author: Mr. Justice MoSurbly

text:
    In re Estate of A. F. Klink, Deceased. Reconstruction Finance Corporation, Appellant, v. Marion Klink, Administratrix of the Estate of Alexander F. Klink, Deceased, Appellee.
    Gen. No. 41,659.

      Opinion filed June 9, 1941.
    Supplemental opinion filed and rehearing denied June 23, 1941, not published in full.
    Lee Walker, M. O. Hoel, Walter Sczudlo and Robert G-. Holbrook, all of Chicago, for appellant.
    Urion, Bishop & Sladkey, of Chicago, for appellee; Howard F. Bishop, Jerome J. Sladkey and Robert F. Dewey, all of Chicago, of counsel.
   Mr. Justice MoSurbly

delivered the opinion of the court.

A. F. Klink guaranteed payment of an indebtedness of Mabel A. Bohnet to the Central Trust Company of Illinois; the indebtedness was not paid; Klink having-died, a claim was made against his estate in the probate court which was allowed for $3,993.40; the administratrix appealed to the circuit court where an order was entered by the court disallowing the claim, and plaintiff appeals to this court.

A summary of the facts is necessary to an understanding of the points made in the briefs.

October 28, 1929, Mabel A. Bohnet wished to obtain a loan from the Central Trust Company of Illinois, which requested a guaranty agreement. Such an agreement was produced, signed by A. F. Klink, now deceased. In it he agreed to pay any or all the indebtedness of Mabel A. Bohnet to the bank then due or thereafter to become due promptly “upon advice from the bank that the same are due,” to the extent.of $3,800 with interest after maturity at 7 per cent per annum. It further provided that the bank might receive and hold security from the debtor for the payment of any of her obligations or might release or surrender such security at any time in the discretion of the bank and, at its sole discretion, might also grant renewals and extensions of time on any of the debtor’s obligations, taking renewal notes or other contracts to evidence the same for such periods of time as the bank deemed advisable, without notice to or consent of the guarantor and without impairing his obligations under the guaranty agreement. The guarantor also agreed that the bank need not make demand, protest, “notice of default” in respect of any of the obligations guaranteed by the guarantor, and if any of the obligations are payable on demand the bank in its sole and arbitrary discretion could determine the period which should elapse prior to the making of demand.

On the same day Mabel A. Bohnet procured a loan from the bank of $3,800 and executed her demand note to evidence this; the loan was renewed and a renewal demand note was executed on October 4, 1930; thereafter $50 was" paid on account of said indebtedness, leaving a balance unpaid of $3,750. *

July 25,1931, the Central Trust Company of Illinois and the Chicago Trust Company consolidated, forming the Central Republic Bank and Trust Company; the consolidated bank renewed the Bohnet loan December 21,1931, taking her renewal note for $3,750.

June 27, 1932, this bank procured a large loan from the present claimant, Reconstruction Finance Corporation, delivering as security its assets, including, the Bohnet note; at that time the bank retained physical possession of the guaranty agreement signed by A. F. Klink; the bank continued to liquidate the items of collateral pledged by it, including the Bohnet note, until a receiver was appointed for the bank about December 20,1934. Mabel Bohnet paid $700 on her note and the bank renewed the loan to her and accepted a renewal demand note in the principal sum of $3,050, evidencing the unpaid balance. This renewal note was delivered to the Reconstruction Finance Corporation and substituted for the former note as part of the collateral held by the Reconstruction Finance Corporation. Demands for payment of the note were made on Mabel Bohnet beginning with the year 1934 and continuing thereafter.

Prior to the appointment of a receiver for the bank Klink’s guaranty was delivered to the present claimant, which has retained possession of it ever since. June 21, 1937, the Reconstruction Finance Corporation sent a letter which was received by Klink, advising him that it was the holder of the demand note for $3,050 signed by Mabel Bohnet and guaranteed by Klink, on which interest was delinquent; that the debtor had stated she was unable to pay the note. The letter requested Klink to call at the office of the Reconstruction Finance Corporation, the claimant, or write telling what his plans were ‘1 regarding the liquidation of this obligation.”

November 25, 1937, Klink died. Albers, who had beeri appointed receiver for the Central Republic Bank and Trust Company, assigned on February 1, 1938, to the present claimant all his right and interest under the guaranty agreement and all sums of money that might be had or obtained thereon.

The claim filed in the probate court in the estate of A. F. Klink, deceased, stated that the claimant was the legal holder of the guaranty agreement, was entitled to the benefits and any proceeds arising therefrom and to payment of the indebtedness of Mabel Bohnet by the estate of the decedent, in accordance with the terms of his guaranty. This claim was filed February 4, 1938, and, as we have said, was there allowed.

Defendant’s principal point, argued at some length, is that the guaranty provision must be strictly construed in his favor, citing many cases so holding, and •that where notice is required by the guaranty as a condition precedent to liability, strict compliance with this condition is required. It is stated that no notice of default was given by the Central Republic Bank and Trust Company to Mr. Klink, the guarantor, or his administratrix at any time; that the letter written by the claimant in June 1937, to Mr. Klink was more than 4% years after default by the principal and did not constitute a notice as required by the terms of the guaranty. Among the cases cited which it is said support defendant’s position is Eaton & Prince Co. v. Foster, 66 Ill. App. 486. Examination of the opinion in that case discloses that the question of notice was not involved, the court there holding the guarantor was not liable because the sum of $50 which was to have been paid to the guarantor in consideration of the execution of the guaranty was not paid. Goldenberg v. Myers, 202 Ill. App. 340, is not in point for in that case the guarantee to pay rent was expressly stated to be “upon condition” that “notice is to be given” the-guarantor within 10 days after the failure of the lessees to comply with the terms of the lease.

Referring to the terms of the guaranty in the instant case, we are of the opinion it contains no language indicating the guaranty was executed upon condition that notice should be given. The only language referring to notice is contained in the provision where the guarantor agrees promptly to pay the indebtedness “upon advice from the bank that the same are due,” and moreover that the bank “need not . . . make or give presentment, demand, protest, notice of default ... of any of the obligations hereby guaranteed by the undersigned.” And moreover, if any of the obligations are payable on demand the bank may in its sole discretion “determine the period which shall elapse prior to the making of demand.”

In Mamerow v. National Lead Co., 206 Ill. 626, 636-637, which involved a contract of guaranty where it was alleged as a defense that timely notice of the default of the principal debtor was not given the guarantors in that notice was not given for about a year and a half after the failure of the principal debtor, it was held (citing Taussig v. Reid, 145 Ill. 488) that the failure to give notice can only be availed of when it has been made to appear that the guarantor has suffered loss by such failure; that the question of notice or want of notice was a matter of defense. To the same effect was the holding in Swisher v. Deering, 204 Ill. 203. In that case there was no effort made by the guarantor to show any damage by reason of a failure to notify him, and the judgment against him was affirmed. Heeringa v. Ortlepp, 167 Ill. App. 586, involved a written guaranty of an account which contained the provision ‘ ‘In case of non-payment I want to be notified right away.” It was held that this was a continuing guaranty and the guarantor must show that the failure to receive notice of default caused loss or damage to him, and that without such proof judgment would be entered against the guarantor. 24 Am. Jur., Guaranty, § 107, contains a statement of the law to the same effect, namely, that the failure to give notice would only release the guarantor to the extent he had been damaged by such failure, citing a large number of cases. In the instant case defendant introduced no evidence. We are therefore of the opinion that plaintiff made a prima facie case by proof of the guaranty agreement, the making of the loan to Mabel Bohnet, the nonpayment by her, and the assignment to claimant of the money due.

Defendant says this is a special guaranty, and cites cases which hold that a special guaranty is not assignable. It is not necessary to pass upon the character of this guaranty, as to whether it is special or otherwise, for the assignment to claimant was an assignment of the money due under the guaranty agreement. The language of the assignment clearly bears this construction. It assigns the right to demand and receive and take all necessary steps to recover the money due and to do all acts necessary to collect any money then due or to become due. It appoints the claimant as the attorney of the receiver of the bank to take all steps necessary to collect the money. Claims for money arising by virtue of past extensions of credit made in reliance upon a continuing guaranty can be assigned. Peoples Nat. Bank v. Cosden, 283 Ill. App. 31.

Moreover, the claim filed in the probate court against the Klink estate was for a specified sum, with interest. It recites the execution of the guaranty and that the claimant is entitled, by virtue of an assignment to it, to all proceeds and benefits arising therefrom.

There is no merit in the suggestion that the death of Klink terminated all liability under the guaranty. The loan to Mabel Bohnet was made upon reliance on the guaranty. The guarantor agreed that cancellation of the agreement would not affect his liability, but on the contrary he should remain liable for such indebtedness as there might be at the time of a receipt by the bank and indorsement of notice of cancellation. Even without such a provision a guarantor cannot revoke his guaranty and release himself of liabilities incurred before such revocation. Mamerow v. National Lead Co., 206 Ill. 626, 634-635.

There is force in claimant’s argument that even if it was necessary to establish a prima facie case to prove notice to the guarantor, the giving of such notice was proved. It is admitted that claimant sent a letter to Klink which was received by him, stating the facts with reference to the default in the Bohnet note and asking Klink to make known his plans for “the liquidation of this obligation.” Bouvier’s Law Dictionary defines the word “liquidation” as “to pay or settle.” Also, examination of the latter part of the agreement of guaranty indicates the bank was under no obligation to give notice to the guarantor of any default of the principal debtor.

We hold that claimant’s proof made a prima facie case in its favor and, as no evidence in defense was presented, it was entitled to judgment.

For the reasons indicated the judgment of the circuit court is reversed. We cannot enter judgment for the amount allowed in the probate court, with interest, as we cannot allow interest on interest. We enter judgment for the claimant in this court for $3,889.70. We have followed the computation of witness Cole, who testified that the amount of the claim, with interest, on September 26, 1940, was $4,231.87; allowing a credit of $472.95 — the surrender value of an insurance policy — leaves $3,758.92; adding 5 per cent on this from that date to the present time gives $3,889.70.

Reversed and judgment here.

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


source: Caselaw Access Project

author: Mr. Justice Hayes

license: Public Domain

text:
    Cecil J. Baxter, Jr. et al. Trading as Gem City Vineland Company, Appellants, v. Atchison, Topeka and Santa Fe Railway Company, Appellee.
    Gen. No. 9,268.

      Opinion filed June 23, 1941.
    Scofield & Bell, of Carthage, for appellants.
    Wm. J. Milroy and Joseph S. Lafferty, both of Chicago, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

The plaintiffs filed their complaint in the circuit court of Hancock county to recover the sum of $72.45, alleged freight overcharge, collected by the defendant under a contract to carry 450 baskets of pears from Mota, Hlinois, to Deadwood, South Dakota. Plaintiffs allege that it paid defendant the charges for transportation, but that the defendant refused to deliver said pears to consignee, unless consignee paid defendant the sum of $72.45, which sum consignee was forced to pay to secure delivery of the shipment and consequently deducted the same from the sale price of the pears. The plaintiffs allege damages in that amount.

The defendant failed to enter an appearance or file an answer by return day. A default judgment was taken on February 1, 1939, and on February 15, 1939 defendant filed its motion, supported by affidavits, to vacate the default judgment. The affidavit, in support of said motion, alleged that the tariff charge collected from appellants, plus the charge collected from the consignee for the transportation of the shipment, was the correct and lawful charge in accordance with the tariffs and schedules duly filed with the Interstate Commerce Commission, as required by law, and that appellants’ theory of recovery was based upon an alleged misquotation of tariff charges by an agent of the appellee which did not as a matter of law constitute an actionable breach of civil duty by reason of the requirements of the Interstate Commerce Act. The affidavit further allegés that the defendant had a full and complete defense on the merits; that to permit the judgment to stand and become final would result in an unlawful preference of appellants as to freight charges applicable to shipments moving in interstate commerce and a violation of the federal law relating thereto.

Section 1 of the Interstate Act provides that transportation of property moving by rail in interstate commerce shall be subject to the Act. Section 6 (1) of the Act requires common carriers by rail engaged in interstate commercé to file a tariff schedule with the commission, showing all charges for transportation between points on its own route and points on the route of any other carrier by rail, when a through route and joint rate have been established. Section 6 (7) forbids rail carriers to engage in the transportation of- property in interstate commerce unless the charges upon which the same are transported have been filed with the Interstate Commerce Commission and published as required by the Act.

It is proper for a shipper to maintain a common-law action in a State court for damages sustained by the collection of charges on an interstate shipment, in excess of a lawful tariff. The shipper must allege and prove that charges were' exacted by the carrier in excess of- such traiff schedule. Sonken-Galamba Corp. v. Missouri Pac. R. Co., 225 Mo. App. 1066, 40 S. W. (2d) 524.

In Bushwick McPhilben Corp. v. Bush Terminal R. Co., 8 F. Snpp. 684, the District Court for the Eastern District of New York said, p. 684:

“There is no averment in the complaint concerning the filing of any tariff of rates by the defendant with the Interstate Commerce Commission and the approval of such tariff by that body, followed by an allegation that the rates paid" by the plaintiff were in excess of the rates established by such tariff. In other words, there is no issue tendered to the defendant on that subject.
‘1 The defendant is entitled to a clear and unmistakable allegation on that subject, which it can either admit or deny.”

The complaint failing to allege that the freight charges collected were in excess of the lawful, established tariffs, failed to state a cause of action and it is error to enter judgment against a defendant by default on a complaint which does not state a cause of action against the defendant. Whalen v. Twin City Barge & Gravel Co., 280 Ill. App. 596, 611; Buck v. Citizens’ Coal Min. Co., 254 Ill. 198, 202.

It is provided in par. 7, sec. 174, ch. 110, Ill. Rev. Stat., 1939 [Jones Ill. Stats. Ann. 104.050] State Bar Edition as follows: “The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable.”

The trial court allowed the motion to vacate the judgment and for leave to plead. In Mutual Ins. Co. v. Carnahan, 122 Ill. App. 540, this court said: “An application to set aside a default is addressed to the sound legal discretion of the court, and its decision thereon cannot be assigned for error unless there has been gross abuse of such discretion.” The matter of setting aside a default has always been held to be within the sound discretion of the court, which will not be interfered with, on appeal, except where that discretion is clearly, abused. Kloepher v. Osborne, 177 Ill. App. 384; Andrews v. Campbell, 94 Ill. 577; Greenleaf v. Roe, 17 Ill. 474.

In view of the fact that the complaint failed to state a cause of action, and that the application to set aside the judgment entered by default was made within 30 days of its entry, we cannot hold that the trial court abused the discretion vested in it.

The defendant made a motion to dismiss the complaint for failure to state a cause of action which motion was allowed by the court. The plaintiff did not ask leave to file an amended complaint and the suit was dismissed, and the plaintiffs prosecuted this appeal.

Appellants rely upon the cases of Kirby v. Chicago & A. R. Co., 242 Ill. 418, and the Illinois Cent. R. Co. v. Seitz, 214 Ill. 350. The Beits case was not an interstate commerce case but an intrastate and is not applicable here. The Kirby case marked a milestone on the question of liability, obligations and duties of carriers engaged in interstate commerce and the Supreme Court of Illinois was reversed by the United States Supreme Court, opinion reported in volume 225 U. S. 155. The court in that case stated: ‘ ‘ That the defendant in error did not see and did not know that the published rates and schedules made no provision for the service he contracted for is no defense. For the purposes of the present question he is presumed to have known. The rates were published and accessible, and, however difficult to understand, he must be taken to have contracted for an advantage not open to others. Texas & P. R. Co. v. Mugg, 202 U. S. 242.”

In support of the motion to dismiss the suit, the defendant presented and filed an affidavit setting out the published tariffs applicable to this shipment which disclosed the carrier had not collected any excess over the established tariffs and under the authority of the Mugg case, the defendant was warranted in collecting the amount that it did. The court stated in the Mugg case that:

‘1 The clear effect of the decision was to declare that one who has obtained from a common carrier transportation of goods from one state to another at a rate, specified in the bill of lading, less than the published schedule rates filed with and approved by the Interstate Commerce Commission, and in force at the time, whether or not he knew that the rate obtained was less than the schedule rate, is not entitled to recover the goods, or damages for their detention, upon the tender of payment of the amount of charges named in the bill of lading, or of any sum less than the schedule charges; in other words, that, whatever may be the rate agreed upon, the carrier’s lien on the goods is, by force of the act of Congress, for the amount fixed by the published schedule of rates and charges, and this lien can be discharged, and the consignee can become entitled to the goods, only by the payment, or tender of payment, of such amount.”

Under the Federal Act, the defendant would have been liable to conviction with severe penalties on its failure to collect the full charges. The Supreme Court of the United States in Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U. S. 516, stated:

“Until changed, tariffs bind both carriers and shippers with the force of law. Under § 6 of the Interstate Commerce Act the carrier cannot deviate from the rate specified in the tariff for any service in connection with the transportation of property. That section forbids the carrier from giving a voluntary rebate in any shape or form. This Court has had occasion recently to sustain action of the Commission aimed at carriers’ practices resulting in collection of less than the tariff rate. It is equally important to aid the efforts of a carrier in collecting published charges in full. Involuntary rebates from tariff rates should be viewed with the same disapproval as voluntary rebates.”

For the reasons above stated, we find the circuit court did not commit error in setting aside the default judgment and granting the defendant leave to plead nor in its order dismissing the suit. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Reese S. Martin, Individually, and Reese S. Martin, Executor of Last Will and Testament of Henry M. Martin, Deceased, Appellees, v. William R. Martin et al., Defendants. Lutie Ramp and Lois McCormick, Appellants.
    Gen. No. 9,281.

      Opinion filed June 23, 1941.
    Green & Palmer, of Urbana, for certain appellants.
    Carl I. Glasgow, of Monticello, for certain other appellants; Henry I. Green, Homer Shepherd and Oris Barth, all of Urbana, and Asa S. Chapman, of Champaign, of counsel.
    T. E. Lyons and Dobbins, Dobbins & Thomas, both of Champaign, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

This is an appeal by the defendants, Lutie Ramp and Lois McCormick, from a decree granting partition of two hundred acres of land owned by Henry M. Martin at the time of his death, — to which he died intestate,- — also construing his last will and testament which disposed of nine hundred and seventy-two (972) acres of land which was not partitioned. Partition was prayed by the original complaint and a construction of the will was prayed for in the counterclaim which was a part of the answer of Lutie Ramp and Lois McCormick.

Henry M. Martin died February 28, 1939 at the age of seventy-seven years. His will which was executed March 27,1925, contained no residuary clause. Henry M. Martin left no widow and no lineal descendants. He was survived by one brother, William R. Martin and by nephews and nieces of a predeceased brother and sister.

The partition involved a farm containing 160 acres acquired by the testator, after the execution of the will, and forty acres which was a devise to Alvina Cox, who died before the testator. There being no residuary clause in the will, said devise lapsed.

The principal question involved in this appeal is the eighteenth clause of the will of Henry M. Martin which reads as follows: “It is my will and desire that all of the devises to the Real Estate heretofore devised in this my last will and testament be taken and descend to the particular legatee or devisee named in reference thereto, subject to any and all mortgage indebtedness of any kind or description which may be standing against any of my aforesaid described Real Estate at the time of my death.”

The will, after directing the payment of all his debts, bequeathed some household goods and heirlooms to some of the nephews and nieces, and then directed the sale of all of the remaining personal property,— except the bank stock — which he gave to his nephew, Reese S. Martin, his nieces, Leo White, Lutie Ramp and Lois McCormick, and his brother William R. Martin, to be divided equally between them. He then bequeathed certain legacies to churches and a cemetery, and made specific devises to his nephews, nieces, and his brother. The first bequest was to his nephew Reese S. Martin of three hundred and twenty (320) acres of farm land, then a particular devise of farm land to each of the remaining nephews, nieces and brother which included all the natural objects of his bounty. He made Reese S. Martin executor of his will. Reese S. Martin is a brother of appellants herein, Lois McCormick and Lutie Ramp.

All of the land specifically devised under the will was heavily incumbered, except that devised to Reese S. Martin. Two hundred and forty acres of this land had no incumbrance. The remaining eighty acres had only four thousand dollars on it at the time the will was executed, and thirty-four hundred dollars at the time of the death of the testator. His aggregate mortgage indebtedness, at the time the will was executed, was $86,600, and at the time of his death it was • $81,883.93. At the time of his death, he owned eleven hundred and seventy-two acres of land.

Appellants point out, with great emphasis, that Reese S. Martin received eight times as many acres as some of the other nephews and nieces, and that his land was only incumbered on an average of $10.82% per acre, while some of the others were incumbered up to ninty dollars per acre.

Appellants contend that the total mortgage indebtedness should be prorated and equalized on an acreage basis among the persons taking title under the will.

The proofs were heard before the master, and he refused to hold with appellant’s contention. The trial court sustained the master and construed clause eighteen of the will to mean that, “it was the testator’s intention that each devisee pay the mortgage indebtedness which at the time of testator’s death was a lien upon the specific tract of land devised to such devisee,” and decreed, “that the burden of paying the mortgage indebtedness upon the respective tracts of land devised by said will devolved upon the respective devisees for whatever mortgage indebtedness there was against the particular tract of land devised to bim or her at the time of the death of said testator, and that the respective tracts of land devised are liable for the amount of the mortgage incumbrance against ’ each at the testator’s death, and that no devisee may require the devisees of other lands to contribute so that the mortgage indebtedness on all of the devised lands will be equalized. ’ ’

To adopt the construction contended by appellants, it would be necessary to treat the word “any” used as follows: “which may be standing against any of my aforesaid described real estate at the time of my death,” as equivalent to the word “all.” This is not in keeping with the general use of the word, nor is it warranted by the definition given by Webster where it is defined as “one, indefinitely; one of three or more (which one not specified).” Applying Webster’s meaning to the word “any” as used by the testator, we find his intention can best be determined by the following language, “Subject to any and all mortgage indebtedness of any kind or description which may be standing against any (one) of my aforesaid described (tracts of) real estate at the time of my death.” This interpretation of the clause in question, seems to us to be the proper and logical one, as well as the one adopted by the circuit court which conforms to that which is ordinary and usual in every-day affairs of life. The usual thing for testators to do in disposing of their property is to provide for the mortgage indebtedness on land to be paid by the one who receives the land. Courts will always, if possible, so construe wills as to- give effect to each and every part of the same. That can be accomplished in this case by simply giving to the eighteenth clause the ordinarily and generally accepted meaning. Appellants contend that the aggregate indebtedness, covered in all the mortgages, should be spread over all the land and each devisee pay into a common fund in proportion to the number of acres he received, for the purpose of clearing all the indebtedness. Anyone familiar with Illinois farm lands know there is a vast difference in value of lands ' on account of the fertility, quality of the land, location, buildings, improvements and drainage.

An examination of the will, in its entirety, discloses that it was carefully drawn and that the testator attentively figured out the descriptions and the division of acreage for his beneficiaries. It would take a very strained and far-fetched construction to hold that it was the intention of the testator to provide for any jack pot to pay all the mortgage indebtedness, for it appears from the record, that he was a man of many years’ experience in farming and handling of farm lands; that his place known as the “Home Farm” had two hundred and forty acres of unincumbered land, and eighty acres which had a small mortgage thereon. It is very clear from the will, that testator wanted this farm to go to Beese S. Martin. We are not concerned as to whether the will made an equal or fair distribution among the heirs. The property belonged to the testator. He had a right to dispose of it as he saw fit. The law cannot make a new will for him. For some reason, best known to himself, he picked Beese S. Martin to have the “Home Farm.” He also made him executor of his will.

Appellants point out that unless their construction is adopted, that clause eighteen is fruitless and meaningless for they state that the law burdens each particular tract with the mortgage indebtedness thereon. They further state that if clause eighteen was omitted each devisee would have to pay the mortgage on his land. This is not true, for without clause eighteen the personal estate would be primarily liable for the payment of the mortgage indebtedness. Sutherland v. Harrison, 86 Ill. 363; Watts v. Killian, 300 Ill. 242.

The testator did not put a residuary clause in his will. At the time he made his will, and at the time of his death, he had considerable personal property which he saw fit to pass under the' statute of descent of the State of Illinois. If he had not put clause eighteen in his will, his personal estate, not specifically bequeathed, would have gone to the payment of the mortgage indebtedness. The application of this to the mortgages would have been a very involved task. With his experience in farm lands and in handling mortgage indebtedness, it is reasonable to presume that he wanted to avoid this difficult situation by leaving the personal property to be divided equally among the next of kin according to law, and leave each devisee take care of the mortgage on the particular farm he received. It would appear that he used clause eighteen designedly to accomplish this purpose. The chaneellor properly decreed that effect should be given to testator’s intention, and we hold that the construction of clause eighteen adopted in the decree of the circuit court is correct.

For the reasons above 'stated the decree of the circuit court is hereby affirmed.

Decree affirmed. .


author: Mr. Justice Haves

text:
    John W. Barger, Appellant, v. First National Bank of Danville, Appellee.
    Gen. No. 9,286.
    Opinion filed June 23, 1941.
    H. A. Swallow and Steely, Steely, Graham & Dysert, both of Danville, for appellant; Walter V. Dysert, of counsel.

      Meeks & Lowenstein and Bookwalter, Carter & Gunn, both of Danville, for appellee; R. R. Bookwalter, I. R. Carter, Horace E. Gunn and L. A. Lowenstein, of counsel.
   Mr. Justice Haves

delivered the opinion of the court.

This is an appeal from the circuit court of Vermilion county, Illinois, from a judgment entered by that court dismissing the second amended complaint as amended, on the grounds that the suit should have been filed on the chancery side of the court instead of the law side. The plaintiff elected to stand on the complaint as amended, and refused to transfer the suit to the chancery side. The court then entered a judgment whereby the plaintiff would recover nothing by his suit, and taxed the costs against him.

The second amended complaint, in substance, alleged; that on February 25, 1931, the plaintiff was the owner of certain real estate and personal property consisting of a business building, a residence, and a stock of merchandise; that the real estate was of the value of one hundred thousand dollars; that the personal property was worth twenty thousand dollars; that the plaintiff was indebted to the defendant, the First National Bank of Danville, in the sum of twenty-three thousand dollars, evidenced by notes which the defendant held; that the plaintiff conveyed said real estate, by deed, to the cashier of the defendant as agent for the Bank, and surrendered possession of said premises and all of said personal property; that the plaintiff then entered into a collateral, verbal agreement with the defendant, authorizing said Bank to sell all of said property at the best possible price, with the approval of the plaintiff, using due diligence, skill and experience to collect the sale price, and liquidate said indebtedness on said notes, and any balance to be paid over to the plaintiff; that although said conveyance was a warranty deed, nevertheless, under said agreement it was always a mortgage and collateral security for said indebtedness on said notes, and that the delivery of said personal property was for the same purpose ; that the defendant recorded said deed, -took possession of all of said property, and finally sold it; that the defendant sold the homestead for sixteen hundred ($1,600) dollars, and the building block for twenty thousand ($20,000) dollars; that the defendant permitted the property to become depreciated in value; that a part of the personal property disappeared without being sold; that on account of negligence on the part of the- defendant in mismanaging said property, it sold for twenty thousand dollars rather than one hundred thousand dollars; that the defendant had none of said property in its possession or control at the time of the filing of the complaint, and therefor asks that damages be assessed against the defendant in the sum of one hundred thousand dollars.

To this complaint the defendant filed a motion to dismiss on the grounds that the complaint failed to state a cause of action. It further alleged that the verbal contract was void, under the statute of frauds; that the complaint was based upon a verbal agreement constituting a trust, and that said agreement as set forth in the complaint had no defeasance and consequently would not amount to a mortgage.

Defendant also filed a cross complaint averring, that on the 25th day of February, A. D. 1931, the real estate in question had been deeded by John W. Barger to Harmon D. Andrews, for the benefit of the First National Bank of Danville — who afterwards deeded it to the Bank — the Bank taking possession of the same on the 9th day of March 1931, and it has been in its possession ever since; that said bank expended thirty-seven hundred ($3,700) dollars in repairs; fifty-six hundred ($5,600) dollars in taxes, two thousand ($2,000) dollars in insurance, and paid forty-six thousand ($46,000) dollars on prior existing liens and encumbrances; that all of said payments were made with the knowledge of cross defendant, and without any objection from him; that said cross defendant, after executing the deed to Andrews for the benefit of the Bank, confirmed and ratified it as being an absolute and unconditional conveyance and in full satisfaction and settlement of his indebtedness to the Bank.

The Bank filed a separate defense in connection with its answer to the complaint, in which it alleges the execution of a quitclaim deed by John W. Barger to the Bank, on the 14th day of June 1939 (8 years after the original deed), and avers that said deed contains this recital: “This deed is executed for the purpose of confirming a fee simple title to said real estate in said The First National Bank and in satisfaction of any indebtedness which I may have to said bank and is subject to two certain mortgages in favor of Dan-ville Building Association, and is also subject to all taxes.?’

Plaintiff contends that his case is an action in tort, at law, for the recovery of damages, because of the mismanagement of real estate and personal property conveyed. He further claims that at the time of the transfer, there was an oral agreement that made said deed a mortgage, rather than an absolute conveyance.

The language, used by the plaintiff in his complaint, indicates a conveyance, with power of sale and authority to use the proceeds to pay the Bank’s debts. Nothing is alleged in the oral agreement that the property was to be reconveyed by the Bank to the plaintiff upon payment of the debt by the plaintiff, that is, there is no defeasance shown by the oral agreement.

To constitute an instrument, in form a deed, a mortgage, there must be (1) a debt or legal liability owing by the owner of the real estate, (2) an intention of the .parties that the conveyance is made as security for that debt, and (3) a provision, express or implied, for a defeasance.

Referring to this subject Reeve’s Illinois Law of Mortgages, volume 1, chapter 2, section 18, states: “To accomplish this result, it is necessary, that the agreement of the grantee should purport to defeat and destroy the estate conveyed to him, upon the performance of conditions by the grantor. Thus, where a grantor conveyed the property by deed absolute, and received back a paper-in which the grantee agreed, in consideration of the deed, to endeavor to sell the property within one year, and, after deducting a debt due to himself, and paying a debt of the grantor to a third person, to repay to the grantor all the surplus arising from the sale, together with any rent received by the grantee during the year, it was held that this writing did not constitute a defeasance.”

Referring to cases where conveyance of real estate is made with the power of sale, Pomeroy’s Equity Jurisprudence, fourth edition, volume 1, page 186, lays down the rule that this amounts to an express trust which is within the exclusive jurisdiction of equity and states the rule as follows: “In this class, the interest of the trustee is not a mere naked legal title, and that of the cestui qui trust is not the real ownership of the subject matter. The trustee is generally entitled to the possession and management of the property, and to the receipt of its rents and profits, and often has, from the very nature of the trust, an authority to sell or otherwise dispose of it. The interest of the beneficiary is more limited than in passive trusts, and in many cases cannot with accuracy be called even an equitable estate. He always has the right, however, to compel a performance of the trust according to its terms and intent. The foregoing classes of express private trusts are all embraced within the general exclusive jurisdiction of equity as it is established by the English Court of Chancery; and they belong to the. same jurisdiction as it is administered in the states of this country, except so far as they have been abrogated or modified by statute. ’ ’

The plaintiff, by the express agreement set np in his complaint showing a conveyance with the power to sell, has barred himself of any right to have the transaction held to be a mortgage. The express agreement alleged by the complainant in his complaint is incompatible with the necessary elements that would constitute a mortgage, and prevents the finding of them by implication from the circumstances.

It is clear thát the plaintiff, under the allegations of his complaint, did not state a cause of action at law. If he had any rights, under his purported oral agreement, it was in equity. A court of equity has jurisdiction, on the application of persons interested, of all questions relative to the establishment, enforcement, and protection and preservation of a trust on real or personal property. 65 C. J. 1011.

The facts set forth in the complaint negative a mortgage. The statement contained therein, “It was always a mortgage,” is a mere conclusion and does not overcome the legal effect of the other allegations. The case of Gillespie v. Hughes, 86 Ill. App. 202, relied upon by the plaintiff is not analogous to. the case here, for in the Hughes case there was a written contract to reconvey on the payment of the debt.

The case of the German Ins. Co. v. Gibe, 162 Ill. 251, is cited by plaintiff in his brief. Here the court held that the intention of the parties, under our statute, showing a deed to be a mortgage may be shown by parole evidence, in an action at law as well as in equity, but in the Gibe case the defeasance was established and it appears that the property had been reconveyed to the original grantor.

The plaintiff’s complaint failed to state a cause of ■ action. If he had any rights under his purported oral agreement it was in chancery. He refused to permit the case to be transferred to the chancery side of the court. He stood by for eight years while the defendant was paying out large sums of money for prior encumbrances, interest, taxes and repairs and shortly before filing Ms suit, confirmed the title by a second deed without any defeasance clause. The circuit court was amply warranted in dismissing plaintiff’s suit at law and entering judgment against it.

For the reasons set forth, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Burke

text:
    Edward P. McKeown, Appellee, v. William T. Pridmore, as Executor of the Last Will and Testament of Josephine E. Springer, Deceased, and William T. Pridmore, as Trustee Under the Last Will and Testament of Josephine E. Springer, Deceased, Respondents. Appeal of William T. Pridmore, Individually, Appellant. Maude E. Schwartz, as Administratrix of the Estate of Schuyler Colfax Schwartz, Jr., Deceased, Intervenor Appellant.
    Gen. No. 41,614.

      Opinion filed June 25, 1941.
    William T. Pridmore, pro se; Poppenhusen, Johnston, Thompson & Raymond, Albert E. Jenner, Jr., and Samuel W. Block, all of Chicago, of counsel.
    George E. Woods, of Chicago, for certain other appellant.
    Leo J. Hassenauer, of Chicago, for appellee; Edward P. McKeown and Raymond J. Boland, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On July 15, 1931, Josephine E. Springer, a widow residing in Chicago, made and published her last will and designated William T. Pridmore as executor and trustee. She died on September 7, 1931. The will was admitted to probate and Mr. Pridmore qualified as executor. He also consented to act as trustee. Martha Schwartz was the widow of Schuyler Colfax Schwartz, the deceased son of the testatrix. The ninth clause of the will directed the trustee to pay to Martha Schwartz the sum of $160 each month during her lifetime, and then to pay to the testatrix’s grandson, Schuyler Colfax Schwartz, Jr., 75 per cent of the net income from the trust estate (after paying the sum of $160 per month to Martha Schwartz) until he attained the age of 35 years, and further directed the trustee to pay to Schuyler Colfax Schwartz, Jr., “providing he is not under any legal disability to receive it,” the sum of $10,000 from the corpus of the trust estate when he became 35 years of age; to pay the grandson the additional sum of $10,000 from the corpus of the trust estate when he attained the age of 40 years, the sum of $10,000 when he attained the age of 45 years, and to pay to him on attaining the age of 50 years one-sixth of the corpus of the entire trust estate then in the hands of the trustee; to pay to him one-fifth of the corpus of the entire trust estate in the hands of the trustee when he, the grandson, attained the age of 55 years; and to pay to him one-quarter of the corpus of the trust estate then in the hands of the trustee when he, the grandson, became 60 years of age. Clause 11 of the will, known as the spendthrift clause reads:

“No money or property payable or distributable by said trustee under the provisions of this instrument shall be pledged, assigned, transferred, sold or in any manner whatsoever anticipated, charged or encumbered by any of the beneficiaries hereunder, or be in any manner liable, in the possession of said trustee, for the debts, contracts or engagements of any of the beneficiaries hereunder.” On January 5, 1935, Schuyler Colfax Schwartz, Jr. attained the age of 35 years, and he then claimed that under the provisions of the will he was entitled to receive from the trustee the sum of $10,000. For convenience, we will hereafter refer to Schuyler Colfax Schwartz, Jr. as the beneficiary. The trustee declined to pay the beneficiary the $10,000 because he was indebted to him as trustee in a sum far exceeding $10,000. The beneficiary then consulted an attorney at law named Edward P. Mc-Keown and retained him. MeKeown was successful in securing the entry of a decree finding that the trustee did not have the right to withhold the $10,000 due the beneficiary on his 35th birthday. On February 15, 1940, MeKeown filed a complaint at law in the circuit court of Cook county against William T. Pridmore, as executor and trustee under the last will and testament of Josephine E. Springer, deceased. The complaint alleged that on October 20,> 1934, plaintiff was retained by the beneficiary to represent him as his attorney and to ascertain his rights and interest under the will; that the beneficiary had no funds with which to pay him a retainer fee, or for any legal services to be rendered; that an investigation as to the law and facts was made beginning on-September 28, 1934, and that the necessary steps were taken which would entitle plaintiff to an attorney’s lien. A summons was issued, directed to Pridmore as executor and trustee, and he was served in these capacities. He filed his separate appearances as trustee and as executor. As trustee he filed a demand for a jury trial. On March 18, 1940, Pridmore filed separate motions to strike the complaint. One of these motions was filed in his capacity as executor and the other in his capacity as trustee. MeKeown moved to strike these two motions. No action was taken on Pridmore’s motion to strike the complaint at law, or on MeKeown’s motion to strike such motions. On April 1, 1940, pursuant to leave granted, MeKeown filed a pleading entitled, “Petition to adjudicate attorney’s lien.” The defendant in this petition is shown as “William T. Pridmore, individually and as executor and trustee under the last will and testament of Josephine E. Springer, deceased.” It alleged that petitioner was a duly licensed attorney at law; that Pridmore was executor and trustee under the last will and testament of Josephine E. Springer, deceased; that on or about October 20, 1934, petitioner was retained by the beneficiary to secure what was due him as beneficiary and legatee under said will; that MeKeown and the beneficiary entered into an attorney’s contingent fee contract dated October, 24, 1934, under which the beneficiary agreed to pay MeKeown as his attorney, a fee of one-third of all sums recovered; that pursuant to the agreement Mc-Keown instituted legal proceedings in the circuit court in behalf of the beneficiary and against Pridmore, as executor and trustee; that on March 27, 1935, petitioner served a notice of attorney’s lien on Pridmore, as executor and trustee; that on January 2, 1940, he again served a similar notice on Pridmore as executor and trustee; that by reason of petitioner’s efforts Schwartz became entitled to receive from Pridmore, as executor and trustee of the4 estate of Josephine E. Springer, certain sums of money; that on January 5, 1940, Schwartz received from Pridmore, as trustee, the sum of $10,000; that petitioner made demand on Pridmore, individually and as executor and trustee, for the sum of $3,333.33, claimed to be due petitioner by virtue of his attorney’s lien; that under and by virtue of the contingent fee contract of which Pridmore had full notice, long prior to January 5, 1940, petitioner was entitled to receive from Pridmore, either individually or as executor, or as trustee, the sum of $3,333.33, for which petitioner prayed judgment. Petitioner also prayed for the entry of a rule on Pridmore, individually, and as executor and trustee, to answer the petition, and that a finding be made in ■ favor of the petitioner for the amount of the attorney’s fees and that he have judgment therefor. The order allowing petitioner to file the new petition recognized that such new petition was filed in lieu of the complaint at law theretofore filed. This order further provided that a “rule be entered against William T. Pridmore, individually, and as executor and as trustee under the last will and testament of Josephine E. Springer, deceased, to answer said petition within five days.” No summons or other notice was served on Pridmore as an individual, nor did he file his appearance in his individual capacity. Pridmore filed two separate answers, one in his capacity as executor and the other in his capacity as trustee. Each disclaimed sufficient information to form a belief as to whether Schwartz had retained McKeown on October 20, 1934, or whether the contingent fee contract of October 24, 1934 was executed as alleged. The answers admitted that petitioner’s notices of alleged attorny’s lien were served on Pridmore as executor and as trustee. The answers alleged certain ultimate facts as a basis for Pridmore’s contention made as a trustee and as an executor that the petition be dismissed. On April 9, 1940, Schuyler Colfax Schwartz, Jr. died. On May 1, 1940, Maude E. Schwartz, as administratrix of his estate, filed an intervening petition alleging that Schuyler Colfax Schwartz, Jr. became entitled to a legacy of $10,000 from Pridmore, as trustee, on January 5, 1940; that he entered into a contingent fee contract as alleged by McKeown; that the contract did not involve collection of the January 5, 1940 legacy of $10,000, but only the amount payable on January 5, 1935; and she prayed for judgment against Pridmore, as trustee, for the unpaid balance in his hands of the legacy due on January 5, 1940. Maude E. Schwartz, as administratrix of the estate of Schuyler Colfax Schwartz, Jr. also filed an answer to the petition to adjudicate the attorney’s lien, and also filed a counterclaim against Pridmore, as trustee, alleging that Schuyler Colfax Schwartz, Jr. was entitled to receive from the trust estate the sum of $10,000 on January 5, 1940; and praying judgment against Pridmore, as trustee, for the balance of the $10,000 in his hands. Pridmore, as executor and as. trustee, filed separate answers to the counterclaim. A motion for summary judgment was filed and denied. When the hearing commenced on June 13,1940, Pridmore, as trustee, moved to have the cause transferred to the chancery division, which was denied. Thereupon Pridmore, as trustee, insisted on a trial by jury in accordance with the demand he had previously made. The court denied the request for a jury trial. On July 3, 1940, the court entered a judgment order in favor of Edward P. McKeown and against William T. Pridmore, individually, for $3,333.33 and costs; in favor of the counterclaimant, Maude E. Schwartz, as administratrix of the estate of Schuyler Colfax Schwartz, Jr., deceased, and against Pridmore, individually, for $666.67; and in favor of Maude E. Schwartz, as administratrix, and against Pridmore, individually, for $1,000, which sum was being held by Pridmore pursuant to an injunction issued out of the superior court in the case of Georgia Gene Schwartz v. Schuyler Colfax Schwartz, Jr. This $1,000 judgment was made subject to whatever action might be taken by the superior court. This appeal is prosecuted by William T. Pridmore, individually. A separate appeal is prosecuted by Maude E. Schwartz as administratrix of the estate of Schuyler Colfax Schwartz, Jr.

There is virtually no dispute as to the facts. The record' shows that prior to January 5, 1935, when Schwartz was to become 35 years of age (and according to the testamentary trust entitled to receive $10,000) a dispute arose between him and Pridmore as to the application of this payment upon a claim which Pridmore, as trustee, had against Schwartz in the amount of $34,730.18 for money due to the estate. Schwartz went to McKeown about this dispute, first seeing him on September 28, 1934. McKeown applied himself to the problem, examined the facts and authorities and prepared the necessary pleadings. Between September 28, 1934 and October 24, 1934, Mc-Keown conferred on the matter with Schwartz ten or twelve times. The record shows clearly that Schwartz retained McKeown on October 20, 1934, although the parties had been conferring for a month previous to that date. On October 24, 1934, a contingent fee contract with McKeown was signed by Schwartz. This agreement reads:

1 ‘ This agreement made and entered into on the 24th day of October, A. D. 1934, by Edward P. McKeown, Attorney at Law, party of the first part, and Schuyler Colfax Schwartz, Jr., party of the second part, Witnesseth:
“That Whereas said party of the second part is an heir, beneficiary, and legatee under the Will of Josephine E. Springer, Docket 308, Page 569, general No. 168888, in the Probate Court of Cook County, and whereas the party of the second part is desirous of instituting legal proceedings "to determine his rights under said will and to recover his share of interests thereunder.
“And Whereas party of the second part is unable to pay said party of the first part a retainer or any stipulated attorney fee.
“Now Therefore, in consideration of the premises and in consideration of the following agreements, it is agreed by and between the parties hereto as follows:
“1. Party of the first part will undertake said claim and institute whatever legal action is necessary against the executor, trustee, or any other party necessary, in order to protect his interests.
1 ‘ 2. Party of the second part will pay all court costs and expenses arising out of said suit.
“3. Party of the second part will pay to party of first part a sum equal to one-third of whatever amount of money is recovered either by suit, settlement or compromise in the prosecution of said claim against the above executor, trustee, or legal representative of said Josephine E. Springer.” On November 13, 1934, McKeown filed a complaint in chancery in the circuit court of Cook county, entitled Schuyler Colfax Schwartz, Jr. v. William T. Pridmore, Individually, and as Executor and Trustee under the Will of Josephine E. Springer, deceased, claiming that Schwartz was entitled to the full payment of $10,000 under the testamentary trust without the application of any of it to the payment of any debt to the trust estate. The theory of the complaint was that the spendthrift clause in the trust protected him. The complaint asked the court to construe certain paragraphs of the will; that the court allow plaintiff a reasonable attorney’s fee for the conduct of the litigation, and prayed for other relief. Pridmore, as trustee, filed an answer. He also filed a counterclaim and sought judgment against Schwartz. On March 27,1935, while the complaint was pending, McKeown served an attorney’s lien notice on Pridmore, as executor and as trustee. This notice informed Pridmore, as executor and trustee, that Mc-Keown had been retained by Schwartz and that the agreed attorney’s fee was one-third of the amount paid or realized to Schwartz from any claim, suit or settlement. On May 22, 1935, the chancellor entered a decree. This decree found that Pridmore “has at all times prior to the filing of the complaint herein carried out the directions of the will of Josephine E. Springer, deceased, in accordance with its terms, and has at all times acted impartially as to the several beneficiaries under said will and the trust created thereby, and has not been guilty of any improper conduct with respect to the rights of the plaintiff herein.” The court found that the sum of $10,000 payable when Schwartz attained the age of 35 years (January 5, 1935) was not liable in the possession of the trustee for the debts, contracts or engagements of Schwartz, and that such sum of $10,000 should be paid to Schwartz, notwithstanding his indebtedness to the estate. The chancellor also found that Schwartz owed to the estate the sum of $41,791.97. The decree directed Pridmore, as trustee, to pay to Schwartz within 10 days the sum of $10,000, plus interest thereon at 5 per cent per annum from January 5, 1935 to the date of payment; entered judgment on the counterclaim of Pridmore, as trustee, in favor of the trustee and against Schwartz for the sum of $41,791.97, and ordered that an execution issue therefor instanter. The court reserved “jurisdiction as to the matter of allowance of attorneys’ and other expenses of this suit.” During the hearing before the chancellor Pridmore called attention to the fact that an attorney’s lien notice had been served on him. At that time no action toward enforcing the lien was taken. Pursuant to the decree Pridmore paid to Schwartz the $10,000, plus interest, by placing five dollar bills totaling this sum on a table at a time when a deputy sheriff, in possession of an execution under the judgment on the counterclaim for $41,791.97, was present. We assume that Pridmore arranged for a levy under the execution on the counterclaim on the theory that when the money was turned over to the beneficiary it then became subject to his debts. We also assume that Pridmore felt that he was carrying out his duty as a trustee in tailing this action. This conduct by the trustee would appear to be contrary to the spirit of the decree. The trustee was complying with the decree by turning over the money, yet he was taking it away from the beneficiary at the instant it was being turned over. The beneficiary through his attorney should have brought the matter to the attention of the chancellor. This was not done. The deputy sheriff attempted to levy the execution on the bills. Schwartz was in need of money and because of that fact a settlement was made between Pridmore, Mc-Keown and Schwartz whereby the sum of $6,168 was turned over to Schwartz and the sum of approximately $4,100 turned over to Pridmore for application on the judgment. Prior to July 26, 1935, Georgia Gene Schwartz, wife of Schuyler Colfax Schwartz, Jr. filed a complaint for divorce against him in the superior court of Cook county and procured a temporary injunction, restraining Pridmore, as executor and trustee, from paying to dr for the benefit of Schuyler Colfax Schwartz, Jr. any sums of money or credits, or transferring any property to or for the benefit of Schwartz. This restraining order was modified to permit the trustee to pay out of the trust legacy of $10,000 due January 5, 1940, all but $2,000. On January 9, 1940, the restraining order was further modified to permit the paying over to Schwartz of any and all sums of money that might be payable by Pridmore, as trustee, except the sum of $1,000 of the testamentary trust legacy due to Schwartz on January 5,1940, which sum Pridmore, as trustee, was directed to retain until the further order of the superior court. Under the terms of the testamentary trust an additional $10,000 was to be paid to Schwartz on January 5, 1940. On January 2, 1940, McKeown served Pridmore, as executor and trustee, with another notice of attorney’s lien predicated upon the contingent fee contract of October 24, 1934, In accordance with Schwartz’ request, Pridmore, as trustee, on January 5, 1940 paid Schwartz $4,800 of the testamentary legacy due that date. On March 1, 1940, in response to a further request, Pridmore, as trustee, paid Schwartz an additional $200. No further requests for payments were made by Schwartz and no further payments were made. On March 1,1940, Schwartz served a notice on Pridmore addressed to him individually and as executor and trustee, reading:
“I hereby notify you that I am not indebted to attorney Edward P. McKeown. for any services rendered to me in connection with the legacy of $10,000.00 which became due to me on January 5, 1940, and caution you not to pay him any snm of money on my behalf, or because of any attorney’s lien which he may claim against said legacy. ’ ’ At the close of all the evidence the court entered an order dismissing the cause as to Pridmore, as executor and trustee, but not as an individual. No evidence was introduced that any sums of money due-to Schwartz were in the hands of Pridmore as an individual. All the evidence tended to show that Pridmore acted as an executor or as a trustee. Six days after the entry of the order dismissing Pridmore as executor and trustee, the court entered the judgment order appealed from. On the afternoon of that day Pridmore filed a special appearance as an individual for the “sole and only purpose of questioning the jurisdiction of this court to enter judgment against him individually,” and he moved the court to vacate the judgment, which motion was denied.

We will first consider the point urged by Pridmore that a trust estate protected by a spendthrift clause is not amenable either to the contracts of the beneficiary or to the claims of his creditors, including liens asserted by attorneys, so long as it is in the hands of the trustee. It will be recalled that clause 11 of the will provides that “no money or property payable or distributable by the trustee under the provisions of” the instrument “shall be pledged, assigned, transferred, sold or in any manner whatsoever anticipated, charged or encumbered by ” the beneficiary “or be in any manner liable in the possession of” the trustee “for the debts, contracts or engagements” of the beneficiary. The authorities in this State are uniform that the creator of a trust may secure the enjoyment of it to the objects of his bounty by providing that it shall not be alienated by them or become subject to be taken by the creditors. (Congress Hotel Co. v. Martin, 312 Ill. 318; Steib v. Whitehead, 111 Ill. 247.) In Baker v. Baker, 258 Ill. 418 (421), the Supreme Court states that when the notice claiming an attorney’s lien is served “it has the effect of an assignment of an interest in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and is such an assignment that the defendant or debtor is bound to respect.” The service of the notice of lien by McKeown therefore was tantamount to notice of an assignment. The spendthrift clause provides in clear language that no money payable of distributable by the trustee to Schwartz shall be pledged, assigned, sold or in any manner whatsoever anticipated, charged or encumbered, or be in any manner liable in the possession of the trustee for the - debts, contracts or engagements of Schwartz. This language is unambiguous. McKeown answers this contention by arguing that where the trustee of a spendthrift trust arbitrarily refuses to pay an indigent beneficiary his principal or income payments under the trust, and the beneficiary is compelled to employ an attorney on a contingent fee contract and by reason of the spendthrift provision the attorney is successful in a suit against the trustee and secures for the beneficiary his principal and income payments, the attorney has a lien on the proceeds thereof. It is not disputed that McKeown performed his services satisfactorily and with diligence. In support of his position McKeown cites the case of Williams v. Bischoff, 187 N. Y. 286. We are of the opinion that this citation is not applicable to the facts of the instant case. It is clear that Schwartz had no right to pledge or assign his interest in the legacy and that his creditors could not reach that interest. McKeown could have no greater right in the estate than Schwartz, his client. McKeown suggests that unless an attorney’s lien notice is effective as against a spendthrift clause, the beneficiary will be handicapped in retaining an attorney and in many cases denied a remedy against a corrupt trustee. In the instant case, the record shows that in the fall of 1934 petitioner sought and procured a construction of the testamentary trust. The chancellor could have allowed an attorney’s fee to the plaintiff in the case to be paid out of the corpus of the trust estate and in fact reserved jurisdiction for that purpose. The attorney’s lien act serves a good purpose. We are of the opinion, however, that the spendthrift clause before us was effective to prevent the assignment of any interest by the beneficiary, and that the attorney’s lien, which is in effect an assigmnent of an interest, cannot attach to such interest. We do not find any support for the argument that an assignment by a beneficiary for the purpose of protecting Ms attorney in his fees, of such beneficiary’s interest in a trust protected by a spendthrift clause, stands in a different category than other assignments.

Appellant assails the judgment by asserting that MeKeowu failed to prove a preponderance of the evidence that the contract was fair, equitable and just. We find that the relationship of attorney and client existed between Schwartz and McKeown prior to the time when the contract of hiring relied on in tMs case was entered into. It is well established that where a fiduciary relationship exists, the burden of proof is on the beneficiary of an instrument executed during the existence of such a relationship to show the fairness of the transaction, that it was equitable and just and that it did not proceed from undue influence. This rule applies to contracts between client and attorney made during the existence of such relationsMp and after-wards attacked by the client. Such contracts, if open, fair and honest, when deliberately made, are as valid as contracts between other parties. Important factors in determining whether a particular transaction is fair include a showing by the fiduciary (1) that he made a full and frank disclosure of all the relevant information which he had; (2) that the consideration was adequate; and (3) that the principal had independent advice before completing the transaction. (Masterson v. Wall, 365 Ill. 102.) In the case at bar no attempt was made by McKeown to show that the contract between him and Schwartz was fair and equitable in accordance with the rule laid down in the Masterson case.

Pridmore also argues that the action prosecuted on behalf of Schwartz by McKeown was not such a. “claim, demand or cause of action” a recovery upon which will serve as a basis for an attorney’s lien, and points out that thé statute gives attorneys a lien as to any money or property recovered on account of suits, claims, demands or causes of action. He states that in the instant case nothing was recovered; that the legacy of $10,000 payable on January 5, 1935, and again on January 5, 1940 was not questioned; that the will had been admitted to probate and the $10,000 would have come to him in any event, and that the only accomplishment of the complaint filed in 1934 was to determine the effect of the spendthrift trust clause. In the case of Standidge v. Chicago Rys. Co., 254 Ill. 524, an attorney’s lien case, the court points out that the word “recovered” is used in the sense of “received” or “come into possession of.” The record in the case at bar shows that it was necessary for Mc-Keown to file a complaint in chancery in 1934 in order to obtain the $10,000 for Schwartz. In that case Pridmore, as trustee, took the position that it was his duty to decline to pay the $10,000 because of the greater indebtedness owing to the estate by Schwartz. We find that by his ability and services as an attorney McKeown did recover $10,000 for Schwartz. By procuring a favorable decree McKeown also established the right of Schwartz to obtain $10,000 in 1940 and a like sum in 1945.

There is some confusion in the record as to the services for which McKeown seeks recovery. In his original complaint at law he included an intemized statement showing by dates the services rendered and the time consumed. All of the services so itemized, except 15 minutes spent in court on June 19, 1935, were rendered up to and including the day of the entry of the decree, May 22, 1935. This original complaint at law also sets out that since June 1935, MeKeown expended 100 hours, at the request of Schwartz, in examining six yearly reports of the trustee; that he expended in excess of 45 hours since June 1935, at the request of Schwartz, in ascertaining the rights of Schwartz and his creditors should Schwartz file a voluntary bankruptcy proceeding; that since June 1935, at the request of Schwartz, he expended 5 hours in consulting Pridmore relative to obtaining medical aid for Schwartz under a provision of the will; that since June 1935 he rendered services in behalf of Schwartz in defending an action brought by Pridmore, as executor, in the municipal court of Chicago, wherein Schwartz was charged with converting certain personal property alleged to belong to the estate of Josephine E. Springer, deceased; that he also commenced an action of replevin in the circuit court of DeKalb county in favor of Schwartz and against certain defendants for the recovery of certain personal property; that since July, 1936, he also expended 22 hours in disposing of other matters in controversy in the complaint filed in the circuit court on November 13, 1934. In the “petition to adjudicate attorney’s lien,” which superseded the “complaint at law,” MeKeown averred that he expended in excess of 388 hours in connection with his employment under the agreement with his client. In the course of the trial, the judge addressing Mr. Mc-Keown, said: “You were paid on the first $10,000.00, weren’t you?” He answered, “Yes.” The court then inquired, “Was that done by any proceeding in court?” and MeKeown answered, “No, that was done by my client and I when we got the money back in my office.” Most of the services about which MeKeown testified, however, concerned the case' filed in the circuit court of Cook county on November 13, 1934, and in which the decree was entered on May 22, 1935. The trial judge held that MeKeown was not entitled to recover from the trust estate for services rendered otherwise than in procuring a recovery of the $10,000 payable to Schwartz on his 35th, 40th and 45th birthdays. He held that the Attorney’s Lien Act applied only in so far as there was a recovery. The trial judge also held that the action was on the contract and was not for the recovery of the reasonable value of the services. The record shows that after the entry of the decree and the payment of the $10,000 thereunder, the trustee for a time maintained his position that he would have a right to levy on the payments at the time the money would be turned over to Schwartz. However, long before the next $10,000 payment became due, out of which MeKeown now seeks to enforce his alleged lien, Pridmore abandoned this position. Therefore, when Schwartz became 40 years of age on January 5, 1940, all the parties recognized that the decree entered on May 22, 1935 was res judicata as to the question there determined. Hence, the services rendered by MeKeown in procuring that decree settled the rights of the parties. In the instant case MeKeown claims that he is entitled to one-third of the $10,000 payable under the testamentary trust on January 5, 1940. If his position is correct, then logically he would be- entitled to one-third of each subsequent payment. The trial court pointed out that under such an interpretation of the contract, and had Schwartz lived until he became 55 years of age, MeKeown would recover a fee of $54,000. The court also pointed out that the recovery of such a fee would be unconscionable and that he would so hold. The court then stated that what MeKeown actually accomplished in behalf of his client was to have the chancellor construe the spendthrift clause in such a manner as to require the payments thereunder to Schwartz to be made without permitting the trustee to set oft the indebtedness which Schwartz owed to him. The trial judge consequently found that the maximum that MeKeown could recover would be one-third of the amount of the indebtedness of Schwartz to Pridmore, as trustee.

A further criticism levied at the judgment by Pridmore is that it is null and void for the reason that the court had no jurisdiction of his person. He declares that no valid judgment may be entered against a party who had not been served with process or who has not appeared, and that jurisdiction to render judgment against a person as an individual is not obtained by service upon or appearance by him in- a representative capacity. He points out that he was never served with process as an individual and that he did not enter an appearance. MeKeown and Maude E. Schwartz, as administratrix, reply that where an action is commenced at law against an executor or trustee and against the same person in his individual capacity, the words “executor” and “trustee” are descriptive of the person only and a personal judgment is the only judgment which can be rendered against him. In the case of Wahl v. Schmidt, 307 Ill. 331, 336, the Supreme Court said:

“In a court of law a trustee having the legal title to real estate, together with the right of possession, is regarded as the owner of the property, having all the rights and subject to all the liabilities of ownership. . . . The duties of the trustee as owner make him personally liable for torts committed by him or by the agents or servants in his employ. ... A trustee is not liable in his representative capacity for an injury caused by his negligence in the management of the property held in trust. . . . The common rule is that trustees are liable only for good faith and common prudence, and that if a loss happens to the trust fund in relation to which they have exhibited this care and prudence they may be allowed for the loss in their accounts. . . . The right to indemnity, however, is the right of the trustee, and the fact of his being able to secure indemnity from the estate does not make the trust estate liable directly to the person injured by the negligence of the trustee’s servants or agents.” In Flanagan v. First Nat. Bank of Chicago, 307 Ill. App. 495, the court said (500):

“It would seem to be just that if plaintiffs attempted to hold the First Trust in its individual capacity it should have been made a party defendant in this capacity.” In that case the court also said (501):
“Plaintiff’s brief cites many cases where a trustee or official in a representative capacity has assumed contractual obligations and where it has been held that a judgment at law rendered against him as trustee is a judgment against him individually. No cases are cited in which a decree in a court of equity rendered against a person specifically named as trustee under no contractual obligations has been held to be an individual judgment. ” It is obvious that if the judgment entered by the trial court is a valid judgment against Pridmore as an individual that he has the right to take credit for the amount thereof in accounting to the beneficiaries of the estate. That is in accordance with the views'of the Supreme Court in the Wahl case. Under the facts in the case at bar we are of the opinion that the parties should have followed the chancery practice and retained Pridmore as a party in his capacity as trustee. In this connection it will be observed that the lien notices served by MeKeown were directed to and served on Pridmore as trustee and executor.

The first point urged by Maude E. Schwartz, as administratrix of the estate of Schuyler Colfax Schwartz, Jr., deceased, is that the intervenor was improperly deprived of a jury trial. The only question of fact which was in dispute and which a jury could pass upon, was as to whether the contract was fair and equitable under the rule laid down in the Masterson case. We have held that MeKeown failed to make this proof. Inasmuch as that is the contention of Maude E. Schwartz, as administratrix, it is unnecessary to consider the point further. Maude E. Schwartz, as administratrix, urges that the judgment in her favor should be sustained, and that the balance on hand should be paid to her as administratrix. She points out that on January 5, 1940, it was the duty of Pridmore, as trustee, to pay $10,000 to Schwartz. He did pay $5,000 and retained the balance of $5,000. She agrees with Pridmore that the attorney’s lien claimed by MeKeown is invalid. She contends, however, that the $5,000 should be paid to her as administratrix and that Pridmore, as trustee, would then have the right to file his claim as a creditor in the probate court of Cook county. Pridmore argues that Maude E. Schwartz, as administratrix, should not receive any money from him as trustee, since the estate which she represents is indebted to him as trustee in a large amount and that the protection of the spendthrift clause is extended only so long as the beneficiary lives. The record shows that when Schwartz became 40 years of age on January 5, 1940, he was entitled to the sum of $10,000 and that the trustee gave him whatever sums he asked. Apparently, he requested only the $5,000, and at the time of his death the trustee had in his possession the remaining $5,000. Professor Griswold in his work on Spendthrift Trusts, page 83, says: “The chief justification of spendthrift trusts should be found in the protection they furnish to the beneficiary. He cannot be protected if he has died, and the restraint should accordingly be allowed only during his lifetime. After his lifetime Ms property should be held liable for debts.” We are in accord with that view. Pridmore, as trustee also maintains that he as a creditor of the estate of Schuyler Colfax Schwartz, Jr., is entitled to apply against his claim the money remaining in his hands as trustee, which was to have been paid to the decedent. Pridmore, as trustee, is a decree creditor to Schwartz in the sum of $46,328.39. He argues that the part of the judgment order which finds that the administratrix of Schwartz is entitled to recover, is erroneous, since he, as the creditor of the Schwartz estate, is entitled to set off or deduct from his claim against the estate any money owing by him to the estate. Section 60 of the Administration Act, chap. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.061], provides that every executor or administrator shall fix some return day for the adjustment of all claims against such decedent and shall publish a notice thereof as to when and where claimants shall produce their claims in writing, and if no objection is made to a claim by the executor, administrator, widow, heirs or others interested, and the claimant swears that such claim is just and unpaid, after allowing all just credits, the court may allow such claim without further evidence. In Printy v. Cahill, 235 Ill. 534, our Supreme Court held that it was the duty of the probate court to allow such credits as could be established by competent evidence. We are of the opinion that Pridmore, as trustee and as a creditor of the estate of Schuyler Colfax Schwartz, Jr., has a right to apply the money remaining in his hands as trustee in reduction of his claim' against the estate.

Because of the views expressed, the judgment of the circuit court of Cook county is reversed, the petitions of Edward P. MeKeown and Maude E. Schwartz, as administratrix of the estate of Schuyler Colfax Schwartz,- Jr., deceased, are dismissed, and judgment is entered here for costs for William T. Pridmore, as an individual, against Maude E. Schwartz, as administratrix of the estate of Schuyler Colfax Schwartz, Jr., deceased, to be paid in due course of administration, and against ■ Edward P. Mc-Keown as an individual.

Judgment reversed and judgment here.

Hebel and Denis E. Sullivan, JJ., concur.


text:
    In re Estate of Willis L. Lincoln, Deceased. Willis H. Lincoln, Appellee, v. John F. Cahill, Appellant.
    Gen. No. 41,641.
    Opinion filed June 25, 1941.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellant; Eugene P. Florsheim, of Chicago, and Don M. Peebles of counsel.
    James R. Class, of Chicago, for appellee; Herbert M. Lautmann and Louis I. Shapiro, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Willis Lauriston Lincoln, a resident of Chicago, married Ida Ohrnberger on October 1,1894. Willis H. Lincoln was born at Chicago, Illinois, on September 23, 1895, and was the only child of this union. The marriage was dissolved in a decree of divorce entered September 25, 1900. Willis H. Lincoln lived with his maternal grandparents from the time he was one until he was six years of age. After the divorce the boy continued to live at the home of his grandparents for about one year. Ida Ohrnberger Lincoln remarried about a year after the divorce and the boy then went to live with his mother and stepfather. He could not recollect having seen his father more than five or six times. He met his father at funerals of relatives and also saw him on some occasions at furniture auctions. After the divorce, Willis L. Lincoln married Jeannette Krullaars. No children were born of this marriage. He made a will on February 9, 1909, leaving all his property to his wife Jeannette, and $1 to his son Willis H. Lincoln. He nominated Jeannette as executrix of the will. He died at Chicago on July 17, 1938, leaving as his only heirs and next of kin his widow, Jeannette Gr. Lincoln, and his son, Willis H. Lincoln. Willis L. Lincoln, his widow and son had been residents of Chicago for many years and were residents of that city at the time of his death. Jeannette Gr. Lincoln, the widow, died at Chicago, on November 15,1939, leaving surviving as her only heirs and next of kin her brother, William J. Krullaars of Chicago, and a sister, Rieka Stedman of Laguna Beach, California. Shortly after the death of Jeannette, her brother, William J. Krullaars, was appointed administrator of her estate. The will of Willis L. Lincoln was discovered on December 1, 1939 and filed in the probate court on that day. During his lifetime Willis L. Lincoln did not have the reputation or appearance of a man of wealth. He did, however, leave a considerable estate. This was accumulated by him as a result of unusual ability in buying and selling real estate. Apparently, not even his wife suspected that he had accumulated a fortune. At the time of the funeral of Willis L. Lincoln, his son spoke to the widow Jeannette. She told him that his father did not leave a will or any estate, and that she “might have to go to California to live with her sister.” About a year after the death of his father, Willis H. Lincoln retained the services of a law firm to ascertain whether his father had left any estate. This law firm reported to him that no will had been filed and that no estate had been opened. He testified that he had a “normal curiosity to ascertain whether his father had left any estate.”

On December 4, 1939, Martin J. O’Brien, as public administrator, filed his petition in the probate court of Cook county for appointment as administrator to collect and was appointed. This was done without notice to Willis H. Lincoln or any other person. On December 5,1939, Martin J. O’Brien, as public administrator, filed his petition for appointment as administrator with the will annexed. Notice thereof was given to the surviving son, Willis H. Lincoln, who, on January 8, 1940, filed a petition for the appointment of William J. Krullaars as administrator with the will annexed. Both petitions were heard on March 14, 1940. The court granted the petition of Martin J. O’Brien as public administrator and appointed him as administrator with the will annexed of the estate and denied the petition of the son. From this order an appeal was perfected to the circuit court. On July 6, 1940, while the appeal was pending in the circuit court, Martin J. O’Brien died. On July 30, 1940, John F. Cahill filed his petition in the probate court, alleging that following the death of Martin J. O’Brien he was appointed public administrator of Cook county. He asked the court to appoint him as administrator with the will annexed and as administrator to collect. This petition was opposed by Willis H. Lincoln. On September 27, 1940, the probate court appointed John F. Cahill as administrator to collect and administrator with the will annexed de bonis non. An appeal was perfected from the latter • order. This appeal and the appeal from the order appointing Martin J. O’Brien, were consolidated and heard together by the circuit court. On the hearing in that court John F. Cahill, as public administrator, tendered and asked leave to file a petition setting forth his appointment by the probate court and praying that he be substituted as appellee in the appeal from the order of the probate court appointing Martin J. O’Brien. The petition set forth that Martin J. O’Brien had died, and that as a result there was no appellee in the proceeding in the circuit court. The petition further pointed out that the probate court, at the time of the appointment of Cahill as administrator with the will annexed de bonis non, had instructed him to appear before the circuit court and ask for leave to file such petition. The circuit court refused to grant leave to file the petition. The circuit court entered two orders. The first order found that at the time Willis H. Lincoln filed his petition for the appointment of William J. Krullaars as administrator, he was the sole surviving heir of decedent’s estate and was entitled to the first preference in the nomination of an administrator. This order granted the petition of Willis H. Lincoln and appointed William J. Krullaars administrator with the will annexed. The second order found that Krullaars had been appointed administrator with the will annexed and revoked the appointment of Cahill. John F. Ca-hill, as public administrator of Cook county prosecutes an appeal from these orders, and from the order denying him leave to file his petition praying that he be substituted as appellee in place of Martin J. O’Brien.

Appellant insists that the appointment of O’Brien as administrator with the will annexed was proper. He calls attention to the provisions of section 1 of the Administration Act (sec. 1, ch. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.001]), to support his statement that due to the death before probate of the executrix named in the will the estate is regarded as intestate for the purpose of selecting an administrator. He urges that if none of the relatives entitled to preference in administration of an intestate estate file a petition for letters within sixty days after death, the administration of the estate should be committed to the public administrator if he filed application therefor prior to the filing of any application by any heir, and relies on the language of section 18 of the Administration Act (sec. 18, ch. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.018]) that “Preference and the right to nominate under this Act must be exercised within sixty days from the death of an intestate, at the expiration of which time administration shall be granted to the public administrator.” Appellee replies to this argument by saying that a son of the deceased, or his nominee, has preference over the public administrator to administer on his father’s estate, when application is made by the son for letters prior to the time the estate is committed to the public administrator. He leans heavily on the case of Dupee v. Follett, 304 Ill. 166. From a perusal of that case it appears that Sarah A. Dupee, a resident of La Salle county, died intestate February 20, 1920. At the time of her death she owned two residence properties, eight vacant lots and personal property of the value of $500. No petition for letters of administration was filed by anyone until July 28, 1920, when Frank W. Dupee, a son, filed a petition for his appointment as administrator. Frank Follett, the public administrator of the county, objected to the letters being granted and asked that letters of administration be granted to him as public administrator. The probate court denied the petition of Dupee to be appointed as administrator, and allowed the petition of Follett. On appeal to the circuit court the appointment was sustained. The order was then affirmed by the Appellate Court. The Supreme Court, however, held that it was error to deny the application for the appointment of the son as administrator, reversed the judgment of the Probate, Circuit and Appellate Courts and remanded the cause to the pro-, bate court with directions to set aside the appointment of the public administrator and to grant letters to the son. Follett contended that the children having failed to nominate someone as administrator within sixty-days after the death of their mother, it was the imperative duty of the probate court to grant the petition of the public administrator. The Supreme Court said (168):

“We cannot agree that the statute is mandatory in all cases where the heirs have not exercised their right within sixty days. ... If the deceased leaves relatives in this State who will administer, and they seek to do so before the public administrator is appointed, they have the right to do so even though they did not attempt to exercise that right within sixty days. . . . The office was created for the benefit of such estates, and if the heirs apply for letters of administration before application is made to commit the administration to the public administrator, although more than sixty days have expired since the death of the intestate, letters should be granted to them or to the person they nominate. It was the clear intent of the legislature that relatives and creditors of the intestate should be preferred to the public administrator, as evidenced not only by the plain language of section 18, but also of sections 19, 46 and 48. If none of the eight preferred classes apply for letters within sixty days from the death of the intestate then the administration may be committed to the public administrator, but if the heirs apply for letters before the estate is committed to the public administrator, it was never intended that he should, by objecting, secure letters to himself.” Appellant calls attention to the language of the Supreme Court that “if the heirs apply for letters of administration before application is made to commit the administration to the public administrator, although more than sixty days have expired since the death of the intestate, letters should be granted to them or to the person they nominate,” and argues that in view of the fact that O’Brien made application to commit the administration to himself as public administrator before Willis H. Lincoln applied for letters of administration for Krullaars, he (appellant) should prevail. We have carefully studied the opinion in the Dupee case and are of the opinion that the language used by the Supreme Court leaves no room for argument. That opinion, states in clear language that “if the deceased leaves relatives in this State who will administer, and they seek to do so before the public administrator is appointed, they have the right to do so, even though they did not attempt to exercise that right within sixty days,” and that “if the heirs apply for letters before the estate is committed to the public administrator, it was never intended that he should, by objecting, secure letters to himself.” In the instant case, O’Brien made application on December 5, 1939, and Willis H. Lincoln made application on January 8, 1940. Both applications were heard together. The application of the son was filed before the estate was committed to the public administrator, and under the ruling of the Supreme Court in the Dupee ease the son had the right to nominate the administrator and the public administrator could not “by objecting, secure letters to himself.”

The second criticism leveled at the judgment of the circuit court is that upon the death of O ’Brien and the appointment of Cahill as public administrator, the latter was entitled to be appointed administrator with the will annexed de bonis non in place of O’Brien. On the preceding point we have held that O’Brien’s appointment by the probate court was invalid, and that the court should have granted the petition of Willis H. Lincoln. Our views on that point dispose of the case and make it unnecessary for us to consider the second point.

For the reasons stated, the orders of the circuit court of Cook county are affirmed.

Orders affirmed.

Hebel and Denis E. Sullivan, JJ., concur.