 19 did not abrogate the order appointing the appellees commissioners and fixing their fees as part of the costs of the proceeding. The order became final upon dismissal of the proceeding and fixed the amount due the appellees for their services as such commissioners. Bond v. City of Hoopeston, 168 Ill. App. 617. Assumpsit was a proper action to recover such fees. German-American Sav., Loan & Bldg. Ass’n v. Trainor, 293 Ill. 483.

It is also contended by the district that the appellees waived one-half of their fees as such commissioners. This contention rests upon the voluntary reduction of appellees’ fees in the mandamus action above referred to. In the mandamus case the appellees consented to a one-half reduction of their fees in special assessment proceedings Nos. 19 and 26, but it was expressly stipulated by them that the value of the services rendered as such commissioners was not in issue and that they did not waive any rights or defenses which they might have in any other proceeding thereafter instituted by them for the recovery for services' rendered as such commissioners The compromise offered by the appellees was to accept $5,000 in full for their services as commissioners in proceedings both No. 19 and 26. (Vide, Mann v. Downers Grove Sanitary Dist., 266 Ill. App. 526.) The offer has never been accepted by the district, but the right of the appellees to any compensation has been, and still is, being contested by the district. The appellees have not waived any part of the fees fixed in the order the county court of DuPage county, entered in special assessment No. 19.

It is also contended that the circuit court erred in permitting the appellees to amend the mandamus petition by changing the action from mandamus to assumpsit after the case was reversed and remanded by this court. The purpose of the mandamus suit and the action of assumpsit are the same, namely, the recovery of the fees of the appellees. The circuit court did not err in allowing’ the amendment. Knight v. Village of Thompsonville, 74 Ill. App. 550; Brauer v. Laughlin, 211 Ill. App. 534. This court did not pass upon the question of the validity of the order appointing the appellees as commissioners nor in fixing their fees. That judgment is not res adjudicata of the issues in this case now on appeal.

As before stated, the district issued to appellees its vouchers Nos. 14 and 17 purporting to be in part payment for the expenses of assessing and levying the special assessments in proceedings Nos. 19 and 26. After the vouchers were issued new trustees for the district were elected. They repudiated the vouchers and gave notice that the district would not pay them. It is contended by the district that the vouchers were accepted by the appellees as payment of their fees as such commissioners and this bars a recovery in this case. We think the contention is without merit.

There was introduced in evidence in this case what is designated as ‘ Claim of Interest. ’ ’ It was filed by Charles F. Knapp'as receiver of the First National Bank of Downers Grove, and states that E. C. Curtiss (one of the appellees) is indebted to said receiver on three promissory notes, dated 1931, and due four months after date and that said receiver is holding as a part of the assets of said bank voucher No. 17 for $500. It further states “That on May 21, 1931, said E. C. Curtiss executed an assignment to the said The First National Bank of Downers Grove, of all of his right, title and interest in and to any anticipation warrants due from the Downers Grove Sanitary District in the amount of Twenty-five Hundred Dollars ($2500.00) or more, and that under date of March 17, 1932, said Receiver notified said Downers Grove Sanitary District of said assignment, which notice was acknowledged by the Treasurer of said Downers Grove Sanitary District by letter dated March 23,1932. That under date of July 9, 1934, counsel for said Receiver notified said Downers Grove Sanitary District that said receiver claimed a first and prior lien on all moneys which were then due or might become due to E. C. Curtiss on said Voucher No. 17, and upon any and all other moneys which may be due said E. C. Curtiss from Downers Grove Sanitary District as commissioner’s fees in special assessment proceedings Nos. 19 and 26, which notice was acknowledged by counsel for said Downers Grove Sanitary District by letter dated July 13, 1934.” The petition for a writ of mandamus was filed in the circuit court of DuPage county on June 4, 1930, and the assignment was made pendente lite. The action was properly continued by and in the name of the appellees. Moore v. Jenks, 173 Illl. 157; Phillips v. Wilson, 25 Ill. App. 427.

There was also introduced in evidence in this case a letter from The Security National Bank of Downers Grove, dated July 12, 1932, directed to the district, stating that the bank held for collection voucher No. 14 duly indorsed by Roberts Mann (one of the appellees herein) to the bank. The payment of the voucher was demanded in the letter.

The trial court properly found that the defendant was justly indebted to the plaintiff but the obligation rights of the district, the rights of the assignee banks, and of the appellees, relative to the fees due the appellees from the district, should be protected by the judgment of the circuit court. The case is remanded to the circuit court of DuPage county with directions to amend its judgment by inserting therein “that all payments made in satisfaction of said judgment, or any part thereof, be paid into said court subject to the further order of said circuit court.” Northeastern Coal Co. v. Tyrrell, 133 Ill. App. 472; Phillips v. Edsall, 127 Ill. 535; Bingham v. Isham, 227 Ill. 634.

The costs of this appeal to be assessed against the appellant. Remanded with directions to amend judgment.

Remanded with directions.


author: Mr. Justice Huffman

text:
    The People of the State of Illinois ex rel. Gustav H. Bunge et al., Appellees, v. Downers Grove Sanitary District et al., Appellants.
    Gen. No. 8,919.

      Opinion filed August 14, 1935.
    Rehearing denied September 30, 1935.
    Daniel S. Wentworth and Robert F. Dewey, both of Chicago, for appellants.
    Alschuler, Putnam & Johnson, of Aurora, for appellees; Edward F. Streit and William C. O’Brien, both of Aurora, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellees recovered a judgment against appellant district for the sum of $25,000, which judgment was affirmed by the Supreme Court in the case of Bunge v. Downers Grove Sanitary Dist., 356 Ill. 531. Following affirmance of the above judgment, demand was made for the payment thereof. Appellees also appeared before the regular meeting of the board of trustees of appellant district in July, 1934, and demanded payment as aforesaid, or in event no funds were available from which payment could legally be made, that said trustees make proper provision in the appropriation and levy ordinances of appellant district to take care of such judgment. Subsequently, the board of trustees passed the annual appropriation and levy ordinances in which no provision was made for the payment of the aforesaid judgment or any part thereof. Appellees thereupon commenced this action of mandamus to compel the trustees of said district to make payment of the judgment out of funds on hand, or if the same were not then available, that said trustees be ordered to reconvene and take the necessary steps to appropriate and levy a tax for the purpose of paying such judgment.

Appellants filed their answer which set up various grounds of defense, incorporated in 22 paragraphs. On motion of appellees, all of thedef enses were stricken as not constituting a legal defense, except lack of funds and the inability to raise revenue. Appellants also sought to set up “the world-wide depression,” and that a financial emergency existed which called for the most economical, faithful, and diligent management and operation of the district. Appellees took issue on the question whether or not all the revenue which could legally be raised by the district was necessary for the corporate needs thereof, further claiming that the district had not admitted all of its sources of revenue and that it had not exercised its complete authority to raise funds, which it might legally raijse by appropriation and levy. A hearing was had on the issues thus made up, as to whether the district had completely exercised its power to raise revenue, and whether the entire revenue which the district could legally raise was required for current operating expenses. Hearing was had before the circuit court of DuPage county, without jury. The court found that the district had not completely exercised its power to raise revenue and that all of the revenue of the district was not required for current operating needs. An order was entered requiring the board of trustees to reconvene and amend the appropriation and tax levy ordinances for the fiscal year of 1934-1935, so that the tax levy would represent the taxable limit of the district; to include in the appropriation and levy ordinances a provision for the payment of $7,065 to be applied in part payment of the judgment of the appellees; ordering that respondents pay over such sum to appellees when received; and further ordering that a levy should be caused to be made annually to be applied upon appellees ’ judgment. Appellants prosecute this appeal from the order of the court.

The record in this case is voluminous, consisting of some 530 pages. We have carefully examined the same and we find no error existing with reference to the trial court’s ruling on motions, his finding on the facts, or his conclusions under the law.

The president of the board of trustees testified that they were going to avoid payment of this judgment, if possible, because the board was conscientiously of the opinion that the claim was unfair. This witness further stated that the board was doing everything in its power to avoid paying the judgment. The disposition of this cause in no way depends upon the personal opinion of the members of the board of trustees of appellant district. The claim has been reduced to a final judgment, and nothing remains to be done except to pay same. Under the circumstances as they exist in this case, it is the duty of the board of trustees of appellant district to take all steps necessary to make payment of the judgment. People v. City of Chicago, 360 Ill. 25; City of Cairo v. Campbell, 116 Ill. 305, 308, 309; City of Cairo v. Everett, 107 Ill. 75, 78; City of Chicago v. Sansum, 87 Ill. 182; People v. City of Cairo, 50 Ill. 154. An evasion of a duty by a public officer or a legal tribunal, amounting to a virtual refusal to perform the duty, warrants a writ of mandamus, and an inferior tribunal which has sought to evade the performance of a positive official duty while convened, cannot, by adjourning its meeting- sine die, place itself beyond the power of the court to compel by mandamus the performance of the duty enjoined by law which such tribunal has undertaken to defeat by such evasion. Loewenthal v. People, 192 Ill. 222, 231, 232; Board of Supervisors v. People, 226 Ill. 576. Persons charged with the performance of public duties can have no higher duty than the payment of an honest debt reduced to judgment, and it is not discretionary with any such official whether or not he shall so do. People v. Rice, 356 Ill. 373, 377.

The trial court was correct in applying rules applicable to actions at law, to the pleadings in this case. A proceeding for the writ of mandamus is an action at law. The pleadings are governed by the same rules as apply to other actions at law. The defense set up by the answer as a whole must be sufficient. People v. Board of Review, 329 Ill. 388. The answer should deny the facts alleged in the petition or confess and avoid them, averring specifically the facts excusing the conduct of the respondent. People v. Palmer, 356 Ill. 563, 569; People v. Lueders, 287 Ill. 107; Mayor & City Council of Boodhouse v. Briggs, 194 Ill. 435; Taylor v. Filler, 318 Ill. 356; People v. Dixon, 346 Ill. 454; Osborne v. Bradford, 346 Ill. 464.

Appellant district is liable for the judgment for which this petition was filed, and it is the duty of the trustees of such district to make proper appropriations for the payment of same. If they fail in this duty, the courts, upon a proper showing, will grant the relief sought herein. Appellants in this instance seek to avoid the alleged duty by claiming that there is a lack of funds and a lack of taxing power to pay the judgment. The burden is upon the district to establish that it is doing all in its power to liquidate this judgment. Its items of receipts and expenditures should be definite and in detail, so that the court can see that it is not the fault of the district that the judgment is not paid. City of Chicago v. People, 215 Ill. 235, 238, 239; Board of Supervisors v. People, 226 Ill. 576, 583; People v. Rice, 356 Ill. 373, 377.

The judgment of appellees against appellant district is final and is absolutely conclusive in this proceeding as to the right of appellees to receive and the duty of appellants to pay. It is to be presumed that public officers will properly, and fairly discharge their duties. The courts will not anticipate that they will attempt to evade a plain duty. While the statute does not intend that appellant district shall be deprived of sufficient means to meet its ordinary running expenses, neither does it intend that such district shall evade the payment of a legal obligation which has been reduced to final judgment, by an apparent attempt at evading the same by failing to take any steps to provide for the satisfaction thereof. It was the duty of the board of trustees of appellant district to take steps to provide for the payment of this judgment. This duty rested upon them without any affirmative action on the part of appellees. City of Cairo v. Campbell, supra, p. 309.

We are of the opinion as a matter of fact, from the evidence in this record, that the trustees of appellant district did not do all in their power to liquidate this judgment. This is required to be set up and proven by appellant. City of Chicago v. People, supra, pp. 238, 239. We are of the further opinion that the evidence in this case establishes the fact that the trustees did not intend to take any steps for the payment of this judgment. .The evidence regarding* the current operating expenses of the district is uncertain and vague and wholly insufficient to establish the defense contended for by appellants.

The writ was properly allowed, and the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Thomas F. Crull, Appellant, v. Federal Land Bank of St. Louis et al., Appellees.
    Gen. No. 8,929.
    Opinion filed August 14, 1935.
    Rehearing denied September 30, 1935.
    Ryan & Hood, of Rockford, for appellant; Frank M. Ryan, of counsel.

      Kiroher, George & Ransom, of St. Louis, and Smith & Menzimer, of Rockford, for certain appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant prosecutes this appeal from an order of the circuit court of Winnebago county, approving the master’s report of distribution of the proceeds from a sale growing out of a partition of certain lands. No statement of errors relied upon for reversal is made by appellant, as required by the rules. The court of review is entitled to know the specific points upon which an appellant relies for reversal. It is not the duty of such court to become counsel for a party litigant, and upon its own volition to search the record for errors. However, since the only thing about which appellant complains is the application of the proceeds from the sale of the premises, we shall dispose of the case upon that point.

Appellant is one of a number of tenants in common of the land affected by this suit. Appellee was the owner of a mortgage lien upon the premises, which at the time of decree for partition, amounted to the sum of $17,438.09. Appellee was a party defendant to the partition proceedings and appeared and filed its answer, setting up its rights as the holder of the above mortgage indebtedness, alleging that the premises to be partitioned were subject to such indebtedness and that in case of sale thereof, appellee was entitled to be protected upon its said mortgage lien as against all other persons. Decree for partition was entered on March 16, 1934. Appellant was found to be entitled to an undivided one-sixth interest in the premises. The court fixed the interest of the various parties, including that of appellee. The master was unsuccessful in receiving a bid for the lands for two-thirds of the appraised value, at the first sale, and reported to the court that he was unable to make sale of the premises. This report was approved and order entered for a resale thereof on August 21, 1934. That portion of the decree which is concerned by this appeal reads as follows:

“It Is Further Ordered, Adjudged and Decreed, by the Court, that the purchaser at said sale shall be entitled to apply on the purchase price such amount as shall be bid by him up to the sum of Seventeen Thousand Four Hundred Thirty-Eight and Nine Hundredths ($17,438.09) Dollars, with interest thereon at the rate of five and one half (5%) per cent per annum from the 1st day of July, 1934, to the date of sale, being the sum due the Federal Land Bank of St. Louis, the owner and holder of the encumbrances on the premises herein being partitioned; provided that the said purchaser shall be required to pay to the Master in Chancery in cash the amount of the Court costs, expenses of sale and Master’s fees and such sum as shall be bid by him in excess of the amount due to the said Federal Land Bank of St. Louis, on the date of sale. ’ ’

At this sale, the premises were sold to appellee for the sum of $10,000. The master filed his report of sale on September 26, 1934. This report of sale disclosed that appellee was the mortgagee and the purchaser of. the premises, and under the terms of the decree, entitled to apply upon the purchase price the amount of its mortgage to the extent of $17,438.09, except that the costs involved to the amount of $568.95 should be advanced by such purchaser. This report of sale was approved on October 1,1934. On October 18, 1934, the master filed his report of distribution, showing that appellee, as purchaser of the premises, had advanced the above sum of $568.95 costs, and that said master had executed and delivered to appellee as purchaser, a proper conveyance of the premises so sold. Order approving the master’s report of distribution was entered on the said 18th day of October, 1934. No objections appear to have been made on the part of anyone in the court below to the master’s report of sale, nor to the master’s report of distribution, nor to the orders of the court approving same. Appellant, on January 16, 1935, on the ninetieth day following the order of the court approving the master’s report of distribution, filed his notice of appeal herein, to the effect that he would appeal from the order of the trial court approving the report of distribution. Objections to the approval of a master’s report of sale or report of distribution should be raised in the court below, and that court be given an opportunity to consider same. Masters v. Masters, 249 Ill. App. 252, 263, and cases cited.

It is argued by appellant that the master should proceed to collect from appellee the sum of $9,431.05, being the remaining difference between the purchase price for the premises sold, and the $568.95 costs advanced. It is the contention of appellant that appellee bought the premises subject to the outstanding mortgage indebtedness of $17,438.09, and that the only interest in the premises being sold by the master, was the equity of the mortgagors. Under sections 5 and 6 of the Partition Act, Cahill’s St. ch. 106, fifí 5, 6, a mortgagee is a necessary party to a suit in partition. Cheney v. Ricks, 168 Ill. 533. "Where it is found necessary to sell the lands, the court may find the amount due to the mortgagee and order it to be paid out of the distributive fund of the mortgagor in the proceeds of such sale. Spencer v. Wiley, 149 Ill. 56. After due confirmation of master’s report of sale under which no exceptions were filed, evidence cannot be received to show the sale was upon terms and conditions different from those shown by the master’s report, in the absence of any circumstances of fraud, accident, or mistake. Davies v. Gibbs, 174 Ill. 272. Upon approval of a report of sale, the proceeds thereof shall be distributed by the master according to the interests of the parties, as directed by the court. Sec. 31 of the Partition Act, CahilPs St. ch. 106, fl 31.

Appellant relies upon the rule regarding the assumption of mortgage indebtedness by a purchaser of the premises, as announced in Drury v. Holden, 121 Ill. 130. The facts in that case áre clearly distinguished from the facts in the instant case. It is apparent in this case that it was the intent of the chancellor to decree that from the bid of any purchaser of the premises, the master should apply the purchase price bid therefor to the extent of $17,438.09, together with interest thereon at the. rate of 5% per cent from the first day of July, 1934, to the date of sale, to appellee herein, as the owner or holder of the incumbrances on the premises being partitioned. There can be no question but that this is what the master did. There was nothing to prevent the mortgagee from becoming a purchaser. The lands were appraised at $15,000, and appellee bid $10,000, which was two-thirds of the appraised value.

Motion was filed in this cause by appellant suggesting diminution of the record, which motion was taken with the case. The matter sought to be supplied not being considered material or necessary to the disposition of this case, the motion is denied.

Finding' no reversible error in the record, the decree and order of the circuit court is affirmed.

Decree and order affirmed.


text:
    Rock Island Bank and Trust Company, Appellee, v. Matilda Koehler Bladel, Appellant. Lena Buranek et al., Appellees.
    Gen. No. 8,941.
    Opinion filed August 14, 1935.
    Rehearing denied September 30, 1935.
    Ruby Turner-Looper, of Oklahoma City, for appellant.
    Wm. B. Schroeder and Earl L. Scott, both of Rock Island, for appellee Rock Island Bank & Trust Co.
    Witter & Walker, of Rock Island, for certain other appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

The Rock Island Bank and Trust Company brought its bill in the circuit court of Rock Island county for the construction of a certain trust agreement entered into on May 1, 1906, between Mrs. A. C. Denkmann and the Central Trust and Savings Bank (the said Central Trust and Savings Bank by merger having become consolidated with plaintiff trust company).

The trust agreement placed the sum of $5,000 in the custody and control of the trustee bank, providing that it should invest the same as it thought best, paying the interest therefrom to Johanna Bladel, a sister-in-law of Mrs. Denkmann, so long as the said Johanna Bladel should live; that upon her death, the said income should be paid to her husband, Andrew Bladel, should he survive her; that upon his death the investments of said trust should be converted into cash and paid to William J. Bladel, a • son of the said Johanna and Andrew Bladel, providing that “in case of his death before becoming entitled to said money hereunder, the said party of the second part (meaning the trustee), shall pay the same over to the legal heirs of said William J. Bladel.”

At the time of the creation of the trust, Johanna and Andrew Bladel, the parents, and William J. Bladel, the son, were all living. The son at that time was married to the appellant herein, Matilda Koehler Bladel. The son, William J. Bladel, died on August 1, 1911. He preceded in death his father and mother, Andrew and Johanna Bladel, and his wife, Matilda Koehler Bladel. He died testate, leaving his entire estate to his wife (the appellant), except for a legacy of $500 to his mother. His will was duly admitted to probate in the probate court of Rock Island county. Some 12 years later, the mother, Johanna Bladel, died. Her husband survived her about nine years. Following the death of the father, Andrew Bladel, a controversy arose between appellant as the surviving widow of William J. Bladel, and the heirs at law of the said William J. Bladel, respecting their rights to participate in the distribution of the trust fund, the trust having terminated upon the death of Andrew Bladel. Appellant claims she is entitled to the whole of the trust fund, as the sole heir of her deceased husband.

The Bock Island Bank and Trust Company, as trustee of said trust fund, thereupon brought this suit on April 19, 1934, for a construction of the trust agreement and adjudication by the court as to the disposition of the corpus of the trust fund, together with the accumulated income therefrom; and for directions as to the distribution of said fund, as among the contending parties. The court by its decree determined the parties entitled to participate in the distribution of the trust fund. The decree held that Matilda Koehler Bladel, the wife of William J. Bladel, deceased, was not entitled under the laws of this State to participate in the distribution of said trust fund, as an “heir” of her husband, who died testate. The said Matilda Koehler Bladel prosecutes this appeal from the decree of the chancellor as rendered.

Appellant assigns 31 errors upon which she urges reversal of this case. As we view the matter, the controlling factor in this appeal is whether or not the appellant falls within the legal description of an heir at law of her husband, who died testate, as the word “heirs” is used by Mrs. Denkmann in the trust agreement. “The descent of property in Illinois, is regulated wholly by statute.” Hardesty v. Mitchell, 302 Ill. 369, 371. To the same effect are Weyer v. Barwell, 327 Ill. 214, 217; People v. Flanagin, 331 Ill. 203, 209.

The same question here presented was before this court in the case of Hall v. Ray, 275 Ill. App. 344, wherein the rule that the word “heirs” when uncontrolled by the context designates only those persons appointed by law to succeed to the estate as in the case of intestacy was recognized. We do not deem it necessary to cite here the authorities referred to in that case. The courts of this State have rigidly adhered to the rule that the words employed will be presumed to have been used in their strict and primary sense, unless the context shows them to have been used in a different sense. When not thus explained, their legal and technical meaning will be enforced, and the word “heirs,” if unexplained by the context, will be held to mean the persons appointed by law to succeed to the estate as in case of intestacy. We find nothing from the context of the instrument before us to indicate that Mrs. Denkmann used the word “heirs” in any other manner than in its strict and primary sense. Under such circumstances, the term has a technical signification and the court is not empowered to enlarge upon the term as used. We must presume that the word was used in its strict and primary sense. There is nothing in the context to otherwise indicate. No qualifying expression was used as descriptive of the word “heirs” in a distributive sense.

In the absence of anything to the contrary expressed in the terms of the instrument, we are of the opinion that appellant cannot be considered as an heir of her deceased husband in order to participate in the distribution of this trust fund. It appears that par. 3 of sec. 1 of the Descent Act, Cahill’s St. ch. 39, If 1, determines when a surviving wife becomes an heir of the deceased husband. When an heir takes in the character of an heir, he must take in the quality of an heir, and all persons taking as heirs must take by descent. We know of no provision of the statute of descent whereby the surviving wife or husband can be said to take as an heir from the other, except when the facts of the case come under said par. 3, sec. 1 of the Descent Act.

We are of the opinion that appellant does not answer the description of a “legal heir” of her deceased husband, as determined by the statute of descent of this State, and accordingly is not entitled to participate in the distribution of the trust fund here in question. Under the above section of the Descent Act, in order for appellant to qualify as an heir of her deceased husband, it was necessary that he die without a child or any descendants of a child, and intestate; or that his estate be rendered equivalent to that of an intestate estate. This did not occur.

Appellant urges that the remainder due William J. Bladel and his heirs was a vested remainder and only the possession and enjoyment thereof was postponed. That is not the question before the court. The question is: Who is entitled to share in the distribution of the trust fund, as “legal heirs” of the said William J. Bladel? We are of the opinion that in the absence of any qualifying words, the word “heirs” or “lawful or legal heirs,” do not include the wife, when the deceased husband died testate, and his estate duly administered under the will, as in this case.

The decree of the trial court is therefore affirmed.

Decree affirmed.