author: Mr. Justice Denis E. Sullivan

text:
    Bernedette McHugh and Margaret McHugh, by Patrick McHugh, Father and Guardian, Appellees, v. Hirsch Clothing Company, Inc., Appellant.
    Gen. No. 41,285.

      Opinion filed January 22, 1941.
    John A. Bloomingston, of Chicago, for appellant.
    William A. Shapiro and Krohn & MacDonald, both of Chicago, for appellees; Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Hirsch Clothing Company, Inc., brings this appeal from a judgment entered in the circuit court in favor of plaintiffs because of personal injuries received by them while standing on the sidewalk in front of defendant’s store. The cause was tried before a judge and jury. The jury found defendant guilty and judgment was entered for $1,750 in favor of Margaret McHugh and $500 in favor of Bernedette McHugh. Both plaintiffs were minors.

It appears that on September 24,1937, the defendant who operated a store, had advertised a grand opening and had invited the public to attend and said defendant was to furnish some entertainment; that it was raining that night and plaintiffs, who were girls 12 and 15 years of age, were standing on the sidewalk in front of the store near its entrance endeavoring to get in; that there was a large crowd in attendance waiting on the sidewalk and they were pushing forward in an endeavor to get in; that there were some police officers there to regulate and control the crowd, but that while plaintiffs were standing there a plate glass window of defendant’s store broke and the plaintiffs were injured by the falling glass.

Margaret McHugh testified that while they were standing at the place aforesaid everybody started pushing in the door in between the two plate glasses in the entrance, and then she heard a crash and was injured.

The testimony of other witnesses shows that three policemen were there to guide the crowd, which was very large, into the store; that the glass in the store window was loose and rattled and vibrated whenever the doors to the store were opened or shut; that neither of the plaintiffs was near the glass, but that when it broke it splintered and fell upon the two plaintiffs, injuring them quite severely; that approximately 90 per cent of the glass fell upon the sidewalk; that the glass was boarded up on the inside so that no one inside the store could lean against the glass; that there were several hundred persons outside the building and that it was raining and dark, except for the electric lights.

The evidence further shows that when the window broke out of the frame it crashed on the sidewalk; that it looked as if it were two pieces of glass glued together where it had been previously broken, and when the glass crashed a policeman was standing at the door to the store.

The evidence shows that Margaret McHugh had a cut on one side of her ankle and the tendons on the top of her foot were cut; that the tendons had to be sewed together; that Bernedette McHugh had a cut about one inch long on the back of her foot toward the heel; that the tendon of her foot was cut about half way through; that both plaintiffs were in the hospital about a week or 10 days and then were confined to their home for some time; that Margaret wore a cast for approximately 6 weeks.

Defendant contends that the manifest weight of the evidence shows that there was no negligence on the part of the defendant. The declaration charged general negligence and lack of care in permitting the condition to exist which caused the accident.

We think the evidence conclusively proves that defendant at the time of the accident was in possession and control of the premises surrounding its store, as charged in the declaration, and that defendant had invited plaintiffs to attend this grand opening and in response to said invitation plaintiffs appeared and while waiting to be admitted to the store and while in the exercise of due care for their own safety, the plate glass window which was in a defective condition, crashed and fell upon them, which resulted in their injury.

Defendant contends that the court erred at the conclusion of all the evidence in refusing to withdraw all the evidence from the jury, and to instruct the jury to find the defendant not guilty. We think the court did not commit error in this regard.

Defendant complains of certain instructions which were given, but we do not find that any error was committed relative thereto.

Defendant further complains that the court erred in admitting in evidence testimony as to the expenses incurred, medical and hospital, in the treatment of the plaintiffs, and that a next friend has no right to collect for a minor because it is the duty of the father to pay the expenses of a minor.

In White v. Seitz, 258 Ill. App. 318, it was held that a son has a right to recover for medical bills for his own injury. In that case the father had actually paid the bills of the son in the sum of $557.50, and although the son was 17 years of age, it appears the father was obliged to pay this money. This court in that case, said:

“The father has a right to waive his right to recover the money so expended, and to allow his son to recover the same.” See also American Car & Foundry Co. v. Hill, 226 Ill. 227; Chicago Screw Co. v. Weiss, 203 Ill. 536.

From a review of the entire record we are convinced that no substantial error was committed by the trial court in the conduct of the trial and for the reasons herein given the judgments of the circuit court are affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    George M. Marks, Appellee, v. Eli Marks, Appellant.
    Gen. No. 41,310.
    Opinion filed January 22, 1941.
    John A. Bloomingston, of Chicago, for appellant.
    Harry S. Greenstein and Charles C. & Richard M. Spencer, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Eli Marks brings this appeal from a judgment entered in the superior court in favor of plaintiff George M. Marks, his brother, for $2,500, as damages for personal injuries which plaintiff alleges he received because of negligence on the part of defendant.

The first count of the complaint charges negligence only in the management and operation of the automobile by the defendant; that said automobile was driven carelessly, recklessly and negligently, contrary to the provisions of the statute.

The second count alleges that the defendant wil-fully, wantonly and maliciously drove his automobile at a speed in excess of 35 miles an hour, while defendant was asleep, stating: “While the said defendant was without conscious possession of his faculties and was then and there asleep, and that by means and in consequence of said wanton, willful and malicious misconduct in that respect, the defendant lost control of his said automobile.”

Plaintiff contends that he went on an automobile trip with his brother, defendant herein, and that both were awake for a longer time than the normal period of wakefulness; that defendant fell asleep and that as a consequence the plaintiff was injured; that such conduct was wilful, wanton and malicious.

Defendant contends that there was no wilful, wanton and malicious misconduct, but that if such action constituted wilful and wanton misconduct that the plaintiff was equally guilty of the same misconduct.'

The evidence shows that the accident occurred on May 7, 1936, when the plaintiff who was 34 years old and a salesman, was returning to Chicago from Detroit, Michigan, where he had made an automobile trip with his brother Eli Marks, the defendant.

The evidence further shows that the two brothers left Chicago on May 5, 1936, about 10 o’clock in the evening; that when they reached South Haven, Michigan it was about 1:30 a. m. and they slept in a hotel there and continued on their trip about 8 hours later, or 9:30 a. m.; that they took turns driving and arrived at Detroit, Michigan, about noon; that defendant transacted some business and they went to a movie; that they left Detroit that afternoon about 5:00 or 5:30 o ’clock; that the defendant drove until they reached South Haven about 2:30 the next morning, May 7th; that before reaching South Haven, defendant was arrested for speeding; that after they had left Detroit, about 9:30 p. m. plaintiff suggested that they stop for the night and get up early in the morning and continue; that defendant objected to that plan as he said he had certain things he wanted to do, in Chicago, so they continued on with defendant driving and after he had driven a short distance he was going around a curve at 70 or 75 miles an hour; that plaintiff then took the wheel as it was a very dangerous curve, and continued to drive to 147th street and Cicero avenue in Chicago, when they ran out of gasoline; that it was then about 5 a. m.

The evidence further shows that they walked to a gasoline station and waited for the attendant to open it and plaintiff bought a gallon of gasoline; that at this point they changed drivers and defendant took the wheel and started north on Cicero avenue; that soon after leaving 147th street and Cicero avenue plaintiff fell asleep, as he stated the last thing he remembered was passing 140th street, until he regained consciousness in a hospital on the evening of May 7th. Defendant stated that they left the gasoline station at 147th street and Cicero avenue and that his brother, plaintiff herein, was asleep and that the next thing he knew he awakened in a hospital.

The gas station attendant who was located at 147th street and Cicero avenue stated that he remembered these gentlemen coming into the gasoline station to purchase some gasoline; that one of them said in a low voice, “I want some gasoline” and one of them said, “I am tired and sleepy”; that he asked them where they came from and they said they had come from Detroit and had not had much rest; that he, the attendant, told them that they had better “watch their step ’ ’; that they got into the automobile and departed and that they appeared tired and sleepy.

There does not appear to be any dispute as to the facts in this case. As to the law, nearly all that has been said on this subject is contained in the case of Barmann v. McConachie, 289 Ill. App. 196, wherein Mr. Justice Mubphy, now of the Supreme Court, in his opinion sets forth and distinguishes the various cases on this subject. In that case the defendant, a young man 24 years old, and the plaintiff, a young woman aged 20, both of whom resided in Sparta, drove to a dance to be held at a tavern in Chester, about 20 miles from Sparta. They arrived at Chester about eight o’clock and each had two drinks of whisky soon after they arrived, but did not drink any more that evening. They danced until about 12 o ’clock and started towards Sparta. On the way from Chester to Sparta they concluded to go to Moffat’s restaurant which was 6 or 7 miles north of Sparta. Soon after this arrangement was made plaintiff told defendant she was sleepy and defendant told her to go to sleep and he would drive. Plaintiff awakened at Sparta, but soon fell asleep and remained asleep until the accident occurred about 4 miles north of Sparta and 2% miles from Moffat’s. Defendant testified as follows: “‘It was about a quarter to one when we left Sparta going to Moffat’s. I was sober and had all my mental faculties. I drove to Sparta. Had not driven off the highway and was able to control my car to Sparta. I realized I was •sleepy. First realized this about four miles out of Sparta. I did not inform Miss Barmann that I was sleepy. At that time I was driving about forty miles an hour and continued to operate at that speed. I felt at that time as I ordinarily feel when I am about to go to sleep. At that time I would say I was between two and two and a half miles from this restaurant, and I continued driving toward the restaurant. Then the first thing I knew was the crash. After the crash my car was out in the field along side of a telephone post. ’ When called in his own behalf he testified substantially as above and added, ‘When I became sleepy I judged we were about four miles north of town and between a half a mile and a mile from the place of the accident. I kept driving because I thought I could make the rest of the way. I did not intend to go to sleep. I intended to go to Moffat’s.’ On cross-examination he testified that he thought he could make it to Moffat’s before he went to sleep, that he knew he could have a wreck but that he thought he could get to Moffat’s where he could get coffee and something to eat.” Continuing the opinion states:

“Plaintiff testified that she went to sleep after they left Chester, awakened at a stop sign in Sparta, asked defendant where they were and he told her and she again fell asleep and knew nothing until the accident.
“The evidence discloses that the road was level for some distance south of the scene of the accident, that defendant’s automobile crossed the pavement to the driver’s left, crashed through a wire fence breaking down two or three posts and coming to a stop against a telephone pole. It had traveled 138 feet from where it left the pavement to the place where it stopped.
“Sec. 42-1, par. 47 (5), ch. 95a, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 85.064 (1) (par b, sec. 58, ch. 95%, Smith Hurd) provides that no person riding as a guest shall have a cause of action for damages against the driver of an automobile unless such accident shall have been caused by the willful and wanton misconduct of the driver and unless such conduct contributed to the injury.
“In Walldren Express & Van Co. v. Krug, 291 Ill. 472, 478, it was said, ‘The words “wanton,” “wantonly” and “wantonness,” “willful,” “willfully” and “willfulness” have been used to express the same thing. ’
“In Chicago City Ry. Co. v. Jordan, 215 Ill. 390, it was said, ‘Where there is a particular intention to injure, or a degree of willful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes willful or wanton. In such a case there may be an actual intent to injure, or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended. ’
“In Bernier v. Illinois Cent. R. Co., 296 Ill. 464, the court said, ‘Ill-will is not a necessary element of a wanton act. To constitute a wanton act the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a willful or wanton act. Whether an act is willful or wanton is greatly dependent upon the particular circumstances of each case. Where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of willfulness or wantonness.’ ”

In Murphy v. King, 284 Ill. App. 74, defendant had invited a lady friend to ride as her guest in her automobile and, while driving on a street in Chicago, she drove through a red light, disregarded a sign marked “through street” and her automobile was hit at an intersection by a car approaching from the side and her guest was injured. In Barmann v. McConachie, supra, the court quoted from the Murphy case, wherein it was said:

“ ‘We do not believe that in cases of this kind, that, to be guilty of willful and wanton negligence as defined in the law, one must necessarily be in the state of mind of a person who has a feeling of ill will against the injured party and who intends to commit the injury complained of. A conscious indifference to consequences which is shown by an intentional disregard of a known duty necessary to the safety of the person or property of another would come within the definition of willful and wanton negligence.’ ”

In the instant case, the evidence shows that the plaintiff and defendant were sleepy and tired. Defendant admits that to be true as does the plaintiff. The attendant at the gasoline station also testified that the two men appeared to be very tired and sleepy and he warned them to be careful. Defendant knew that he was sleepy and was apt to fall asleep while driving, yet he took control of the automobile and drove until he actually fell asleep which resulted in the accident whereby plaintiff was injured.

In Barmann v. McConachie, 289 Ill. App. 196, the court continuing in its opinion, at page 202, said:

“Defendant seriously contends that defendant’s failure to judge correctly of his ability to resist sleep was an error of judgment and that it will not support a finding of willful and wanton negligence. Defendant’s act did not arise from an error of judgment. It came about by reason of his failure to exercise judgment. He permitted himself to go to sleep while driving and an act of omission may be made the basis of willful and wanton negligence, the same as an act of commission.
“The finding of the jury that the defendant was guilty of wilful and wanton negligence is supported by the law and evidence.”

Counsel for defendant further complains that the court erred in not permitting defendant an opportunity to present his case, because the court did not wait for certain witnesses for the defense. No showing is made by counsel as to why the witnesses were not present at the trial. There has been no showing of abuse of discretion resulting in injury to defendant. The cause was tried before a jury and it was the function of the jury to pass upon the facts and decide just what was the proximate cause of the accident. Even though the jury may, in the opinion of the trial judge or a reviewing court, have arrived at a different conclusion than would the court had it been the court’s function to pass upon the evidence, yet the weighing of the evidence and the inferences to be drawn therefrom, as well as the proximate cause of the injury, were well within the province of the jury to decide.

No complaint is made as to the instructions given and they seem to properly point out the law applicable to the facts herein.

For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois ex rel. C. E. Northrup et al., Appellees, v. City Council of the City of Chicago et al., Appellants.
    Gen. No. 41,406.
    Opinion filed January 22, 1941.
    Barnet Hodes, Corporation Counsel, for appellants; Fred V. Maguire and Walter V. Schaefer, Assistant Corporation Counsel, of counsel.
    James W. Breen, of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendants bring this appeal from a judgment entered in the circuit court in favor of plaintiffs who sought the issuance of a writ of mandamus to compel the City of Chicago to appropriate and pay to the plaintiffs additional compensation for services rendered by them as members of the city council during the years 1932, 1933, 1934 and 1935. An appeal was taken to the Supreme Court of this State, as it was claimed a construction of the constitution was involved. The Supreme Court, after due consideration of the cause, transferred it to this court.

The cause was submitted to the trial court for a decision upon an amended petition for mandamus, an amended answer, an amended reply and a stipulation of facts. No question arises upon the pleadings.

The facts show that the original plaintiffs were thirteen individuals who served as aldermen of the City of Chicago during varying portions of the period from January 1, 1932 to December 1, 1935; that by an amended petition filed August 11, 1939, three additional living ex-aldermen (one of whom had served as chairman of the committee on finance of the city council), and the administrators of the estates of seven deceased aldermen, all of whom had also held office during varying portions of the period from January 1, 1932, to December 1, 1935, were added as parties plaintiff.

The facts further show that prior to January 1, 1930, the city council of the City of Chicago, passed an ordinance fixing the salaries of members of the city council at $5,000 per annum; that this ordinance has never been expressly repealed; that prior to January 1, 1930, the city council also passed an ordinance fixing the salary of the member of the city council who served as chairman of the committee on finance at $8,500 per annum; that this ordinance likewise has never been expressly repealed.

The facts further show that the period here involved extended from 1932 to 1935, which was a period of financial distress of world wide proportions; that in order to maintain the credit of the City of Chicago and to alleviate so far as possible the burden of taxation imposed upon its citizens, it was necessary to reduce drastically the expenditures of the city; that by the appropriation ordinances adopted by the city council for each of the years 1932, 1933,1934 and 1935, reduced amounts were appropriated for the essential services of the city government and for the salaries of all the officers and employees of the City of Chicago, and that by reason of these appropriation ordinances amounts less than $5,000 per year were appropriated for the salaries of aldermen.

The deceased aldermen, as well as the living ex-aldermen, are for convenience, herein described as “plaintiffs,” as each was a member of the city council of the City of Chicgo when the appropriation ordinances for the years with which he is concerned were respectively adopted.

It appears that the plaintiffs, Mills and Feigenbutz, voted against the passage of the appropriation ordinance for the year 1932; that with this exception, each of the plaintiffs voted in favor of the adoption of each of the appropriation ordinances; that during all of the time the plaintiffs were members of the city council of the City of Chicago no effort was made by the plaintiffs, or by any of them, to bring about the appropriation of money to pay the salaries now claimed by them; that for each of the years 1932, 1933, 1934, 1935, 1936, 1937, 1938 and 1939, the city council of the City of Chicago levied taxes upon all the taxable property in said city at the maximum rate permitted by law; that each of the plaintiffs was paid the total amount appropriated for his salary for each of the years in question in monthly instalments, and accepted each monthly payment so made during the entire period in question.

It further appears that on May 26, 1937, the plaintiffs caused to be served on the city council a demand that an appropriation be made sufficient in amount to pay to each of the plaintiffs a sum of money which, together with the amounts already received by each of the plaintiffs, would equal the sum of $5,000 per year for the respective periods during which each of the plaintiffs served as a member of the city council, and sufficient to pay to the plaintiff who served as chairman of the committee on finance, together with the amounts already received by him, the sum of $8,500 per year during the time he occupied that position.

Plaintiffs base their right to recover on that portion of section 11 of Article IX of the constitution which provides:

“The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased or diminished during such term. ’ ’

Defendants contend that this constitutional provision, properly construed, is not applicable to the claims advanced by the plaintiffs. Their defenses are estoppel, laches, limitations and gift to defendant City by plaintiffs.

The trial court found, under the stipulated facts, that it was the duty of the city council according to the provisions of the constitution to appropriate $5,000 for the annual salary of each of the plaintiffs as aldermen for each of the years 1932, 1933, 1934 and 1935, and to appropriate $8,500 for the annual salary of the plaintiff who served as chairman of the committee on finance of the city council for the period during which he occupied that position. The trial court further found that the amounts set forth in the judgment order were due to the respective plaintiffs for services as members of the city council and as chairman of the committee on finance, and directed the issuance of a writ of mandamus to compel the city council to appropriate for said purposes the sum of $55,000 and to compel other officers of the city to pay to the plaintiffs the amounts respectively found due to them.

Defendants, who are the appellants here, apparently proceed on the theory that section 11 of Article IX of the constitution of Illinois does not justify the action taken by the trial court in entering judgment in favor of plaintiffs and that the action of the plaintiffs in not claiming the money prior to their demand and as members of the city council, received less without protest and, therefore, plaintiffs “effected a gift to the City of Chicago of the difference between the sums of money actually paid to each of the plaintiffs as salary and the sum which would have been paid to the respective plaintiffs had they been compensated at the rate of $5,000 per annum for aldermen, and $8,500 per annum for the alderman who served as chairman of the committee on finance. ’ ’

Defendants further contend that the court erred in not holding that the claims of all the plaintiffs are barred by laches and that the claims of others of the plaintiffs are barred by the statute of limitations.

Defendants further contend that a grave emergency having arisen, namely, the financial depression which commenced with the last decade, that such emergency would permit the construction of the constitutional provision which would meet such an emergency. In the case of People ex rel. Northrup v. City of Chicago, 374 Ill. 94, Mr. Justice Murphy of the Supreme Court who wrote the opinion transferring this cause to this court, referred to the case of People ex rel. Lyle v. City of Chicago, 360 Ill. 25, and said:

“In that case it was held that where a law, either by express provision or necessary implication, provides for an emergency, departure from its terms is permissible to accommodate the law to the emergency, but the justification for such departure must be found within the law and does not arise from the emergency.” There are no words in section 11 of Article IX which make any reference, either directly or by implication, to the subject of an emergency. So, consequently, any of the purposes however commendable which the city authorities may have had in mind, in an endeavor to reduce expenses and save money for the taxpayers, would not be applicable in the instant case as the salaries were fixed by law at $5,000 and $8,500, as has been set forth. In other words, an emergency cannot be created by the facts and used as a means of construction of a constitutional provision which has made no reference to any emergency by its terms.

In the case of People ex rel. Lyle v. City of Chicago, 360 Ill. 25, wherein the court at page 29, in discussing a similar case, said:

“Legitimate methods of relieving the situation are commendable, and where the law, either by express provision or by necessary implication, provides for an emergency departure from its terms, it is permissible to accommodate the law to such emergencies, but in order to justify such a departure the justification must be found within the law. It does not arise from the emergency, but, as existing under the law, is applied when the emergency happens. (Home Building and Loan Ass’n v. Blaisdell, 290 U. S. 398, 78 L. ed. 413.) Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution even in case of a great emergency. In providing that the salary of no judge of the municipal court shall be changed during the term for which he is elected the legislature followed the constitutional provision. Neither instrument contains anything that expressly or impliedly limits the prohibition but their terms are plain and unequivocal. They therefore present no question of construction as to departures in emergencies. Home Building and Loan Ass’n v. Blaisdell, supra.

“Relators are corporate authorities, and hence are municipal officers within the meaning of the constitution. (People v. City of Chicago, 310 Ill. 534.) Under its terms the city council was without authority to change relators’ salaries during the respective terms for which they were elected. People v. Sweitzer, 280 Ill. 436; Foreman v. People, 209 id. 567.”

Plaintiffs in the present case were members of the city council and it is charged they took no steps to compel the city council to appropriate for these salaries. There is no showing here as to what this minority of members of the city council could have done, even if it were assumed they should have taken some action, nor is any showing made that the City of Chicago was in any way prejudiced by the acts of plaintiffs, nor that defendants were relying upon plaintiffs ’ action which resulted in loss or injury to the City. As a matter of fact, the action of the aldermen in not taking or insisting upon being paid their full salaries temporarily, was, undoubtedly, beneficial to the City and not detrimental. No fraud or deception on the part of plaintiffs is claimed or proven.

We have been unable to find any decision by the courts of this state upholding any provision that the salary of a duly elected officer may be changed during his term of office, but, on the contrary, the decisions condemn any such attempt.

In Foreman v. People ex rel. McEwen, 209 Ill. 567, in discussing the language used in section 10 of Article X, the court at page 573, said:

“Section 10 of article 10, relating to county officers, provides ‘that the compensation of no officer shall be increased or diminished during his term of office,’ and in Cullom, v. Dolloff, 94 Ill. 330, it was held to be the intention of this provision that the compensation should be unalterably fixed for the official term of the officer.”

In People v. Sweitser, 280 Ill. 436, the court at page 444, in discussing the Foreman case, said:

“It was further pointed out in that case that while no particular set of words is used in the constitution to express the limitation of the power of the legislature with reference to a change of salary during a term of office, there is a well defined rule running-through the whole instrument that a salary attached to any public office having a fixed term shall not be increased or diminished during that term.”

The record shows that the terms of the plaintiffs elected as aldermen in 1931 extended to 1933 and the terms of the plaintiffs elected in 1933, extended to 1935; that the general ordinance fixed the salaries of the aldermen at $5,000 a year and the chairman of the finance committee was to receive a salary of $8,500, and this ordinance was in full force and effect during this period of time.

A question very similar to the one involved in the instant case was disposed of in the case of Galpin v. City of Chicago, 269 Ill. 27, which involved the State’s Attorney of Cook county, who had made a campaign for election and had promised that he would only accept an annual salary of $10,000, and pay all fees to the county, although the law provided that in addition to that salary he should be paid certain fees. He complied with his promise and after he died, his creditors insisted'that his estate collect this amount from the county. In disposing- of this matter, the Supreme Court in its opinion at pages 41 and 42, said:

“From the stipulation upon which the cause' was heard in the circuit court it appears that Wayman stated publicly during his campaign for election in October, 1908, that if elected State’s attorney he would accept an annual salary of $10,000 and pay into the county treasury all fees. It further appears that Wayman received from the county treasurer of Cook county, upon warrants drawn by the county comptroller, each of which warrants recited that it was for Wayman’s salary as State’s attorney, the sum of $800 per month during his term of office, and that during such period he paid to the county treasurer a total of $62,970.75, which sum he reported to the board of commissioners of Cook county represented the fees received by him as State’s attorney during” his term of office. It is contended by the various parties whose claims conflict with that of the Wayman estate, that by reason of this conduct on Wayman’s part his estate is now estopped from claiming any portion of the fund in controversy. • With this contention we cannot agree. The fees or salary of an officer having been fixed by law become an incident to the office, and it is contrary to public policy for candidates to attempt to attain such office by promises made to the electors to perform the duties of the office for any other or different compensation than that fixed by law. Such promises being illegal, they cannot be enforced. (Abbott v. Hayes County, 78 Neb. 729; People v. Board of Police, 75 N. Y. 38.) Whether, as held by some courts of last resort, such conduct on the part of a successful candidate is sufficient to invalidate his election it is not necessary or proper here to determine, as that question could only be properly presented in a proceeding brought against the officer to test his right to office. It cannot be raised where, as here, the officer’s term has expired and the controversy concerns only his right to the fees of his office.
“Neither was Wayman estopped from claiming the compensation fixed by statute for his services as State’s attorney. In Holcomb v. Boynton, 151 Ill. 294, we said: ‘It is a novel idea in the law of estoppel that the doctrine should be applied to a person who has been guilty of no fraud, simply because, under a misapprehension of the law, he has treated as legal and valid an act void and open to the inspection of all. As we understand the doctrine of estoppel in pais, it is based upon a fraudulent purpose and a fraudulent result. Before it can be invoked,to the aid of a litigant it must appear that the person against whom it is invoked has by his .words or conduct caused him to believe in the existence of a certain state of things and induced him to act upon that belief. • If both parties are equally cognizant of the facts and one has acted under a mistaken idea of the law, the other party cannot say he has been deceived thereby and is entitled to an application of the rule, but will be considered as having acted upon his own judgment, solely. ’ To the same effect is Finch v. Theiss, 267 Ill. 65. ’ ’ Continuing on page 56, the court said: “. . . the decree of the circuit court should have awarded to Elizabeth C. Wayman, as adminis-tratrix of the estate of John E. W. Wayman, so much of the fund as is necessary to satisfy the claim for uncollected fees of John E. W. Wayman, as State’s at-' torney. Wayman had a vested interest in this fund at the time of his death, and upon his death the same passed to his personal representative.”

Another case which held that the doctrine of estoppel did not apply in the absence of fraud is that of Pitsch v. Continental & Commercial Nat. Bank of Chicago, 305 Ill. 265. In that case the bank had a clerk who was also a notary public and the bank made a contract with said employee to do the notarial work for the bank, in acknowledgments, protests, etc., but stated that the bank should retain the income therefrom. In disposing of this matter the Supreme Court said:

“The proposition that a contract whereby a public officer whose compensation is fixed by statute agrees to accept for his official services something different from that provided by statute is contrary to public policy and void seems to be well supported by authority as well as justified in principle. . . . The compensation of a public official for the performance of his official duties is not a matter for traffic or trade, for bargaining or for favoritism. . . . Official morality and public policy alike prohibit the undermining of the public service by permitting officers to make merchandise of their official services.” The court continuing at page 273, said: “The fact that he accepted every two weeks an amount which was less than the amount due him and without consideration other than another contract of employment void because based upon the same illegal consideration could not estop him from claiming the remainder of the amount due.
“The semi-monthly settlements between the parties did not amount to a waiver by appellant or an estoppel against him, for the receipt of a part of the amount due him is not a satisfaction of the whole debt unless made and received upon a new and lawful consideration.”

So, in the instant case, it was stipulated by the parties hereto that the salary of each alderman was for $5,000 per year, as fixed by law, and that the salary of the chairman of the finance committee was to be for $3,500 in addition to the $5,000, or $8,500, and it is further stipulated that during the period, for which these plaintiffs make claim for their full salaries, there was sufficient money on hand to appropriate and pay these salaries. We do not believe that the acceptance by the aldermen of a lesser sum than that provided by law, should in any way affect their rights to recover the full amount of salary to which each was entitled as provided by law.

It is next contended by defendants that the statute of limitations is a defense to the claim of plaintiffs. We do not find in the pleadings or in the evidence anything in relation to this defense. It is the rule of this court and the law of this State that subject matters which have not been called to the attention of the trial court will not be considered by this court on appeal. In the case of Holmes v. First Union Trust & Savings Bank, 362 Ill. 44, the court at page 49, said: “It is a settled rule of this court that a party will not be permitted to raise objections here which were not urged in the trial court. (Morey v. Brown, 305 Ill. 284, 286; Dacey v. Goll, 242 id. 606.) This point cannot, therefore, be considered. ’ ’

In City of Elmhurst v. Western United Gas & Electric Co., 363 Ill. 144, the court at page 148, said: “The point now urged as a denial of due process was not placed in issue before the commission and cannot be raised for the first time in this court. Petersen Baking Co. v. Bryan, 290 U. S. 570, 78 L. ed. 505, 510; Chicago, Milwaukee, St. Paul and Pacific Railroad Co. v. Risty, 276 id. 567, 72 L. ed. 703, 709.”

In the case of Langan v. Milk’s Grove Special Drainage District No. 1, 239 Ill. 430, the court at pages 438 and 439, said:

“With reference to the Statute of Limitations, it is only necessary to say that this is an action at law and is governed by the rules of pleading applicable to other actions at law. (Cleary v. Hoobler, 207 Ill. 97; Mayor of Roodhouse v. Briggs, 194 id. 435; Chicago Great Western Railway Co. v. People, 179 id. 441.) In such actions the Statute of Limitations cannot lie availed of by demurrer but must be specially pleaded, so that the plaintiff may reply any special matter which prevents the bar attaching. Gunton v. Hughes, 181 Ill. 132; Wall v. Chesapeake and Ohio Railroad Co., 200 id. 66.”

As heretofore stated, the record failing to show that the statute of limitations was raised at the time of the trial, it cannot now be raised here for the first time.

Another defense offered by defendants is that the plaintiffs “effected a gift” to the city and, consequently, they cannot get it back. This is another theory growing out of the doctrine of estoppel with which defense we have heretofore disposed.

If, as we have stated, the reduction of such salary in any way is against public policy and void, then the making of a gift, which would accomplish indirectly the same result, is rendered nugatory by the constitutional provision. Article IX, section 11 of the constitution. No evidence was produced showing an attempt was made to make a gift. In addition thereto, such gift would be without consideration, even if plaintiffs did have the power to avoid and nullify this provision of the constitution, which they have not. We think the entire defense made to this case is disposed of by a mere reading of the constitutional provisions. The so-called defenses by the city officers, namely, the statute of limitations, laches and gifts, are all contrary to the constitution and public policy of the State, and cannot be sustained. Such defenses, as we have shown, if sustained, would create a situation equivalent to avoiding the constitutional mandate.

The city council and its officers having refused to make the appropriation necessary to pay the salaries of plaintiffs as provided by law and demand having been duly made, should be compelled at plaintiffs’ instance, by mandamus, to do as the law provides.

For the reasons herein given the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

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


author: Mr. Justice Denis E. Sullivan,

text:
    In re Estate of Rebecca Kurlandsky, Deceased. G. C. Babcock, Appellee, v. Hymie Kurlandsky, Administrator of Estate of Rebecca Kurlandsky, Deceased, Appellant.
    Gen. No. 41,437.
    Opinion filed January 22, 1941.
    Louis B. Simon, of Chicago, for appellant.
    William M. Johnson and Warden & Becker, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan,

delivered the opinion of the court.

A claim for the sum of $2,897.10, plus interest, was allowed in the probate court in favor of plaintiff Gr. C. Babcock and against the estate of Rebecca Kurlandsky, deceased. An appeal was taken from that order and filed in the circuit court where it was tried de novo without a jury. The judgment order of the circuit court reads as follows:

“It is ordered, adjudged and decreed that the claim of Gr. C. Babcock be and the same be allowed as a sixth class claim against the Estate of Rebecca Kurlandsky, in the amount of twenty-eight hundred ninety-seven and 10/100ths dollars together with interest at 5% from June 16, 1939, to date, being the sum of one hundred thirty-two dollars being a total of three thousand twenty-nine and 10/100th dollars ($3065.10)— and to which ruling of the Court and the entry of the order and judgment of Court allowing said claim as a sixth class claim to be paid in due course of administration. Hymie Kurlandsky, administrator, duly excepts appeal bond being fixed at $500.00.”

The court overruled the various motions for findings in favor of defendant and entered judgment as aforesaid.

This appeal was taken by the administrator of the estate of Rebecca Kurlandsky, deceased, from the judgment order of the circuit court.

The only pleadings for the claimant was the claim made in the probate court. Defendant filed a statement of defense and also a supplemental statement of defense.

Claimant’s theory of the case is that he exhibited the so-called claim on the last day of the year of probate on which day the claim summons issued and further contends that the claim was properly exhibited to the _ probate court of Cook county pursuant to the statute then in force; that rule 11 of the probate court with which defendant contends claimant did not comply, is in contravention of the statute respecting the filing of claims against estates, and is therefore nnll and void and of no effect, and further if rule 11 were construed as a valid rule in that it regulates the business of the court, then it is appellee’s contention that the claimant did substantially comply with the provisions of said rule and that the evidence adequately supports the finding of the court. Also, upon filing claim summons issued as provided by statute.

Defendant’s theory of the case is that the claim was not valid; that the claimant failed to mail a copy of the purported claim or of the instrument upon which the purported claim was based, to the attorney of record for the estate, as required by said rule 11 of the probate court, then in force; that it was inadequate to allow any claim of which there was- no notice as required by rule of court after bona fide distribution in the estate after the year; that there was no evidence of the execution by deceased of the papers attached to the purported claim.

It appears that the claim was filed on the last day for filing claims and the testimony shows that the attorney for the estate went to the office of the clerk of the probate court on said last day in the forenoon and finding no notice on the books, he immediately thereafter distributed the estate.

It further appears that notice of the claim was mailed to the attorney for the estate and said letter was postmarked March 13, 1939. The statute in force on March 10, 1939, at the time the claim in question was filed, Ill. Rev. Stat., ch. 3, sec. 70, subpar. 6 [Jones Ill. Stats. Ann. 110.071], reads as follows:

“Sixth. All other debts and demands of whatever kind without regard to quality or dignity, which shall be exhibited to the court within one year from granting of letters as aforesaid.
“All claims and demands of whatever class not exhibited to the court within one year from the granting of letters as aforesaid shall be forever barred as to property and estate of the deceased which has been inventoried or accounted for by the executor or administrator ; . . .

The statute also provided for the manner in which claims are to be exhibited as set forth in ch. 3, par. 62, sec. 61, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.062], as follows:

“Whoever has a claim against an estate, and fails to present the same for adjustment on the return day selected by the executor or administrator, may file a copy thereof with the clerk of the court; whereupon, unless the executor or administrator will waive the issuing of process, the clerk shall issue a summons, directed to the sheriff of the county, requiring such executor or administrator to appear and defend such claim on a return day therein specified, which summons, when served, shall be sufficient notice to the executor or administrator of the presentation of such claim. ’ ’

It is not disputed that the claimant complied with the statute in filing his claim; that is it was filed within the year and summons issued, but notice under the probate court rule was not mailed until a few days thereafter. It is, however, contended by defendant that rule 11 of the probate court in force March 10, 1939, imposed on all claimants the additional requirement of mailing a true copy of such claim and instrument upon which the claim is based, to the attorney of record for the estate at the time of the filing of such claim and to certify such mailing on the original claim.

Rule 11 of the probate court in force at the time, reads as follows:

“A verified original of every claim against an estate shall be filed with the Clerk of the Court, and if founded upon a written instrument, a copy thereof shall be attached to the claim. Unless the executor or the administrator shall enter his appearance or consent to the allowance of such claim, it shall be the duty of the claimant to mail a true copy of such claim and instrument, to the attorney of record for the estate at the time of the filing of such claim, and on the original claim to certify such mailing.”

Claimant contends that the rule in question is in contravention of the statute above quoted in that the rule superimposes an additional requirement on claimants in exhibiting claims. Being thus in contravention of the statute claimant contends that rule 11 is void and of no effect.

We do not think we are called upon to determine whether or not rule 11 of the probate court is void and of no effect. Generally, courts have no power to impose upon parties any conditions as to the exercise of their rights under the law that are not imposed by the law. Defendant in this case concedes that the rule regulates the business of the court and, while courts may make rules for the orderly disposition of business before them, they are not granted power by rule to change the substantial rights of parties which are given to them by statute.

We do not think the failure of the defendant to comply literally with the rule of court, destroyed the jurisdiction of the court to try the cause. No harm was done as defendant received a copy of the notice in compliance with the rule, 2 or 3 days after the claim was filed.

It was attempted on behalf of defendant to show the custom in closing an estate in the probate court of Cook county. An alleged custom or practice cannot become a rule of court. Calbreath v. Beckwith, 260 Ill. App. 7.

As to the controverted questions of fact, there have been two trials in this cause and the trial judge in each instance saw the witnesses and heard them testify and was in a better position to judge as to their credibility and to decide wherein lay the preponderance of the evidence than is a court of review.

We have quoted the judgment order of the circuit court and it will be noted that judgment was entered for $2,897.10, plus interest at the rate of 5 per cent from June 16,1939, but that an error was made in adding the interest to said amount.

We are hereby affirming the judgment of the circuit court for the sum of $2,897.10, plus interest at the rate of 5 per cent from June 16,1939 to date.

Judgment affirmed.

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


text:
    Franklin Process Company, Appellant, v. Western Franklin Process Company et al., Appellees.
    Gen. No. 41,458.
    Opinion filed January 22, 1941.
    Edwards & Angell, of Providence, R. I., and Sidney, McPherson, Austin & Burgess, of Chicago, for appellant.
    Barney L. Hollowick and James C. Leaton, both of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

A suit was commenced in chancery under ‘1 The Business Corporation Act” to liquidate the assets and business of defendant, Western Franklin Process Company. The liquidation has been completed and all creditors, except plaintiff, have received a 53 per cent dividend.

The controversy is whether plaintiff shall share equally in defendant’s assets with other creditors. Plaintiff is both defendant’s largest creditor and majority shareholder. The parties principally interested in this appeal are plaintiff and defendant’s other creditors.

The superior court by its decree entered on May 23, 1940, found that plaintiff’s claims should be subordinated to those of defendant’s other creditors. The decree ordered plaintiff to refund from dividends paid on its claims the sum of $17,170.70 to pay the claims of all other creditors in full. Plaintiff brings this appeal from said decree of May 23, 1940.

Plaintiff’s theory of the case is that as a creditor it is entitled to share in defendant’s assets equally with other creditors. The validity of plaintiff’s claims is not disputed. Plaintiff and defendant are separate corporations. Plaintiff can be both a shareholder and creditor of defendant. Therefore, as a creditor, plaintiff is entitled to the same treatment as defendant’s other creditors.

Further that the trial court erroneously subordinated plaintiff’s claims on the theory that defendant was plaintiff’s instrumentality. This is not sufficient and is not supported by the record. The defendants other creditors must show some act or representation of plaintiff by which they were prejudiced. They have not done so.

Defendant’s theory of the case is that when the plaintiff filed its proceedings to liquidate the assets and business of its subsidiary and filed its claims and sought to share pro rata with the other creditors in the distribution of assets, the creditors filed objections to the allowance of plaintiff’s claims on a parity with other creditors owing to the fact that the receiver made no effort to do so; that plaintiff filed an answer which does not set up any new matter requiring a reply by the creditors and therefore none was filed; that no question on the pleadings was raised at any time in the trial court; that defendant’s creditors do not question the fundamental rule that a shareholder may participate with other creditors in the distribution of the assets of a corporation but in this case the trial court was justified in subordinating the claim of the parent corporation plaintiff to the defendant’s other creditors, not because claims of plaintiff were not valid, but that payment of its claims should be postponed until defendant’s other creditors were paid in full, for the reasons:

(1) Defendant was so controlled and its affairs were so conducted as to make it merely an adjunct or instrumentality of the plaintiff; and
(2) Because the plaintiff so conducted itself with relation to the management and conduct of the defendant’s business as to be guilty of an affirmative wrong which made it liable for the debts of its subsidiary.

Defendant’s theory further sets forth that it is not essential that the element of fraud or other wrong be present to bring about a subordination of the parent’s claim to that of its subsidiary’s general creditors; that it is sufficient to show the dominance and control of the subsidiary by the parent; that the loss or injury arises automatically by the insolvency of the subsidiary.

The creditors set forth their theory of the case as follows:

1. That a parent and subsidiary relationship existed between plaintiff and defendant;
2. That the plaintiff so dominated and controlled the defendant that it was merely an agency or instrumentality ; and
3. That the proof established that plaintiff was guilty in its conduct of- the defendant of affirmative wrong.

They further state that it is not necessary to prove the third element to bring about a subordination of plaintiff’s claims, however the court would have -been justified in finding that element present.

We do not think there is any controversy as to the essential facts. The difference seems to arise as to the conclusions as a matter of law to be drawn therefrom. The main controversy arises between plaintiff and defendant’s other creditors. The facts are substantially as follows:

1. Plaintiff is a Rhode Island corporation with its principal place of business in Providence. Defendant is an Illinois corporation with its only place of business in Chicago. The business of both corporations is dyeing, processing and selling yarn to the trade. Plaintiff also manufactures and sells dyeing machinery.
2. Plaintiff has been in business since 1910 and has about 1,100 shareholders. Plaintiff has a branch in Philadelphia. Plaintiff owns a controlling stock interest in plants at Greenville, South Carolina, Chattanooga, Tennessee, and Fingerville, South Carolina.
3. Defendant was organized about 1926 by W. F: Stahl by the name of Fibre Dyeing Company. The name was changed to Western Dyeing and Processing Company about 1931. The individuals primarily interested in the company were W. F. Stahl and L. G. Blessing.

It appears that W. F. Stahl of the Western Dyeing and Processing Company, which later became the Western Franklin Process Company, an Illinois corporation, made a trip to Providence, Rhode Island in February, 1936; that he endeavored to interest the Franklin Process Company, plaintiff herein, in buying some of defendant’s stock; that Mr. Stahl, who was vice president and general manager of the company which he represented, wanted to install the Franklin Process ■ of dyeing; that the Franklin Process Company would not purchase an interest in the then Western Dyeing and Processing Company, unless they, the Franklin Process Company could purchase sufficient stock so as to control the company; that on May 13, 1936, an agreement was entered between the parties at which time the name of the Western Dyeing and Processing Company was changed to Western Franklin Process Company.

It further appears that the Franklin Process of dyeing was installed in defendant corporation, which required the purchasing of the necessary machinery amounting to approximately $40,000; that the agreement provided for seven directors of whom five are directors of Franklin Process Company and four officers, three of whom are officers of Franklin Process Co.; that preferred stock aggregating $50,000 was to be issued as representing all the net assets of Western Franklin Process Company, and $75,000 of preferred stock was to be issued to Franklin Process Company in return for cash or for machinery and equipment; that Franklin Process Company was to receive 4,000 shares of the 6,000 shares of common and 750 shares of the 1,250 shares of preferred stock to be issued; that this agreement was carried out and all of the directors and officers except Stahl and Blessing lived in Providence, E. I.

It further appears that when the name of said defendant corporation was changed to Western Franklin Process Company, the articles of incorporation were amended and new by-laws were prepared by Edward P. Jastram, attorney for Franklin Process Company, who decided to use the existing corporation; that all books of Western Franklin Process Company.were to be kept at Providence, B. I., and before the change said corporation had only one bank account at Main State Bank, but after the change two other accounts were opened, one in the First National Bank of Chicago, where all collections were deposited, and one in Providence, B. I.; that the Main State account was used only for pay roll and petty cash and all checks drawn on the Main State Bank were to be signed by the president or by a clerk designated in writing by the president and checks on any other banks were to be signed by any two designated as follows: William F. Stahl, president; William A. Traver, vice president; L. W. Jones, treasurer; Albro N. Dana, Secretary; Albro N. Dana, assistant treasurer, E. Bernard Graves, clerk; Austin F. Matthews, clerk. All were officers and directors of Franklin Process Company with the exception of Stahl and the last two named were employees of Franklin Process Company. They were neither officers, directors or stockholders of either of the companies. Mr. Albro Dana, who testified upon the trial, has been in the employ of Franklin Process Company for 20 years.

It further appears that Franklin Process Company, the Bhode Island corporation, has its principal place of business at 564 Eddy street, Providence, B. I., with a branch in Philadelphia, Pa.; that it owns the controlling interest in Southern Process Company, a Delaware corporation of Greenville, South Carolina, Central Process Company of Chattanooga, Tenn.; that it owns 100 per cent interest in Franklin Process Spinning Mill Corporation, of Fingerville, South Carolina; that the changed by-laws provide that all stockholders’ meetings shall be held in Providence, B. I., at the principal office of the corporation; that all directors’ meetings of Western Franklin Process Company were held at 564 Eddy street, Providence, B. I., and all minutes stated that the meetings were held at the office of the company at that address. Mr. Dana when testifying stated that the offices of Franklin Process Company are located at 564 Eddy street, Providence, B. I., that the name of Western Franklin Process Company was not on the door at 564 Eddy street, Providence, B. I., and was not listed in the Providence telephone directory nor in the lobby of the building at that address.

It further appears that after May 13, 1936, Western Franklin Process Company did not borrow from any banks; that five cash loans were made by Franklin Process Company to Western Franklin Process Company, and all were paid back except $5,000. Mr. Dana testified that these loans were not brought to the attention of the board of directors of the Western Franklin Process Company and that no board of directors’ action was ever taken with reference to the same. He procured the loan from Franklin Process Co. to Western Franklin Process Co. Mr. Stahl, president of Western Franklin Process Company, testified that he knew nothing about those cash loans until after they had been made and that he was never asked to approve them.

It further appears that all of Western Franklin Process Company’s bills were paid by checks drawn in Providence, B. I., which would number about 100 a month; that all of said company’s financial matters were transacted in Providence, B. I.; that Western Franklin Process Co. had no employees in Providence, B. I.; that Dana received no salary from Western Franklin Process Co.; that he kept the books of Western Franklin Process Co. in his office in the offices of Franklin Process Company; that he had general supervision of all credits extended by Western Franklin Process Co. and in case of a doubtful account, Mr. Stahl would submit it to him for approval; that each week Mr. Stahl, as general manager, would send a weekly report to Mr. Dana in Providence and that report set forth what the payroll and petty cash expense would be for Western Franklin Process Co. and Mr. Dana would draw a check for that amount on the First National Bank of Chicago, and deposit it to the Main State account in Chicago to cover such withdrawals.

Many cases from other States, as well as cases decided by the federal court have been cited by both counsel in this case, showing a diversity of opinion as to what the law is relative to a situation such as this.

Appellant contends that the validity of plaintiff’s claims is admitted; that plaintiff is entitled to the same treatment as defendant’s other creditors; that in similar cases the courts have consistently upheld a parent corporation’s claims against its subsidiary unless the objecting creditors have shown fraudulent use of the subsidiary which has prejudiced the creditors; that such proof has not been made in this case, and that therefore plaintiff’s claims should stand on the same basis as any other bona fide claims.

On page 4 of its brief, appellee sets forth the controlling point of difference and relies on the following major premise:

“B. Upon insolvency of a subsidiary corporation, the parent corporation will not be permitted to file its claim in the proceedings and share in the proceeds of its subsidiary before other creditors are paid in full if the subsidiary has been a mere instrumentality of the parent corporation.” And on page 5, it is stated:
“In a proceeding to liquidate the subsidiary it is not necessary to prove fraud, other affirmative wrong, or superior equity, to justify subordination by the court of the claims of the parent to that of the other creditors of the subsidiary, where the parent controlled the subsidiary to such an extent that it was a mere instrumentality. ’ ’

We do not believe the relationship of the two corporations in this case, as disclosed by the evidence, would come under the rules of law just quoted.

McDermott v. A. B. C. Oil Burner Sales Corp., 266 Ill. App. 115, was a case wherein the question as to the liability of one corporation for the debts of another corporation was at issue. After citing the various cases which were applicable, this court said:

“It is an elementary and fundamental principle of corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations with which it may be connected. The fact that the stockholders of two corporations are identical, that one owns shares in another, and that they have mutual dealings, will not, as a general rule, merge them into one corporation. However, the legal fiction of distinct corporate existence will be disregarded when necessary to circumvent fraud, or where the corporation is so organized and controlled, and its affairs so conducted as to make it merely an instrumentality of another corporation. ... In New York Trust Co v. Carpenter, 250 Fed. 668, 674, it was said:
1 ‘ ‘ From an examination of many decisions, we venture to say that no corporation acting within its powers has been held liable for the debts of another corporation legally organized, because it controlled such corporation by reason of ownership of its stock, or otherwise, except by reason of contract or on grounds of agency, or of estoppel, or because the controlled corporation has been used in such a way that the maintenance of its character as a separate and distinct entity would work injustice.’ ... In Davis v. John R. Thompson Co., 239 Ill. App. 469, 475, the court said: ‘Even in cases where a corporation sued owned the whole or practically all of the stock of the corporation which caused an injury, and where such corporation, through the election of its board of directors, had the practical control of the corporation causing the injury, still, unless the corporation sued actually possessed or operated, through its board of directors, the corporation that caused the injury, or there was a joint or partnership operation, the corporation sued has been held not liable. ’ . . . Continuing, the court said on p. 477; ‘The mere fact that two corporations may have certain persons who are managing officers in both corporations, in and of itself, will not render one corporation liable for injuries caused by the other. ’ ”

In the instant case, as in the case we have just cited, it is not claimed there was any fraud, actual or constructive, and in that regard this court in the McDer-mott case supra, said:

“It is not claimed there was any fraud, actual or constructive, in the organization of the Sales Corporation, and there is no evidence that the Automatic Corporation participated in the affairs of the Sales Corporation except in the normal and usual manner of a stockholder; on the contrary, the business of the two corporations is entirely separate and distinct, and we have been unable to discover any evidence which would warrant disregarding the corporate entity existing between the two corporations on the ground of agency or estoppel, or because justice required it. Under such circumstances, the evidence is insufficient to sustain a judgment against the Automatic Corporation.” (Citing, General Motors Corp. v. Moffett, 27 Ohio App. 219, 160 N. E. 878; Louisville Gas & Electric Co. v. Moore, 215 Ky. 273; Perry v. Ohio Valley Elec. Ry. Co. 70 W. Va. 697; Pullman’s Palace Car Co. v. Missouri Pac. Ry. Co. 115 U. S. 587, 596; Peterson v. Chicago R. I. & P. R. Co., 205 U. S. 364; Cannon Mfg. Co. v. Cudahy Packing Co., 267 U. S. 333, 335; Chicago Hydraulic Press Brick Co. v. Campbell, 116 Ill. App. 322.)

“In Berkey v. Third Ave. R. Co., 244 N. Y. 84, 87, Mr. Justice Cardozo held that stock ownership alone would be insufficient to charge a dominant company with liability for the torts of a subsidiary. See also Costan v. Manila Electric Co., 24 Fed. (2d) 383; Owl Fumigating Corp. v. California Cyanide Co., 24 Fed. (2) 718; Kingston Dry Dock Co. v. Lake Champlain Transp. Co. 31 Fed. (2d) 265. The mere fact that two corporations have the same officers and stockholders does not render one of the corporations liable for torts committed by the other. (Great Salt Lake Amusement Co. v. Lagoon Amusement Co. (Utah), 294 Pac. 301.) ”

Counsel for appellee on page 35 of their brief make a statement with which we agree, and that is, that neither our Supreme Court nor the Appellate Court have ever passed directly upon the question as to when the parent’s claims will be subordinated to that of other creditors in a liquidation of a subsidiary. Detroit Motor Appliance Co. v. General Motors Corp., 5 F. Supp. (District Court E. D. Illinois) 27.

We do not think that a statement of the general rule does anything to support appellee’s contention. We believe the rule to be, after an examination of the various decisions throughout this country, that unless it appears that the creditors who are here preferred, suffered some special injury by reason of the acts of the parent corporation, they cannot obtain a preferment over the parent corporation. In this case it has not been shown by the evidence that the so-called parent corporation has done anything which would prejudice the rights of the other creditors and, therefore, we cannot find any reason in law as to why all the creditors including the appellant in this case should not participate on an equal basis in the payment of its claims. As we have stated, there is no evidence of wrongdoing, no misrepresentation which caused the creditors to extend credit, no fraud, no mismanagement, no diversion of the subsidiary’s assets to the parent corporation and no comingling of the assets. The assets of the insolvent corporation and the plaintiff in this case were always kept separate and distinct. The fact that the subsidiary corporation was not able to continue business, but when sold paid its creditors 53 per cent of the claims, does not establish a situation wherein appellant should not stand on an equal basis with all other creditors having valid claims.

For the reasons herein given the decree of the superior court is reversed and the cause is remanded with directions to allow and decree the payment of the claim of the appellant on a parity with the other claims.

Decree reversed and cause remanded with directions.

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


author: Presiding Justice Friend.

text:
    People of the State of Illinois, Appellant, v. Nick Anton, Appellee.
    Gen. No. 40,534.
    original opinion filed February 14, 1939;
    rehearing opinion filed January 21, 1941.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Varnes and Amos P. Scruggs, Assistant State’s Attorneys, of counsel; Charles W. Schaub, for appellee; Deneen & Massena, amicus curiae.

   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    People of the State of Illinois, Appellant, v. Nick Anton, Appellee.
    Gen. No. 40,535.
    original opinion filed February 14, 1939;
    rehearing opinion filed January 21, 1941.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Varnes and Amos P. Scruggs, Assistant State’s Attorneys, of counsel; Charles W. Schaub, for appellee; Deneen & Mas-sena, amicus curiae.

   Opinion by

Presiding Justice Friend.

“Not to be published in full.’ ’


author: Justice Huffman.

text:
    Richard P. Hunger and William Castee, Appellees, v. Frank Alan Johnson and Ester R. Johnson, Appellants.
    Gen. No. 9,523.
    opinion filed June 28, 1940;
    rehearing denied February 4, 1941.
    Philip J. McKenna, for appellants; Hall & Hulse, for appellees; Harry A. Hall, Marshall Meyer and John Bedrosian, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Louise Swanson, Appellant, v. Rock Island Stove Company, Appellee.
    Gen. No. 9,573.
    opinion filed December 19, 1940.
    Murphy & Murphy, for appellant; Myron Murphy, of counsel; Andrew Kopp, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in fuU.”


text:
    Fred J. Luthin, Appellee, v. Village of Hinsdale, Appellant.
    Gen. No. 9,581.
    opinion filed December 19, 1940;
    rehearing denied February 4, 1941.
    Malcolm Meeartney, for appellant; Weaver & Weaver, for appellee; Wilbur Dahn, of counsel.
   Opinion by

Justice Huffman.

‘ ‘Not to be

published in full.”


text:
    American Radiator and Sanitary Corporation, Appellant, v. E. J. Wilhelmi et al., Appellees.
    Gen. No. 9,588.
    opinion filed December 19, 1940;
    rehearing denied February 4, 1941.
    Higgins & Walter and William E. Austin, for appellant; Frank J. Jones, for appellees, Robert Barber, Andrew Barber and Henry J. Leser.
   Opinion by

Justice Huffman.

“Hot to be published in full.”


author: Presiding Justice O'Connor.

text:
    People of the State of Illinois ex rel. John Rusch, Appellee, v. Alious Johnson et al., Appellants.
    Gen. No. 41,118.
    opinion filed January 20, 1941;
    rehearing denied February 5, 1941.
    Myer H. Gladstone, for certain appellant; Elliodor M. Libonati, for certain other appellants; Abraham Miller, of counsel; Thomas J. Courtney, State's Attorney,’for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Presiding Justice O'Connor.

“Hot to be published in full.”


author: Justice McSurely.

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Emanuel Solomon et al., Appellants.
    Gen. No. 41,115.
    opinion filed January 20, 1941;
    rehearing denied February 5, 1941.
    Abraham L. Marovitz and Mayer Goldberg, for appellants; Thomas J. Courtney, State's Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice McSurely.

“Not to be published in fuU.’’


author: Justice McSubely.

text:
    The Prudential Insurance Company of America, Ap-pellee, v. Anton A. Montresor and Elfrida Mont-resor, Appellants.
    Gen. No. 41,407.
    opinion filed January 20, 1941.
    Oplatka, Pavek
      & Oplatka and Golan & Golan, for appellants; Samuel L. Golan, of counsel; Hoyne, O’Connor & Rubinkam, for appellee; Nathaniel Rubinkam and Leonard S. Schmitz, of counsel.
   Opinion by

Justice McSubely.

“Not to be published in full.”


author: Justice Matchett.

text:
    Gertrude Stahnke and Albert Stahnke, Appellees, v. American Carloading Corporation, Appellant.
    Gen. No. 41,296.
    opinion filed January 20, 1941;
    rehearing denied February 5, 1941.
    Cassels, Potter & Bentley, for appellant; Leslie H. Vogel and Richard H. Merrick, of counsel; Sims, Handy, MeKnight & Carey, for appellees; T. I. McKnight, Edward J. McLaughlin and Otto W. Berg, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    William J. Kehl, Appellee, v. Illinois Doughnut and Cake Company, Appellant.
    Gen. No. 41,362.

      opinion filed January 20, 1941.
    Bither & Bither and Luella M. Bither, for appellant; Clyde C. Fisher, of counsel; Epstein & Steinberg, for appellee; Herman L. Epstein, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Justice John J. Sullivan.

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Joseph Levey et al., Appellants.
    Gen. No. 41,053.
    opinion filed January 20, 1941;
    rehearing denied February 5, 1941.
    Simon Herr and Mayer Goldberg, for appellants; Thomas J. Courtney, State's Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    Max Blake, Minor, by Max F. Blake, His Father and Guardian, Appellee, v. Jeanette Courtney, Appellant.
    Gen. No. 41,195.

      opinion filed January 21, 1941.
    Burt A. Crowe, for appellant; Lou Nathanson and Charles A. Scott, for appellee; Joseph J. Ticktin, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    S. Edward Bloom, Appellant, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 41,468.
    opinion filed January 21, 1941.
    Bloom, Cohen & Bercov, for appellant; Maxfield Weisbrod, of counsel; Frank L. Kriete and Charles V. Falkenberg, for appellees; Charles V. Falkenberg, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    2063 Lawrence Avenue Building Corporation, Appellant, v. Joseph L. Biedl and Julia Biedl, Appellees.
    Gen. No. 41,535.

      opinion filed January 21, 1941.
    Robert H. Holmes, for appellant; no appearance for appellees.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Nellie M. Conerty, Appellee, v. Richard J. Richtsteig et al., Defendants. Richard J. Richtsteig and Marie Richtsteig, Appellants.
    Gen. No. 40,786.
    opinion filed January 21, 1941;
    rehearing denied February 5, 1941.
    Lowenhaupt & Wolff, for appellants; Oscar M. Wolff and Albert A. Gomberg, of counsel; Ryan, Condon & Livingston, for appellees; David J. Greenberg and John J. Elward, of counsel.
   Opinion by

Justice Scanlan.

‘ ‘Not to be published in full.”


text:
    Charles J. Ekstrand et al., Appellants, v. N. P. Severin et al., Appellees.
    Gen. No. 40,915.

      opinion filed January 21, 1941;
    rehearing denied February 5, 1941.
    England, O’Toole & Kays, for appellants; J. E. Yaffe, for appellees.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Simon Altman, Appellee, v. Paul A. Corso, Trading as Royal Smart Shoe Company, Appellant.
    Gen. No. 41,448.
    opinion filed January 21, 1941.
    Freeman & Freeman, for appellant; Earl Freeman, of counsel; Turner, Kaplan & Turner, for appellee; Maurice Turner, of counsel.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


author: Presiding Justice Hebel.

text:
    Hazel Dorval, Appellee, v. Guarantee Trust Life Insurance Company, Appellant.
    Gen. No. 41,288.
    opinion filed January 22, 1941.
    Meyer A. Ginsburg, for appellant; McKinley, Price & Quindry, for appellee; William McKinley and Paul E. Price, of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published, in full.’’


text:
    Soft-Lite Lens Company, Inc., Appellee, v. Benjamin D. Ritholz et al., Appellants.
    Gen. No. 41,299.
    opinion filed January 22, 1941;
    rehearing denied February 5, 1941.
    Clarence T. Morse, Benjamin D. Ritholz and Max E. Stein, for appellants; Mayer, Altheimer & Kabaker, for appellee; Herman A. Kabaker and Richard H. Deutsch, of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.’’


text:
    Soft-Lite Lens Company, Inc., Plaintiff, v. Benjamin D. Ritholz et al., Appellants. Appeal from Decree in Favor of Master Isidore Brown, Appellee.
    Gen. No. 41,300.
    opinion filed January 22, 1941;
    rehearing denied February 5, 1941.
    Max E. Stein, for appellants; Lawrence J. West ' and Albert Langeluttig, for appellee.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.’’


text:
    Sherman G. Taylor and Helen Taylor, Appellants, v. T. C. Fredrich, Assignee of Charles H. Albers, Receiver of Brookfield State Bank, and Thomas J. O’Brien, Appellees.
    Gen. No. 41,313.
    opinion filed January 22, 1941.
    Wellman & Wellman, for appellants; Walter C. Wellman, of counsel; Harry A. Biossat, for appellee T. C. Fredrich.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


text:
    Elston Fuel Corporation, Appellee, v. Diamond Coal Company, Appellant.
    Gen. No. 41,323.
    opinion filed January 22, 1941.
    John E. Wilson and Geoffrey Fleming, for appellant; Ross & Berchem, for appellee.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


text:
    Allen L. Thatcher, Appellant, v. Oscar Snyder, Appellee.
    Gen. No. 41,389.
    opinion filed January 22, 1941.
    Kotin & Gainer, for appellant; James B. Oashin, of counsel; Frederick W. Turner, Jr., and Avern B. Scolnik, for appellee; Frederick W. Turner, Jr., of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


author: Justice Burke.

text:
    In re Estate of Naoma Hartford Ashbeck, Deceased. Appeal of William S. Hartford, Conservator for Hattie S. Hartford, Incompetent, Appellant, v. William L. Ashbeck, Executor of Estate of Naoma Hartford Ashbeck, Deceased, and Viola J. Ashbeck, Appellees.
    Gen. No. 41,190.
    opinion filed January 22, 1941;
    rehearing denied February 5, 1941.
    Cohen, Berke & Goldberg, for appellant; Mayer Goldberg and Harry R. Fertig, of counsel; Erwin W. Roemer, for certain appellees; J. Robert Cohler, pro se.

   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    George W. Wagner, Appellant, v. John D. Wickstrom et al., Defendants. Cecil Emery, Appellee.
    Gen. No. 41,316.

      opinion filed January 22, 1941.
    Walter C. Well-man, for appellant; Raymond J. Moudry, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Frank B. Bilek et al. Appeal of Irving Leibold, Appellant.
    Gen. No. 41,365.
    opinion filed January 22, 1941.
    Simon Herr and Mayer Goldberg, for appellant; Thomas J. Courtney, State's Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


author: Justice Denis E. Sullivan.

text:
    Hede Tannert, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,298.

      opinion filed January 22, 1941;
    rehearing denied February 5, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Adam E. Patterson, Sydney R. Drebin, J. Herzl Segal and Louis H. Geiman, Assistant Corporation Counsel, of counsel; J. S. Pressman, for appellee; David H. Kraft, of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Trust Company of Chicago, Administrator of Estate of Stella Gasienicza, Deceased, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 41,330.
    opinion filed January 22, 1941.
    Thaddeus C. Toudor and Irving L. Lansing, for appellant; Hoyne, O'Connor & Rubinkam, for appellee; Nathaniel Rubinkam and William A. Cannon, of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Fred Kotek, Appellee, v. Charles Kotek, Appellant. John Vokaty et al., Intervening Petitioners, Appellants.
    Gen. No. 41,396.

      opinion filed January 22, 1941.
    John A. Cervenka, Jr., and Klenha & Greenfield, for certain appellant;'Irving Breakstone, for certain other appellants; Joseph Lustfield, for appellee; Thomas M. Zasadil, of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Woodlawn Union Baptist Church et al., Appellees, v. Hamilton D. Martin et al., Appellants.
    Gen. No. 41,443.
    opinion filed January 22, 1941.
    A. L. Williams and Joseph E. Clayton, Jr., for appellants; William H. Haynes and William H. Harrison, for appellees; William H. Haynes, of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


author: Mr. Justice Fulton

text:
    James Earl Fountain, Appellant, v. Risden E. Fountain et al., Appellees.
    Gen. No. 9,237.

      Opinion filed October 15, 1940.
    Rehearing denied February 5, 1941.
    Thomas W. Hoopes, of Springfield, for appellant.
    Bellatti, Samuell & Arnold, of Jacksonville, for appellee Risden E. Fountain.
   Mr. Justice Fulton

delivered the opinion of the court.

The appellant, James Earl Fountain, filed a complaint in the circuit court of Morgan county for partition and for alternative relief. One of the appellees, the Elliott State Bank, as trustee, filed a motion to dismiss, which was sustained, and the court dismissed the complaint for want of equity and hence this appeal.

The controversy arises over the construction of a deed, a trust deed and a will, all executed by James H. Fountain on or about March 22, 1933. The complaint together with the exhibits attached show in substance that by the deed, James H. Fountain conveyed 640 acres of land to the Elliott State Bank; that on the same date the said James H. Fountain and the said Elliott State Bank entered into an agreement and instrument in writing commonly, called a declaration of trust providing that the bank should hold title to the said real estate, subject to the trust outlined in the trust deed; that the 'bank accepted the office of trustee and has since been acting in that capacity under said declaration'of trust; that James H. Fountain died on May 14, 1935, leaving surviving him no widow, but the appellant James Earl Fountain, his only child and heir-at-law; that he also left surviving him, James Romandell Fountain, his grandson, child of the appellant, who became deceased on December 14, 1937, never having been married and leaving no children or descendants of children surviving him; that the appellant was 49 years of age at the time of the filing of the complaint, was married and had two minor children; that by the terms of the trust agreement the bank, as trustee, was authorized to manage, control, handle and lease the real estate, to cause the securities therein listed to be transferred in its name, to sell, invest and reinvest the proceeds thereof, to pay over to James H. Fountain, during his lifetime the net annual income and such part of the principal of the trust as he might ask for, and upon his death to pay all of his funeral expenses, divide certain personal property between the appellant James Earl Fountain and the grandson, James Bomandell Fountain, to convey certain real estate to James Earl Fountain, to sell the rest of the real estate, invest the proceeds and hold.the balance of the trust estate until James Earl Fountain should attain the age of 60 years, or if he should have died prior to that age then until the date when he would have attained the age of 60 years if living, and during that period to pay the net annual income to James Earl Fountain and James Bomandell Fountain directly, with the further provision that if James Earl Fountain or James Bomandell Fountain should die before the date of final distribution, then the tnistee should pay such one-half part of the income to the wife and children of the one so dying.

The trust agreement provides further that upon the termination of the trust, the bank, as such trustee, shall convert the trust property of every kind and nature into cash and divide the net proceeds into two equal shares, the payment of one of said shares to be made to James Earl Fountain, “if he be then living and if he be not living, then to his children or descendants per stirpes, and to pay the other part of said net proceeds to the said Jatiies Bomandell Fountain if he be then living, and if not to his children or descendants per stirpes, provided, that if he leave a widow at the date of such distribution, then such widow shall receive one-third of such one-half part. If neither the said James Earl Fountain nor James Bomandell Fountain nor any.of their descendants are living at the time fixed for such distribution then the entire trust estate shall be paid over to the ‘then heirs at law’ of the party of the first part, except that one-third of said trust estate shall be paid to the widow of James Bomandell Fountain if then living.”

The will of James H. Fountain intended to dispose of all of the property that might remain in his name at the time of his death, and also to dispose of the trusteed property in case the settlor should have revoked the trust during his lifetime.

In the latter part of par. 2, of said will it was provided, “And I therefore expressly will and direct that this will shall apply to all property of every kind and nature of which I may die seized and possessed.”

In par. 3, it was provided, “I give, devise and bequeath all my property and estate, real, personal or mixed of whatsoever kind and nature and wheresoever situate, unto Elliott State Bank of Jacksonville, Illinois, in trust. ”

Then follows the terms of the trust which are almost identical with the terms of the trust agreement.

Neither the trust deed nor the will appear to have, made provision for the distribution of the income from the trust estate in case either or both of the beneficiaries should die without a widow or children surviving. Nor do they provide expressly for the disposition of the corpus at the termination of the trust in case one only of said beneficiaries should have died without children or descendants surviving him.

Because of this situation it is the contention of the appellant that upon the death of James Bomandell Fountain, leaving no widow or children or descendants surviving him, the appellant James- Earl Fountain, acquired the equitable fee simple title to one-half of the real estate described in. the trust agreement, as the heir-at-law of James H. Fountain, deceased. As a basis for his position he insists that upon the death of the said grandson, the legal title to said one-half interest was in the trustee and that the equitable title remained in the settlor; that such equitable interest did not pass under the will of James H. Fountain and that cross remainders cannot arise by implication under a deed. For the last contention the appellant relies largely on language used in the case of Whittaker v. Porter, 321 Ill. 368, 372, where the court said, “In a deed cross-remainders can be created only by express limitations, but in a will they may be implied.” In that case the question under consideration arose under a will and. appellee insists must be held to be dicta.

However, in this case there appears to be more to construe than the deed alone. The declaration or trust agreement creates many equitable interests. It provided for a spendthrift trust, for the management, control, sale and distribution of real estate, cash and securities, and for. a definite time when the remainders shall become effective and the final distribution made. Conceding the Supreme Court to have laid down the rule that cross remainders in a deed can only be created by express limitations, it is doubtful if such a hard and fast rule should be applied to a declaration of trust containing the language found in the instrument sought to be construed in this case.

In the American Law Institute’s Restatement of the Law of Property, sec. 115, the authors announce definitely that in their opinion cross remainders may be implied from the language of deeds as well as from the language of wills.

We believe the trial court correctly found that the instrument involved in this case should be construed by the rules applicable to wills rather than the rules applicable to deeds, and that a cross remainder in James Earl Fountain should be implied as arising upon the death of James Romandell Fountain without a widow or children or descendants surviving him.

It can further be taken into consideration that on or about the same date the trust agreement was executed the settlor made a will. The appellant urges that the equitable interest in controversy remaining in the settlor did not pass under the will and that the language of said instrument shows that the testator never intended the real estate previously conveyed by the trust deed to pass. In support of this contention, the appellant relies upon the case of Williams v. Swango, 365 Ill. 549, which holds that the interest in reversion remaining in the grantor of a deed conveying land to one for life with remainder to the heirs of her body was such an intangible estate that it cannot be said that .the' grantor was “seized and possessed” of the lands in the technical sense of these terms, and that, therefore, the language in other deeds from the same grantor to other children, that the grantee “accepts the same as and for his entire interest in and share of all of the property of which the grantor may die ‘seized and possessed,’ ” did not deprive such grantee children of their right to inherit the reversionary interest referred to. Counsel states that because of the use of the- words “seized and possessed” contained in par. 3 of the will of James H. Fountain, the testator could not have referred to real estate which he had two days before conveyed to a trustee and recognized that such trustee was seized and possessed of the same.

From a reading of the entire will, however, and particularly the portions of pars. 2 and 3, heretofore quoted, we believe the language broad enough to include all property including the estate in reversion and that a cross remainder would be implied.

There is another feature of this trust deed and the will which prevents the right to the present enjoyment of the estate in appellant. The trust agreement provides par. J, that “upon the date when said James Earl Fountain attains the age of sixty years or upon the date when he would have attained the age of sixty years if living, then said Trustee shall convert into cash all of the property of every kind and nature then belonging to the said Trust Estate, and shall divide the net proceeds into two equal shares.” Then follows the distribution of one share to the appellant and one share to the grandson, if living. If not living and leaving no children or descendants living, ‘ ‘ at the time fixed for said distribution” then the entire trust estate shall be paid over to the “then heirs at law” of the party of the first part. If the remainder is contingent upon the devisee surviving the life tenant, the devisee must literally survive the person named as life tenant, and not merely survive the life estate. Danz v. Danz, 373 Ill. 482; Hasemeier v. Welke, 309 Ill. 460.

It appears clear to us that it was the intention of James H. Fountain to defer the vesting of the remainder until his son had attained the age of 60 years, or upon the date when he would have reached that age if living.

Where it is apparent that the testator intended to create a class of remaindermen who were to be determined at a date subsequent to the date of the death of the testator, that intention will prevail over that which would ordinarily be implied from the use of the words “heirs at law”. ... “A fundamental and familiar rule in construing wills is to ascertain the intention of the testator from a consideration of the whole will, and such intention must be given effect if not in conflict with an established rule of law or of public policy.” Brumsey v. Brumsey,- 351 Ill. 414.

We believe the intention of James H. Fountain was clearly expressed in the instruments under consideration in this case. Preservation of the estate for the benefit of his son, grandson and their descendants until James Earl Fountain attained or would have attained the age of 60 years, if living, was uppermost in his mind, and that in case of the death of either the son or the grandson before such period terminated, the share of the one so dying in the income should go to his children or descendants, and that by implication of law, if either of said life tenants should die within the period of the trust leaving no children or descendants and no widow, as in the case of James Romandell Fountain, that the share of the one so dying should go to the other life tenant. Outstanding contingent interests are a bar to appellant’s right of present enjoyment and, in our opinion, he is not entitled to partition nor to the relief asked for in his complaint.

The decree of the circuit court dismissing the complaint for want of equity was, in our judgment, correct and is hereby affirmed.

Affirmed.