text:
    The Chicago Daily News Fresh Air Fund, Plaintiff, v. Otto Kerner, Attorney General of State of Illinois, et al., Defendants. John E. Cassidy, Successor to Otto Kerner, Attorney General of State of Illinois, Appellant, v. George H. Schneider et al., Appellees.
    Gen. No. 40,880.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Rehearing denied June 3,1940.
    John E. Cassidy, Attorney General, for appellant; William C. Clausen and Thomas Robert Mulroy, both of Chicago, of counsel.
    Tolman & Chandler, of Chicago, for certain appellees; Edgar B. Tolman and Henry P. Chandler, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

As succinctly stated in the brief of Maud Kennicott Reid and Mabel B. Gleason, heirs of David E. Fislte, the issue in this case is whether a bequest under the will of David B. Fiske to the Chicago Daily News Fresh Air Fund, a charitable corporation, which the Fund has renounced, should go to the heirs as in case of intestacy, or should be awarded to some similar charity under the doctrine of cy fres.

The complaint was filed by the Chicago Daily News Fresh Air Fund, hereafter referred to as plaintiff, asking the court to determine what disposition should be made of its interest in several funds bequeathed to it by David E. Fiske, but not yet received by it.

The bequests involved are two, payable out of the residuary estate of the testator: an annuity of $500, payable until the termination of certain other annuities, and, one-half of the principal of the residuary estate, payable upon the termination of these annuities.

George H. Schneider, trustee under the will of David E, Fiske, answered naming* the heirs of Mr. Fiske and asked for instructions regarding the residuary bequest made to plaintiff, Two of the Fiske heirs, Maud Kennicott Reid and Mabel B. Gleason, answered asking distribution of the bequests in question to the heirs and denying that the case was one for application of the cy pres doctrine. The Attorney General, who is a proper party to support a legacy to a public charity (Attorney General v. Newberry Library, 150 Ill. 229, 236; Smith v. Thompson, 266 Ill. App. 165,168), answered, as did the Infant Welfare Society of Chicago, asserting that its work was more nearly similar to that of plaintiff than any other charity in Chicago and that the fund should be awarded to it. Upon trial the chancellor held that the doctrine of cy pres was not applicable and decreed that the fund be distributed to the Fiske heirs. This appeal is from that decree.

. The Attorney General says that the intention of the testator was to help “poor children,” and there is an assumption that the testator in his bequest to plaintiff intended to help children. There is no reference in plaintiff’s charter to “children” as such. The charter states that the object of the Fresh Air Fund is for the medical treatment of the sick and poor and the promotion of health of those financially unable to provide for this. Plaintiff was incorporated in 1894, while the Infant Welfare Society was not incorporated until 1911, three years after the death of the testator. Its objects are stated to be the promotion of the general health and welfare ‘ ‘ of infants and children. ’ ’

It is a fundamental principle that the power to make a will is in the testator and not in the court. If the testator fails to dispose of any part of his property the statute of descent (ch. 39, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.193-110.204]) operates. It is also elementary that in construing a will the controlling element is the intention of the testator. Brill v. Green, 316 Ill. 583, and many other cases.

The court will adopt any reasonable construction of a will rather than hold that the testator intended to die intestate, but if he has overlooked something which he, perhaps, would have provided for if it had occurred to him, the court cannot guess as to what his disposition might have been. Pontius v. Conrad, 317 Ill. 241. In First Trust & Savings Bank of De Kalb v. Olson, 353 Ill. 206, 212, the testatrix in her will said it was not her desire to die intestate, but the court held that as she left no directions with reference to two-thirds of the residuary estate it necessarily passed as intestate propperty. This applies also to legacies for which the testator has provided but which have lapsed. Such lapsed legacy becomes part of the residuary estate, and if no other provision is made it becomes intestate property. Davis v. McKown, 131 Me. 203,209. In re Durand’s Will, 250 N. Y. 45, 55, certain trusts established by the will for the benefit of the grandchildren were held void, the opinion saying the court must leave this property as if there were no will. Other supporting cases might be cited.

In the instant case the testator bequeathed part of his residuary estate to the Chicago Daily News Fresh Air Fund, the plaintiff. By its complaint the court was informed that it declined to take the bequests as it had decided to discontinue its operations. The will of the testator made no provision for such a contingency. The court has no way of knowing what the testator might have done if he had had in mind that the Fund might suspend operations. The Attorney General argues the testator would have directed that the property go to another charity of similar purpose, but this is mere speculation. The courts cannot guess at what provision the testator probably might have made. It is well established that the intention of a testator must be drawn from the language of the will itself. Dahmer v. Wensler, 350 Ill. 23, 27. And in Hampton v. Bill, 354 Ill. 415, 420, it was said, “the court cannot guess which provision he would have made and read it into his will on the presumption that he would naturally have made such a provision if he had thought of it. LaRocque v. Martin, 344 Ill. 522.”

Upon the trial the Attorney General offered the testimony of Mr. George H. Schneider, the trustee of the testator’s residuary estate, concerning conversations which he had with the testator about the time of making the will. The court ruled that this testimony was outside the will and not proper to affect the intent. As a general rule parol testimony is competent to prove the circumstances of the testator at the time of making the will and his relations to his family, but never to prove declarations made prior to or after the execution of the instrument. Ransdell v. Boston, 172 Ill. 439, 446; Hollenbeck v. Smith, 231 Ill. 484, 488; Dahmer v. Wensler, 350 Ill. 23, 29, 30.

However, Mr. Schneider’s testimony does not tend to vary the intention shown in the will. Mr. Schneider testified that Mr. Fiske, prior to making his will, asked him to mention a number of charities, and Mr. Schneider did mention some seven or eight, including the Chicago Daily News Fresh Air Fund and the Home for Destitute Crippled Children, which the testator made his residuary legatees. Mr. Schneider did not select these charities but merely submitted a list from which the testator himself made the selection. Nothing in this conversation indicates that the testator had any intention to benefit other charities than those named in the will.

In Quimby v. Quimby, 175 Ill. App. 367, we held that a general charitable intent cannot be deduced from the sole fact that the organization named in the will is engaged in a particular charitable work. In that case the testatrix bequeathed the remainder of her estate to the “Chicago Waif’s Mission and Training School,” which was organized to provide suitable homes for dependent and needy boys and girls; the will provided this remainder should be paid within five years after the death of testatrix, provided a certain contingency had not occurred ; the five years passed and the contingency had not occurred, but by this time the Chicago Waif’s Mission and Training School had ceased to carry on its work and had turned over all its property to a training school for boys which afterwards changed its name to the Illinois Manual Training School Farm; a bill was filed asking instructions of the court with reference to the distribution of the estate; certain heirs filed an answer claiming the estate, as did the Attorney General and the Illinois Manual Training School Farm, the latter claiming the estate under the equitable doctrine of cy pres, by reason of the similarity of the work carried on by it to that carried on by the Chicago Waif’s Mission and Training School. The cy pres doctrine is thus described: “ ... it seems to be this, that if it can be seen that a charity was intended, by a testator, but the object specified cannot be accomplished, the funds may be applied to other charitable purposes, or that the chancellor may seize them as a sort of waif, and apply them as his, or the king’s good conscience, shall direct. ... In this way the chancellor substitutes himself in the donor’s place, and really makes the will himself.” White v. Fisk, 22 Conn. 31, 54. The chancellor in the Quimby case found there was nothing in the will showing a general charitable intention and that the estate ought not to be applied cy pres to other charitable purposes. We sustained this, saying that a general charitable intent to benefit needy boys and girls, generally, cannot be deduced from the sole fact that the Chicago Waif’s Mission and Training. School was engaged in charitable work for needy boys and girls. We there said (p. 373) that the doctrine of cy pres should be applied “if the bequest is to a cause or for a purpose or to aid and further a plan or scheme of public benefit,” for then there is evidence of a general charitable intent. But where the gift is not to any cause, plan or scheme of charity, but to a specific or particular organization, no general charitable intent by the testatrix is indicated and the doctrine of cy pres does not apply.

The Attorney General in his brief says the Quimby case was rightly decided upon the facts there involved but that those facts distinguished it from the instant case. He says that in the Quimby case only one charity was mentioned, whereas six charities are included in the will in the present case. There seems to be some difference of opinion as to the number of charities in the instant will, counsel for the heirs claiming only two charities are mentioned in connection with the residuary estate, which is the only thing involved here. But provision for a number of specific charities does not show a general charitable intent. Each specific bequest is to be considered precisely as if it stood alone. George Washington University v. Riggs Nat. Bank of Washington, D. C., 88 F. (2d) 771, 772. In Volunteers of America v. Peirce, 267 Ill. 406, the residuary estate was left to six named charitable institutions. The court held that where the share each beneficiary is to receive is in no way dependent upon the number who shall survive, it is not a gift to a class but to the beneficiaries distributively. There a bequest to the Buchanan Anti-Saloon League, which had ceased to exist, passed as intestate property to the heirs.

It is said that in the Quimby case the bequest to the charity was conditional and that in the instant case the charities will “positively receive their gifts.” People v. Flanagin, 331 Ill. 203, 207, 208, holds that a legatee is under no obligation to accept a testamentary gift but it may be renounced. The Chicago Daily News Fresh Air Fund has renounced the bequests in the instant will. The legatee having renounced the gift, it does not take effect and is as if it had never been made.

Other points are suggested by the Attorney General which he says distinguish the Quimby case from that now under consideration, but these distinctions or differences are superficial and do not change the fundamental rule stated in the Quimby case that, where the donor has not expressed a charitable intent generally but only provided for one specific, particular object which cannot be carried out, the court will not apply the doctrine of cy pres. This view has been supported in many cases. See Restatement of the Law of Trusts, § 399. In all cases where the doctrine has been applied the testator in his will expressed general purposes. See Teele v. Bishop of Derry, 168 Mass. 341, and Heuser v. Harris, 42 Ill. 425, in the latter of which the testator directed that his land should be sold and the proceeds applied for schooling the children in the school district in which the land lay and one-half for the support of the poor in the country in which he lived; the machinery for administering this trust was impractical, but the court said that even if the machinery “cannot be put in working order,” so long as the purpose of the trust was clear and valid a court of equity will execute it cy pres. A similar situation arose in Crerar v. Williams, 145 Ill. 625, where the will clearly bequeathed the residue of the estate for a free public library, to be incorporated; the bequest was attacked on the ground this beneficiary could not be legally incorporated; the court held that even if this were true the bequest will be sustained and carried into effect. There the general purpose to establish a free public library was expressed in the will.

The Attorney General cites Rhode Island Hospital Tmst Co. v. Williams, 50 R. I. 385. There the testatrix left the residue of her estate to a number of charities, one of which was described as the Bristol Cottage Hospital ; a corporation by that name had been legally organized but remained dormant and the charter was forfeited for nonuse in 1925; the testatrix died in 1927; in 1928 a new corporation was organized with the same name as the old corporation and for the same purpose. One of the factors influencing the court to sustain the bequest to the Bristol Cottage Hospital was that the testatrix had for many years, with others, been interested in promoting the plan for such a hospital. In the instant case the Infant Welfare Society of Chicago, which claims under the cy fres doctrine, was not in existence when the testator made his will and was not organized until three years after he died. Its object, as stated in the charter, was the “welfare of infants and children,” which is a much narrower purpose than the objects of the Chicago Daily News Fresh Air Fund, which as stated in its charter, was to provide charitable aid to the poor. Moreover, the decision in the Rhode Island case is contrary to the decisions in Illinois. Volunteers of America v. Peirce, 267 Ill. 406; Miller v. Riddle, 227 Ill. 53. Other cases cited by the Attorney General are contrary to the decision in the Quimby case and in the Illinois cases just cited. It has been repeatedly held that the disposition of intestate estates is regulated, not by will but by statute. Jahnke v. Selle, 368 Ill. 268, 271.

We conclude that Mr. Fiske bequeathed a part of the residue in question to a specific charity by name, thus evidencing an intent to benefit this specific charity and not a general charitable intent; that as the Chicago Daily News Fresh Air Fund, the specific charity named, has renounced the bequest to it, the property passes as if the bequest had not been made.

The finding of the trial court was proper and it is affirmed.

Affirmed.

Matchett, P. J., and O’Cohhor, J., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Board of Education, District No. 46, DuPage County, Illinois, for use of Floorings, Inc., Appellant, v. The Aetna Casualty and Surety Company and Frank Vertovec, Appellees.
    Gen. No. 40,911.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Rehearing denied June 5, 1940.
    John B. Fruchtl and Thomas J. Doyle, both of Chicago, for appellant.
    Edgar F. Thoma, of Elmhurst, and William J. Corrigan, of Chicago, for appellees,
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, Floorings, Inc., furnished linoleum and bulletin boards on a certain school building erected by the Board of Education of District 46, DuPage county, Illinois; it was stipulated that all work and materials furnished by plaintiff were part of the carpentry work done on the building under a contract between the Board of Education and Frank Yertovec.

Plaintiff brings suit for $1,725 with interest, the balance due for labor and material furnished by it, basing its claim on a bond given by Yertovec, with the Aetna Casualty and Surety Company as surety, to secure the performance of Yertovec’s contract with the Board of Education; upon trial by the court the finding was for the defendants and judgment was entered against plaintiff, from which it appeals.

There is no dispute as to the facts. The sole question is whether, by the terms of the contract and the bond, Floorings, Inc., plaintiff, may bring suit on the bond,

Yertovec entered into a contract with the Board of Education for the erection of an addition to a school building, Yertovec to furnish all labor and material for the carpentry and masonry work; the contract provided that the contractor, Yertovec, should provide a “full coverage bond” for- the faithful performance of the contract; such a bond was executed and delivered, with the Aetna Casualty and Surety Company as surety; among other things, it provided: “if the said Frank Yertovec shall in all respects comply with the terms and conditions of said contract and do any and everything necessary in connection with the masonry and carpentry work of said building , , . and shall pay for all labor and materials and any and everything entering into the masonry and carpentry work of said building then and in that event this bond shall be null and void; otherwise to be and remain in full force and effect,” The linoleum and bulletin boards installed by plaintiff are included under the title “Carpentry.” A contract was entered into between Yertovec and Daniel Elkins for the carpentry work, and Elkins sublet a portion of the contract to plaintiff, Floorings, Inc., for the installation of the linoleum and bulletin boards, which were duly furnished and installed as specified. Prior to January 26, 1932, the full amount due under the Elkins contract was paid to him by defendant Vertovec, but neither counsel make any argument as to the effect of this.

Plaintiff received $675 from Vertovec to apply on its account; this payment was made by Vertovec pursuant to an order from Elkins and charged to Elkins’ account; the entire contract cost of the labor and materials furnished by plaintiff was $2,400, leaving a balance due plaintiff of $1,725; January 27,1932, plaintiff made a demand on Vertovec and defendant surety company for the balance due it, but payment was refused.

The defense is that under the terms of the bond there is no liability on the part of defendant surety to plaintiff, Floorings, Inc.

The construction of. bonds like this has been before the courts in a number of eases. In Board of Education for use of Weil v. Chicago Bonding & Surety Co., 218 Ill. App. 20, a contract was let to the Hanley-Casey Mechanical Equipment Company, who sublet to Weil Bros., to furnish material and labor in connection with plumbing and gas fittings; the bond provided that if the Hanley-Casey Company “shall in all things stand to, . . . and perform the covenants, . . . and shall promptly make payment to all persons supplying it (with) labor and materials in the prosecution of the work provided for in said contract, then the above obligation to be void, otherwise to remain in full force and effect.” The defense there, as here, asserted there was no liability on the part of the surety company to Weil Brothers. The court held otherwise, construing the contract to be made for the benefit of subcontractors and materialmen. The court rested its decision largely upon the opinion in Chicago Board of Education v. Aetna Indemnity Co., 159 Ill. App. 319. In that case the condition in the bond was that the principal “shall promptly make payment to all persons supplying him (with) labor or materials in the prosecution of the work. ...” A like provision was construed in R. Connor Co. v. AEtna Indemnity Co., 136 Wis. 13, as meaning that a subcontractor furnishing labor and material entering into the construction of the building could sue on the bond. To the same effect is the opinion in Cherry v. Charles Benson Inc., 264 Ill. App. 199. See also Laclede Steel Co. v. Hecler-Moon Co., 279 Ill. App. 295.

The defendants rely largely on the opinion in Harris for use of Otis Elevator Co. v. American Surety Co. of N. Y., 297 Ill. App. 1, in which the court cites a large number of cases construing similar bonds. The debatable provision in the Harris contract was that the contractor “shall and will provide all the materials and perform all the work for the erection and completion” of the building and a supplemental agreement provided for a bond “to secure the faithful performance by said contractor of its said contract.” The condition of the bond was that if the “principal” — (Good Construction Company) should complete the building in accordance with the terms of its contract and perform all of its obligations “and shall satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the Owners from all cost and damage which the Owners may suffer, ’ ’ then the obligation to be null and void. The Appellate Court held that to entitle a third person to recover upon a contract made by others, the contract must have been made and entered into directly and primarily for his benefit; that the test of liability to a third person is whether the benefit to the third person “is direct to him or is but an incidental benefit to him arising from the contract. ’ ’ (Subsequent investigation shows that this was reversed by the Supreme Court, 372 Ill. 361, that court holding that as the contract and bond were given in Pennsylvania, the law of that State governs, which gives plaintiff, the subcontractor, the right to recover on the bond.) In the instant case the bond provided that Yertovec, the contractor, “shall pay for all labor and materials and any and every thing entering into the masonry and carpentry work of said building.” We construe this, not as giving a subcontractor an incidental benefit, but a benefit direct to him.

Additional support for this view may be found in a number of other cases. In Builders Lumber & Supply Co. v. Chicago Bonding & Surety Co., 167 Wis. 167, the court said of a similar provision in a bond: “If that was not deliberately intended for the benefit of third parties — for the benefit of materialmen and laborers— why was it inserted? It was already provided that the contractor should furnish the material and labor for the construction of the work. ... We cannot assume that this provision was introduced into the contract for its resounding effect or for an idle purpose. ’ ’ In Baker v. Bryan, 64 Iowa 561, it was held that the contract and bond, considered separately and together, showed that all persons furnishing labor and materials were intended to be secured by the bond. And in 77 A. L. R. 89, the author says: “The overwhelming weight of authority holds that a person furnishing materials or labor may recover against the surety on a bond executed by a contractor to a state, municipality, or public body, in connection with public work or improvements, conditioned that the contractor shall pay all claims for labor and materials, or that he shall pay laborers and materialmen, ’ ' citing cases from many other States in the union.

The decision in Searles v. City of Flora, 225 Ill. 167, cited by defendants, is not helpful. There Searles contracted with the City of Flora to install an engine and gave bond for the faithful performance of his contract; it was held that the bond was not entered into for the purpose of securing laborers or materialmen; that nothing was said in the bond about paying them; that it was only given to save the city harmless.

Plaintiff asks that we enter judgment in this court for $1,725, plus 5 per cent interest from January 28, 1932, the date when demand was made upon defendants for payment and refused. Interest may be allowed when money is withheld by an unreasonable and vexatious delay in payment. Chapter 74, § 2, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 67.02]. There is no evidence that the refusal to pay this demand was unreasonable and the cause of vexatious delay. Defendants were of the opinion they had a good defense to the claim, and the lower court so held. The defense was made in good faith, and under these circumstances interest will not be allowed.

For the reasons above indicated the judgment of the superior court is reversed and the cause remanded with directions to enter judgment in favor of plaintiff for $1,725.

Reversed and remanded with directions.

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


text:
    First National Bank of Chicago, Successor Trustee Under the Will of Charles F. Kimball, Deceased, and Joseph A. Rakyta, Appellees, v. William C. Bohnhorst and Marie Bohnhorst, Appellants.
    Gen. No. 40,923.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    H. J. Thal, of Chicago, for appellants.
    Madden, Meccia & Meter and John Benedek, all of Chicago, for appellee; Kenneth G. Meyer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants appeal from an adverse judgment in a forcible detainer proceeding for possession of a farm; suit was commenced before a justice of the peace, who held against defendants; appeal was had to the circuit court and upon trial it there appeared that the First National Bank of Chicago, plaintiff in the justice court, had made a new lease to Joseph Rakyta, to commence upon the expiration of the tenancy of the defendants, and on leave Rakyta was made an additional party plaintiff; thereafter, on motion made by both plaintiffs, the court instructed the jury to render a verdict against defendants and in favor of Rakyta for possession of the premises, and judgment was rendered on such verdict, from which defendants appeal.

Although the case is entitled First National Bank of Chicago, etc., as plaintiff, Rakyta is the sole appellee, as the judgment and the appeal bond are in his favor.

Defendants first say that no additional parties plaintiff can be added to or substituted for the original plaintiff if such original plaintiff has no cause of action. An appeal to the circuit court from a justice of the peace in a forcible entry and detainer proceeding is a trial de novo and the provisions of the Civil Practice Act are applicable. Section 1 of the act (ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.001]) provides that it shall apply to all civil proceedings unless its application is expressly limited, except in forcible entry and detainer and other actions in which the procedure is regulated by special statute. By § 11, ch. 57 (the statute on Forcible Entry and Detainer [Jones Ill. Stats. Ann. 109.271]) the Civil Practice Act was made to apply to actions of forcible entry and detainer. This is the ruling in Wainscott v. Penikoff, 287 Ill. App. 78.

Section 26 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 150; Jones Ill. Stats. Ann. 104.026] provides that new parties may be added at any stage of the cause, as the ends of justice may require, and section 46 [Ill. Rev. Stat. 1939, ch. 110, § 170; Jones Ill. Stats. Ann. 104.046] provides that at any time before final judgment amendments may be allowed, introducing any party who ought to have been joined as plaintiff or defendant.

Even before the adoption of the present Civil Practice Act it was permitted to add a new party to a cause pending in the circuit court from an appeal from a justice of the peace. In Merriam v. Martin, 132 Ill. App. 151, Merriam was the original defendant, and on trial before the justice he was dismissed, but when the cause reached the circuit court on appeal plaintiff moved to make Merriam an additional party defendant, and it was held that this could be done by force of section 23 [Ill. Rev. Stat. 1939, ch. 110, §147; Jones Ill. Stats. Ann, 104.023] of the Practice Act. McCall v• Lee, 120 111, 261, was an appeal from, the probate court to the circuit court; when the case reached the circuit court a new claimant was substituted for the claimant in the probate court; the court held this was proper, saying it was the policy of the law of this State that the courts be liberal in allowing amendments in the furtherance of justice. In re Estate of Muth, 283 Ill. App. 19, was decided subsequent to the passage of the present Civil Practice Act, and there, on appeal to the circuit court, a new and different claimant was substituted for the claimant in the probate court.

The evidence before the circuit court shows defendants. were in possession under a lease which expired March 1,1939, and had been paying rent to the First him tional Bank of Chicago as successor trustee, etc.; February 28,1939, the bank executed a lease of the premises to Joseph A. Eakyta for a term commencing March 1, 1939 and ending March 1, 1940. Eakyta, the new tenant, was held to he the proper and necessary party to bring the action.

Defendants say that before Eakyta could maintain an action against them it was necessary for him to serve a demand for possession. Clause 4, § 2, ch. 57 (Forcible Entry and Detainer Act [Ill. Rev. Stat. 1939; Jones BL Stats, Ann. 109.264]) provides that the person entitled to possession of lands may obtain the same whenever any lessee “holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise.” In Travis v. Geiger, 215 Ill. App. 461, the lease to Geiger expired March 1, 1919; a new lease was made to Travis for a term beginning March 1, 1919; Travis made no demand for possession before commencing suit and Geiger claimed this as a defense; the court held that demand for possession was not necessary in an action of forcible detainer against a tenant holding over. To the same effect is Webb v. Heyman, 40 Ill. App. 335.

Defendants claim there was evidence tending to show the granting of a new lease to them by the bank, as trustee, to take effect March 1, 1939. The evidence shows there was no definite agreement for this. December 2, 1938, Mr. Greeley, representing the bank, had a conversation with Mr. Bohnhorst with reference to the payment of rent which Bohnhorst was slow in paying, and Greeley told him he could remain in possession so long as he paid the rent. Such indefinite statements are not sufficient to create a new lease, and this alleged conversation had reference to the rental under the current lease to defendants. There was no agreement as to a future leasing.

The court properly directed the jury to find for plaintiff, Rakyta, and the judgment based upon this verdict is affirmed.

Judgment affirmed.

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


author: Mr. Justice O’Connor

text:
    Edith B. Thompson, Appellee, v. State Mutual Life Assurance Company of Worcester, Massachusetts, Appellant.
    Gen. No. 40,914.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Defress, Buckingham, Jones & Hoffman, of Chicago, for appellant; Vincent O’Brien, John H. Letsinger and Charles O. Butler, all of Chicago, of counsel.
    Ekern & Meyers, of Chicago, for appellee; Luther F. Binkley and Vernon A. Forsberg, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

January 22, 1935, defendant insurance company issued a ten-year term convertible policy for life insurance for $10,000 to Walter H. Thompson. Plaintiff, his wife, was named beneficiary. May 28,1935, Walter H. Thompson died and proofs of loss were made but the insurance company denied liability on the ground that Thompson had made false answers to questions put to him at the time he made application for insurance. Afterward plaintiff brought suit to recover on the policy. There was a jury trial, a verdict and judgment in plaintiff’s favor for $11,958.32 and defendant appeals.

The record discloses that Walter H. Thompson, for many years, was employed by the Federal Mutual Liability Insurance Company of Boston, Mass., and for about six years before his death was employed by the Lumbermen’s Mutual Casualty Company, in Chicago. January 22,1935, he applied to defendant for the policy in suit and his application states that at that time he held three ordinary life policies issued by defendant company, one in 1922 for $2,000; one in 1926 for $5,000 and one in 1929 for $5,000. Part of the application also shows the questions put to Thompson by the examining physician, Dr. McCarty, and the answers as made by him. Some of the questions and answers are:

“31. For what illness, disease or injury did you last consult a physician or practitioner? A. Erysipelas, 1929; 1 Attack; Severity: Minor; After Effects: None.
“32. What illnesses, diseases or accidents have you had in the last five years? A. None.
“33. Have you had any of the following diseases: Answer Yes or No. (a) Rheumatic fever? A. No. (b) Nervous troubles? A. No. (c) Tuberculosis? A. No. (d) Asthma, pleurisy, lung trouble? A. No. (e) Raising or spitting of blood? A. No. (f) Syphilis? A. No. (g) Fainting spells, cancer or any tumor, palpitation, appendicitis, jaundice, gastric or duodenal ulcer, goiter, hyperthyroidism, enlarged glands, stricture, disease of heart or blood vessels, gall bladder, liver, intestines, kidneys, bladder, prostate gland, testicles, eye, discharge from ear or deafness? A. No.
“34. Have you ever been on a restricted diet? A. No.
“35. Have you ever had or do you contemplate having a surgical operation? A. No.
“36. Have you ever been an inmate of any hospital or sanitarium for treatment, observation or diagnosis? A. No.
“37. Has your blood pressure ever been found abnormal? A. No.
“38. (a) Has your urine ever shown albumin? A. No. (b) Or sugar? Have you ever taken insulin? A. No.
“39. Have you ever sought advice or treatment of a physician or practitioner for any injury or local or general disease not already mentioned? A. No.”

Defendant contends that after Mrs. Thompson made proofs of loss June 14, 1935, it employed an investigator and found that Dr. McDonald, who was one of Mr. Thompson’s attending physicians during his last illness, had treated him December 18,1933, as stated by defendant’s counsel “for influenza which was accompanied by fever, sore throat, aches and general malaise and which confined him to his home for one week — on the second occasion [January 8,1934] for enterocolitis accompanied by fever, nausea and abdominal distress. ’ Counsel for defendant further say that Dr. McDonald’s office record also shows that the doctor found Thompson’s heart was enlarged on December 18.

The evidence further shows that except for those two occasions, December 18, 1933 and January 8, 1934, when Thompson was absent from work but a short time, he performed his every day work with the Lumbermen’s Insurance Company until May 25,1935, when he became severely ill and died three days later of coronary thrombosis.

Dr. Sutton, for defendant, testified he was called May 26, 1935, by Dr. McDonald, who attended Thompson; that upon examination his diagnosis was a thrombosis of the coronary artery; that the patient was about to die; that he saw him again on the next day and three times on the 28th, when the patient died; that on the next day he performed a partial autopsy confined to the heart at the undertaking establishment, “the purpose of which was to check findings and diagnosis;” the “we found the heart was dilated, and particularly the left chamber ... There was a thrombosis of the left coronary artery and some arteriosclerosis,” which is ordinarily known as hardening of the arteries. There is evidence also to the effect that from the time Dr. McDonald saw Thompson in December, 1933 and January 1934, in addition to Thompson performing his daily work, he played handball and golf, made no complaint at any time and apparently seemed healthy.

Dr. McCarty, defendant’s physician who took Thompson’s application on January 22, 1935, testified that he asked the questions and wrote down the answers given by Thompson; that Thompson did not mention he had seen Dr. McDonald in December, 1933 or January, 1934; that at the time of answering the questions he examined Thompson’s blood pressure, pulse, heart, chest measurements, height, weight, specimen and reflexes, and that he made the examination at the request of defendant insurance company; that “I listened to the heart and then percussed it;” that he listened with a stethoscope to the heart sounds and found nothing abnormal; that Thompson did not mention to him the fact he had been examined in November, 1934, by Dr. Craves of the Lumbermen’s Mutual Casualty Company with which company Thompson was then employed. On cross-examination he testified that he made a careful examination of Thompson; that all he wanted was to have Thompson answer the questions as to what Thompson remembered; that “A man can in the early stages, have arteriosclerosis and never have any sign or symptons, and he can have hypertrophy of the heart and never know it, or never have a sign of pain about it.”

The evidence further shows that prior to the application made by Thompson for the policy in question, January 22, 1935, he had made a number of other applications to defendant insurance company and it had issued to him other policies as follows: prior to 1921, $1,000; 1921, $8,000; 1922, $2,000; 1926, $5,000; 1929, $5,000; or a total of $21,000. The applications made for these policies which defendant had in its possession show that Thompson, at the several times, answered questions concerning his health, which were somewhat variant from the answers made by him in the application involved in the instant case and the doctor representing defendant insurance company testified on the trial saying he knew that the answers made by Thompson to him were at variance with some things he had said in prior applications.

Dr. Amiral, the chief medical examiner for defendant, who accepted the application in question, on cross-examination testified “From our records I knew the answer [made by Thompson] was not true, but I thought he had answered it to the best of his knowledge and information, which is all that we ever expected him to do.”

There is considerable other evidence in the record but we think it unnecessary to mention it here. At the request of counsel for defendant the court submitted to the jury two special interrogatories, viz., “(1) Did Walter Herbert Thompson falsely answer any question or misrepresent any matter in his application for the policy of life insurance sued upon herein with intent to deceive State Mutual Life Assurance Company? (2) Did Walter Herbert Thompson falsely answer any question or misrepresent any matter in his application for the policy of life insurance sued upon herein, and if so did such misrepresentation materially affect either the acceptance of the risk or the hazard assumed by the Company?” To each question the jury’s answer was “No.”

Counsel for defendant contend that Thompson intentionally made misrepresentations in his answers to questions put to him by the medical examiner, as shown by the application. That these misrepresentations materially affected the acceptance of the risk and the hazard assumed by the company and that such ‘ Misrepresentations will at the option of the Company avoid the policy not only if made with intent to deceive but also in the absence of such intent if they materially affected the acceptance of the risk or the hazard. ’ ’ And it is argued that if Thompson had answered the questions truthfully as to his being attended by Dr. McDonald in December 1933 and January, 1934, the company would have investigated the matter further and refused to issue the policy. There is testimony by some of the doctors to sustain the latter contention but we are clear this is mere speculation.

Upon a consideration of all the evidence in the record, we are clearly of opinion that the finding of the jury and the jury’s answers to the two special interrogatories (to the effect that Thompson did not answer falsely and did not misrepresent any matter in his application, and if there was any such misrepresentation it did not materially affect the acceptance of the risk or the hazard assumed by the company), are not against the manifest weight of the evidence. On the contrary, we are of opinion the verdict of the jury is the only verdict that could stand in view of the evidence.

We are also unable to agree with counsel’s contention that any misrepresentation made by Thompson in his answers to questions put to him in his application if they materially affected the acceptance of the risk or the hazard assumed, would warrant the company in avoiding the policy. In support of this counsel cite Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496; Tanner v. Prudential Life Ins. Co., 283 Ill. App. 210, and other cases.

We think the reasonable and just rule in such case is that unless the applicant knows or has reason to know that his statements, concerning his physical condition or his having had certain diseases, are false, such answers do not bar recovery upon an insurance policy. Joseph v. New York Ins. Co., 219 Ill. App. 452; Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273; Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133; Mouler v. American Life Ins. Co., 111 U. S. 335; Walsh v. Prudential Ins. Co., 285 Ill. App. 226.

In the Tomasun case (358 Ill. 496) a bill was filed to cancel an insurance policy on the ground that misrepresentations had been made by the applicant for insurance which were material to the risk. A decree was entered dismissing the bill for want of equity which was affirmed by the Appellate Court, but the judgment was reversed by the Supreme Court. The court, in its opinion, discusses the facts in the case and says in effect that there was intentional fraud on the part of the applicant. Some language was used to the effect that if there was no intentional fraud it would make no difference in the result. And our Supreme Court, a few days ago at the April Term, filed an opinion in No. 25378, Froehler v. North American Ins. Co. of Chicago, which was an action brought on a policy by the insured’s widow, the beneficiary, where the court said: “The company’s principal reliance is on Western and Southern Life Ins. Co. v. Tomasun, 358 Ill. 496, wherein certain language is said to apply to the case now before us. The cases are far different on their facts because that one involved an absolute and intentional fraud. They are still further apart as a matter of law because in that case, no contract ever existed between the parties, whereas, in this case, we are dealing with a question of performance of an existing contract. ’ ’

In the Tanner case (283 Ill. App. 210), which was a suit brought to enforce a life insurance policy, decided by another Division of this court, the defense interposed was that the insured was guilty of fraud and misrepresentation in his answers to certain questions contained in his application. In that case the court analyzed the evidence and said: “It is urged by plaintiff that the falsity of Tanner’s answers, his knowledge with respect thereto, his intent to defraud and the materiality of his representations were all questions of fact, which were properly submitted to the jury and resolved in plaintiff’s favor. The difficulty with this position is that the verdict was against the manifest weight of the evidence inasmuch as the undisputed evidence shows conclusively that the answers to the questions were false and concerned material facts.”

Joseph v. New York Life Ins. Co., 219 Ill. App. 452, was an action brought on two life insurance policies by the beneficiary, the wife of the insured, where it was contended that the insured had made false answers to questions put to him, etc. We affirmed the judgment in plaintiff’s favor. We discussed and analyzed many authorities on the subject now before us, including cases hereinbefore cited of Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273; Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133; Moulor v. American Life Ins. Co., 111 U. S. 335. We there reached the conclusion that “the law is that where it is sought to avoid a policy on the ground that the insured made false answers in his application, the question of the good faith of the applicant in making his answers (in the absence of an express provision that they are warranties) is always a material one, and as Mr. Justice Harlan said in the Moulor case: ‘If it be said that an individual could not be afflicted with the diseases specified in the application without being cognizant of the fact, the answer is that the jury, in that case, would have no serious difficulty in finding that he had failed to communicate to the company what he knew or should have known was material to the risk, . . . ’

“While there is some apparent conflict in the language used in the reported opinions, yet we think upon a careful analysis of each case it will be found that there is no real conflict; that the question in each case is whether the answers made by the applicant were knowingly false.” We then cite a number of authorities which we said sustained this view; The Joseph case was affirmed by the Supreme Court, Joseph v. New York Life Ins. Co., 308 Ill. 93, but the question which we are now considering and which we considered in that case was not touched upon.

From what we have said we think it follows that the trial court did not err in giving the instructions tendered by plaintiff and in refusing to give instructions 20 and 21 requested by defendant.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Herschel H. Campbell, Appellee, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Gen. No. 40,950.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Pomeroy, Martin & Brown, of Chicago, and Kramer, Campbell, Costello & Wiechert, of Bast St. Louis, for appellant; S. R. Prince and H. O’ B. Cooper, of counsel.

      Samuel Cohen and Leo G. Hanna, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for personal injuries claimed to have been sustained by him as the result of a collision at a grade crossing between plaintiff’s automobile, which he was driving, and a freight train operated over defendant’s tracks in Centralia, Illinois. There was a jury trial, a verdict and judgment in plaintiff’s favor for $20,000 and defendant appeals.

The record discloses that about ten o’clock on the evening of August 24, 1935, plaintiff was driving his automobile east on 5th street in Centralia, Illinois, and a freight train of 48 cars was going south at from 8 to 12 miles an hour. There was a collision as a result of which plaintiff was injured. The automobile struck the locomotive in the right side of the front, as plaintiff contends, while defendant contends the automobile ran head-on and struck the step on the tender. The automobile was turned to the south, plaintiff fell or was thrown from it and the wheels of the train passed over his left 'hand and his left foot was also injured. Afterward it was necessary to amputate the hand at a point above the wrist.

Chestnut, a north and south street, lies immediately west of the railroad tracks, the west side being paved with brick. Fifth street is 28 feet wide between the curbs and was paved. The Southern Railway Company operates a line of railroads from East St. Louis to Louisville, Kentucky, and on August 24 a through freight train left East St. Louis for Princeton, Indiana, an all night run. It passed through a number of towns, including Centralia, a city of about 12,000 inhabitants, located about 60 miles east of East St. Louis. The night was dark, quiet, clear and hot. About 10 blocks north of the place of the accident, some switching was done. The Southern Railway Company in Centralia operates over the tracks of the defendant, Chicago, Burlington & Quincy Railroad Company, and runs south through Centralia.

There are houses on the west side of Chestnut street facing east; street lights are located at every other street corner but there were none at the 5th street crossing. About % to % of a mile south of 5th street is an interlocking switch over the 9 railroad tracks which run south, paralleling Chestnut street. The freight train in question was on the west line of track. A sign with the word “Stop” upon it is located about 20 feet west of the west railroad track and just south of the south curb of 5th street. A cross board sign is located a short distance east of the stop sign on a post painted with alternate black and white stripes. Fastened to the top of this post is a sign upon which appear the words “Look Out for the Cars,” and another “Railroad Crossing ’ ’ — ‘‘ 9 Tracks. ’ ’ The train was made up of 29 loaded freight cars and 19 empty cars, being approximately 2,000 feet in length.

There were 5 men in the train crew, the engineer, fireman, head brakeman, rear brakeman and conductor ; all of these except the rear brakeman were riding in the cab of the engine at the time of the accident. After the train proceeded south the rear brakeman closed the switch and got on the rear of the train.

Plaintiff testified he was driving his automobile east in 5th street and stopped at the stop sign, above mentioned, about 20 feet west of the west rail; that he looked in both directions; that he could see up the track about 200 feet if it was daytime but on account of the darkness he could not estimate how far he could see; that he saw no train, then started up slowly and was but a few feet from the west rail when he saw the southbound train too late to stop. Plaintiff’s evidence is also to the effect that the headlight on the engine was not lit and witnesses on his behalf testified that they heard no whistle or bell and that the train made little or no noise. At the time in question 4 witnesses called by plaintiff were in a one-story frame house located near the northwest corner of 5th and Chestnut streets. The front of this house, which faced east, was shown to be a little more than 63 feet from the middle of the west railroad track on which the freight train was being-operated. They testified they saw no headlight and heard no whistle or bell.

On the other side, witnesses for defendant, including some of the train crew, gave testimony to the effect that they saw plaintiff driving east in 5th street at a speed of from 15 to 18 miles an hour; that he did not stop but ran into the train, striking the tender behind the cab of the engine, as a result of which the step was broken off; that the bell was continually ringing, being operated automatically; that the whistle had been sounded a number of times, first, when the rear brakeman signalled the engineer that he had closed the switch at the north end of the train for the engineer to proceed, again to notify the man in charge of the signals south of 5th street, who thereupon changed the signs on the interlocking- switch notifying the engineer that he could proceed — that the track was clear, and a third time to notify the man who operated the lights that the engineer saw the track was clear.

A number of other persons testified, some for plaintiff and some for defendant but this testimony we think is unnecessary to discuss for the reason that we have reached the conclusion that the finding- of the jury, to the effect that plaintiff was in the exercise of due care for his own safety, and defendant guilty of negligence, is against the manifest weight of the evidence. We think the manifest weight of the evidence is that the bell was being- rung*; that the whistle was sounded a number of times and that the headlight on the locomotive was lit. A great deal of testimony tending to show the contrary was negative in character. (Provenzano v. Illinois Cent. R. Co., 357 Ill. 192.)

Defendant further contends that the court erred in permitting a witness to testify, over objection, there were no gates or a watchman or lights at the crossing in question, on the ground there was no allegation in the complaint that would warrant such evidence. We think there is no merit in the objection. (Chicago & Eastern Ill. R. Co. v. Reaver, 199 Ill. 34; Opp. v. Try or, 294 Ill. 538.) Plaintiff had the right to show, and did show by other witnesses and photographs, the condition and surroundings of the crossing of 5th street over Chestnut street and the 9 railroad tracks. The jury were properly instructed and were in no way misled as to the issue involved. The evidence was clearly admissible without resorting to the phrase res gestae, as counsel for plaintiff does to justify the ruling of the court, because as stated by Professor Wigmore (3 Wigmore on Evidence, sec. 1795,1st ed.; sec. 1767, 2nd ed.), “No rule of evidence can be created or applied by the mere muttering of a shibboleth.” We discuss this confusing phrase in Martin v. Turek, 227 Ill. App. 379, and think it is unnecessary to repeat here what we there said.

The court gave 41 instructions to the jury, 11 offered by plaintiff and 30 by defendant — too many. So far as the record discloses, no instruction was refused. We have considered the instructions and the objections made to certain of them by defendant but are of opinion there was no substantial error in the instructions.

For the reason that the verdict is against the manifest weight of the evidence, the judgment of the superior court of Cook county is reversed and the- cause remanded.

Reversed and remanded.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    People of the State of Illinois, Defendant in Error, v. Henderson McCullough, Plaintiff in Error.
    Gen. No. 41,152.
    Heard in the first division of this court for the first district at the April term, 1940.
    Opinion filed May 20, 1940.
    Rehearing denied June 5, 1940.
    Ellis & Westbrooks, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

September 25, 1939, an information was filed charging that Henderson McCullough, defendant, September 5, 1939, maliciously assaulted Fred Tucker with a pistol.

The record discloses that September 25, 1939, the matter came on for hearing before Judge Frank M. Padden, of the municipal court of Chicago, and on that day an order was entered which recites that Fred Tucker, in the name of the People, presented to the court an information under oath and moved the court that leave be granted to file the information; “and the presiding Judge of this Court, having examined said information, and having examined under oath the person presenting the same, and having heard the evidence thereon, and being satisfied that there is probable cause for filing the same, and said Judge, having so endorsed the same, and the Court being fully advised in the premises, it is ordered that leave be and hereby is granted to file said information instanter.” Continuing, the record recites that it appearing to the court that McCullough was arrested without warrant or other writ and was now present in open court, the court took jurisdiction of the person and the bailiff was ordered forthwith to take the body of the defendant into custody to answer the charge made against him in the information; that the matter came on for hearing, The People being represented by the State’s Attorney “and the defendant as well in his own proper person as by counsel also comes;” that the defendant was arraigned and entered a plea of not guilty; that defendant was advised of his right to a jury trial but he elected to waive such trial and by agreement the matter was heard before the court without a jury. The court found defendant guilty in the manner as charged in the information of “Wilful and malicious assault with a deadly weapon upon the person of another without any considerable provocation and under circumstances showing an abandoned and malignant heart with intent then and there to inflict a bodily injury,” and he was sentenced to confinement at labor in the House of Correction for a period of nine months, and a fine of“$25 imposed.

A little more than two months thereafter, November 27, 1939, defendant by his counsel, filed a motion to vacate the judgment and for his discharge. The grounds of the motion are that the information “does not appear to have been acknowledged before any person authorized by law to take acknowledgments, and is void;” that the purported information “not being acknowledged” fails to comply with section 27 of the Municipal Court Act [Ill. Rev. Stat. 1939, ch. 37, § 382; Jones Ill. Stats. Ann. 108.050] and other matters were set up, not important here. On the next day, November 28, an order was entered by Chief Justice Sonsteby, of the municipal court, giving defendant leave to file the motion and the cause was transferred “to Judge Padden instanter.” On the same day Judge Padden entered an order denying the motion to vacate the judgment and to discharge defendant and 60 days was given to file a bill of exceptions. The bill of exceptions or report of the trial is in the record and the only matter contained in it is the motion made by defendant to vacate the judgment above mentioned, and a copy of the information.

Defendant contends that the information is insufficient because (1) it was not sworn to before one authorized to administer oaths, and (2) that there was no endorsement on the back of it to the effect that the judge had examined the person presenting the information and was satisfied that there was probable cause for filing it and it was ordered that leave be given to file it; that while this endorsement is on the information it was not signed by the judge or anyone else.

The information is in the usual form where it is made by an individual. It recites that Fred Tucker made the complaint setting up the necessary averments. It was signed by him and at the bottom appears, “Subscribed and sworn to before me this 25th day of Sept. A. D. 1939, F. M. Padden — of The Municipal Court of Chicago.”

Counsel for defendant contends there is no showing that F. M. Padden was Judge Padden of the municipal court; that there is no showing that F. M. Padden was authorized to administer oaths, and the proper endorsement was not made on the information, as above mentioned, because it was not signed by the judge. There is no merit in either of these contentions. This court will take judicial notice that F. M. Padden is a judge of the municipal court of Chicago. People v. Frankowski, 371 Ill. 493. And the record discloses that the proceedings were all held before Judge Padden. The information was properly verified and the oath was administered by Judge Padden to Fred Tucker, who presented the information. But even if the information had not been verified the question of the verification is waived because defendant went to trial without objection. People v. Duyvejonck, 337 Ill. 636; People v. Morgenstern, 278 Ill. App. 100.

In People v. Frankowski, where an information was filed before the county judge, the court said: “There is no merit in the contention that the county court was without jurisdiction to try defendant because the information was not properly endorsed by the county judge of Cook county. The information was endorsed ‘E. K. Jarecki, Judge of the County Court of Cook County.’ The county judge was elected and commissioned as ‘Edmund K. Jarecki.’ Section 9 of division 11 of the Illinois Criminal Code (Ill. Rev. Stat. 1937, chap. 38, par. 719) provides that all exceptions to the form of an information shall be made before trial, and no motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in the information. No exception to the endorsement was taken before trial, and the objection, not having been raised either in the trial court or Appellate Court, now comes too late.”

In passing on the question of the verification of an information, where no motion to quash was made, the Supreme Court in the Duyvejonck case (337 Ill. 636640) said: “A verification, or lack thereof, does not affect the jurisdiction of the court where the information charges a crime, and while it is an invasion of his constitutional rights to try the accused on an unverified or improperly verified information, yet such an objection may be waived by the accused and is waived by him by proceeding to trial without raising the objection. (People v. Leinecke, 290 Ill. 560; People v. Reed, 287 id. 606; People v. Powers, supra.)” Counsel for defendant cite People v. Zlotnicki, 246 Ill. 185 to sustain defendant’s contention as to the necessity of the verification of an information but the later decisions of our Supreme Court, to which we have above referred, are controlling.

For the reasons stated, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Ida Goldberg, Appellant, v. Amos Ball et al., Appellees.
    Gen. No. 40,913.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed May 22, 1940.
    Mayer, Altheimer & Kabaker and Seymour Goldberg, all of Chicago, for appellant; Alan J. Altheimer and Lester E. Slosburg, of Chicago, A. Lincoln Lavine, A. L. Pomerantz and Leonard I. Schreiber, of counsel.
    Hopkins, Sutter, Halls & DeWolfe, of Chicago, for certain appellees; Albert L. Hopkins, Donald J. DeWolfe and T. Eugene Foster, all of Chicago, of counsel.
    Ashcraft & Ashcraft, of Chicago, for certain other appellee; Raymond M. Ashcraft and Norman L. Olson, of counsel.
    Stuart S. Ball, of Chicago, for certain other appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Ida Goldberg brings this appeal from a decree entered in the circuit court of Cook county on March 14, 1939, dismissing the bill of complaint which she had filed against the Standard Oil Company of Indiana, a corporation, its directors and the executrix and administrator of the estates of those defendants who have died.

The action was a stockholders’ derivative action brought in and for the benefit of the said Standard Oil Company, to compel the director defendants to account for secret profits fraudulently made by them at the expense of the Standard Oil Company.

The original complaint was filed on November 16, 1937 to which Standard Oil Company filed its answer. The individual defendants, Edward J. Bullock, Robert H. McElroy, Robert W. Stewart, Edward Gf. Seubert and Amos Ball filed motions to dismiss. Thereafter, on January 20, 1938, the original complaint was ordered stricken and plaintiff was given 15 days within which to file an amended complaint. Thereafter an amended complaint was filed to which Standard Oil Company filed its answer and to which the same individual defendants filed motions to strike.

The amended complaint was dismissed on October 24, 1938, and leave was granted to plaintiff to file a second amended complaint within 20 days. Thereafter plaintiff amended her second and supplemental complaint and again the Standard Oil Company filed its answer and the individual defendants filed motions to dismiss. A decree of dismissal was entered on March 14,1939.

From the complaint it appears that the plaintiff is the holder of 100 shares of Standard Oil Company (Indiana) stock which she acquired in July, 1936; that she seeks redress of alleged wrongful actions of certain of the directors of said corporation committed in the years 1925 and 1927; that she sued on behalf of herself and all other stockholders “who may be entitled to participate in this litigation.”

It appears that no other stockholders joined in this litigation.

Plaintiff’s theory of the case is that the individual defendants who comprised the entire board of directors of Standard Oil Company in the year 1925 and a majority of said board in 1927, in breach of their fiduciary duties and obligations, conspired to and did secretly and personally profit in the sum of $1,266,750, at the expense of their company, the defendant Standard Oil Company (Indiana); that said director defendants purchased in 1925, for their own account, common stock of Pan American Eastern Petroleum Corporation instead of permitting Standard Oil Company (Indiana) to purchase said stock and thereafter, in 1927, secretly, by means of a dummy corporation sold said stock to Standard Oil Company (Indiana) at the profit aforementioned; that plaintiff individually and as a stockholder of Standard Oil Company (Indiana), on her own behalf and on behalf of all other stockholders similarly situated, has brought this action to enforce an accounting by the director defendants to Standard Oil Company (Indiana) for the purpose of restoring to the corporation the illicit profits thus secured by the director defendants.

The theory of the defendants to sustain the judgment of dismissal entered by the circuit court sets forth their propositions relative thereto, as follows:

‘ ‘ 1. The complaint shows that plaintiff brought suit in a derivative right without compliance with the conditions precedent imposed by equity on such suits.
“2. Plaintiff was not excused from making demand on the directors or the stockholders of the corporation to bring such action in the name and right of the corporation.
“3. The alleged cause of action arose not later than September, 1927, and was barred by the statute of limitations of the State of Illinois.
“4. The alleged cause of action was barred by laches and acquiescence.
“5. Plaintiff did not acquire her stock until July, 1936, and was not a stockholder at the time the transactions complained of are alleged to have occurred.
“6. Plaintiff’s predecessor or predecessors in title ratified and approved the various transactions complained of.
“7. The alleged wrongs charged against the defendants were approved and authorized by the stockholders of the corporation at a special meeting held in September, 1927, more than ten years before the institution of the suit.
“8. The complaint fails to show that the plaintiff or her predecessor or predecessors in title exercised any diligence either in protecting their rights against the alleged wrongs complained of or in discovering same.
‘ ‘ 9. The complaint fails to disclose that there was any concealment of the alleged cause of action.
“10. The material allegations of the alleged wrongs and frauds are made only upon information and belief, and not positively, as required by law.
“11. Other material allegations of the complaint are made by way of innuendo and as conclusions of the pleader, and in this regard the complaint is wholly insufficient.
“12. The complaint erroneously assumes that a single stockholder of a corporation may sue to disaffirm and set aside a transaction made by the corporation within its corporate powers upon authority granted by a majority vote of the stockholders.
“13. The complaint fails to disclose that the corporation is in a position, after a lapse of more than ten years, to disaffirm the purchase of the Pan Eastern shares from Panamex Company.
“14. A former suit, charging substantially the same alleged wrongs, was brought by another stockholder on behalf of himself and all other stockholders in the Federal Court in 1933 and dismissed for want of prosecution in 1936.
‘ ‘ 15. The complaint was properly dismissed for want of equity on each and every ground set forth in these defendants ’ motions to dismiss.”

As to whether or not a suit of this kind can be maintained, we think the rule in this State is as stated in vol. 3, sec. 884, Fletcher Cyclopedia Corporations:

“ A director is a trustee for the entire body of stockholders, and both good morals and good law imperatively demand he shall manage all the business affairs of the company with a view to promote, not his own interests, but the common interests, and he cannot directly or indirectly derive any personal profit or advantage by reason of his position, distinct from his coshareholders.’ ”

In Dixmoor Golf Club, Inc. v. Evans, 325 Ill. 612, at p. 616, the court said: ‘ ‘ The directors of a corporation are trustees of its business and property for the collective body of stockholders in respect to such business. They are subject to the general rule in regard to trusts and trustees, that they cannot, in their dealings with the business or property of the trust, use their relation to it for their own personal gain. It is their duty to administer the corporate affairs for the common benefit of all the stockholders and exercise their best care, skill and judgment in the management of the corporate business solely in the interest of the corporation.'’ ’

One of the first prerequisites necessary in order to maintain a suit of this kind is that a demand for relief be made within the corporation. And, as was said in the case of Babcock v. Farwell, 245 Ill. 14, atp. 46: “ The stockholders cannot ordinarily maintain a suit to enforce any right of the corporation. That privilege belongs to the corporation itself, acting through its directors. The mere failure of the directors to bring suit does not entitle any stockholder to do so. A demand upon the directors to bring the suit is, in general, essential before a stockholder may himself maintain a bill. His remedy must first be sought within the corporation, and it is only where the majority of the directors are themselves involved in the matters complained of, so that it is evident that the demand would be unavailing, that it can be dispensed with. ’ ’ This being the law, in order to maintain a suit, it would be necessary to allege and prove that such a demand had been made on a board of directors to commence such suit or that such action in all probability would be futile because the board, or at least a majority of the directors, are hostile, or had participated in the alleged fraud and they could not be expected to commence a suit against themselves in the name of the corporation.

The allegations of the second amended and supplemental bill regarding a demand, show that no such demand was made and, as an excuse for failure to make a demand on the directors, plaintiff sets forth the following:

“ (a) The entire board of directors of Standard Oil, except for J. F. Stone who was elected a director in 1937, is composed of persons who participated in the acts of malfeasance and nonfeasance hereinbefore alleged.”

The foregoing paragraph makes no reference to the so-called fraud on the part of the board.

The second amended and supplemental bill further states:

“(b) All the directors of Standard Oil who did not directly participate in the profits hereinbefore alleged, were under the control and domination of the profiting directors. Upon information and belief, the refusal of the non-profiting directors to assert the corporate cause of action hereinbefore alleged, was and is due to fraud, bad faith and misconduct amounting to a breach of trust and was induced by their personal acquaintance, friendship and social and business relations with the defendant directors.”

The foregoing statement or charge made by plaintiff against these so-called “nonprofiting” directors leaves much to the imagination.

Several years before the present suit was filed in the circuit court, a somewhat similar suit was commenced in the United States District Court of this district by one Wilhelmi and others, with relation to the subject-matter of this suit. After such suit had been pending in said court for sometime it was dismissed without a hearing. The suit which was commenced in the Federal Court, apparently is the basis for the charge made in the complaint that the present board of directors of Standard Oil had express notice and information concerning the transgression of directorial duties. Plaintiff then substitutes this argument for an allegation of fact. Plaintiff alleges that the present board of directors obtained at least as much notice from the institution of such suit as they would have obtained from a formal demand having been made by plaintiff. Such statements do not comport with the requirements that the claim should state facts and not argumentative conclusions. And, if the allegations of fraud are upon information and belief, they cannot be sustained unless the facts upon which the belief is founded is set forth in the pleadings.

In Murphy v. Murphy, 189 Ill. 360, the Supreme Court in sustaining a general demurrer to the complainant’s bill, at p. 366, said: “ . . . the allegation of fraud, as made in the present bill, is made upon information and belief; and ‘an allegation of fraud upon information and belief can not be sustained, unless the facts, upon which the belief is founded, are stated in the pleadings. ’ ... ‘A mere statement that the plaintiff is informed, or is informed and believes, puts in issue only his information and belief, and not the truth or falsity of the facts thus referred to.’ ”

It is conceded that no demand has been made upon the board to take any steps to recover the money of which it is charged the company has been defrauded, and it further appears that at the time this suit was commenced there were only four out of the twelve members of the board of directors who were on the board at the time the alleged wrongful acts were committed. This, it seems to us would make it even more necessary that a demand be made, as it cannot be presumed that the subsequent members of the board of directors, even when rather inartificially charged with wrong doing, would refuse to protect the rights of the corporation.

In Pomeroy’s Equity Jurisprudence, 4th Ed. sec. 1095, it was said: ‘ ‘ The stockholder does not bring such a suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judgment; but in every other respect the action is the ordinary one brought by the corporation, it is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder-plaintiff. The corporation is, therefore, an indispensably necessary party, not simply on the general principles of equity pleading in order that it may be bound by the decree, but in order that the relief, when granted, may be awarded to it, as a party to the record, by the decree.”

The bill here does not allege that any effort was made by the plaintiff to comply with such requirement by making a demand that the corporation proceed to protect the rights of all the stockholders. As was said in 14 Corpus Juris, p. 931: ‘ ‘ The effort on the part of the stockholder to procure corporate action must be earnest and bona fide, and not merely simulated. The stockholder must show either that a demand upon the board of director or other managing body, to have an action brought and prosecuted in the name of the corporation to redress the grievances complained of, has been made and refused, or that the circumstances are such that such a demand would be futile and unavailing.”

And continuing, it is stated:

“A stockholder cannot rest upon a refusal of the directors to sue, but, if time permits, he must make an honest effort to obtain action by the stockholders as a body, or, if he does not make such' an appeal, he must show that the effort would be useless.” No such position has been maintained by the plaintiff in this case, but on the contrary it is stated that such a demand would be refused because some of the directors who were not among the “profit making ones” and were in the majority, refused to do anything because of their acquaintance or friendship with the offending directors. We do not think this is sufficient to excuse the plaintiff from following the law which requires that a demand be made in good faith. Directors who are elected by stockholders and placed in control of a corporation are not to be superseded by a stockholder without a strong showing having been made that the directors are mismanaging the corporation and are dishonest.

In Corbus v. Alaska Treadwell Gold Mining Co., 187 U. S. 455, Mr. Justice Brewer, speaking for the court, in his opinion at p. 463, said: ' ‘ The directors represent all the stockholders and are presumed to act honestly and according to their best judgment for the interests of all. Their judgment as to any matter lawfully confided to their discretion may not lightly be challenged by any stockholder or at his instance submitted for review to a court of equity. The directors may sometimes properly waive a legal right vested in the corporation in the belief that its best interests will be promoted by not insisting on such right. They may regard the expense of enforcing the right or the furtherance of the general business of the corporation in determining whether to waive or insist upon the right. And a court of equity may not be called upon at the appeal of any single stockholder to compel the directors or the corporation to enforce every right which it may possess, irrespective of other considerations. It is not a trifling thing for a stockholder to attempt to coerce the directors of a corporation to an act which their judgment does not approve, or to substitute his judgment for theirs.”

And, on the same subject, the Supreme Court in the case of Babcock v. Farwell, 245 Ill. 14, at p. 46, said: “The stockholders cannot ordinarily maintain a suit to enforce any right of the corporation. That privilege belongs to the corporation itself, acting through its directors. The mere failure of the directors to bring suit does not entitle any stockholder to do so. A demand upon the directors to bring the suit is, in general, essential before a stockholder may himself maintain a bill. His remedy must first be sought within the corporation, and it is only where the majority of the directors are themselves involved in the matters complained of, so that it is evident that the demand would be unavailing, that it can be dispensed with. ’ ’

In Scalzo v. Commercial Trust & Savings Bank, 239 Ill. App. 330, this court at p. 338, said: “Before a stockholder should be permitted to bring suit, in his own name, to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all of the means within his reach to obtain within the corporation itself the redress of his grievances or action in conformity to his wishes. (Hawes v. Contra Costa Water Co., 104 U. S. 450 [26 L. Ed. 832]; Babcock v. Farwell, 245 Ill. 46; Continental Securities Co. v. Belmont, 206 N. Y. 7, 51 L. R. A. [N. S.] 112; Fleming v. Black Warrior Copper Co., 15 Ariz. 1, 51 L. R. A. [N. S.] 99.)”

As before stated, no other stockholder has joined plaintiff in this suit, and as was said by Mr. Justice Brandeis in the case of United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261, 264: “For aught that appears, the course pursued by the directors has the approval of all the stockholders except the plaintiffs.”

An allegation set forth in the second amended complaint, sets forth the following:

“(d) Should the present board of directors control a cause of action similar to that set forth in this complaint, such proceedings would be in friendly hands by reason of the influence and the domination of the director defendants.”

Although there are four present members of the board who are charged with having obtained profit through the transaction complained of, no allegation is set forth as to how this influence and domination of the four over the eight was to be consummated. Although this alleged delinquency on the part of the board of directors occurred many years before the plaintiff was owner of this stock, we are asked to hold that her cause of action is the same as though she had been a stockholder at the time the alleged wrongs were committed. The alleged wrongs took place in 1925 and 1927. Plaintiff did not acquire her stock until July, 1936 and did not institute suit until November, 1937.

In Dimpfell v. Ohio & Mississippi Ry. Co., 110 U. S. 209, Mr. Justice Field in his opinion at p. 210, said: “And it does not appear that the complainants owned their shares when these transactions took place. For aught we can see to the contrary, they may have purchased their shares long afterwards, expressly to annoy and vex the company, in the hope that they might thereby extort, from its fears, a larger benefit than the other stockholders have received or may reasonably expect from the purchase, or compel the company to buy their shares at prices above the market value. Unfortunately, litigation against large companies is often instituted by individual stockholders from no higher motive.”

In Taylor v. Holmes, 127 U. S. 489, the Supreme Court, referring to the same rule of equity, at p. 492, said:

“Although there is in the bill a declaration that the two complainants are owners of a majority of the stock of the Gold Hill Mining Company, there is no statement as to when or how they became such, or whether they were such stockholders during the times that injuries were inflicted, of which they now complain, in regard to the taking possession of the property by the defendants, or whether they became stockholders after-wards. In short, there is no such averment of their relation to the corporation or of their interest in the matter, about which they now seek relief, as brings this action within the principle of the decisions of this court upon the subject.”

We cannot find that the Supreme Court of this State has directly passed upon whether or not stockholders may maintain a derivative suit charging mismanagement or malfeasance on the part of the officers prior to the acquisition of stock.

In the case of Bilhuber v. Bilhuber-Wawak Co., 245 Ill. App. 552, this court held that a minority stockholder cannot complain of acts occurring prior to his acquisition of stock. In the Bilhuber case one of the complainants, Emilie Bilhuber had acquired her shares of stock June 1, 1920. Among other things, the bill complained of a transaction which occurred in 1918, alleging that Frank Wawak, Sr., who was president of the company, purchased an automobile at a cost of $2,175, and caused the same to be paid for out of the funds of the corporation. This court in its opinion, at p. 565, said:

“The transaction complained of in the bill of complaint in relation to the purchase of an automobile and the use thereof occurred in the year 1918, long before Mrs. Bilhuber became a stockholder, and the purchase was made by resolution of the board of directors at the time, and we do not consider that she has any right to complain thereof.... we are further of the opinion that the trial court erred in its decree in favor of the complainant Emilie Bilhuber, and the cause is therefore reversed with directions to the superior court to enter a decree dismissing the bill for want of equity as to both complainants.”

Assuming that a cause of action does exist at the time a stockholder purchases certain stock, after the cause of action has accrued, does the purchaser of that stock acquire the cause of action and does such purchaser acquire any more from the vendor of the stock than the vendor could have asserted himself? In the instant case, are we to consider plaintiff’s rights retroactive with relation to the actions which might rightfully belong to the vendor of the stock? Would not the seller of the stock who had held it during all the years and had done nothing about such alleged fraud, be'bound by the statute of limitations and laches because of the lapse of time ? Such seller of the stock may have known all about the transactions complained of, and he may have approved such action. And, without any knowledge as to what had been paid for the stock and whether the vendor knew of the existence of this so-called valuable right of action, would there not have to be a full disclosure set forth in the complaint? Otherwise, if the vendor did not have such knowledge, the purchaser may have obtained from the vendor of the stock, a valuable right for an insufficient consideration. In any event, a court of equity would not knowingly engage in granting aid and assistance under such circumstances.

In the case of Home Fire Ins. Co. v. Barber, 67 Neb. 644, Dean Pound of the Harvard Law School, at pp. 656, 657, said:

“Sound reason and good authority sustain the rule that a purchaser of stock cannot complain of the prior acts and management of the corporation....

“The rule that a suit for mismanagement cannot be maintained by one who was not a stockholder at the time, has been criticized as based on jurisdictional considerations peculiar to the federal courts and on obsolete common-law doctrines as to champerty and maintenance. 4 Thompson, Corporations, secs. 4569-4571; 1 Morawetz, Private Corporations, sec. 270. In our judgment it does not depend upon either. The federal equity rule, while designed in part to prevent collusive proceedings in fraud of the jurisdiction of those courts, goes far beyond the requirements of such a purpose---The rule has its foundation in a sound and wholesome principle of equity, — namely, that the rules worked out by chancellors in furtherance of right and justice shall not be used, because of their technical character, as rules, to reach inequitable or unjust results. Resting on this basis, the ‘value and importance [of the rule] are constantly manifested.’ Field, J., in Dimpfell v. Ohio & M. R. Co., 110 U. S. 209. . . . The right of the stockholder to sue exists because of special injury to him for which otherwise he is without redress. If his interest is trifling and the injury thereto of no consequence, he cannot sue to compel righting of wrongs to the corporation. [Citing authorities.] Hence there is obvious reason for holding that one who held no stock at the time of the mismanagement ought not to be allowed to sue unless the mismanagement or its effects continue and are injurious to him, or it affects him specially and peculiarly in some other manner....”

In the instant case there is no allegation that the wrong alleged is a continuing one or the acts heretofore charged or their effects injuriously continue and affect plaintiff specially or particularly in some other manner.

Among the other allegations of the second amended and supplemental complaint are set forth the following:

(c) The present board of directors of Standard Oil has for a long time been aware of the acts constituting the wrongs alleged in this complaint. Further, express notice and information concerning the transgressions of directorial duty, herein set forth, were fully disclosed to the present board of directors by the aforesaid Wilhelmi action. The present board of directors obtained at least as much notice from such suit as they would have obtained from a formal demand by this plaintiff.

(d) Should the present board of directors control a cause of action similar to that set forth in this complaint, such proceedings would be in friendly hands by reason of the influence and the domination of the director defendants.

(e) The failure of the present board of directors to take action in the face of its knowledge and notice of the wrongs here complained of indicates their unwillingness to prosecute a cause of action against the director defendants.

We do not think such allegations and the use of the many adjectives contained in this condemnation of the board and the conclusions to be drawn from such allegations are sufficient reason to excuse failure to make a demand upon the board. Inasmuch as this suit is based upon a charge of fraud, allegations of mere nonfeasance or neglect on the part of some of the directors to acquire knowledge, would not be a sufficient basis, even if properly alleged, upon which to draw the inference or make the deduction that a demand upon defendants to commence suit would be futile.

Other points have been raised in the briefs, but we do not think it necessary to discuss them further at this time. Suffice it to say, we are of the opinion that the trial court did right in dismissing the bill of complaint.

For the reasons herein given the decree of the circuit court dismissing the bill of complaint for want of equity is affirmed.

Decree affirmed.

Hebel and Burke, JJ., concur.


author: Mr. Justice Dennis E. Sulliyan

text:
    In re Estate of Harriet A. Mitchell, Deceased. Marie Campbell et al., Appellants, v. Hazel M. Griefen, Appellee.
    Gen. No. 40,940.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed May 22, 1940.
    Thomas A. Walpole and Edgar B. Elder, both of Chicago, for appellants.
    Chas. O. Rundall, of Chicago, for appellee.
   Mr. Justice Dennis E. Sulliyan

delivered the opinion of the court.

A petition was filed in the probate court of Cook county by Hazel M. Grief en, defendant appellee, applying for letters testamentary on the estate of Harriet A. Mitchell, deceased, said petition being based on a purported carbon copy of a last will and testament of said deceased, the original copy of said last mil and testament is alleged to have been destroyed during the lifetime of the said testatrix, but it is alleged that said destruction was not performed, in compliance with the statute, citing Ill. Rev. Stat. 1939, ch. 148, par. 19, sec. 17 [Jones Ill. Stats. Ann. 110.231].

The probate court admitted the carbon copy and ordered that letters testamentary issue to said petitioner. From said order of the probate court plaintiffs appellants appealed to the circuit court where the order of the probate court was affirmed and from said order of the circuit court, plaintiffs bring this appeal to this court.

Three separate appeals were taken by the parties in interest from the probate court to the circuit court. On motion of counsel for defendant appellee, the three causes were consolidated in the circuit court and, the issues being identical, they were heard on the trial in the circuit court as one case. Separate appeals, however, have been taken to this court, which appeals have been docketed as Campbell v. Griefen, 305 Ill. App. 289, Gen. No. 40,940, Guerin v. Griefen, 305 Ill. App. 494, Gen. No. 40,941 and 40,942.

It appears from the evidence that Mrs. Harriet A. Mitchell, a widow, called at the office of her attorney sometime in January, 1909, and requested him to prepare for her a last will and testament; that said attorney took the information which Mrs. Mitchell imparted to him and dictated a will to his stenographer; that some days later Mrs. Mitchell returned to said lawyer’s office and executed the will in the presence of Mr. Hefferan, Mrs. Anderson and Mr. Francis M. Keough, the latter being now deceased; that the will was then deposited with said attorney, Mr. Hefferan, for safekeeping and was placed by him into a will box which he kept in his vault.

It further appears from the evidence that in June, 1914, the said attorney received a letter from Mrs. Mitchell, dated June 2, 1914, which had been mailed from the Waldorf-Astoria Hotel in New York City, in which letter the testatrix directed the destruction of the will, as she had made a new one; that according to the testimony of her lawyer, upon receipt of the letter directing the destruction of the will, he took the instrument from his will box and destroyed it by tearing it up and throwing it into the waste paper basket; that under date of June 15,1914, he wrote a letter to Mrs. Mitchell at her Chicago address, acknowledging receipt of the letter of instructions and advising her that, in accordance with her request, he had destroyed the will; that a few days later the letter was returned to said attorney through the post office department, undelivered and he, accordingly, placed the same in his files.

It further appears from the evidence that on August 1, 1929, Mrs. Mitchell again called at the office of her said attorney and he advised her that he had destroyed the will in accordance with her directions and handed her the letter which he had written to her on June 15, 1914, which had been returned to him undelivered; that on May 11,1936, Mrs. Harriet A. Mitchell passed away; that no will was found and letters of administration issued as on an intestate estate.

The errors relied upon, and upon which the sole issue is brought before this court, is that it was error for the trial court to find the instrument executed by Harriet A. Mitchell on January 21, 1909, was and is the last will and testament of the said deceased, and that it was error to admit a carbon copy thereof to probate; that it was error for the court to receive in evidence a purported carbon copy of the last will and testament dated January 21,1909.

Defendant appellee contends that the destruction of the will, under the circumstances disclosed by the evidence, did not amount to its revocation.

It is agreed that the will of January 21,1909, was a properly executed will and was in existence at the time the testatrix wrote to her attorney telling him to destroy it, which he did by tearing it and throwing it away.

Was this a revocation of the will in a legal sense? The Wills Act, Ill. Rev. Stat. 1939, ch. 148, par. 19, sec. 17 [Jones Ill. Stats. Ann. 110.231], reads as follows:

“19. Manner op revoking will.] § 17. No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law.” Gartin v. Gartin, 371 Ill. 418.

A mere reading of this statute and a consideration of the evidence produced in this case shows that there was not a compliance with the statute and no revocation was made of the will. No other will was produced, so that the will which was physically destroyed, remained a legal will and the best evidence to prove its contents would be a carbon copy thereof which was supplied by the attorney for Harriet A. Mitchell, deceased, and said attorney testified that it was a carbon copy of said will. Any fact can be proven by the best evidence obtainable and we cannot see how it can be contended that a carbon copy of an instrument, the original of which has been physically destroyed, would not be the best evidence obtainable. No evidence refuting this allegation appears and we do not agree with counsel for plaintiffs that the trial court committed error when it accepted this evidence and finding it had sufficient weight to prove it to be a carbon copy of the original will.

In the recent case of Board of National Missions of the Presbyterian Church v. Sherry, 372, Ill. 272, a will made in 1929 was found after the maker’s death in 1938, upon which she had numerous pencil marks and notations. Amounts of bequests were stricken out, notes written in the margin indicating that devisees and legatees had died, and other changes made. The will was found in an envelope upon the end of which the maker had written, ‘ ‘August 1st 1938 The enclosed will not to be executed Kate Bennett.” The court quoted section 17 of the Wills Act and directed that the will be admitted to probate. The court at p. 278, said:

‘ ‘ The argument is advanced that the notation on the envelope dated a few days prior to the death of the venerable testatrix is indicative of an intention to revoke the will. Proof is wanting that the writing was placed on the envelope in which the will was contained at the same time the marks and notations were placed on the will itself. Even if the pencil notation on the envelope evinced an intention to revoke the will the notation is nevertheless inoperative as a revocation because it was not executed conformably to section 17 of the statute. An intention to revoke a will, unaccompanied by at least one of the acts prescribed by the statute and executed in compliance therewith, is insufficient.”

Section 17, which we have quoted, the substance of which was re-enacted by the Probate Act of January 1, 1940, when section 17 was repealed and section 46 was adopted in lieu thereof, being set forth in Ill. Rev. Stat. 1939, ch. 3, par. 197, sec. 46 [Jones Ill. Stats. Ann. 110.294], reads as follows:

“197. § 46. Revocation.) A will may be revoked only (a) by burning, cancelling, tearing, or obliterating it by the testator himself or by some person in his presence and by his direction and consent, (b) by some other will declaring the revocation, (c) by a later will to the extent that it is inconsistent with the prior will, or (d) by an instrument in writing declaring the revocation and signed and attested in the manner prescribed by this Article for the signing and attestation of a will. Marriage by the testator shall revoke any existing will executed by the testator prior to the date of the marriage.”

In Walker v. Walker, 342 Ill. 376, in explaining the purposes and intention of the legislature, the court said at p. 383: “All the authorities declare that the object of the law is to prevent fraud and imposition upon the testator or the substitution of a surreptitious will, and to effect that object it is necessary that the testator shall be able to see and know that the witnesses have affixed their names to the paper which he has signed and acknowledged as his will. ’ ’

It is contended that the act of the lawyer in destroying the will, in pursuance of a letter, was “in the presence of” Mrs. Mitchell. We think the facts in this case clearly establish that the will was not revoked and that the court did right in admitting the carbon copy thereof to probate.

For the reasons herein given the judgment and order of the probate court and the circuit court are hereby affirmed.

Judgment and order affirmed.

Hebel and Burke, JJ., concur.