author: Mr. Justice Matchett

text:
    In the Matter of the Estate of Alice Ann Walker, Deceased, Fred Walker, Appellee, v. John Walker, Appellant
    Gen. No. 33,970.

      Opinion filed February 24, 1930.
    Day & Beilman, for appellant.
    Nels H. Olson, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

An instrument in writing purporting to be the last will and testament of Alice Ann Walker was admitted to probate in the probate court July 14, 1927. Upon appeal to the circuit court the cause was submitted for trial by the court, and again there was a finding for the proponent and judgment that the instrument be admitted to probate and for costs. This appeal from that judgment is prosecuted by John Walker, a son of the decedent.

It is contended that the alleged will should not have been admitted to probate because it was not signed nor acknowledged by the testatrix in the presence of two witnesses, as required by the statute, and was not attested by two witnesses in the presence of the testatrix as required by the same statute.

There is practically no contradiction in the testimony as to any material fact. The instrument consists of three typewritten pages, each of which bears the signature of the testatrix and purports to have been executed on March 27,1926. The instrument is under seal, and it is not questioned that the genuine signature of the testatrix is attached thereto. Following her signature, in a formal attestation clause in due form, three witnesses certified that the instrument was signed, sealed, published and declared by the testatrix- “in the presence of us, who at her request and in her presence, and in the presence of each other, have hereunto subscribed our names as witnesses. . . .” All these witnesses testified upon the hearing that they believed the testatrix at the time she executed the instrument was of sound mind and memory and that there was no fraud, duress or undue influence.

At the time the instrument was executed testatrix was about 75 or 76 years of age and'was somewhat lame, but there is no evidence of any other physical or any mental infirmity. At the time in question, two of the attesting witnesses, Robert Whitelaw and Lucy M., his wife, lived at 1116 West Crescent avenue, Park Ridge. The Whitelaws had known the testatrix for about 12 years. The house in which they lived stood on the north side of a street which runs east and west, and the house faced south. On the front of the house was a porch about 6 or 8 feet wide. It was roofed and was about 4 feet above the walk which led to the house. There were 6 or 7 steps leading to the porch but no steps from the porch to the inside of the house. There was a little railing about 2 feet high on the outside of the porch which enclosed it. About 6 or 8 feet back from the front of the porch there were 3 windows. Inside of the house á library table about 2 feet wide stood about 3 inches back from one of the windows.

On the Saturday afternoon of the day when the instrument was executed, Fred Walker, a son of testatrix, called the Whitelaws on the phone and said he would like to know .if Mr. and Mrs. Whitelaw would sign his mother’s will, and Mr. Whitelaw said they would be glad to do so. Fred Walker also asked Mr. Whitelaw to ask his brother-in-law, David Frost, if he would sign. Fred Walker said he was coming there with his mother in the afternoon, and Mr. Whitelaw said, “All right.”

About 3 or 3:30 o’clock in thé afternoon Fred Walker came with the testatrix in a Hupmobile sedan car, which stopped in the road in front of the house; the car faced to the east and the testatrix sat in the back seat. The car was about 35 feet from the library table standing by one of the windows in the living room of the house. When Fréd Walker went into the house he' had the will with him and asked Mr. Whitelaw to sign it. The testatrix sat in the car while Fred went into the house with the will, and Mr. and Mrs. Whitelaw and David Frost were in the house at that time. Fred asked them to sign the will and Mr. Whitelaw said, “Now, Fred, before I sign the will I must go out to the car and ask your mother if it is her will and her signature.” Mr. Whitelaw then took the will, went out to the car and asked the testatrix if that was her will and her signature and she said that it was. He then went back into the house and told his wife and Mr. Frost that it was Mrs. Walker’s will and that it was her signature. The instrument was then placed on the table, and Robert Whitelaw signed first, Mrs. White-law second and David Frost third. The three witnesses were present at the same time and signed in the immediate presence of each other, and they testified that at the time of signing they were' in plain view of the testatrix; that they could see her and that so far as they knew she could see them.

After the witnesses had signed Fred Walker took the will. Mrs. Whitelaw walked out to the car in which testatrix sat, and a little later Robert Whitelaw, David Frost and Fred Walker went out together and walked towards the car. When about 10 feet from the car Frost spoke to the testatrix, bade her good-by and went towards his own home. Fred Walker handed the writing over to the testatrix and thanked the Whitelaws for signing it; the testatrix nodded her head in assent and said she was glad it was done. When Robert Whitelaw took the will out and asked the testatrix with reference to it, neither Mrs. Whitelaw nor Mr. Frost heard his question or her reply thereto.

The second section of the Statute of Wills (Cahill’s St. ch. 148, ¶ 2; Smith-Hurd’s Ill. Rev. Stat. 1929, ch. 148, sec. ¶ 2, p. 2906) provides that wills “shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the County Court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament or codicil, to admit the same to record: Provided, ...”

The contestant says that he does not contend that a testatrix must sign in the presence of the witnesses, but his point is that she must either sign or acknowledge it in their presence and that an acknowledgment must be made to the full number of witnesses. The testatrix expressly acknowledged to Robert Whitelaw that she signed the will prior to the time when the witnesses wrote their signatures upon the document. After the witnesses had signed it was taken by the son to the automobile and there in the presence of the witnesses and testatrix he thanked them for their services and handed the will to testatrix as executed. She nodded her head in assent to what the son said and stated that she was glad it was done. We think this amounted to an acknowledgment of the will on her part sufficient to comply with the technical requirements of the statute. It will be remembered that the genuineness of the signature of the testatrix is not questioned. The contestant, however, cites Calkins v. Calkins, 216 Ill. 458, but the controlling question in that case was whether the will had been properly attested, not whether the testator had made due and sufficient acknowledgment. The language of the opinion is rather against the theory of the contestant, the court stating:

“The provisions of the statute as to the signing by the testator and the witnesses are different. He may either sign the will in the presence of the witnesses or acknowledge that the will is his act and deed, but as to the witnesses, the only provision is that they shall attest the will in his presence.”

We think this instrument was duly acknowledged.

The controlling question in this case is whether the instrument was duly attested by the witnesses in the presence of the testatrix. The proponent contends that the fact that the attestation clause attached to the will is in due form is evidence tending to show that it was properly attested. Such is the general rule stated in Schofield v. Thomas, 236 Ill. 417; Dubach v. Jolly, 279 Ill. 530; Flynn v. Flynn, 283 Ill. 206, and other cases cited.

It is, however, argued that the rule is applicable only where the witnesses are forgetful or are impeached. The rule is not so limited, and we think it would be impracticable to impose any such limitation on it. However, as is suggested, the rule is not intended to render the formalities of the statute indispensable. The attestation clause was properly received in evidence upon the hearing in the circuit court (Chandler v. Fisher, 290' Ill. 440; In re Will of Porter, 309 Ill. 220; Thornton v. Herndon, 314 Ill. 360) and is some evidence tending to show due attestation. This evidence, of course, is by no means conclusive and perhaps little weight should be given to it in a case where, as here, the recollection of the witnesses is clear and their evident purpose to state the facts just as they took place unquestioned.

The contestant relies on Hill v. Chicago Title & Trust Co., 322 Ill. 42, a case in which the general rules as to the acts necessary to the due execution of a will are stated. The facts of that case, however, are not at all similar to those which appear here, since in that case the signature of one of the two attesting witnesses was not legible and there was no evidence as to his identity. It is stated in that case:

“The execution of a will does not consist, alone, of the signing of the -instrument by the testator, but a material part of its execution is its attestation by two witnesses in the presence of the testator. Proof of the execution of a will, therefore, does not consist, alone, of evidence of the signature by the testator, but evidence of its attestation is also a material part of the proof of its execution.”

The final question here is whether the witnesses, who without question signed the will, performed that act in the presence of the testator within the meaning of the statute. In determining what is the presence of a testator within that meaning the courts have been required to pass upon unusual situations. In Ambre v. Weishaar, 74 Ill. 109, the witnesses, after the instrument had been signed by the testator, went from the bedroom where the testator had signed into a dining room and there attested the instrument. The testator could have seen the witnesses while they signed. The Supreme Court held this was sufficient, since the witnesses had signed their names in such a place that the testator could see them if he chose to do so.

In Witt v. Gardiner, 158 Ill. 176, the court defined what is meant by the presence of a testator within the meaning of the statute, using substantially the language “of a distinguished modern law writer,” as follows:

“Contiguity, with an uninterrupted view between testator and subscribing witnesses, is the indispensable element to the physical signing in the testator’s presence. ’ ’

Without discussing the cases cited in detail, an examination of them discloses that the word “contiguity” in the definition is not used in any narrow or restricted sense, but rather liberally, to the end that the evident purpose of this provision of the statute to prevent fraud upon the testator may be accomplished. Casson v. Dade, 1 Brown’s Chancery Rep. 99; Shires v. Glascock, 2 Salk. 688; In re Tobin, 196 Ill. 484; In re Will of Porter, 309 Ill. 220; Wright v. Lewis, 5 Richardson’s Law Reports, (So. Car.) 212, are cases in which, under facts somewhat similar to those which here appear, the wills were admitted to probate.

The undisputed evidence here is to the effect that the attestation of the will took place within the range of view, of the testatrix under such circumstances that she could have seen the act of attestation if she chose so to do. This seems under the authorities to be sufficient.

The contestant suggests undue influence by the brother, who under the terms of the will was to receive 40 per cent of the estate, but if such was the fact (a matter upon which we express no opinion), contestant was not without his remedy.

For the reasons indicated the order of the circuit court will be affirmed.

Affirmed.

McSurely, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Mary J. Lamb, Appellee, v. Dennis J. Lamb, Defendant. Appeal of George K. Schmidt and Louis E. Gosselin, Respondents in Contempt Proceeding.
    Gen. No. 33,851.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    Samuel A. Ettelson, Corporation Counsel and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.
    Maurice L. Davis, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal George K. Schmidt as comptroller of the City of Chicago, and Louis E. Gosselin as deputy comptroller of the City of Chicago, seek to reverse an order of the circuit court of Cook county adjudging them in contempt of court and imposing a fine against each of $25.

Mary J. Lamb filed her bill in the nature of a creditor’s bill against Dennis J. Lamb, the substance of which was that she had obtained a judgment of more than $6,000 against Dennis J. Lamb and had exhausted all means under the law in an unsuccessful attempt to collect it; that Dennis J. Lamb was a civil service employee of the City of Chicago in the department of gas and electricity, at a salary of $225 a month; and prayed that a receiver be appointed to collect Dennis J. Lamb’s salary and to apply the proceeds towards satisfaction of the judgment. Dennis J. Lamb alone was made a party defendant. He filed his demurrer, which was overruled and the bill was then taken as confessed against him. . A receiver was appointed to collect and receive his salary as it came due. Afterwards a demand was made by the receiver on the comptroller and his deputy for the salary earned after the appointment of the receiver. The demand was refused and a petition was thereafter filed by the receiver asking that a rule be entered that the comptroller and his deputy show cause why they should not be punished for contempt of court. The rule was entered and the comptroller and his deputy filed a joint and several answer. Afterwards the court found defendants guilty of contempt and imposed a fine against each as stated.

The comptroller and his deputy contend that the court was without authority to enter the order finding them guilty of a contempt of court; that the City of Chicago is a municipal corporation existing for the public welfare and cannot be compelled, under the law, to pay the salary of one of its employees to a receiver appointed in a suit which is in the nature of a creditor’s bill. City of Chicago v. Hasley, 25 Ill. 595; Merwin v. City of Chicago, 45 Ill. 133; Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580; and City of Chicago v. People, 98 Ill. App. 517, are cited in support of this contention.

In the Addyston Pipe Company case it was held that a creditor’s bill would not lie against the City of Chicago to enable the complainant to reach a debt owing by the city to a third party. In that case a creditor’s bill was filed against the city and Michael Joyce, in which it was alleged that complainant had obtained a judgment against Joyce, the issuing of an execution and a return of it nulla bona and averring that the city held money belonging to Joyce. There was a prayer for discovery as provided in section 49 of the Chancery Act, Cahill’s St. ch. 22, ¶ 49. It appeared that Joyce had performed labor for the city under a contract, for which money was due and owing to him from the city. The court held that the demurrer to the bill was properly sustained on the ground that a creditor’s bill would not lie against a municipal corporation. The court quoted with approval from the Hasley case above cited (p. 582) as follows:

“There can be no doubt that the property of a private corporation may be seized and sold under a ƒi. ƒa. for the payment of its debts, as in the case of an individual. .. . . The nature, objects and liabilities of political, municipal or public corporations, we think, stand on different grounds. These corporations signify a community, and are clothed with very extensive civil authority and political power. . . . ”

Continuing, the court, referring to the Hasley case, said:

“The court then goes on to show that if the property of the city could be levied on and sold it would be impossible for it to perform the functions for the people for which it was created.”

The court then considers the Merwin case (45 Ill. 133), in which it was held that a municipal corporation was not subject to garnishment, and on this question said (p. 583):

“It (the question) must be decided as a question of public policy. These municipal corporations are in the exercise of governmental powers, to a very large extent. They control pecuniary interests of great magnitude and vast numbers of human beings, who are more dependent upon the municipal, for the security of life and property than they are on either the State or the federal government. To permit the great public duties of this corporation to be imperfectly performed in order that individuals may the better collect their private debts would be to pervert the great objects of its creation. That its efficiency for purposes of government would be impaired by holding it liable to garnishment cannot be doubted. A large and growing city like Chicago must constantly have hundreds of persons in its employment, and if the city cannot, at short intervals, make a settlement of these multitudinous accounts, but is liable to be drawn into court at the suit of every creditor of its numerous employees, it will not only be engaged in much expensive and vexatious litigation in which it has no interest, but, if unable to safely pay its employees and contractors, it may lose the services of persons that may be of much value.”

After quoting the above from the Merwin case, the court says that the decision holding that garnishment would not lie against a municipal corporation was predicated upon the ground of public policy, and continuing the court said (p. 584):

“If, as we have held, a municipal corporation is not liable to the process of garnishment, upon what ground can a creditor’s bill be maintained against a municipal corporation?”

The court then refers to section 1 of the Garnishment Act, Cahill’s St. ch. 62,¶ 1, and section 49 of the Chancery Act, Cahill’s St. ch. 22, ¶ 49, and holds that a creditor’s bill will not lie against a municipal corporation.

Counsel for the complainant, Mary J. Lamb, seeks to distinguish this case from the one at bar, as we understand the argument, on the ground that in the instant case, the City of Chicago was not a party to the creditor’s bill, but we think the. distinction does not alter the legal principle involved; nor do we think it would serve any useful purpose to discuss the cases of Wren v. Dooley, 97 Ill. App. 88; Singer & Talcott Stone Co. v. Wheeler, 6 Ill. App. 225, relied upon by complainant, because we are of the opinion that we are bound by the holding of the Supreme Court in the Addyston Pipe Co. case. If a receiver might be appointed for each employee of the City of Chicago where an unsatisfied judgment was obtained against him, the city might be drawn into numerous cases in which it had no interest; and under the rule announced in the Addyston Pipe Co. case, this would be against public policy.

The order of the circuit court of Cook county adjudging the comptroller and his deputy to be in contempt of court is reversed.

Order reversed.

McSurely, P. J., and Hatchett, J., concur.


text:
    Samuel H. Anschell, Appellee, v. Mortimer B. Flynn, Appellant.
    Gen. No. 33,869.
    Opinion filed February 24, 1930.
    Miller, Gorham & Wales, for appellant.
    Wolfsohn & Fireman, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, as payee of a promissory note for $2,000 made "by the defendant, brought suit to recover $1,791.40 claimed to be the balance due on the note. The case was tried before the court without a jury and there was a finding and judgment in favor of plaintiff for $2,000, being the amount plaintiff claimed, with interest, and the defendant appeals.

The récord discloses that plaintiff, defendant and about 15 other men were directors of the Fort Dear-born Athletic Club, located at 12 East Monroe Street, Chicago; that the club was in need of $20,000 and arrangements were made with a bank to borrow the money. The agreement with the bank was that if plaintiff would execute his promissory note for $20,000, payable to the bank, put up as collateral to the note, the individual notes of the directors of the club in amounts aggregating $20,000, and would also put up as collateral a chattel mortgage executed by the club on its personal property, the $20,000 would be loaned by the bank. This agreement was authorized by the club and it was carried out; plaintiff executed his note for $20,000 and the individual directors executed their notes ranging in amounts from $500 to $2,500. These latter notes were made payable to plaintiff’s order. They were indorsed by him and delivered to the bank, together with the chattel mortgage. The club then received the $20,000. Afterwards when the indebtedness to the bank became due, plaintiff was required to pay it, which he did,, and at the time the chattel mortgage and the individual notes of the directors, including one of $2,500 made by himself, were turned over to him. He foreclosed the chattel mortgage and credited each of the directors who had made their notes with his pro rata share. Plaintiff’s part of the proceeds received from the foreclosure of the chattel mortgage was $208.60, leaving a balance due on the note of $1,791.40, for which amount with interest thereon plaintiff sues.

The defendant contends that in executing his note for $2,000, payable to plaintiff, he was acting merely as surety for the Athletic Club and that since plaintiff, after he had received the individual notes of the directors, which had been pledged to the bank, extended the time of payment to some of the directors on their individual notes, this, under the law, released the defendant. His contention is that the extension of time of the cosurety discharges the liability of the other cosureties. We think the contention of the defendant is inapt here, even if we assume the law to be as contended for by counsel, because there could be no contribution between the directors who made the individual notes. Bach one was liable for the specific amount mentioned in his note. He could be required to pay no more or no less. The reason for the rule that where a creditor extends the time of payment to the principal debtor, without the consent of the surety, he releases the surety, is that the surety’s rights might be prejudicially affected. That reason is not applicable here because each of the directors who made the notes is liable for his own note and no more.

The defendant further contends that the court erred in ruling out his offered evidence to the effect that he had not been notified of the time and place of the sale of the property covered by the chattel mortgage. We think the ruling was entirely proper. No such defense was interposed by the defendant in his affidavit of merits. On the contrary, defendant set up the fact that the chattel mortgage had been foreclosed and that each of the makers of the individual notes was credited with his pro rata share of the proceeds derived from such foreclosure.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McSurely, P. J., and Hatchett, J., concur.


author: Mr. Presiding Justice Wilson

text:
    The People of the State of Illinois, Defendant in Error, v. John Freeman, Plaintiff in Error.
    Gen. No. 33,535.
    Opinion filed March 5, 1930.

      Louis Greenberg, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is a writ of error to the criminal court of Cook county, brought by John Freeman to review an order of that court finding him guilty of contempt and sentencing him to confinement in the county jail for a term of six months. The order of commitment grew out of such testimony as was given by Freeman in a certain cause pending in the criminal court, entitled The People v. Sam Kaplan. Freeman was a witness on behalf of the People. The indictment in that case charged the defendants with kidnapping growing out of a conspiracy to vote illegally and to persuade and induce others to vote illegally and to prevent persons having a right to vote from voting at a primary election held April 10, 1928, in the City of Chicago, Cook county, Illinois.

It appears from the order of commitment that on the trial of said cause it was material to the issue to show that Freeman, as well as others, had voted illegally at said election. On the trial Freeman was asked a number of questions on direct examination, tending to show that he had voted at different times and at different places on the same day at the same election and, in answer to these questions, he answered in the affirmative, stating the various times he voted and at what particular polling places, and that he was driven to these places in an automobile accompanied by three or four other people. He was given the name under which he was to vote at the various places by those who were accompanying him.

The direct examination appeared to be quite extensive. When Freeman was turned over to defendant’s counsel for examination, as shown by the finding of the trial court upon which the order of commitment was based, he testified that he had not voted as testified by him on direct, but that in a number of the answers given on direct in the morning session of the court, he had lied, and that his answers to the questions on his direct examination were false.

It is urged as a ground for reversal that the questions and answers were concerning matters not material to the issue. We have before us in this proceeding only the order finding the said Freeman guilty of contempt, and in this order it is charged that the testimony was material to the issue and we are constrained to assume this to be a fact, not having’ the indictment nor the record in the case before us. It is not necessary in our opinion that such testimony, however, should be of the same kind and character as would be necessary to support a charge of perjury. If testimony as given by a "witness is of a character that would show an utter disregard of the "witness for the sanctity of his oath and consume the time of the court in answering a long line of questions on direct, which he subsequently on cross-examination declared to be false, we are of the opinion that such conduct would constitute a contempt of court. Answers of a witness to questions put to him, frivolous in their character, insulting to the court, or false in their entirety, would have a tendency to obstruct, hinder and delay justice and seriously interfere with the order and decorum of a trial.

The happening of the event in question took place in the presence of the court. The witness .Freeman admitted that the answers previously given were false. The fact of their falsity did not require extraneous evidence in view of his admissions. The false statements were made in the presence of the court and constituted a direct contempt. People v. Hadesman, 223 Ill. App. 219; People v. Stone, 181 Ill. App. 475; Chicago Directory Co. v. United States Directory Co., 123 Fed. 194.

After the witness had admitted on cross-examination that his previous testimony had been untrue, the court asked a number of questions, and this is alleged as error. We are unable to see any force in this reasoning, as it appears from the order of commitment that the witness had already repudiated his testimony given on the direct examination.

Upon the record as we find it, we are of the opinion that the trial court did not exceed its authority in ordering the commitment of the witness for contempt.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.

Ryner and Holdom. JJ,, concur.


text:
    In the Matter of the Estate of Anna B. Austin, Deceased. Frederick C. Austin, Appellant, v. First Trust & Savings Bank, Appellee.
    Gen. No. 33,612.

      Opinion filed March 5, 1930.
    I. B. Lipson and Brown, Fox & Blumberg, for appellant ; Charles LeBoy Brown and Henry Blumberg, of counsel.
    Packard, Barnes & McCaughey, for appellee ; George Packard and Cecil Barnes, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This case was previously before this court as General Number 31,187, reported in 243 Ill. App. 386. A petition for a writ of certiorari to the Supreme Court to review the judgment in that case was denied. In that proceeding Austin, the petitioner here, was contending that two certain written instruments, executed by Anna B. Austin, deceased, constituted a gift causa mortis of a certain pearl necklace. Defeated in that contention, he is again here insisting that he was mistaken in his first position and that said written instruments were, in fact, testamentary in character, and he should be allowed to have them filed in the probate court of Cook county as codicils to the will involved in this, as well as the. previous proceeding.

The facts in chronological order follow:

J omuary 1,1903.

Trust Deed executed by Anna B. Austin, wife of Frederick C. Austin, petitioner herein, to James B. Forgan, as trustee, creating a trust in favor of Marion Ogden and Wesley Ogden, children by a prior marriage, with a provision for the payment by the trustee in said instrument to her husband, Frederick C. Austin of $6,000 a year during his lifetime.

March 18,1907-.

The will of Anna B. Austin, devising and bequeathing to her husband, Frederick C. Austin, all property, real, personal and mixed^ of which she should die possessed.

January 2, 1914.

Codicil number one (1) to the "will of Anna B. Austin, giving and bequeathing unto the First Trust & Savings Bank of the City of Chicago, Illinois, as trustee, a certain pearl necklace, of the value of $60,000, with the power and authority to sell and invest the proceeds, the income to go to her husband, Frederick C. Austin, during his lifetime and upon his death the principal fund to be distributed among her grandchildren.

This codicil is the one petitioner in this cause seeks to have revoked by two certain instruments, hereinafter set forth and referred to as delivery orders.

June 29, 1922.

A certain instrument in writing, executed by Anna B. Austin at Hamburg, Germany, and one of the two instruments relied upon by petitioner as constituting a revocation of the first codicil of his wife’s will.

“Forth and Powell,

“New York City.

“Please deliver to my husband, F. C. Austin, or upon his order all my jewelry and property left with you, or the proceeds thereof, as his own and to do with as he elects.

Anna B. Austin.

“Witnessed:

Frances M. Watson,

Maria C. Thelen.”

June 29,1922.

A certain instrument in writing constituting the second of the two instruments relied upon by petitioner Austin, as constituting a revocation of the first codicil of the will and also executed at Hamburg, Germany, is as follows:

“Mr. Moses L. Purvin,

or whom it may concern:—

“Please deliver to my husband, F. C. Austin, all money, securities, jewelry, property and personal belongings as his own and to do with as he sees fit. The only will I have made is the one I handed you several years ago for safekeeping, in which I willed all to my husband.

Anna B. Austin.

“Witnessed:

Frances M. Watson,

Maria C. Thelen.”

June 30, 1922.

Anna B. Austin died at Hamburg, Germany.

August 23,1922.

Will offered for probate in the probate court of Cook county, together with codicils thereto attached, including codicil number one, by Frederick C. Austin, named as executor in said will.

January 9,1924.

Petition for citation by the First Trust & Savings Bank to compel Austin to inventory the string of pearls in question and to turn same over to the First Trust & Savings Bank, as trustee named in said will.

June 24,1924.

Supplemental petition for citation by the First Trust & Savings Bank, praying that said Austin inventory said string of pearls held by him under his claim that they were his individually by virtue of a gift causa mortis.

January 14, 1925.

Order of the probate court dismissing said petition and appeal prayed and allowed.

March 4,1926.

Decree of the circuit court of Cook county dismissing the petition for citation by the First Trust & Savings Bank and allowing an appeal to the Appellate Court, which orders of the probate and circuit courts were reversed by the Appellate Court.

September 2, 1927:

Petition of Frederick C. Austin filed in the probate court of Cook county, charging that on August 23, 1922, petitioner deposited in that, court and offered for probate, the last will and testament of Anna B. Austin, deceased, together with three other writings, purporting to be codicils thereto; that no formal record of the admission of the said reported codicils to probate has ever been made in said court nor a formal record of the admitting of said will to probate; charging that the offering for probate of the purported codicil of January 2, 1914, was a mistake on the part of petitioner. Prays that the clerk be directed to enter a proper and formal order now, admitting said will to probate, together with the two certain delivery orders dated June 29, 1922, as codicils to said will and revoking the codicil of January 2, 1914. Or, in the alternative, if it be found that the will was properly probated, then that an order be entered vacating and setting aside so much of said proceeding as admitted said codicil of January 2, 1914, to probate.

April 13, 1928.

Order of the probate court, denying and refusing to admit said two delivery orders to probate, as codicils to the will and entering a formal order nunc pro tunc, as of December 14, 1922, admitting said will to probate, and granting of letters testamentary in the estate of Anna B. Austin, deceased.

An appeal from this last order was taken to the circuit court and from that court this cause comes here on appeal. We have set forth the matter fully in chronological order for the purpose of showing the numerous steps that have been taken since the will was originally offered for probate by the petitioner in this proceeding.

From the nunc pro tunc order entered April 13,1928, it appears that when the will was originally offered for probate, no formal order or judgment was entered of record because of a misprision of the clerk. It does appear, however, that an order was entered and this based upon the following facts as shown by the records of the probate court.

1. An entry in the minute book of the clerk, showing will and three codicils proven and admitted to record; letters testamentary issued to F. C. Austin; bond approved.

2. A stamp on the face of each of said will and three codicils, showing that they were proved and admitted to record in open court December 14, 1922, signed by the probate judge.

3. A recording of said will in the book of wills, together with the codicils attached to said will.

4. Issuance of letters testamentary to Austin, as executor.

5. An instrument bearing date, December 17, A. D. 1925, signed by the clerk of the probate court, certifying under seal that said last will and codicils of Anna B. Austin had been received and recorded as such.

From this record we áre of the opinion that, while no formal order was entered, it "was considered as having been so done by all the parties in interest, and the question was never raised until the filing of this last petition on September 2, 1927.

The Supreme Court of this State in the case of Keister v. Keister, 178 Ill. 103, in its opinion says:

“The allegations that the will was not properly probated and that letters testamentary were improperly granted are the mere conclusions of the pleader and are not supported by the facts. ‘Exhibit B,’ referred to, shows that the witnesses to the will appeared at the Noverhber term, 1891, of the Macon county court and made oath to the execution of the instrument, and while the oath is not literally in the language of the statute we think it is in substantial compliance therewith. On the back of the will and attestation by the witnesses was endorsed: ‘Probate of will, Macon county court, November term, 1891.—In the matter of the last will and testament of Peter Keister, deceased.—Filed in the county court this 10th day of .November, 1891.—George P. Hardy, Clerk/ ‘Recorded in will records, page 202/ Then follows the oath of the executors, dated November 11, 1891, subscribed and sworn to in open court before the clerk, which was duly filed. It does thus appear with reasonable certainty that the will was in fact admitted to probate, although no formal order to that effect was entered, as should have been done.”

While in the case just cited the question was raised in a collateral proceeding, nevertheless, we think the language of the Supreme Court is clearly applicable in a case where the parties treated the order as having been formally entered and have proceeded by appeal to this court in the original proceeding without having at any time raised the question. Moreover, the court found by its nunc pro tunc order that the will had in fact been probated. Treating the order as having been entered as of December 14, 1922, we come to the consideration of the question as to whether the probate court properly denied the petition of Austin to vacate and set aside the order admitting codicil number one to probate, and refusing to permit the delivery orders of June 29, 1922, to probate, as additional codicils to the will. It would seem that, even if these codicils had been admitted to probate, there would be a serious question as to whether, in fact, they did revoke codicil number one. This would necessitate a further appeal to this court for review of the decision of the probate court on that question. There might arise also the question as to the right to contest on the ground of undue influence. The grandchildren might well be grandparents before the end of the litigation. The particular subject of codicil number one, namely the string of pearls, is not mentioned in either of the so-called delivery orders. But, on the other hand, this court on the previous appeal, general number 31,187, found that there was in the hands of Forth & Powell, to whom the letter or delivery order of June 29, 1922, was directed, jewelry consisting of 67 different items. There was also other property with Purvin, to whom the second communication was directed. It may well be said thát codicil number three, specifically enumerating as it did a particular piece of jewelry, would be controlling. It should also be borne in mind that all of the property was left by will to the petitioner and he would take under the will, regardless of these two alleged codicils.

This court in its opinion in the first case, First Trust & Savings Bank v. Austin, 243 Ill. App. 386, in its opinion says:

“These letters are nothing more or less, in our opinion, than directions to persons in whose custody much of her personal property was, requesting them to deliver possession of it to her husband, pursuant to her will, in which she had left ‘all to my husband. ’ We attach no special significance to the words requesting these bailees to turn over all the property in their care to her husband, ‘as his own and to do with as he elects,’ or ‘as he sees fit.’ ” This court in that same opinion held: “(1) that the evidence fails to show Mrs. Austin had any intention of making a gift of her pearl necklace to her husband; (2) that she, in fact, made no such gift; (3) that there was no such change in the condition of her estate as to this necklace, as to give rise to a legal presumption that she intended to revoke the codicil to her will, in which she had bequeathed the necklace to the petitioner, as trustee; and (4) that her attempt to bring about such a change may not be given that effect. ’ ’

There is nothing in the record as it is now before us which adds anything to the claim that she inténded by these communications or directions of June 29,1922, to revoke codicil one of her will. We have no more reason now, than we had at that time, to attach any special significance to the language used in the two delivery orders. Their only effect was to render it easier for .petitioner Austin to obtain possession of the property. The capacity in which he obtained it, whether as an individual or as executor, in our opinion is unimportant, as it ultimately had to be accounted for. In our opinion there is nothing in said documents which would revoke codicil number one, either directly or by implication.

Moreover, we are of the opinion that petitioner by his conduct is estopped. He originally offered the will for probate, together with codicil number one, and relied upon the position which he then took, namely,. that by the two instruments of January 29, 1922, the pearls were a gift to him causa mortis. If he relied upon a revocation of codicil number one, by reason of the execution of these two instruments, they should have been offered for probate in the first instance and then the time of court and counsel, as well as the loss of income to the grandchildren, would have been avoided. Petitioner is now asking to be relieved from the order admitting the will to probate.

The Supreme Court of this State in the case of Conzet v. Hibben, 272 Ill. 508, says:

“All of the next of kin and heirs-at-law of Charles Conzet, the testator, were made parties to the proceeding for the probate of the prior will. They entered their appearances in writing in that proceeding and consented to the probate of the will. They now ask to be relieved from the effect of the judgment they consented to. If they knew of the existence of the later will at the time they consented to the probate of the former, we are of opinion they are now estopped to ask to be relieved from the consequence of their own acts. If their consent to the probate of the former will was procured by fraud or through mistake this should have been shown by proof, and upon that subject there is no proof whatever. There is some proof tending to show that the 'widow of the testator knew he had executed another will, but there is no proof that appellants and the heirs of testator had no knowledge of it.”

The mistake, if any, in the case at bar was one not of fact, but of law. The facts were in the possession of all of the parties to the original proceeding. The mistake claimed by petitioner was a mistake in the interpretation of the documents. There was no concealment of fact and no fraud.

The Supreme Court again in the case of Ferns v. Chapman, 211 Ill. 597, in .its opinion says:

“In support of the decree it is contended that Alexander M. Cheney is estopped by the proceedings had in the case of Chapman v. Cheney, supra, from attacking the validity of the deed of May 3, 1892. In that case, as finally tried upon the amended bill, Alexander M. Cheney claimed title to the premises as heir-at-law of his father, Prentiss D. Cheney, deceased. In the case at bar he claims title thereto as owner under the devise to him contained in the will of his grandfather, Edward A. D ’Arcy, deceased, and by inheritance from his mother and deceased brother and sister. In the first suit he necessarily admitted the validity of the deed, while in this suit he asserts its invalidity. ‘Whenever the law supplies to a party two or more methods of redress in a given case, based upon inconsistent theories, however those methods may differ, either in the form or the forum of procedure or in the personality of the parties to the several proceedings, the party is put to his election, and his choice of either is a bar to his resort to the other.’ (7 Ency. of Pl. & Pr. p. 361.) This doctrine has often been applied by this court.”

The Supreme Court of the United States in the case of United States v. Oregon Lumber Co., 260 U. S. Rep. 290, in its opinion holds:

“Any decisive action by a party, with knowledge of his rights and of the facts, determines his.election in the case of inconsistent remedies, and one of the most unequivocal of such determinative acts is the bringing of a suit based upon one or the other of these inconsistent conclusions.” To the same effect see Bigler v. Bigler, 82 Colo. 463.

We are unable to agree with the reasoning in the case, In re Broffee’s Estate, 206 Mich. 107, 172 N. W. 541.

The petitioner had the right to elect as to which of two positions he desired to take at the time the will was offered by him for probate, and chose to take the position that the orders of June 29, 1922, were instruments creating a gift causa mortis and, by waiving his right to present them as codicils to the will, he became estopped and cannot now be heard on the position taken by him on the present appeal.

For the reasons stated in this opinion the judgment of the circuit court is affirmed.

Judgment affirmed.

Byner and Holdom, JJ., concur.


text:
    Elizabeth Murray, Appellee, v. The Bedell Company of Chicago, Appellant.
    Gen. No. 33,621.
    Opinion filed March 5, 1930.
    John Clark Baker, for appellant.

      John H. Dolan, for appellee; Alfred G-. Brile, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is an action on the case for personal injuries sustained by the plaintiff, Elizabeth Murray, by reason of her falling while upon the premises of the defendant, The Bedell Company of Chicago, a corporation. The declaration, consisting of one count, charged that the defendant was operating and carrying on a mercantile business on the premises in question and invited the public to trade in its store; charges further that there was a public entrance or vestibule maintained by the defendant for the purpose of furnishing ingress and egress to that portion of the building in which the store was located; charges that it was the duty of said defendant to keep said vestibule in good condition, but that it wrongfully suffered and permitted the floor to become wet and slippery and, by reason thereof, plaintiff who was intending to become a customer of the defendant, while walking in and through said vestibule or entrance, was caused to and did slip and was injured. A trial resulted in a verdict in favor of the plaintiff for the. sum of $1,150, upon which judgment was entered and this appeal prayed and allowed.

From the facts it appears that the store in question was located on State Street in the City of Chicago. In front of said store and extending out to the sidewalk was a vestibule or entry, the flooring of which appears to have consisted of marble tiling. From the photograph in the record, this vestibule was surrounded by display windows. There appears from the evidence to have been no defect in the manner in which fin's vestibule or entry was constructed. Plaintiff testified that she noticed an incline, but from the photograph in evidence, this incline is not perceptible, nor is it charged in the declaration that such an incline if any contributed in any manner to the injury.

Plaintiff testified that she had lived in Chicago for 46 years; that on the day of the accident it had been raining during the morning and was misting or slightly raining at the time of the accident. She testified that she went to the store of the defendant for the purpose of becoming a customer and that as she was about to enter the vestibule, which was on a level with the sidewalk, she noticed that there was mud and water on the flooring and that there was a slight incline, and that she knew that she would have to be careful. She testified further that she had galoshes on at the time of the accident; that the floor was tracked up with mud.

The defendant company had in its employ a doorman who testified that at 10 o ’clock in the morning when he went to work he squeegeed the vestibule, which appears to be a process of cleaning by means of what is known as a rubber squeegee. He testified also that he again squeegeed the vestibule shortly after 12 o’clock, and that he was on the sidewalk in front of the premises at the time of the accident, which appears to have happened sometime around 1:15 in the afternoon.

The question appears to be whether or not, under such circumstances, a merchant is liable to an invitee upon such premises, where such invitee is caused to slip and fall by reason of mud and water upon the flooring of such a vestibule or entry.

From the testimony of the plaintiff it is apparent that the danger, if any, was clearly evident to her, as well as the defendants, and that she was aware of the condition and of the possibility of sustaining a fall before she undertook to pass over and along the floor space of the vestibule.

The condition described by the witnesses is one that is not only not unusual, but is customarily to be foundv on such days as described in the testimony, in vestibules of this character and the sidewalks and the premises surrounding entrances to public places. A somewhat similar situation was presented in Kresge Co. v. Fader, 116 Ohio St. 718, with the exception that the plaintiff in that case slipped and fell, by reason of water and mud which had been tracked inside the store by other customers. The court in commenting on the liability of the owner of premises, under such circumstances, in its opinion says:

“It is a fact known to all that many stores in all branches of trade have an inside door or passageway into the store, usually in the middle of the front. On each side of this passageway is a display window. The passage then extends back ten or twelve feet or more to the entrance door to the store. This passage usually has a slight slope from the door to the sidewalk, at which line there is no door. This slope is to carry away the rain that may blow into the passageway. The passageway is in fact practically a part of the sidewalk, but at the same time it is .within the front line of the store, and under control of the store. Would anyone contend that, if a person walked into such passageway when it was raining, and there slipped and fell, he could recover damages because there was moisture on the floor of the passageway? Manifestly not. Everybody knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and every one knows that a damp floor is likely to be a little more slippery than a dry floor. . . .

“Owners or lessees of stores, office buildings, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come.” See also Dudley v. Abraham, 107 N. Y. S. 97.

In the ease at bar the plaintiff was as well apprised of the condition existing in the vestibule as the defendant, and should be held to as high a degree of care for her own safety as would be required of the defendant.

Instruction number 13, offered on behalf of the plaintiff, was erroneous and should not have been given. Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.

Under the facts as they appear from the record, the trial court should have directed a verdict in favor of the defendant. We find that the facts show no such evidence of negligence on the part of the defendant as would be actionable at law.

For the reasons stated in this opinion, the judgment of the superior court is reversed and judgment entered here for the defendant.

Judgment reversed and judgment here.

Byneb, and Holdom, JJ., concur.


text:
    Sophie Blanke, Appellee, v. L. F. Hammel and Idaline R. Hammel, Appellants.
    Gen. No. 33,723.

      Opinion filed March 5, 1930.
    Isaac B. Lipson, for appellants; Randolph Thornton, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff, Sophie Blanke, filed her suit against the' defendants, L. F. Hammel and Idaline R. Hammel, in the municipal court of Chicago. The action was based on a note dated December 24, 1918, signed by the defendants and made payable to the order of the Sheboygan Loan and Trust Company. The note was not indorsed by the payee. The statement of claim filed on behalf of plaintiff contained the following allegation: “Plaintiff further alleges that said note was negotiated and assigned to her by the Sheboygan Loan and Trust Company- for a valuable consideration on January 6, 1919, and that she is the actual, equitable and bona fide owner thereof.” Attached to the statement of claim was a copy of the note sued on and an affidavit signed by the plaintiff, in which she stated that she was the plaintiff and had knowledge of the facts; that the cause was a suit upon a contract for the payment of money, and that there was due her after allowing all just credits, the sum of $859.85. This affidavit was subscribed and sworn to before one Clarence Whiff en, as notary public in and for Sheboygan county, Wisconsin. There was no certification under his official seal that he was authorized by law to administer oaths. The defendants moved to strike the statement of claim and affidavit in support thereof, for insufficiency in law. This motion was denied by the court and the defendants electing to abide by the motion to strike, judgment was entered against them as in default for want of a sufficient affidavit of merits and plaintiff’s damages assessed at $859.85. From this judgment defendants appeal.

We are not aided in our consideration of this cause by any brief or argument on behalf of the plaintiff.

The note, not having been indorsed, was in the hands of the plaintiff as a chose in action by assignment. It was still a negotiable instrument, but not in the hands of the plaintiff by negotiation. Her rights, if any, were only such by reason of the assignment of the payee or whoever had title to the note. In the hands of the holder, plaintiff in this action, it was not, technically speaking, a negotiable instrument, but a chose in action.

Section 18 of the Practice Act, Cahill’s St. ch. 110, ¶ 18, provides that any proceeding or suit at law or in equity hereafter brought under or by virtue of the subrogation provision of any contract or by operation of law shall be brought either in the name of, or for the use of the subrogee, in which event, subrogee shall set out by affidavit or pleading that he is the actual bona fide owner and shall state the manner in which he became entitled to bring the action. There is a distinction recognized in law between an assignee and a subrogee. The Supreme Court has interpreted this section of the Practice Act, however, in such a manner as to cover, in our opinion, all persons holding title by reason of assignment, or otherwise, where the action is brought in the name of one other than the party entitled on the face of the instrument to prosecute such an action.

The Supreme Court of this State in the case of Gallagher v. Schmidt, 313 Ill. 40, in its opinion says: “ ‘A declaration in a suit by an assignee of a chose in action does not state a cause of action in favor of the plaintiff unless it contains the allegations required by section 18, showing the assignment of the chose in action, the actual ownership thereof by him, and setting forth how and when he acquired title. A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of action. Walters v. City of Ottawa, 240 Ill. 259; Prouty v. City of Chicago, 250 id. 222.’ ” This rule is applicable to .actions in the municipal court. Madison & Kedzie State Bank v. Old Reliable Motor Truck Co., 236 Ill. App. 442.

As already stated the action was based upon a chose in action and the plaintiff, under the rule, would be required to set out the facts under which the plaintiff became possessed of the instrument upon which suit is brought. It was not a sufficient allegation to charge that the plaintiff was the actual bona fide owner for value.

Section 6 of the act concerning notaries public, Ca-hill’s St. ch. 101, ¶ 6, provides for the manner in which certifications by notaries residing out of the State shall be received and accepted in this State. There is no certification in this case as required by the statute, that a notary public in Wisconsin is authorized to administer oaths; Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312."

There being no such certification by the notary public the acknowledgment is unavailing, and no judgment could be entered.

For the reasons stated in this opinion, the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Ryher and Holdom, JJ., concur.


text:
    Rose Korogodsky et al., Trading as Kay-Bee Textile Mills, Plaintiffs in Error, v. Benjamin Chimberoff and Rose Chimberoff, Defendants in Error.
    Gen. No. 33,757.

      Opinion filed March 5, 1930.
    Isadore Isenberg, for plaintiffs in error; James B. Cashin, of counsel.
    Max Ward, for defendants in error; Al Martin Curtis, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

The plaintiffs, Bose Korogodsky, Morris Davidson and Leo Choose, doing business as Kay-Bee Textile Mills, charge in their declaration that they were the owners of a certain lot situated in the City of Chicago, and that the defendants, Benjamin Chimberoff and Bose Chimberoff, were owners of an adjacent lot, improved with a 3-story brick building; charge that the plaintiffs’ property was improved with a 2-story brick building, which was to be demolished for the purpose of making way for a new building to be erected on the property; that the plaintiffs notified the defendants that they were about to take steps to improve their property and that the basement of the new building would come below the footings of the defendants’ building; that the defendants should take care of their property so as to avoid any damage that might result by reason of any excavating done on plaintiffs’ property; that it became the duty of the defendants to exercise reasonable and ordinary care in the protection of their property, by reason of said excavation, but that they failed to exercise such care; that the plaintiffs proceeded to excavate with all reasonable and due care on their part, in order not to injure the adjoining property of the defendants, but it developed that the property of the defendants would cave in and result in damage to the property of the defendants; that they notified defendants of that fact; that the defendants failed and refused to shore and brace up their land to prevent it from caving in and, by reason thereof, it became necessary for the plaintiffs to shore and brace up the land of the defendants at a cost of approximately $500, which said expenditure was for the use and benefit of the defendants; charges that, by reason of said expenditure, the defendants became liable to repay the plaintiffs for the amount so expended.

To this amended declaration a demurrer was interposed and sustained, and plaintiffs electing to stand by their declaration, a judgment was entered in favor of defendants and costs assessed against the plaintiffs. From this judgment this appeal is perfected.

The rule is well settled in this State that the owner of real estate is entitled to have his soil in its natural state sustained, when necessary, by the lateral support of the adjacent soil of the adjoining owner. Moreover, a person owning such a lot and in the act of excavating, is required to use reasonable skill and care in view of the character of the building and the nature of the soil so as to avoid doing unnecessary injury to the buildings located upon the adjoining property. City of Quincy v. Jones, 76 Ill. 231.

If injury is sustained to a building in consequence of the withdrawing of the support of the neighboring soil, when it has been done with reasonable skill and care, there can be no recovery. But, if injury is done to the building by reason of the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of thé injury thus occasioned.

If the owner of adjacent improved property does not see fit to protect himself and injury is sustained by him by reason of an excavation which is done with all reasonable care and skill, then he cannot recover, but the other person has no right to compel him to shore his own property. The one making the improvement, has a common-law right to go upon the premises of the other for the purpose of shoring such building in order to protect property, when it is necessary, to prevent damage by reason of an excavation, but this is done at his own expense and cost. We are not in accord with the rule stated in the Missouri cases, but think the correct rule is found in the case of First Nat. Bank of San Francisco v. Villegra, 92 Cal. 96. The court in its opinion in that case said:

“It clearly appears that plaintiff expended this money for his own benefit and his own advantage, and not for the benefit and use of the defendant. A party cannot of his own volition create an obligation in his own favor by doing some act for his own interests, and the necessity for which was caused by himself. This is in no sense an action brought for the recovery of money advanced for and to the use of defendant. No legal duty rested upon the defendant to perform the work for which this money was expended, and plaintiff cannot create for himself the position of creditor against the will of the alleged debtor.”

There is no. allegation in the declaration that any damages would result to the plaintiffs in the event the property of the defendants was not properly shored, but the action is predibated upon damage that might be sustained by the defendants.': The declaration appears to be based upon the theory that, by reason of the failure of the defendants to care for themselves, the work done should be considered as at their instance and request and the defendants thereby become liable for such work as in assumpsit.

We see no force in this argument but are of the opinion that the burden was upon the plaintiffs to have provided the proper shoring, if it was necessary, in the exercise of reasonable care on their part. If it was not necessary under such circumstances then the defendants should abide the consequences.

For the reasons stated in this opinion the judgment of the superior court is affirmed.

Judgment affirmed.

Ryner and Holdom, JJ., concur.


author: Mr. Justice Holdom Mr. Justice Ether Mr. Presiding Justice Wilson

text:
    The People of the State of Illinois ex rel. Fred Henry Frentz, Plaintiff in Error, v. William Frentz and Catherine Cobb Frentz, Defendants in Error.
    Gen. No. 33,517.

      Wilson, P. J., dissenting
    Opinion filed March 5, 1930.
    Rehearing denied March 31, 1930.
    Burton Evans and John T. Whitehead, for plaintiff in error.
    Evangeline 0. Hursen, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This writ of error is sued out by the relator, Fred Henry Frentz, in an endeavor to reverse the judgment of the superior court in a certain habeas corpus proceeding entitled as above, in which the court found the issues for the respondents and gave judgment thereon against relator for costs.

A petition for a writ of habeas corpus was filed by the relator August 22, 1928, and inter alia set forth that he resided in Hammond, Indiana; that his daughter, Dorothy Lois Frentz, is restrained of her liberty by respondents, the father and stepmother of relator. After setting forth that the respondents resided in Harvey, Cook county, Illinois, and that they unlawfully detain the said Dorothy Lois Frentz in their home in Harvey, relator represents that the mother of his said daughter died September 24, 1922; that said daughter has stayed at the home of respondents since she was 3% months old to the date of the filing of the petition, and further represents that during all of said time relator paid for the board and keep of said daughter $5 a week, and in addition thereto purchased her clothes and paid for all medical and other expenses requested by respondents; further represents that relator at no time relinquished his right to his said daughter or entered into any agreement or understanding of any kind with respondents or either of them, whereby they were to keep his daughter for any purpose whatsoever, other than to look after her for relator for the remuneration aforesaid. Relator further represents that about two weeks before the filing of the petition he requested from respondents the custody of his daughter in order that he might take her to his home in Hammond; that respondents without any just cause or reason refused to deliver his daughter to him; that said daughter is the only child of relator, and that relator is well able financially to care for her; that he is worth over $10,000 in excess of his liabilities, and that he is now married and his wife’s name is Mildred Frentz; that she is about 29 years old and willing and desirous to help relator in the proper care of his said daughter; that relator is 33 years of age, and is employed as a machinist and earns sufficient money to care for Ms daughter, Ms wife and himself, and is able to properly educate and bring up said daughter; that the respondent William. Frentz is about 57 years of age, and Ms wife about 50 years of age, and that they have no substantial amount of property and are not .financially able to educate relator’s daughter; that relator believes it will be for the best interest of his said daughter to be and remain in his custody. Relator prays that a writ of habeas corpus issue, pursuant to the statute, directed to the respondents, demanding them to bring his said daughter Dorothy Lois Frentz before the superior court, etc. The petition is sworn to by relator.

The writ of habeas corpus was issued on the date the petition was filed, and on the next day respondents entered their appearance by their present attorney of record.

Respondents on August 24, 1928, made a return to the writ of habeas corpus and set forth that the cause of detention of said Dorothy Lois Frentz was that she had been in the custody of respondents “since being taken from the hospital after her birth”; that they have cared for her since that time and that they have pending in the county court of Cook county a petition for her adoption; that the petition was filed August 21, 1928, and that respondents feel that it is for the child’s best interests that she remain in their care, and they pray that the court quash the writ of habeas corpus.

Relator made a motion that the petition for habeas corpus be set for hearing on September 17, 1928; that on September 21, 1928, relator filed an answer to the aforesaid return of respondents to the writ of habeas corpus, wherein he denies that his said daughter has been in the custody of respondents since her birth, but states that she has been in their custody during the time set forth in the petition for a writ of habeas corpus. Further answering said return relator reassorts and repleads each and every allegation in the petition for a writ of habeas corpus, and further answering states that respondents have cared for his said daughter for the compensation stated in the petition for the writ and other expenses requested "by respondents or either of them, and denies that at any time he ever abandoned or surrendered his claim to his daughter, and that respondents’ detention of his said daughter is without legal right of any kind. Further answering states that a petition for adoption was filed by respondents in the county court of Cook county, but relator believes that a writ of habeas corpus takes precedence of said adoption proceeding, and relator expressly pleads any and all advantage granted by law to him in favor of said writ of habeas corpus superseding all other proceedings and particularly the aforesaid proceeding for adoption. Relator further states that his said daughter does not require the care of the respondent Catherine Frentz; that relator is now married and is well able to care for his said daughter and has sufficient and ample means to do so, and that it is for the best interest of said daughter to be in his custody. Relator further answering states, that said respondents have no good or valid reason of any kind or description for the detention of his said daughter, and have no legal right to her custody, and respectfully prays that the respondents be ordered by the superior court to deliver the custody of his said daughter to him, etc.

On December 10, 1928, relator moved that said habeas corpus proceeding be set down for hearing. On January 18,1929, relator filed an additional answer in which inter alia he repeated each and every allegation contained in the petition for habeas corpus and in the answer to the return filed to said petition for habeas corpus.

Eelator further states that in the petition filed by respondents for the adoption of said Dorothy Lois Frentz, it is averred inter alia, “that the cause of adoption of said child is that the mother is dead and the father has a violent temper and is unfit to care for her; that he has remarried, thus giving the child a stepmother; that for a period of three years he abandoned and neither supported nor cared for her in any way; and that during the past year he has contributed only a very small amount, not sufficient to care for the child’ ’; and prays that relator and his daughter may be made parties defendant to the petition for adoption, and for publication notice as to relator, in pursuance of the provisions of the statute, and prays for leave to adopt said child as their own, etc.

Eelator further answering alleges that over his protest a decree of adoption was entered in the said county court, the terms of which will be proven at the hearing; that said decree of adoption inter alia sets forth as a cause for adoption that:

1 ‘ The Court further finds that the cause for adoption of the said minor child-is that the father of said child abandoned the said child for about two years, and has failed in this to assist in the maintenance of the said child; that he has re-married, and is of a bad temper and disposition, and that he is unfit to have the child, and that the mother is deceased. ’ ’

Eelator alleges that the petition for adoption does not set forth a cause for adoption as provided by statute on adoption that said petition is jurisdictional; and that by reason of the fact that it does not set forth in the language of the statute any statutory cause for adoption, the county court was wholly without jurisdiction of the said Dorothy Lois Frentz and of relator as a defendant thereto; that the decree of adoption and all proceedings thereunder, so far as the same affects the said Dorothy Lois Frentz and relator, are void and of no force and effect. Relator prays that the respondents be ordered by the court to deliver the custody of Dorothy Lois Frentz to relator, and that the court find that the adoption proceedings are illegal and void, and for other relief, etc.

On January 19, 1929, an order was entered giving leave to relator to file an additional plea, instanter, and that the additional answer heretofore filed by relator, stand as .an answer to said additional plea. On February 25, 1929, an order was entered by the superior court giving the custody of Dorothy Lois Frentz to respondents with a judgment against relator for costs.

Several witnesses gave evidence in support of the writ of habeas corpus, which upon objection and motion of respondents was stricken from the record, and thereupon the court dismissed relator’s petition for a writ of habeas corpus.

It is principally argued for reversal that the superior court erred in delaying the hearing on the habeas corpus writ and in not hearing the matter at once, and in so holding up the hearing which operated to permit the county court to proceed to a finality with the adoption proceeding contrary to law, and in not holding that the county court was without jurisdiction in the matter of the adoption proceeding to enter a decree of adoption, and that for the lack of proper averments, the county court had no jurisdiction of the adoption petition, and that the trial court erred in not entering a judgment in the habeas corpus proceeding, ordering the daughter of relator to be returned to his custody.

In the order of sequence of the habeas corpus and adoption proceedings, the petition for adoption was filed August 21,1928, and the petition for habeas corpus was filed the next day, August 22, 1928. As a matter of fact the superior court acquired jurisdiction of the habeas corpus case before the county court acquired jurisdiction of the parties in the petition for the adoption of the daughter of relator.

In Matson v. Swanson, 131 Ill. 255, it was held that the authority of all other writs must yield to the authority of the writ of hateas corpus; that therefore from the moment the sheriff receives such writ the custody of petitioner will be by virtue thereof, and not under any other writs. By parity of reasoning the writ in the adoption proceeding, sued out of the county court, should have yielded to the writ of hateas corpus, and it was a breach of judicial duty under the hateas corpus act for the judge to continue, against the protest of relator, the hearing of the hateas corpus proceeding and to thereby allow the county court to proceed to decree in the adoption proceeding, as by service of the hateas corpus writ upon the respondents, the superior court, upon such service, acquired jurisdiction not only of the cause, but of the parties thereto. This action of the superior court was additionally harmful to the relator, because no appeal or writ of error lies from a judgment of the county court in an adoption proceeding. The writ of hateas corpus was a lawful writ on which to determine the question of the custody of the daughter of relator. Respondents do not contend to the contrary. As the writ of hateas corpus had precedence over every other writ, including the petition for adoption in the county court, it became the duty of the superior court to proceed forthwith to a'hearing. It had no right to defer the hearing and await the result of the decree of the county court in the adoption proceeding.

Oral and documentary evidence found in the record was conclusive of the rights of the relator in every way sufficient to sustain an award of the custody of relator’s daughter to him under the hateas corpus writ. The court erred in excluding the evidence heard, and in dismissing the writ.

The issue of the jurisdiction of the county court in the adoption proceeding was clearly before the court under the plea of res judicata interposed by respondents, setting up the decree of the county court in the adoption proceeding, as res judicata of the rights of the parties. The whole of the proceeding in the county court was in evidence before the superior court on the hearing of the habeas corpus proceeding.

It is argued that the county court was without jurisdiction to entertain the petition for adoption because the petition did not conform to the adoption statute in the assignment of reasons for such adoption. Section 2, Cahill’s St. 1927, ch. 4, 2, requires that a petition for adoption shall set up one or more of the conditions for adoption, which section 3, chapter 4 requires be found before a valid decree of adoption can be entered. The cause assigned in the petition is as follows:

“That the cause of adoption of said child is that the mother is dead, and the father has a violent temper' and is unfit to care for her; that he has re-married, thus giving the child a stepmother; that for a period of three years he abandoned and neither supported nor cared for her in any way; and that during the past year he has contributed only a very small amount, not sufficient to care for the child. ’ ’

Such averments do not conform to any of the provisions of section 3, supra. That section provides that the unfitness of the parents or surviving parent must be: depravity, open and notorious adultery or fornication, habitual drunkenness for a period of one year prior to the filing of the petition, extreme and repeated cruelty to the child, abandonment of the child or desertion of the child for a period of six months next preceding the filing of the petition. It is apparent from the petition that its averments do not fulfil the requirements of the statute.

In Hook v. Wright, 329 Ill. 299, it was held that whether a court was one of general or limited jurisdiction, if it is exercising a special statutory jurisdiction the record must show upon its face that the case is one where the court has authority to act, as jurisdiction in such cases is never presumed, and if does not so appear, the judgment will be void and subject to collateral attack.

The adoption proceedings are statutory and the statute conferring the power must be at least substantially complied with.

In the case, supra, it was further held that a petition for adoption, in order to put the court in motion and give it jurisdiction, must be in conformity with the statute granting the right and must show all the facts necessary to authorize it to act, and if the petition fails to contain all these essential elements the court is without jurisdiction. And it is again held that such defective petition is subject to collateral attack.

Keal v. Rhydderck, 317 Ill. 231 is to a like effect.

In Hook v. Wright, supra, the court said:

“In Musselman v. Paragnik, 317 Ill. 597, the adoption was under the act of 1874. The father was living and consented to the adoption. The mother was living but no notice was served on her, her name and place of residence were not stated in the petition, it was not alleged that her residence was unknown or whether or not she consented to the adoption. After reviewing many prior decisions of this court, on page 602 it was said: ‘The decisions agree that the least that can be required to sustain the jurisdiction of the county court to make an order of adoption is, that the record should show a petition containing the necessary requirements to sustain the jurisdiction,—that is, a petition containing the statements which the statute says the petition shall state. This petition did not state the name and residence of the mother or that they were unknown to the petitioners or whether she consented to the adoption. The statute requires a petition stating these facts before the court is authorized to act. Until such a petition was filed the case was not within the jurisdiction of the county court. It was not a case in which the court had a right to deliberate and was not a case committed to the court by law. This question received a full consideration by the court at its last term in a case in which a rehearing has been denied at this term, (Keal v. Rhydderck, 317 Ill. 231), in which there is a review of the previous decisions of the court. In accordance with the views announced in the opinion in that case the order of adoption of the appellee made by the county court of Perry county was without jurisdiction and void.’ ”

While there is an averment of abandonment of the child of relator for a period of three years and a lack of support for that period, this is not a sufficient compliance with the act in that regard, and is not well taken, because the statute provides that abandonment shall be for a period of six months next preceding the filing of the petition for adoption, and there-is no such averment contained in the petition. Moreover, the averment in the petition that relator “has contributed only a very small amount” towards the support of the child negatives the contention of abandonment or desertion. It is furthermore patent that there was no abandonment dr desertion on the part of the relator of his child. It stands admitted that he contributed to the support of the child. It is not denied that he constantly visited the child. Neither is it denied that the mother of the child died, and that the child was given into the custody of her grandfather and stepgrandmother to be cared for until the relator, the father, was in a position to take entire charge of his child. That condition arrived when he again married and had a home for the child with his second wife, who under his direction, it was averred, was competent to care for all her wants, necessities and education. There is no fact stated in the petition for adoption, which in law constitutes a charge of abandonment of the child by the relator.

If it were possible to cure the defects in the petition for adoption by recitations of jurisdictional facts in the decree, it is sufficient to say none such are found therein. We find the decree equally silent upon these essential findings.

The reasons found in the decree of adoption are as follows:

“The court further finds that the cause for adoption of the said minor child is that the father of the said child abandoned the said child for about two years, and has failed in this to assist in the maintenance of the said child; that he has re-married, and is of a bad temper and disposition, and that he is unfit to have the child, and that the mother is deceased. ’ ’ None of these findings fulfil the requirements of the statute.

As to the abandonment finding in the decree, that is negatived by the averment in the petition that relator “has contributed only a very small amount” towards the support of the child. There is nothing in the statute about a bad temper being cause for depriving the father of his child, or remarrying, and the finding that he is unfit to have the child finds no support in any averment of fact in the petition or in any of the evidence found in the record. Neither by any of the averments of the petition, nor any of the findings of the decree, is a cause stated or found giving the county court jurisdiction of the adoption proceeding. Lacking such jurisdiction, the decree is subject not only to collateral attack, but is void in law. As the proceedings in the county court were put in evidence in support of the plea of res judicata in the habeas corpus case and in the hearing thereof, respondents entirely failed to support such plea of res judicata by competent proof.

As the best interests of children are always the special care of every court in which the propriety of their custody is in issue, if the parties so desire, evidence of the character, habits, environment and property qualifications of the relator and the respondents in the habeas corpus proceeding will be proper to be heard upon the new trial granted by this opinion.

For the errors above pointed out the judgment in the habeas corpus proceeding in this writ of error is reversed, and the cause is remanded for a new trial in accord with the views herein expressed.

Reversed and remanded.

Mr. Justice Ether

specially concurring: I agree that the judgment of the superior court should be reversed and the cause remanded for a new trial. I do not, however, concur in the view that abandonment as a ground for adoption, under the statute, must be for a period of more than six months next preceding the filing of the petition for adoption. In dealing with the subject of abandonment of property the Supreme Court of this State, in the case of Burns v. Curran, 275 Ill. 448, said:

“The question of abandonment is one of intention, to be determined from the evidence, and there is no abandonment unless the premises are left with an intention of not again resuming possession.”

The natural interpretation of the adoption statute makes it accord with the principle of law announced by the Supreme Court. The element of time is a factor to be considered in determining whether there has been an abandonment of property or children, but it is not controlling.

In the instant case the petition for adoption alleged that the child in question was about six years of age at the time the proceeding was instituted, that the relator had abandoned her for a period of three years and that during the past year he had contributed only a very small amount for her support. The decree finds as the only statutory ground for adoption that the relator “abandoned the said child for about two years.”

The petition contains a clear admission that the relator did not relinquish all interest in his child. It shows affirmatively that during the year immediately preceding the filing of the petition for adoption he was contributing to her support. In this respect the petition failed to confer jurisdiction of the subject matter upon the county court.

The petition does not charge and the decree does not find any facts showing that the father left his child with the intention of not again resuming custody of her or that the court had jurisdiction. French v. French, 302 Ill. 152.

Mr. Presiding Justice Wilson

dissenting: I cannot concur in the majority opinion. The petition for adoption was filed August 21, 1928. The petition for the writ of habeas corpus was filed August 22, 1928. The county court obtained jurisdiction before the habeas corpus proceeding was started. The adoption proceeding’ proceeded to a final decree before the habeas corpus proceeding was determined.

The only question involved is whether the county court had jurisdiction of the subject-matter. The plea of res adjudicata was properly held conclusive by the judge of the superior court who heard the habeas corpus proceeding. That court properly struck out all the testimony introduced by petitioner, and properly so. As a matter of fact the court should have heard no testimony whatsoever.

The statement in the majority opinion that the evidence in the habeas corpus proceeding was conclusive of the right of the relator therein to sustain an award of the custody of the child is in myi opinion unwarranted. The decree of the county court, which court heard all the evidence of the parties, should be taken as final on the facts, and not subject to collateral attack.

The relator in the habeas corpus proceeding filed his answer in the adoption proceeding in the county court and denied the allegation of the petition therein generally and in toto.

The statute concerning adoptions sets out the grounds upon which the court can award the custody of a child to its adoptive parents. It provides, among other grounds, that abandonment of the child or desertion of the child for six months next preceding the filing of the petition, are sufficient to sustain the entry of a decree. The decree of adoption introduced in the habeas corpus proceeding found that the court had jurisdiction of the subject-matter and of the person and set forth in extenso all the facts necessary to sustain that proposition. It contained a finding that the father of the child abandoned said child for about two years. Abandonment need not necessarily be continuing, but may be. Desertion may continue after abandonment, but the words, “for about two years” following the word, “abandoned” in the decree is surplusage and mere irregularity.

The Supreme Court of this State in the case of Hoit v. Snodgrass, 315 Ill. 548, in its opinion says:

“"When the general character of a judgment is such that its subject-matter falls within the general jurisdiction of the court that enters it, a collateral attack cannot be made thereon even though the pleadings may be defective and subject to demurrer.”

Again in the case of Smith v. Herdlicka, 323 Ill. 585, in regard to the question of jurisdiction, the court says:

“Jurisdiction of the subject-matter is the power to hear and determine causes of the general class to which the proceeding in question belongs, and such jurisdiction is always conferred by law.”

In my opinion the county court had jurisdiction of the subject-matter and of the parties. There may have been an irregularity in the pleadings or in the decree, which could have been corrected, if called to the attention of the court, but this irregularity did not deprive the court of jurisdiction, and its decree was final.

The Supreme Court in the case of Hopkins v. Gifford, 309 Ill. 363, says:

“Courts are more inclined to abandon the old rule of strict construction and to place a fair and reasonable construction on adoption statutes, to the end that the adoption may be upheld and the assumed relationship sustained. There must be a substantial compliance with the provisions of statutes conferring jurisdiction, but the construction of such statutes is not to be so narrow or technical as to defeat the' intention of the acts or the beneficial results where all material provisions of the statutes have been complied with.”

In my opinion the superior court properly found that the county court had jurisdiction of the subject-matter and was correct in its position in refusing relator the right to attack that judgment collaterally in the habeas corpus proceeding. A decree of a court having jurisdiction of the subject-matter should be upheld if possible.

For the reasons stated, I am of the opinion that the judgment of the superior court should be affirmed and for that reason I cannot concur in the majority opinion of this court.


author: Mr. Justice Holdom

text:
    Fred P. Heitman, Appellee, v. William C. Diercks, Appellant.
    Gen. No. 33,744.

      Opinion filed March 5, 1930.
    William T. Pridmore, for appellant.
    William B. Berger, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from, a judgment of $150 in a case of the fourth class in the municipal court of Chicago. Plaintiff, a real estate broker, claimed $150 from defendant as a commission for negotiating a loan upon real estate of defendant in Chicago.

The dispute engendered into this controversy is encompassed within the second paragraph of defendant’s affidavit of defense which is as follows:—

“Second: That plaintiff’s solicitor secured an application blank and upon the express promise of said solicitor to defendant that said solicitor would hold said signed blank until defendant directed him to complete said application, defendant did sign said application in blank and that within a few days thereafter defendant notified plaintiff that defendant would not make application for any loan from plaintiff and that defendant has never authorized or directed the said solicitor or any other person to fill in the said application blank so signed by defendant as aforesaid and that defendant therefore denies that the application de-scribed in the amended statement of claim is his deed.”

Plaintiff offered the application for a loan in evidence, which was admitted against defendant’s objection. He called defendant to the stand under section 33 of the Municipal Court Act, Cahill’s St. ch. 37, ¶ 421, and by him proved the authenticity of the defendant’s signature to the application for a loan and then rested his case.

Defendant sought to introduce evidence to the effect that the application for a loan was signed by him in blank and that plaintiff was to hold the same for further instructions from defendant, but that instead of so doing plaintiff, without any authority from defendant, filled in the blank spaces in writing in the application, and without any authority proceeded to negotiate a loan of $5,000' upon certain of his Chicago real estate.

Defendant further attempted to show by evidence that the loan contemplated to be negotiated by plaintiff upon defendant’s property was to replace an existing loan thereon which did not expire until six months after plaintiff claimed to have negotiated the loan upon defendant’s property. All proffers of proof by defendant to so establish were upon objection of plaintiff denied, to which rulings of the court defendant preserved in due form exceptions. Such offers of proof were made by defendant not for the purpose of varying the terms of the application, but to prove that the application for a loan was delivered to plaintiff under the agreement and understanding that plaintiff would hold the same until he heard further from defendant.

The court excluded such proffers of testimony upon the theory that defendant sought thereby to change and vary the terms of the application, and that a written document could not be changed or varied by parol. If defendant had sought to vary the written application by parol evidence de hors the writing, this ruling of the court would not have been subject to the objection made, but such was not the end sought by the testimony proffered. After sustaining the objections to defendant’s offer of evidence, the court on motion of plaintiff instructed the jury to find the verdict found in the record, upon which the court entered a judgment. The questions interposed by defendant’s offer of proof, were of fact, and should have been submitted to the jury for their finding. As held in Kilcoin v. Ortell, 302 Ill. 531:

“A written contract may fail to become binding for want of delivery. Possession of the contract by the party seeking to enforce it is presumptive evidence of its delivery but not conclusive. Evidence 'tending to prove fraud in obtaining possession, or that it was, in fact, never delivered, is always admissible, and this has been held to be so in actions at law."

In case, supra, the court further said:

“The rule that contemporaneous oral statements cannot be heard to alter or vary the terms of a written instrument presupposes execution and delivery of the writing with intent to bind the parties by its terms. (17 Cyc. 701.) A delivery on condition is not a complete delivery until the condition is fulfilled. (13 Corpus Juris, 307.) ’’

The application bears integral evidence of the fact that it was not contemplated that the loan should be made at the date which plaintiff claims he negotiated the loan and earned his commission. The application was dated February 27, 1928, and there is this limitation upon it: “Straight for five years. Interest to start September 15, 1928." The application further recites that the existing loan matures September 20, 1928. This is the date when the then existing loan matured. It follows that if the application, being executed in blank, was delivered conditionally, then defendant had a right to prove what the condition was, and to explain the fact, if such is a fact, that the blanks in the application were filled in by plaintiff, or by some other person authorized by him so to do, without authority or right. The affidavit of defense has the force and effect of a plea denying the execution of the application. Consequently the court should have heard proof proffered to sustain such averment of the affidavit. Biederman v. O’Conner, 117 Ill. 493.

If it should appear upon the new trial hereby awarded that the $5,000 loan was to be made to take up the existing loan, which matured September 20, 1928, or thereabouts, and that question is submitted to the jury, as it ought to be under proper proofs, and that defense is sustained by defendant’s proofs, then and in that event plaintiff would not be entitled to recover the commission claimed in this action.

The court committed errors in the manner herein-above pointed out, and for such errors the judgment of the municipal court is reversed and the cause is remanded for a new trial in accord with the views in this opinion expressed.

Reversed and remanded.

Wilson, P. J., and Byneb, J., concur.