text:
    Dorothy Johnson, Appellee, v. Charles R. Pendarvis, Executor of the Last Will and Testament of Sarah R. Alpaugh, Deceased, Appellant.
    Gen. No. 7,734.

      Opinion filed September 24, 1927.
    Rehearing denied May 1, 1928.
    Scofield & Bell and Grier, Safford & Soule, for appellant.

      O’Harra, O’Harra & O’Harra, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

The pleadings in this case are numerous and varied. It is sufficient to say that this is an appeal from a decree of the circuit court construing a will with reference to a distribution of the testatrix’s estate.

Sarah E. Alpaugh, on April 10, 1913, then being a widow of the age of 70 years, made the will in question. Her death occurred November 5, 1923. She left surviving her no child or children or descendant thereof. Her only heir-at-law was the appellee, Dorothy Johnson, a daughter of an adopted child of the testatrix. The mother of appellee lived with her parents by adoption from infancy until her death with the exception of about four months immediately following her marriage. For some reason not disclosed by the record the testatrix and her husband, Emanuel, who was then living, obtained from their adopted child a release of all her rights as an heir expectant for the sum of $500. The parents were then the owners of property valued in excess of $30,000.

The clauses of the will over which the controversy in this case arose are the third, fourth, twenty-first and twenty-second.

The THIBD CLAUSE directs the executor to sell 80 acres of land in Henderson county, Illinois, and out of the proceeds of sale to pay, as a bequest, $500 to each of the children of her brother, Elwood Corzatt, and $1,000 to said brother, Elwood, and a like sum to her brother, Frank. It then directs that after the said bequests have been fully paid, the residue and remainder of the net proceeds of the sale of said land shall, upon final settlement, be paid to the executor as trustee for the benefit of the Illinois Children’s Home and Aid Society.

The FOUETH CLAUSE directs the executor to sell a tract of land containing 50 acres in Henderson county, aforesaid, and to pay, as a bequest, out of the net proceeds of the sale $1,000 to the trustees of the Raritan Cemetery Association, for the care of the graves of her father, mother, husband, and herself, and to keep the cemetery fence painted, upon condition that if the proceeds of said bequest are not so applied, said money shall revert to her heirs, and $500 to the appellee, Dorothy Lucille Johnson. The remainder of the net proceeds of the sale are to be equally divided among Rachel Kephart, Effie Alpaugh, Mervin Alpaugh, Anna Yorger, Maggie Stryker and Sarah Ada Kephart, share and share alike.

The TWENTY-FIRST CLAUSE is a residuary clause and provides that after the payment of the above and foregoing bequests and the expenses incurred in the administration of the estate:

“Then it is my will that my executor shall pay all the rest, residue, and remainder of my estate to Media State Bank in trust to be kept safely loaned and invested in note or notes secured by real estate mortgage or mortgages and the net proceeds thereof to be divided equally among and paid annually to the governing bodies properly qualified to receive the same of the Reform Church, of the Baptist Church, and of the Methodist Episcopal Church, respectively, of Raritan, Henderson county, Illinois, provided that in the event of the failure of either of any of the churches named to hold regular religious services then the survivor or survivors of them shall succeed to the benefits of this bequest, and in the event of all of said churches failing to hold regular religious services then said money shall revert to my heirs. ”

The TWENTY-SECOND CLAUSE "nominates Charles R. Pendarvis, the appellant, as executor and authorizes him to sell at public or private sale “any and all real estate necessary and required to be sold for carrying out the provisions of this my last will and testament.”

The litigation arises over certain lapsed bequests. Elwood Corzatt and Frank Corzatt mentioned in the third clause died prior to the death of the testatrix. Effie Alpaugh, Mervin Alpaugh and Maggie Stryker, mentioned in the fourth clause, also died prior to the death of the testatrix.

The chancellor held that the purported release executed by Mattie Alpaugh Perrine, mother of appellee, to her parents by adoption, was wrongfully obtained, invalid and insufficient to deprive appellee of any of her rights as an heir-at-law of Sarah R. Alpaugh, deceased; that the lapsed bequests above mentioned did not pass to the residuary estate and are not to be disposed of by either the third, fourth or twenty-first clauses of the will, but are to be distributed as intestate property to the appellee as the sole heir-at-law; and that she is entitled to the rents collected by the executor arising from such intestate property. None of the residuary legatees contested the allegations of the bill, but each of them made default. The only appellant is the executor.

It is conceded that the bequests to the above-named ■ deceased persons lapsed by reason of the deaths of such persons prior to the death of the testatrix. Appellant claims that the amount of such bequests, which approximates $4,500, became a part of the residuary estate, and should be disposed of under the residuary clause, and should not be distributed as intestate property to the heirs-at-law. He treats the lapsed bequests as personal property and invokes the rule of law as laid down in English v. Cooper, 183 Ill. 203, and Crerar v. Williams, 145 Ill. 625, that lapsed legacies will pass under a general residuary clause instead of descending as intestate property, in the absence of an express contrary intention of the testator. Such rule of law is well established and is controlling in all cases where it can be properly applied. Its application, however, must rest upon two essential premises: First, the bequest must be of personal property, and second, the residuary clause must be broad enough in its terms to show an intention of the testator to dispose of the lapsed legacy; The rule above stated concerning a bequest of personal property is no better settled than is the one in reference to a lapsed devise of real estate. The policy of the common law with reference to a lapsed devise is that it shall pass to the heir rather than sink into the residuary estate, unless there is a special provision of the will showing a contrary intention. This policy has been adopted in this State. (Belleville Sav. Bank v. Aneshaensel, 298 Ill. 292, 299.)

The question naturally arises whether the lapsed bequests in this case are to be treated as lapsed legacies or lapsed devises. Where a testator directs his real estate to be sold and bequeathes the proceeds of the sale to certain named beneficiaries, the law treats the thing which ought to be done as having been done. This gives rise to the doctrine of equitable conversion and the bequest is deemed to have been made of money and not of land. (Germain v. Baltes, 113 Ill. 29; English v. Cooper, supra.) But an equitable conversion, whether it be an “out and out” conversion or one necessary for the purposes of the will only, from force of reason, can never take place without a beneficiary appointed by the will to receive the bequest. Thus, if a testator directs that all of his real estate be sold by his executor and the proceeds divided amongst A, B and C, there can be no conversion in the event of the death of A, B and C pridr to the testator’s death, because the purpose of the testator in directing the conversion will have wholly failed. And again, it is equally true that if A should die before the death of the testator, the bequest to him having lapsed and the purpose of the testator having partially failed, there can be no conversion of land into money as to A’s share, although it may be necessary to sell all the land to pay the bequests made to B and O. The portion of the proceeds which A would have received, if living, will be distributed to the heirs-at-law as real estate, although in the form of money, unless there are express directions of the testator to the contrary. (Dorsey v. Dodson, 203 Ill. 33.)

In 2 Jarman on Wills, page 213 (star page 621), it is said:

“And the same rule obtains, where the testator’s disposition of the converted property, though originally complete, has partially failed in event by the decease of any one of the objects in the testator’s lifetime; in which case the interest comprised in the lapsed gift devolves to the person who would have been entitled to the entire property, if the testator had died wholly intestate in regard thereto.”

The bequests which lapsed in this case are therefore to be considered as lapsed devises of real estate and not lapsed legacies of money. Under the rules above set forth appellee, as heir-at-law, is entitled to the lapsed devises, unless they fell in the residuary estate to be distributed as a part thereof under the twenty-first clause of the will. The common law favored the legatee in the distribution of personal assets and upon slight justification would give a lapsed legacy to a residuary legatee; but it favored the heir-at-law in the disposition of real estate and always gave to him a lapsed devise, unless the language of the will expressed a contrary desire plainly and explicitly. If there was any doubt about such contrary direction, it was resolved in favor of the heir.

Williams on Executors, vol. 1, p. 786, says:

“It is now fully established that in order to exclude the heir, it is not enough that the testator shows an intention that his real estate should become money after his death; it must also be apparent that he meant it to be treated as if it had been personal estate before his death. * * * And although the will may determine in what quality the property shall be taken by those on whom it may devolve, yet, if it does not also determine who are the persons to take, the original right of the heir-at-law must prevail. * * * It is plain, therefore, that where the conversion of land into money is directed by the testator for a particular purpose which fails (as in the case of a party intended to be benefited) so much of the estate, or of its produce, as remains undisposed of will result to the heir.”

And in speaking of the explicit direction necessary to cast a lapsed devise into the residuum, the same authority on page 788 says:

“A different point arises, where there is a general residuary bequest of personal estate, in the same will in which there is a direction for the conversion of real estate. In such a case, it should seem, that if there is a declaration in the will that the money to arise from the sale shall be deemed a part of the testator’s personal estate, the undisposed residue of the proceeds will pass under the gift of the residue, but not, generally spealdng, without such a declaration.”

It cannot be well contended that the testatrix in this case made any such explicit declaration with reference to lapsed devises. An examination of the language used in the twenty-first clause of the will discloses no intention or purpose of the testatrix to give to the residuary legatees the benefit of lapsed devises, but on the contrary the bequests appear to be limited strictly to the rest, residue and remainder of her estate, after the specific bequests had been excluded. This construction seems plain to us, but if it were doubtful, the doubt must be resolved in favor of the heir and not in favor of the residuary legatees.

Dorsey v. Dodson, supra, is a case very much like the instant one in principle. In the Dorsey case the testator bequeathed to his sister, Henrietta, $5,000 and provided, by his will, that if there be insufficient personal estate to pay all the legacies, his executor should sell enough real estate to pay them. By the nineteenth clause of the will the executor was directed to sell all the remainder of his real estate and to divide the proceeds among his two sisters, Henrietta and Fanny, and his brother, John. The twentieth clause provided that the remainder of his personal estate be divided among his said sisters and brother. Henrietta died prior to the death of the testator. The specific legacy of $5,000, and the residuary legacies to her under the nineteenth and twentieth clauses of the will, lapsed. The question of what disposition to make of these lapsed legacies was litigated through the county court, the circuit court, the Appellate Court and the Supreme Court. The Supreme Court held (a) that the specific bequest of $5,000 could not .be disposed of under the provisions of the residuary clause, for the reason that the particular legatee was also one of the residuary legatees, and under the rule as laid down by Schouler on Wills (3rd Ed.) sec. 19, the residuary estate cannot be augmented by a lapsed legacy in such a case; (b) that the devise to her in the nineteenth clause did not work a conversion of the real estate so far as the bequest to Henrietta was concerned, because her death produced a partial failure of the purpose of the testator; (c) that although the real estate must be sold to satisfy the bequests to the other legatees, the one-third of the proceeds bequeathed to Henrietta should be distributed as intestate property among the testator’s heirs-at-law as real estate, although in the form of money, and (d) that the distribution could not be made under the residuary clause because the testator gave no specific direction to augment the residuum by the addition of the lapsed legacy.

The language employed by the testatrix in the instant case is very similar to the language used in the residuary clauses in the Dorsey case. In the latter case it was held that equity never presumes a conversion of real estate into personal property, unless such a change is necessary to accomplish the lawful purposes of the will; that if circumstances arise which render the conversion unnecessary, or if the purposes of a change have ceased to exist, the law will not regard the conversion as made; and that in such a case the conversion is not required and ought not to "be made. The court further held that "because of the death of Henrietta there was a partial failure of the purpose for which the conversion was intended with no provision for such a contingency, and,, hence the lapsed legacy did not sink into the residuum, but descended as intestate property and passed to the heirs-at-law.

Counsel for appellant urge that the testatrix intended to effect an “out and out” conversion and not a conversion for the purposes of the will only. In Horner on Estates, sec. 210, the distinction between an “out and out” conversion and a conversion for the purposes of the will only is discussed, and it is there said that “The declaration of Illinois Courts is that here, as in other cases, the intention must control, and in the absence of a contrary intent, every conversion will be presumed to be for the purpose of the will only.” To the same effect are Eaton on Equity, p. 241, and Beech on Modern Equity Jurisprudence, vol. 1, sec. 533. The language of the will clearly indicates that the conversion was intended for the purposes of the will only and that no “out and out” conversion was contemplated by the testatrix. Where the conversion is only for the former purpose and there is a partial failure of such purpose, the property retains the character which it had at the death of the testator, so far as the devolution thereof is concerned, although it may in fact be changed in form.

Counsel for appellant do not seriously contend that the chancellor was in error in holding the release given by the mother of Dorothy Johnson to Sarah A. Alpaugh and her husband, Emanuel, was invalid on account of the fraud and undue influence practiced in procuring it, but they say that the transaction leading up to the execution of the release shows that the testatrix intended that Dorothy Johnson should receive only $500 as a legatee and nothing as an heir-at-law. With this contention we cannot agree. The will does not contain any explicit direction for the lapsed legacy to become a part of the residuum and unless a direction of that kind is made in unmistakable terms, the legal presumption is, as stated in the Dorsey case, that the testatrix intended the heir-at-law to receive the benefit of the lapsed devises; especially is this true when it is remembered that the devises lapsed a considerable time prior to the death of the testatrix. If the language of English, v. Cooper, supra, appears to be in conflict with this expression, the law as it is here stated is not only supported by the later cases of Dorsey v. Dodson, supra, and Belleville Sav. Bank v. Aneshaensel, supra, but by the almost universal opinion of recognized text writers upon the subject.

From what we have said, it necessarily follows that the appellee is entitled to the rents and accumulations as decreed by the chancellor. (Emmerson v. Merritt, 249 Ill. 538.) The decree herein placed a correct construction upon the clauses of the will in question and directed a proper distribution of the assets. It is therefore affirmed at the costs of appellant, to be paid in due course of administration.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Louis Sary, by Mike Sary, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 7,822.
    Opinion filed January 28, 1928.
    Rehearing denied and opinion modified May 1, 1928,

      Barnes, Magoon & Horton, for appellant.
    John E. Cassidy, for appellee..
   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted in the circuit court of Peoria county by appellee, a minor by his next friend, to recover for injuries received by him in the switching yards of appellant.

The declaration originally consisted of three counts. A demurrer was sustained to one, another was withdrawn, leaving the count on which the cause was tried. That count alleges that appellant maintained what was called hump switching yards in the village of East Peoria; that “great numbers of workmen and other pedestrians proceeded daily upon and along the aforesaid Center street, and, to wit, the path that was a continuation thereof, in a northerly and southerly direction, upon and across the aforesaid gravity yards”; that appellant through its agents and servants had knowledge that pedestrians crossed over said yards, near the continuation of Center street; that in the exercise of due care and caution, appellee a minor aged 12 years proceeded in a southerly direction over said yards, where pedestrians were in the habit of crossing, and around the easterly end of a cut of three railway cars that were stationary on one of said tracks; that appellant, without giving any warning,- caused a car to be kicked against the westerly end of said cut of cars, causing them to be pushed suddenly in an easterly direction against appellee, and that by reason of the wilful and wanton conduct of the agents and servants of appellant, appellee’s left arm and shoulder were crushed alleging damages, etc.

To said declaration appellant filed a plea of the general issue. A trial was had, resulting in a verdict and judgment in favor of appellee for $13,500. To reverse said judgment, this appeal is prosecuted,

Appellant railway company is primarily engaged in terminal activities, and in the interchange of freight cars between the various trunk line carriers with which it has connections. Appellant’s switching yards were originally constructed as hump or gravity yards, but about 1912 were changed to ordinary switching yards. Said yards are approximately a mile and a quarter long and a quarter of a mile wide. In the vicinity where the accident in question occurred, there are 42 tracks. The yards run approximately east and west, the extreme easterly end being near Washington street in East Peoria, and the westerly end running through Wellesley. Center street runs in a southerly direction from Washington street to a point about 450 feet north of said yards. There is also a stub street about one block long, south of said yards, called Center street. These two streets called Center street do not connect and do not extend across appellant’s property. A path extends from the south end of Center street, southerly across what is known as the elevator track, to the north side of appellant’s switch yards. About 100 feet south of the end of Center street is the embankment of what is called the elevator track, which branches out from the yards some distance east of Center 'street, and extends westerly to an elevator some distance west of the line of Center street. The rails of this elevator track are about seven feet above the general ground level. Between the elevator track and the yards proper is a field, which was being cultivated by the father of appellee. The path proceeds across this field, and to the switch yards of appellant. The north side of said yards is six and one-half feet above the ground level. Said path goes up to the first or north rail of the switch tracks where it ends. There appears to be a path running eastwardly along the outside of the north rail, and also in a westerly direction north of said rail. There is no path extending south across said yards. On the south side of appellant’s switch yards, in a projected line from Center street, is a ditch some 7 feet wide and 3 feet deep; beyond said ditch the ground ascends at an angle of 45 degrees to a height of some 16 feet. On the other side of this embankment there is a drop of some 3 or 4 feet to the right of way of the Lake Erie & Western Railway yards, which bound the entire southerly side of appellant’s yards.

It is first contended by counsel for appellant that the court erred in overruling the motions made by it at the close of appellee’s evidence and again at the close of all the evidence, to exclude the same and to direct a verdict in favor of appellant for the following reasons:

(a) That the evidence wholly fails to sustain the allegation that a path extended in a southerly direction from the south end of Center street “upon and across” said yards.

(b) That while the testimony of appellee and his witnesses is to the effect that some considerable numbers of persons passed along said pathway from Center street to appellant’s yards, it fails to prove that these persons crossed said switch yards in any particular track or direction, and for the most part, fails to show that they crossed the yards at all.

(c) That the allegation that appellee “proceeded as a pedestrian in a southerly direction upon and over the said hump switching yards, where pedestrians were in the habit of crossing,” etc., is not supported by the evidence.

(d) That the evidence does not tend to prove that the act of appellant railroad company in switching the cars in question was done either with wilful intention to injure appellee, or that its servants in charge of said work were guilty of such gross negligence as to evince a willingness to do injury.

On the first proposition, while the evidence, both on behalf of appellee and of appellant, clearly establishes that there was a path extending from .the south end of Center street to the embankment at the north side of appellant’s yards, there is no evidence to the effect that it extended across said yards.

On the second proposition, the greater number of appellee’s witnesses testified that the persons whom they saw passing in a southerly direction along said pathway were not observed by them after entering said yards. As to those persons whose line of travel was noted after reaching the yards, the greater number thereof proceeded east or west along the pathway at the north side of said yards. As to those persons whose line of travel was shown to be southwardly across said yards, the evidence discloses that their way would be blocked by cars standing on the tracks, and that they would pass around such cars, and in some instances crawl under them. There is no evidence to support the allegation that large numbers of persons crossed appellant’s switch yards in a southerly direction.

On the third proposition, the testimony of appellee and of his brother Mike is to the effect that they had gone to appellant’s yards, and to the open field adjoining the same on the north, for the purpose of picking up coal. The witness Cray, who testified on behalf of appellee, stated that he was also picking up coal in the yards; that he “looked up and saw a boy coming along the tracks. It was Louis Sary, the plaintiff here. He was on the outside of the first track, north of the first track and north from where I was. He was walking along with his hands in his pockets, going east. I did not see anybody else. * * * I saw Louie start across the tracks south. * * * He went across the tracks and out of sight behind the car, on the third track. He was about fifteen or twenty yards east of the path when he started to cross on kind of an angle.” Appellee testified with reference to the cars that he passed around: “These cars blocked a point directly south of that path, there was about a car on each side of the row of trees. I started to follow Mike around, kind of southeast. ’ ’ Appellee was not attempting to cross appellant’s yards as a pedestrian, but was, according to the testimony of himself and his brother, looldng for coal.

On the last proposition, the testimony on the part of appellee, his brother and Gray, being the only witnesses who testified in reference to what occurred at the time of said injury, is to the effect that when the cars were switched down to the three stationary cars, it caused a crash, and Gray testified that some coal fell off of one or more of the cars. They all testified that the stationary cars were moved about half a car length by the impact, that they heard no'warning, and that there was no one on the cars that were being switched. The testimony on the part of appellant’s witnesses is to the effect that certain of the cars they were handling were grain cars, and that they were handled in the ordinary way in which cars were handled in switching.

While appellee alleged due care on his part, no attempt was made to prove due care, and it is conceded by counsel for appellant that, if the averments of the declaration were otherwise proven, and if there were no serious errors in the rulings of the court on the admission of evidence, instructions, etc., the declaration would be sufficient to support the verdict and judgment ; in other words, that said declaration sufficiently charges wilful and wanton conduct on the part of appellant, proximately resulting in the injury to appellee.

The evidence proves, and it is practically conceded by counsel for appellee, that appellee, prior to and at the time of his injury, was a trespasser, his purpose being to pick up coal from said yards, without any permission or license from appellant so to do. The evidence conclusively proves that the servants of appellant in charge of the switching in question did not know of the presence of appellee, and did not even know he had been injured until the following day. That being the state of the record, and appellee being a trespasser, the only duty which appellant owed to him was not to wilfully or wantonly injure him.

It is not contended by counsel for appellee that the servants of appellant company, in. charge of said switching, knew of appellee’s perilous situation. There was therefore no intention of injuring him. This being the state of the record, it is necessary that the evidence tend to show that such switching operation was so recklessly done, and with such an obvious disregard of the safety of others, as to amount to proof of a willingness to do injury.

If there was recklessness, it must be shown by the evidence to have been such as to place a burden on appellant, through its servants, to ascertain whether there were persons in its yards who were likely to be injured, and to give warning to such persons, if there were such, before proceeding with the work, as is insisted by counsel for appellee.

In Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, the court in discussing the duty of a railroad company toward a trespasser on its tracks, at page 16, says:

“In Illinois Central Railroad Co. v. Godfrey, supra, it was held when a trespasser on the track of a railroad company is struck and injured by an engine, the company can be held liable only for wanton or willful injury or such gross negligence as evidences willfulness. * * * The distinction is clearly made that a defendant owes the duty of ordinary care to a trespasser known to be in danger, to avoid injuring him. If by the exercise of ordinary care injury can be avoided the defendant is liable for the failure to use such care, but to a trespasser whose presence or whose danger is unknown there is no duty to exercise ordinary care, though there is a duty not to injure him willfully or wantonly or by such gross negligence as evidences willfulness. The rule is stated in many of the cases cited that the defendant is not bound to anticipate the presence of trespassers on its property or to keep a lookout for them, and that its duty to exercise care to avoid injury to trespassers begins only when their presence is known.”

Counsel for appellant and for appellee both cite this case as giving a correct statement of the law applicable to the duty of a railway company to a trespasser on its bracks.

A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident. Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500-507; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510; Cunningham v. Toledo, St. L. & W. R. Co., 260 Ill. 589-595.

The, record in this case shows that at times from 1,500 to 2,000 cars are handled through these yards in a day; that switching operations are in progress 24 hours in the day; that this accident occurred some time after sunset, and that there were 541 cars in the yards at that time.

In Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559, the railroad had erected a wall along the line of its right of way to keep persons from its tracks. A boy crossed the wall and the tracks, for the purpose of swimming in Lake Michigan, and in recrossing the tracks about nine o’clock at night he was struck by a train. The principles there laid down are peculiarly applicable to the case here under consideration. The court at page 564 says:

“This court is committed to the doctrine that a railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way or tracks except that it will not wantonly or willfully inflict injury upon him, and we have frequently held that the mere fact that signals required by statutes and ordinances are not given, even though 'those operating its trains may have knowledge of the fact that persons have been in the habit of crossing its tracks or walking upon them at places other than public crossings or public places, will not amount to proof of willful and wanton disregard of duty toward such trespassers.” Citing Illinois Cent. R. Co. v. Godfrey, supra. The court at page 566 further says:

“It is true that some courts have held that where a railroad company has for a considerable length of time permitted the public to cross its tracks at given points without objection, it owes the duty of reasonable care toward those to using the crossing. (Taylor v. Delaware and Hudson Canal Co., 113 Pa. St. 162; Barry v. New York Central Railroad Co., 92 N. Y. 289; Byrne v. Railroad Co., 104 id. 562; Swift v. Staten Island R T. R. Co., 123 id. 645.) But as shown above, we have held, in accordance with the rule laid down by -Elliott in his work on Railroads, (vol. 3, sec. 1252): ‘Mere sufferance or passive acquiescence in the occasional use of the track between crossings does not necessarily amount to a license, and where nothing more is shown, one who so uses the track is a trespasser.’ (Ibid. sec. 1248.)

‘•‘There is a line of decisions by this court holding, in effect, that even though a party may be upon the defendant’s tracks or right of way without an absolute right to do so, * * * at a place on a public street or on the ‘planked tracks adjacent thereto,’ as in Chicago, Burlington and Quincy Railroad Co. v. Murowski, 179 Ill. 77; or where the evidence tended to show that the place of the injury was in a public street of the city, as in Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596, the company owes to persons at such places the duty of exercising reasonable care to avoid inflicting injury upon them, and that in such cases the failure to give required signals may amount to wanton or gross negligence. But we are unable to see upon what principle the present case can be brought within the reasoning or decision in those cases. As we have before said, the plaintiff in this case was a trespasser. He was upon defendant’s right of way and track, not upon any business with the defendant, — not by any right or claim of right,— but for his own convenience and pleasure. * * *

“On the decisions first above cited, we are of the opinion that there was no evidence before the jury proving or. tending to prove that the defendant was guilty of gross negligence toward the plaintiff, and that the trial court erred in refusing the peremptory instruction to find for the defendant.”

This case was cited and approved in Neice v. Chicago & A. R. Co., 254 Ill. 595-603; Cunningham v. Toledo, St. L. & W. R. Co., supra, 596; Bremer v. Lake Erie & W. R. Co., supra, 16.

In Joy v. Chicago, B. & Q. R. Co., 263 Ill. 465, the court in discussing the duty of a railway company with reference to trespassers, etc., at page 468, says:

“It has been held by this court, and almost universally, that the law casts no duty upon a railroad company to keep a lookout for trespassers on its track in the open country, remote from public crossings, cities and towns. This is conceded and requires no citation of authority. Exceptions to this general rule are (1) places where the railroad company has permitted the public to travel along or over its track for a considerable period of time and a considerable number of people have availed themselves of such use, and (2) where the railroad runs through populous portions of a city, where people frequently go upon or pass over the track with knowledge of the company or for such a length of time that the company is chargeable with knowledge. Neither of the exceptions is involved in this case. * * *

“While the authorities are not all in harmony, the great weight of them is, that where an accident occurs at a place where the railroad company is under no duty to look out for trespassers, the question is not whether the engineer could see the object, but is whether he did see it and discover it to be a human being in time to stop his train and avoid the injury. The duty to exercise care does not arise at the moment an object is discovered, but arises at the moment it is discovered to be a human being and to be in a helpless or perilous position. * * * As the evidence did not tend to show negligence on the part of appellee in the performance of any duty it owed deceased, it was not improper to direct a verdict for appellee.”

The mere fact that appellee wás a minor, on a declaration charging liability on account of wilful and wanton conduct, would not affect the decision as to the liability of appellant company. Wabash R. Co. v. Jones, 163 Ill. 167; Heimann v. Kinnare, 190 Ill. 156; Illinois Cent. R. Co. v. O’Connor, supra; Illinois Cent. R. Co. v. Eicher, 202 Ill. 556; Bartlett v. Wabash R. Co., 220 Ill. 163; Colby v. Chicago Junction Ry. Co., 216 Ill. App. 315.

Appellee failed to prove the allegations of his declaration, and appellee’s evidence, taken as true, with all reasonable inferences to be drawn therefrom, and taken together with the aspect of the evidence of appellant most favorable to appellee, fails to disclose a state of facts which, if well pleaded, would entitle appellee to recover. The court therefore erred in refusing to exclude the evidence and direct a verdict in favor of appellant, at the close of appellee’s evidence, and again at the close of all the evidence.

For the reasons above set forth, the judgment of the trial court will be reversed.

Judgment reversed with finding of facts.

We find as ultimate facts, to be incorporated as a part of the judgment herein:

(1) That appellee’s evidence, taken as true, with all reasonable inferences to be drawn therefrom, and taken together with the aspect of the evidence of appellant most favorable to appellee, does not tend to prove that appellee, just prior to and at the time of said injury, was in the exercise of due care for his own safety.

(2) That the evidence of appellee, taken as true, together with all the reasonable inferences to be drawn therefrom, does not tend to' prove that appellant, just prior to and at the time of the injury in question, was guilty of wilful and wanton conduct in the operation of its train or cut of cars.


author: Mr. Justice Boggs Mr. Justice Jones

text:
    Charles J. Wolf, Appellant, v. Helen J. Brookfield et al., Appellees.
    Gen. No. 7,713.

      Opinion filed March 14, 1928.
    Rehearing denied May 1, 1928.
    Frank J. Bowman and H. A. Brooks, for appellant.
    Carl E. Sheldon, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

On January 8, 1925, judgment by confession was rendered in the circuit court of Whiteside county in favor of appellant and against appellees for $13,134 and costs. Said judgment was based on six promissory notes given by appellees to one Aaron A. Wolfersperger, all dated July 1,1919, for the aggregate principal sum of $12,000, payable one year after date, with interest from date at 6 per cent per annum, payable annually. Said notes contained the usual warrant of attorney. Each of said notes was indorsed, “Pay to Chas. J. Wolf or order 5%%. A. A. Wolfersperger,’’ and bore notations showing the payment of the interest thereon each year, to July 1, 1923.

On February 3, 1925, appellees moved the court to vacate said judgment. On hearing, the court opened up the judgment, stayed execution, and granted appellees leave to plead. Appellees filed a plea of the general issue and a plea of payment, and subsequently filed notice of special defenses. A jury being waived, the cause was heard by the court, a finding was made in favor of appellees, and the judgment rendered against them was vacated. To reverse said judgment, this appeal is prosecuted.

Two principal grounds are relied on by appellees to defeat appellant’s judgment: (1) That the indorsement of said notes was not of the entire instruments, and, therefore, any defenses which appellees might have had against the original payee would be good as against appellant; (2) that Wolfersperger was the agent of appellant and as such was paid by appellees ■the amount owing on said notes.

Section 52 of our Negotiable Instruments statute, Cahill’s St. ch. 98, 52, provides:

“The indorsement must be an indorsement of the entire instrument. An indorsement which purports to transfer to the indorsee a part only of the amount payable, or which purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the instrument.”

Counsel for appellant contend that, notwithstanding this provision of the statute: (1) There was in fact an assignment of both the principal and interest provided to be paid by said notes, and that the only effect of said indorsement was to require appellant to pay to Wolfersperger one-half of one per cent of the interest accruing thereon, for collecting the same. (2) Even though it be held that only a part of the interest was assigned, the obligation to pay the principal and the obligation to pay interest thereon were severable, and that therefore appellant had a right of action against appellees on said notes, so far as the collection of the principal thereof was concerned. In support of this contention, counsel cite and rely on Dulaney v. Payne, 101 Ill. 325.

The question before the court in that case was as to whether a judgment in a suit instituted after the maturity of a note, for the interest accrued thereon, was a bar to a suit thereafter brought to collect the principal. The court held that an action might be maintained for the collection of interest on a note where that interest was payable at a different time than the principal, without barring a subsequent suit for the collection of the principal, and stated that the rule in that regard was not uniform. At page 331 the court says:

“In Parsons on Contracts, vol. 2, p. 636, a contrary doctrine is announced. The author says: ‘One holding a note on which interest is payable annually or semi-annually, may sue for each installment of interest as it becomes payable, although the note is not yet due; but after the principal becomes due the unpaid installments of interest become merged in the principal, and must therefore be sued for with the principal, if at all. ’ In support of the rule announced, the author, in the note, cites Howe v. Bradley, 19 Maine, 31. In the case cited it-was held that annual interest cannot be recovered by a separate action after the principal has become due. This decision was made by a divided court, and although it may sustain the rule laid down by Parsons, we are not inclined to follow it.”

At page 333 the court further says:

“If a separate action may be maintained upon each one of several notes which grow out of a single contract, upon the same principle and for the same reason a note containing a promise to pay interest at one time and the principal debt at another, may be the foundation of one action to recover the interest, and another to recover the principal.”

We do not regard this case as decisive of the question here involved. The notes here in question were all payable one year after date, and the interest was payable annually, so the principal and the interest both fell due on the same date. We are of the opinion that, infereritially, at least, the holding in Dulaney v. Payne is to the effect that where the principal and the interest are payable at the same time, a recovery for both should be sought in the same suit.

However, it is not a question as to whether a separate suit might be maintained for interest accruing on said notes without barring a subsequent suit to recover the principal. The statute specifically provides that “the indorsement must be an indorsement of the entire instrument,” which includes both principal and interest. J

Under the provision of this statute an indorsement “which purports to transfer to the indorsee a part only of the amount payable” does not have the effect of making the indorsee a holder in due course, thereby emphasizing the statement that the entire instrument must pass by the indorsement: Giving to- the statute its logical construction it means that whatever is to be paid, whether principal or interest or both, must pass to the indorsee in order to make him a holder in due course. In Miller v. Bledsoe, 1 Scam. (Ill.) 530, the court in discussing a question of this character at page 531, says:

“At law, a moiety, or any other portion of a promissory note, cannot be so assigned as to enable the assignee to bring an action in his own name, for his portion of the note. * * * In order, therefore, to enable an endorsee of a note to bring an action in his owm. name as endorsee, the whole interest in the note must be assigned to him. The interests of an assignee of part of a note, would doubtless be protected in a court of law, but the action must be brought in the name of the payee or payees, who continue to be the legal holders of the note for the purpose of collection. The endorsement on the note, can only be regarded as a private memorandum between the payees, and only vested in Bledsoe an equitable title to the money when collected.”

The only assignment which will cut off the equities of the makers of a note is an assignment made in conformity with the statute. Peck v. Bligh, 37 Ill. 317; Bouton v. Cameron, 205 Ill. 50-68.

The next question to be determined is whether said indorsement was of the “entire instrument.”

Counsel for appellees offered testimony to the effect that a custom prevailed among certain of the money lenders and security brokers in Sterling in the sales of notes and mortgages by them, whereby they retained a portion of the interest accruing thereon, and that an indorsement of the character here in question carried with it notice that such a transaction had taken place. Appellee also offered the testimony of John Stager, a former partner of Wolfersperger, to the effect that he was more or less familiar with the books kept by Wolfersperger and that said books contained notations of the character here involved, with reference to these and numerous other notes sold by him.

On the other hand, appellant testified, over objection of appellees: “I paid Aaron A. Wolfersperger one-half per cent of the six per cent interest on these notes for his work.” On cross-examination he stated: “When I said I paid Mr. Wolfersperger one-half of one per cent for Tiis trouble or work it was done by his keeping out one-half of one per cent of the interest and giving me a check for the difference which saved me giving it back to him and I had the same arrangements on a number of other notes endorsed in the same way.”

Without reference to the offered testimony as to the custom which prevailed in Sterling in transactions of the character here involved, the testimony of appellant clearly discloses that Wolfersperger did retain an interest in said notes to the extent of one-half of .one per cent of the accruing interest. That being true, under the provisions of the statute above quoted, the indorsement not being of the entire instrument, appellant is not a holder in due course. Any defenses therefore which appellees would have against Wolfersperger, payee in said notes, would be available as against appellant.

The evidence introduced by appellees is to the effect that on November 22, 1920, Wolfersperger entered into an agreement with Lewis E. Brookfield, now deceased, who was the husband of Helen J. Brookfield, one of the appellees herein, Charles A. Davis and Hugh W. Bunn, appellees, and seven other persons, respecting a certain property referred to as the Clyde property. Said agreement sets forth the respective interests of all the parties, provides that Wolfersperger “shall hold all of said second parties’ interest in said land in trust for them, ’ ’ and that all of the parties are to pay their proportionate share of the mortgage on the premises, interest, taxes and necessary expenses. At the time said agreement was made, the parties thereto borrowed $15,000 with which to purchase said land. This loan was renewed from time to time, and eventually Wolfersperger took up the notes which had been given to banks in Sterling, and appellees, the remaining parties interested in said property, gave Wolfersperger their notes for $15,000. Seven notes were given, six of which are the notes here in question.

On November 21, 1922, Wolfersperger sold a portion of the Clyde property to one H. C. Gfoelitz for $33,500, and thereafter rendered to appellees a statement of his receipts and disbursements in connection with the property, showing that the loan thereon, with interest, had been paid out of the proceeds of the sale. Appellees all testified that, after November 21, 1922, no demand was ever made on them for either interest or principal on any of said notes until the same were placed in judgment as above stated.

That there had been a sale of said property, and that appellees, in the settlement therefor, had been charged by Wolfersperger for the amount necessary to pay said notes is clearly disclosed by the evidence. This is practically conceded by counsel for appellant. Therefore, if Wolfersperger or his personal representative were seeking to recover on said notes, appellees would have a complete defense to the action. That being true, under our holding that the indorsement did not comply with the statute, such defense would be good as against appellant.

Appellees further insist that Wolfersperger was the agent of appellant, and, as such, was authorized to collect the interest and the prinicpal on said notes.

In his direct examination, appellant denied ever having left the notes in question or other notes with Wolfersperger for collection. However, on cross-examination, on being presented with receipts signed by him, he admitted that he was probably mistaken in reference thereto. He testified:

“I guess I must have on January 28, 1921 left with Mr. Wolfersperger for collection the W. IÍ. Farley notes aggregating twelve thousand dollars, the Louis R Steffe notes aggregating $3,500.00, the Jack Warner notes aggregating $5,000.00, the Harry Keisler notes aggregating $2,000.00, the Werle notes aggregating $2,000.00 and the A. A. Wolfersperger note aggregating $1,000.00. * * * In Defendants ’ Exhibit 14 where it states I have received from A. A. Wolfersperger $26,000.00 to apply on the notes left for collection may be true. * * * Looking upon this paper, Defendants’ Exhibit 15, dated September 27, 1919, I guess I must have taken his receipt for $20,000.00 to loan on real estate security on that date. I took Mr. Wolfersperger’s personal notes for large amounts of money at various times and was doing quite an extensive business with him and in all these transactions never came in contact with the persons who signed the notes any more than I would with Davis, Brookfield and Bunn. My dealings were entirely with Mr. Wolfersperger covering a period of the last twenty years. The total of those transactions I don’t think amounted to two or three hundred thousand dollars. I would say it was about one hundred thousand dollars. ’ ’

He further testified: “I bought these notes on June 1, 1920. I am pretty sure I brought them to Wolfersperger’s office on July 1, 1920. * * * I wouldn’t say I took them there just on that day July 1st. Sometimes I took them there on interest dates and sometimes shortly after. * * * I knew this note was due July 1, 1920 and knew where it was payable. If I was not there on July 1, 1920 I intended he would keep the money and it should be turned over to me. If the makers saw fit to pay the notes in full upon the date they were payable I expected them to leave the money with Wolfersperger. Wolfersperger knew that I knew that I had that understanding with Wolfersperger.”

Counsel for appellant, however, contend that, even though Wolfersperger was acting as the agent of appellant at the time of the alleged payment, he was also the agent of appellees in the sale of the Clyde property, and if he was acting as the agent of both parties, such agency should not bar appellant’s right of recovery on his notes. We are of the opinion and hold that this point is well taken. McDaniel v. Continental Casualty Co., 240 Ill. App. 535-548.

It is also insisted by counsel for appellees that the filing and allowance of the claim of. appellant against the estate of Wolfersperger in the county court is a bar to appellant’s right of recovery in this case. This point is not well taken. Avery v. Swords, 28 Ill. App. 202-210.

Other errors are assigned by appellant, which are based upon the assumption that there was a valid and legal indorsement and negotiation of the notes to him. It will not be necessary to discuss these errors, as we are affirming the judgment on our holding that said notes were not legally indorsed and negotiated, and that appellant never became the holder of the same in due course.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.

Mr. Justice Jones

dissenting: In my judgment, the evidence shows that Wolfersperger retained no title to the notes he assigned to Wolf. He was in fact a broker of notes. At various times, he negotiated a large number of them to appellant, aggregating almost $100,000. In nearly every instance, there was an actual physical delivery of the notes to appellant, but as a general rule, they were afterwards returned to Wolfersperger for collection. When appellant did not take physical possession of any note purchased by him, it was left with Wolfersperger only for collection. In my opinion the record does not justify the conclusion that Wolfersperger intended to transfer to appellant the title to a major portion of each note and retain in himself title to the remainder. To the contrary, it appears that appellant took the entire title and agreed to pay Wolfersperger a fixed amount for services to be performed later. Wolfersperger’s possession was not that of an owner, but of an agent of appellant with power to collect both principal and interest. He was allowed to retain one-half of one per cent of the interest he collected, as compensation for his services. If he collected no interest he could receive nothing. He had no claim on the principal. He could bring no suit against the maker of the note, either in law or in equity. He retained no title to any note or to any portion thereof. If his interest was merely a right to receive compensation, and did not in any way affect the title to the notes, or limit their assignments, then appellant must be deemed a holder in due course and should recover in this case.


author: Mr.. Justice Jones

text:
    Noah Lock et al. (Julius F. Solomon) Defendant in Error, v. Lydia L. Leslie et al. (Cora Esta Boyd et al.) Plaintiffs in Error.
    Gen. No. 7,762.

      Opinion filed March 23, 1928.
    Rehearing denied May 1, 1928.
    G-leim & Colwell and Butters & Butters, for plaintiffs in error.
    Oscar W. Hoberg, for defendant in error.
   Mr.. Justice Jones

delivered the opinion of the court.

Defendant in error, Julius F. Solomon, obtained a judgment by confession against plaintiffs in error, Cora Esta Boyd and Lewis W. Boyd, in the circuit court of LaSalle county for $7,675.49. A partition suit to which the Boyds were parties was later instituted in the circuit court of that county. The decree, in that proceeding held the judgment by confession to be valid and ordered it be paid out of the distributive share of Cora Esta Boyd on the sale of the premises.

The note and power of attorney on which the judgment by confession was entered were executed in the State of Ohio and the note was payable there. The Boyds lived in Ohio when the note and power of attorney were executed and when the judgment by confession was entered. They filed an answer in the partition suit alleging that the judgment was void and of no effect as a lien on the interest of Cora Esta Boyd in the subject matter of that proceeding. The answer of J. W. Antram, one of the plaintiffs in error, alleged the coverture of Cora Esta Boyd at the time of the execution of the note and power of attorney; that he had purchased the interest of Mrs. Boyd in the real estate embraced in the partition proceeding, and that on account of such coverture the judgment by confession was void as against him.

It was stipulated in the partition proceeding that at the time of the entry of the judgment by confession and at the time of the making of the note upon which the judgment was entered, and for several months prior thereto, the said Lewis W. Boyd and Cora Esta Boyd were husband and wife and were living in the State of Ohio, and that on March 8, 1920, the date of said note, and ever since then, section 7999 of chapter 1 of title VT of the General Code of the State of Ohio was in force as follows:

A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control actions of persons occupying confidential relations with each other.”

It was further stipulated that Solomon objects to the competency of the testimony as set forth in the stipulation and that plaintiffs in error object to the competency of such testimony in relation to the law of Ohio, but on no other grounds.

There is no dispute as to the facts in this case and the questions involved are purely legal ones. Plaintiffs in error contend that a judgment entered in this State by confession, upon a promissory note containing a warrant of attorney executed by a married woman in a sister State, is void, unless there be both allegations and proof that the common law was not in force in such State and that a married woman in such State is by statute authorized to execute a warrant of attorney; that the warrant of attorney in this case fails to authorize a waiver of service of process; that there was no service of process; that such judgment is therefore void; that there are no pleadings in this case on behalf of defendant in error, Solomon, justifying the admission of proof of the statute of the State of Ohio; that neither allegations nor proof in a collateral proceeding after the entry of a judgment can supply the omission of such matters in the original proceeding; and that to authorize a court to act upon the entry of a judgment by confession upon a note executed in a sister State, it is necessary for the declaration to aver that the statute of such sister State authorized a married woman to execute a note and power of attorney, to waive service of process and to confess judgment.

In support of these contentions it is insisted that at common law, a judgment by confession could only be entered after service of process. 15 E. O. L. Judgments, 648, is cited but the text referred to relates only to judgments by cognovit actionem and confession relicta verifications, both of which were entered after service of process. In the former, the judgment was entered without a plea and upon confession or cognovit actionem signed after service of process. The latter was entered upon confession after a plea was withdrawn or abandoned. The rules concerning such judgments do not apply to the case at bar.

The claim is also made that judgments by confession are in contravention of the common law. There appears to be some misapprehension as to the practice at common law. Besides the judgment by default, two methods of obtaining judgment without trial existed at common law; one by confession of judgment under a warrant of attorney, and the other, upon a cognovit actionem signed by the defendants in the action. The warrant of attorney was given before any action was instituted and was a prospective security, as in the case at bar. The cognovit actionem was not an authority given before the action was commenced, but was a confession signed by the defendants after process was issued. (French v. Willer, 126 Ill. 611.)

The practice of entering judgments in debt on warrants of attorney is very old; so old that the date of its origin is unknown. (15 R. O. L. Judgments, 648.) The power to confess judgment by a warrant of attorney comes from the common law and is governed thereby, except in so far as the old rules of the common law have been modified by statute and the decisions of the courts of last resort. (34 C. J. Judgments, § 278.) The contention of plaintiffs in error that judgments by confession on warrant of attorney were unknown to the common law cannot therefore be upheld.

It is further contended that the judgment is void because the warrant of attorney did not specifically authorize an attorney to ivaive service of process and that such waiver could not be made without such authority. The warrant authorizes any attorney of any court of record in the State of Ohio, or elsewhere, at any time after the note is due, to appear for plaintiffs in error or either of them in any court in the State of Ohio, or elsewhere, and confess judgment against them or either of them, and to release all errors in the entry and rendition of the judgment and all rights and benefits of appeal and writs of error. The warrant under consideration authorized any attorney of any court of record of the State of Ohio or elsewhere to appear for them or either of them. Under the holding in Forsyth v. Barnes, 228 Ill. 326, the appearance which was entered conferred jurisdiction.

The fact that plaintiffs in error were not served with process is unimportant if they appeared by attorney. (Dunning v. Dunning, 37 Ill. 306.) In case of a confession without action it is not necessary that any process should be issued or served on defendant, or any appearance entered by or for him other than the appearance for the purpose of confessing the judgment. (34 C. J. Judgments, § 277.)

The cognovit herein may not in specific terms waive the issuance or service of process but the strictest interpretation of its language can give it no other force than the power to waive service and confess judgment. It is an appearance and confession. It is sufficient that there was an appearance and confession of judgment.

It is further insisted that the section of the Ohio statute quoted in the stipulation does not authorize a married woman to waive service of process and confess judgment. Where by statute a married woman is allowed to make binding contracts, an action upon a joint contract of the husband and wife may be brought against them jointly, as where they execute a joint note. (30 O. J. Husband and Wife, § 715.) Her capacity to confess judgment depends upon and is coexistent with her capacity to contract. (Forsyth v. Barnes, supra; 30 Am. & Eng. Encyc. of Law [2nd Ed.] 107, and cases there cited.)

At common law, a married woman had no power to contract. She could not confess judgment or execute a warrant of attorney. By the great weight' of authority, a confession of judgment on a warrant of attorney, executed by her during coverture, was not merely voidable, but void, and could be attacked either directly or collaterally upon it being made to appear that coverture existed.

In the proceeding by which the judgment by confession in this cause was entered, there was no averment in the nar. or proof in the record that a married woman had authority in the State of Ohio to execute a promissory note or warrant of attorney to confess judgment or to waive service of process. It is insisted this omission is fatal to the validity of the judgment. In actions at law, it is not in accordance with the rules of pleading for the plaintiff to anticipate and attempt to answer and avoid a possible defense that might be interposed by a plea. He is only required to state his cause of complaint and anything beyond that is surplusage. (Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502.) ' We think it was not incumbent upon the plaintiff to aver or prove the coverture of the defendants and inasmuch as there was nothing in the record or the pleadings to show it, the court could not assume it. (Thomas v. Lowy, 60 Ill. 512.)

The recitals of the stipulation as to the existence of the Ohio statute and the fact of coverture are objected to as being incompetent, because there are no pleadings which would justify the admission of their proof. The stipulation in this case is effective both as a pleading and as proof". A stipulation duly signed and filed becomes a part of the record of the case and has the effect of a pleading. (36 Oyc. Stipulations, 1283.) A stipulation by a party, as to facts in a case, must be regarded as evidence, as against an objection that no proof was made. (City of Chicago v. English, 180 Ill. 476.) It is conclusive upon him as long as it stands, and cannot be contradicted by evidence tending to show the facts otherwise. (City of Chicago v. Drexel, 141 Ill. 89.) It cannot be well contended that the stipulation can be used to establish the coverture of Cora Esta Boyd, and not be equally effective as proof of the existence of the Ohio statute.

Forsyth v. Barnes, supra, is not in conflict with our holding. In that case the record was absolutely barren of any pleading, proof or stipulation as to the right of a married woman to contract in the State of Ohio. There was proof of coverture of the defendant. The court held that in such a state of the record, the presumption obtained that the common law was in force in Ohio, and that the judgment by confession was void. But in the case at bar, there is a stipulation which serves as both pleading and proof, not only that Cora Esta Boyd was a married woman living in the State of Ohio when the note was executed and when the judgment by confession was entered, but that she was competent to contract by the laws of that State. We do not interpret the Barnes case to hold that the original record in a judgment by confession must show the competency of a defendant. It rather holds that if the record in a collateral proceeding made such a showing, it would be sufficient. In Burr v. Beckler, 264 Ill. 230, cited by plaintiffs in error, there was both pleading and proof that the defendant, a feme covert, was incapable of contracting under the laws of a sister State, where she executed a note and trust deed. That case is not applicable to the facts in this record.

In our opinion the judgment by confession in favor of defendant in error, Solomon, was a valid judgment. Plaintiff in error, Antram, is a purchaser, pendente lite, of the interest of Cora Esta Boyd in the premises embraced in the partition suit, but his interest, if any, is subject to the decree ordering that the judgment of defendant in error be paid out of the proceeds of her portion of the premises. Whatever the Boyds had to convey, it passed by the quitclaim deed to Antram and they no longer have any interest in the controversy or the subject matter thereof.

The decree of the circuit court was right and is accordingly affirmed.

Decree affirmed.


author: Mr. Justice Jones

text:
    Margaret Westbrook, Executrix of the Estate of John W. Westbrook, Deceased, Appellee, v. The Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 7,796.

      Opinion filed March 23, 1928.
    Hyer & Gill, for appellant.
    Boy F. Hall, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

This is an appeal from a judgment against appellee in the sum of $3,500 in an action on the case for the death of John W. Westbrook, alleged to have been caused by the negligence of appellant.

The declaration consists of four counts. The first count is a general negligence count. The second count charges that Westbrook was an employee of the Emerson-Brantingham Company; that the employees of such company had been in the habit for years of using the track of the defendant railroad company in walking to and from their work; and that defendant carelessly and negligently ran into and injured said West-brook so that he died. The third count is substantially the same as the second, except that it charges the defendant railroad company with wilfully and wantonly running into and injuring plaintiff’s intestate so that he died. The fourth count charged the violation of a speed ordinance of the city of Bockford, but on motion of appellant was excluded from the the consideration of the jury on the ground that the Public Utilities Act, Cahill’s- St. ch. Ilia, had supplanted the city’s speed ordinance. To the declaration, a plea of the general issue was filed and a jury trial was had. Two special interrogatories were submitted to the jury. The first was whether the engineer of the train in question was guilty of such negligence as to indicate a total disregard of consequences or for the safety and lives of others. The second was whether such conduct was the proximate cause of Westbrook’s death. Both interrogatories were answered in the affirmative by the jury.

Appellant contends that appellee’s intestate was guilty of contributory negligence; that the verdict of the jury was against the manifest weight of the evidence ; that there was no evidence to justify an affirmative answer to the special interrogatories; that the court erred in its rulings on instructions; and that certain remarks of counsel for appellee in his closing argument were of such improper character that they were prejudicial to the rights of appellant.

In appellant’s motion for a new trial, it did not include, as a ground for the motion that the finding of the jury on the special interrogatories was against the manifest weight of the evidence. On that account, the only question which, can be raised for review in this court, so far as the evidence is concerned, is whether or not there is any legal evidence in the record tending to prove wilfulness or wantonness on the part of appellant. That question arises only upon appellant’s motion to direct a verdict at the close of all the evidence. (Brimie v. Belden Mfg. Co., 287 Ill. 11.) Upon the question thus raised, the court cannot weigh the evidence. It can only determine whether there is any legal evidence, which, taken as true with the inferences reasonably to be drawn therefrom, will warrant the jury in finding that appellant was guilty of wilful and wanton misconduct.. (Brimie v. Belden Mfg. Co., supra; Pate v. Gus Blair-Big Muddy Coal Co., 252 Ill. 198.)

In support of its contention that there is no evidence to sustain the charge of wilfulness and wantonness, appellant urges that at the point where the accident occurred there was no obstruction to the view of appellee’s intestate; that it was not a public crossing; that it was a clear day; that the ground on each side of the railroad tracks was level; and that Westbrook looked around at the train in question, stepped off the track, and then later walked up close to the rail where he was struck by the beam on the pilot of the engine.In view of what we have to say concerning the special verdicts, we refrain from expressing an opinion as to the proof to support them.

It is nevertheless necessary for us to comment on a ruling of the court in reference to the special verdicts. Counsel for appellee, over appellant’s objection, told the jury in his argument that if they found for plaintiff they might answer the first interrogatory “Yes” and the second “No” and then added, “Then your verdict will stand just as you find it.” It was practically conceded by counsel for appellee in the oral argument and also in his printed brief that his remarks in this connection were not proper, but he cop-tends that as the jury answered both interrogatories in the affirmative, they did not follow his suggestions, and therefore were not affected by them. The jury could have found for the plaintiff on any one of the three counts. If they had found on either of the first two counts,^ but did not believe appellant guilty of wilful and wanton misconduct, they should not have answered the first interrogatory affirmatively. It can well be argued that the jury may have answered the special interrogatories as they did in order to protect their general verdict. We think the statements of counsel and the overruling of the objections thereto by the court were prejudicial to the, rights of appellant. It is improper for counsel to ask the jury to answer the special interrogatories so that they may agree with- their general verdict or to discuss the legal effect of their answers to special interrogatories or their bearing on their general verdict. (Southern Indiana R. Co. v. Fine, 163 Ind. 617; Snider v. Washington Water Power Co., 66 Wash. 598.) It can be readily seen that the very purpose of submitting special interrogatories can be destroyed by such discussion and we are in thorough accord with the authorities cited on this point.

. Appellant also complains of remarks by appellee’s counsel of an inflammatory and prejudicial character. At one point in the argument, appellee’s counsel said, “One thing I will say to you, we don’t ask you to make an arbitrary finding. We want you to deal fairly with this widow to-night; we just want you to give her, from the abundance of this company.” An objection was sustained to this remark, after which counsel continued, “Well, from the poorness of the company,” to which an objection was also sustained. Counsel then stated, “Well, from the company we want you to give her just what she has been damaged in her support.” Counsel for appellee cast repeated aspersions upon appellant’s witnesses, because they were in its employ and argued that appellee’s witnesses were more likely to tell the truth, because appellant’s witnesses were interested and felt they must acquit themselves well because of their jobs with the company. Objections to this line of argument were overruled. A strong showing was made tending to prove that appellee’s intestate was guilty of contributory negligence. Because of the error committed in procuring the special verdicts, appellant is not precluded from urging that it may not rely on the defense of contributory negligence.

Appellee insists that the judgment should not be reversed on account of such improper argument, because it cannot be said the verdict is excessive. It is not necessary that a verdict be excessive in order to reverse a judgment on account of inflammatory and prejudicial argument of counsel. (Paulsen v. McAvoy Brewing Co., 220 Ill. App. 273; Appel v. Chicago City R. Co., 259 Ill. 561.) It is well settled that in cases of this kind, allusions to the poverty of a plaintiff and the wealth of a defendant are improper and wrong. (Kurtz v. Evans, 201 Ill. App. 180; Kaufman v. Helmick, 212 Ill. App. 10; Moore v. Murphy, 183 Ill. App. 499.) Misconduct of counsel of the character mentioned is sufficient cause for reversing a judgment, unless it can be seen that it did not result in injury to the defeated party, even though the trial court has sustained objections to such statements, rebuked counsel and directed the jury to disregard the statements. (Bale v. Chicago Junction Ry. Co., 259 Ill. 476.)

Where the conduct of counsel is inflammatory and prejudicial, the judgment will be reversed even though the verdict is not against the manifest weight of the evidence. (Paulsen v. McAvoy Brewing Co., supra; Appel v. Chicago City R. Co., supra.) The whole purpose of the law to obtain a trial by a fair and impartial jury is defeated, if appeals to their passions and prejudices are to be permitted during the course of the trial. (Paulsen v. McAvoy Brewing Co., supra.) If courts of law are to be sources of justice, the rule that parties litigant, regardless of who they are, shall have secured to them the opportunity of having the issues of their case tried by a jury, free from the prejudicial influence of improper conduct, must be strictly enforced. (Bale v. Chicago Junction Ry. Co., supra.)

Because of the likelihood of this case being tried again, we should express our views on certain instructions given on behalf of appellee. The first instruction given at her request told the jury that the first and second counts of the declaration charge that the deceased came to his death because of the negligence of defendant, and that the third count charges his death was caused by the wanton misconduct of defendant. Her fifth instruction told the jury that if they find the defendant guilty as charged in either count of plaintiff’s declaration as defined in the instructions, then in determining the amount of damages, if any, to be awarded to the plaintiff, they should fix such amount as will in their judgment from the evidence be fair and just compensation, etc. Appellant claims that the combination of these two instructions takes from the jury the question of contributory negligence under the negligence counts and is therefore erroneous. The fifth instruction does not direct a verdict but merely lays down a rule for determining the amount of damages in case the jury finds the defendant guilty as charged in any count of the declaration. It is different from an instruction which tells the jury that if the plaintiff has made out his ease, as alleged in the declaration, they should find the defendant guilty. (Bernier v. Illinois Cent. R. Co., 296 Ill. 464.) Appellee’s second instruction deals with the question of due care on the part of appellee under the first and second counts .of the declaration. We do not think the fifth instruction could have misled the jury.

The third instruction given on behalf of appellee attempts to define wilful and wanton misconduct. It tells the jury that it is unnecessary to prove that the deceased exercised due care for his own safety, provided the jury believe from a preponderance of the evidence that the Servants of the defendant operated the train at the time and place in question in such a way as to amount to wantonness or general disregard for the lives of persons who might be upon the track of the defendant. The instruction may be a little too comprehensive but cannot be seriously condemned.

The evidence was conflicting and it was essential that no substantial error should intervene in the trial. There is little room to doubt that the errors committed were grave enough to deprive appellant of a fair and impartial trial. The judgment of the circuit court is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas A. Simons, Plaintiff in Error, v. Sherman Corlett, Executor of the Last Will and Testament of Nellie Corlett Simons, Deceased, et al., Defendants in Error.
    Gen. No. 7,834.

      Opinion filed April 10, 1928.
    Garrett, Maynard & Fell, for plaintiff in error.
    Lathrop, Lathrop .& Brown, for B. Harrison Corlett and Clifford M. Corlett, Residuary Legatees, defendants in error..
   Mr. Justice Boggs

delivered the opinion of the court.

Nellie Corlett Simons, late of Winnebago county, died testate on November 12, 1922. She left no child or children or decedent of child or children her surviving, but left certain brothers and sisters as her only heirs at law, and plaintiff in error, her husband. Her will was admitted to probate in said county, and letters testamentary were issued thereon to Sherman Corlett, her brother.

Paragraph 1 of said will provides for the payment of the debts, funeral expenses, etc., of said deceased. Paragraph 2 provides, among other things:

“If at the time of my death I shall be single, or shall be living separate and apart from my husband, I then desire to be buried in the F. L. Corlett family lot at New Milford, Illinois.”

The third paragraph is as follows:

“In case I shall be the wife of Thomas A. Simons at the time of my death, it is my will that he shall receive no more of my estate than he shall be entitled to by law.”

The fourth and fifth paragraphs, respectively, bequeath to certain of her nieces and nephews Liberty bonds and war savings stamps, and to her sister, Jennie F. Adams, $500. The sixth paragraph bequeaths in equal shares “all the rest, residue and remainder” of said estate to B. Harrison Corlett and Clifford M. Corlett, brothers, and Clara B. Corlett, sister of said deceased.

The estate of said decedent consisted wholly of personal property. The executor’s report showed a balance, after payment of specific legacies, etc., of $6,021. The probate court, on hearing, ordered one-third of said amount paid to plaintiff in error, and the remaining two-thirds to be distributed among said residuary legatees. On appeal to the circuit court, it Avas stipulated that all objections interposed by plaintiff in error were waived, except the one involving the portion of said estate to be paid to him. The objections of the residuary legatees were limited to their contention that plaintiff in error should not be allowed any portion of said estate. The circuit court overruled plaintiff in error’s objection, and entered an order barring him from any interest in said estate. To reverse said judgment, plaintiff in error prosecutes this Avrit of error.

It is first contended by counsel for plaintiff in error that he is entitled to a legacy, under the third paragraph of said Avill, the amount of which is to be measured by the statute of Descent, Cahill’s St. ch. 39.

Words of the character of those used in said third paragraph have no fixed meaning. Richardson v. Trubey, 240 Ill. 476-482; Suiter v. Suiter, 323 Ill. 519-522. In the latter case the court at page 522 says:

“Where a testator provides in his will that his wddow shall take ‘all her legal rights’ in his estate he uses words of doubtful meaning, and resort must be had to other provisions of his wall to determine what share of his property he intended his widow to have. The words themselves have no fixed meaning. They ate not words that bring a gift within some fixed rule of law which must be given force under all circumstances.” Citing Richardson v. Trubey, supra.

In order to determine the intention of the testatrix, we must take into consideration the whole of the wall, and any facts and circumstances surrounding the testatrix at the time of the execution of such will. Des Boeuf v. Des Boeuf, 274 Ill. 594-597; Suiter v. Suiter, supra, 522.

The text of the will in question clearly indicates that the testatrix did not intend plaintiff in error to take her entire estate. Several specific legacies were provided for, and the residuary clause gave to two of her brothers and a sister whatever of her estate might remain after the payment of said specific legacies.

In Richardson v. Trubey, supra, the court in discussing a question of this character at page 483 says:

“If appellant be correct, she intended that her husband should have homestead, and, subject thereto, should have one-half of her real estate in fee, dower in the other half and all her personal property. An examination of the will shows at once that such was not her intention. By the residuary clause she devised and bequeathed the residue of her property, both real and personal, to Jettie Richardson. If her husband was to take all her personal property there would have been no personalty upon which the residuary clause could have operated. Again, she specifcially bequeathed to Jettie Richardson her silverware, pictures, jewelry and diamonds, to be delivered in kind, and to Arthur B. Pease certain vases. Had she intended this property so specifically bequeathed to go to her husband, it seems clear that she would not have provided that it should go to other persons.”

It therefore conclusively follows that the testatrix did not intend that the statute of Descent, Cahill’s St. ch. 39, should be the measure of the provision made for plaintiff in error.

It is next contended that if plaintiff in error is not entitled to the entire estate, then under section 12 of the Dower Act, Cahill’s St. ch. 41, 12, he is entitled to one-half of the personal property, after the payment of the debts, funeral expenses, etc.

The Dower Act and its provisions do not apply to an estate consisting only of personal property. Clark v. Hanson, 320 Ill. 480. Section 12 of the Dower Act does not apply to an estate where real estate is not involved, but only personalty. Scheible v. Rinck, 195 Ill. 636-641; Clark v. Hanson, supra. In the latter case, the court at page 484 says:

“It seems to us clear that in enacting section 12 the legislature had in mind only estates where there was a dower right in land distinct from the survivor’s right or interest in the personal estate. The statute could easily have been so worded as to be applicable to estates consisting wholly of personal property, but it is not so worded.”

And in Scheible v. Rinck, supra, the court at page 636 says:

“There must be a subsisting right of dower to entitle a surviving wife or husband to make the election provided for in said section 12.”

In Suiter v. Suiter, supra, the court at page 524, referring to the right of a widow in the estate of her deceased husband, says:

“Her only right and interest in his estate under the law as it stood at the time of his death was a right of dower. (Kilgore v. Kilgore, 319 Ill. 298.) Section 1 of the Dower act provides that the surviving wife shall be endowed of the third part of all the lands of which the husband dies seized. It does not give her any share in the personal property.”

Counsel for plaintiff in error frankly state, in the concluding paragraph of their brief and argument: “We conclude further that the Dower Act does not apply, there being no real estate. * * * If the Dower Act does not apply then the only method of measuring the amount the husband is to receive is ■under the Statute of Descent.”

Neither the Dower Act nor any section thereof can be taken as the measure of the provision made by the testatrix for plaintiff in error.

While the only claim made by counsel in their original brief was that plaintiff in error was entitled to the whole of the personal estate after the payment of debts, etc., as measured by the statute of Descent, or to one-half thereof, measured by section 12 of the Dower Act, Cahill’s St. ch. 41, ff 12, in their reply brief they contend that “in any event he is entitled to one-third of said balance in the hands of said executor.” In support thereof, counsel cite Richardson v. Trubey, supra; Laurence v. Balch, 195 Ill. 626; Bennett v. Bennett, 282 Ill. 266; Zakroczymski v. Zakroczymski, 303 Ill. 266.

In support of this latter contention, counsel for plaintiff in error do not cite the provisions of any statute. The most that counsel for plaintiff in error contend is that, by reason of certain language used by-the courts in the cases cited, it has been declared the law that a surviving husband or wife shall have one-third of the personal estate of the decedent.

Whatever right the husband or wife has in the estate of the other is only such right as is given by statute. The Supreme Court in Campbell v. McLain, 318 Ill. 610, in discussing this question at page 612, says:

“This court has held repeatedly that rules of the common law as to the distribution of property by descent no longer exist in this State, and that chapter 28 of our statutes, which declares that the common law of England and all statutes of a general nature made prior to the fourth year of James I shall be the rule of decision and be considered as of full force until repealed by legislative authority, is of no application as regards the law of descent, as the Descent act and the act in relation to wills in effect repealed the common law with reference to inheritance, and those acts are the only law prevailing in this State on that subject.” Citing Lewark v. Dodd, 288 Ill. 80; Quirk v. Pierson, 287 Ill. 176; Kochersperger v. Drake, 167 Ill. 122.

While language was used in some or all of the cases cited, tending to the effect that a testator could not deprive his widow of one-third interest in his personal estate, an examination of these cases discloses that none of them presents a state of facts of the same character as the facts here involved. In Richardson v. Trubey, and in Bennett v. Bennett, supra, there was real estate as well as personal property. In Laurence v. Batch, supra, while there was no real estate, it was stipulated on the trial that the only question involved was as to whether the husband of the decedent was entitled to one-third of the personal estate, or to the whole of it. In Zakroczymski v. Zakroczymski, supra, the testatrix left a husband and children. The estate consisted of personal property only. The majority opinion, after reviewing a great many cases held that a husband or wife could not bar the other by will from one-third of the personal estate left by the decedent, after payment of debts, etc. This opinion is based, not so much on the provisions of the statutes, as on the former holdings of the court. Since the decision in the Zakrocsymski case the Supreme Court has held in effect that, under the statutes as they existed at the time of the execution of the will here involved and at the time of the death of said testatrix, a husband or wife leaving only personal estate could, by will, deprive the survivor of any right to participate therein. Shoup v. Shoup, 319 Ill. 179; Suiter v. Suiter, supra.

In Suiter v. Suiter, supra, Charles Suiter, the testator, left him surviving his widow, a son, three children of a deceased daughter, the descendants of a former wife, and a daughter and a son, children of the surviving widow, all of whom were devisees under his will. His widow was made the executrix of said will,, and after directing the payment of his debts, the second paragraph provided:

“After the payment of such funeral expenses and debts I give, devise and bequeath to my wife Clara Suiter all her legal rights in my estate, whatsoever they may be.”

The third paragraph devised all of his estate to the above-mentioned children, after payment of debts, etc., and subject to the provision to his widow.

The estate consisted of some 1,300 acres of farm lands and $12,000 in personal property. The widow filed the following instrument in the recorder’s office: “The undersigned Clara Suiter, widow of Charles Suiter, deceased, hereby expresses her intention to waive her dower interests in the real estate of .her deceased husband, Charles Suiter, and to take her one-third interest in said real estate as by the terms of the statute made and provided, and in accordance with the terms of the will of the said Charles Suiter, deceased.” Thereafter, she filed a bill in the circuit court, asking that said will be construed as giving to her one-third of the real estate in fee and one-third of the personal estate. ■ The court, after reviewing a long line of cases, at page 523 says:

“Where the testator disposes of all of his property by his will the beneficiaries take no estate in his lands under the Statute of Descent, for that statute applies only to intestate estates. Shoup v. Shoup, 319 Ill. 179; Scheible v. Rinck, 195 id. 636.

“The estate under consideration is a testate estate. The testator had two sets of children: his son Vinton and the children of his daughter Mary, descendants of his first wife; and a daughter and a son, children of the surviving widow. It is clear from his will that he intended that his estate should he divided into four equal parts, one part going to his son Vinton and his three children, one part to the children of his daughter Mary, and one part each to his daughter Louise and his son John, all subject to the dower rights of his widow. If the will be construed to give the surviving widow one-third of his lands in fee and one-third of his personal property there would remain but two-thirds of his estate to be distributed among his children, and in the event of the death of the widow intestate his two youngest children would inherit the widow’s third. There is nothing in the will to justify so construing it. The testator disposed of all his property by his will and in his will be made provision for his widow. Under section 10 of the Dower act she could have elected to renounce the provisions made for her, but she did not so elect. She elected to take under the will1 all her legal rights ’ in his estate. Her only right and interest in his estate under the law as it stood at the time of his death was a right of dower. (Kilgore v. Kilgore, 319 Ill. 298.) Section 1 of the Dower act provides that the surviving wife shall be endowed of the third part of all the lands of which the husband dies seized. It does not give her any share in the personal property.”

And at page 525 the court sáys:

“The court erred in holding that the widow was entitled to one-third of the personal property, but this error is immaterial. The debts of the estate exceed the amount of personal property, so there will be no personal estate to distribute.”

The question was specifically raised on the decision of the case, as to whether the widow, under the provision quoted, would take any share or interest in the personal estate and it was held that she would not.

The language used in the Suiter will was more favorable to the widow than is the provision for plaintiff in error in the will here in question. If, in the Suiter case, under the language used, no part of the personal estate would pass to the surviving wife, then under paragraph 3 of this will, no interest in the personal estate would pass to plaintiff in error.

In the light of the recent decisions of the Supreme Court above cited, plaintiff in error took no interest in the personal estate of his deceased wife, and the circuit court did not err in so holding.

For the reasons above set forth, the judgment of the circuit court will be affirmed.

Judgment affirmed.