author: Mr. Justice Wilson

text:
    Otto Benner et al., on appeal of Otto Benner, Appellant, v. Mary Lee Colbert et al., Appellees.
    Gen. No. 32,222.
    Opinion filed February 23, 1928.
    Gustav E.'Beerly, for appellees; C. D. Fithian, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The bill of complaint filed in this cause on April 23, 1925, recites that Otto Benner and Harold E. Durham, of the city of Chicago, are parties complainant; that on the last day of May, 1914, Louis B. Beardslee and Eleanor C. Beardslee, his wife, executed their note in the sum of $500 with interest at 7 per cent, payable to the makers and by them indorsed and delivered; that to secure said note they gave a certain trust deed to Adolph L. Benner, trustee, and Harold E. Durham, successor in trust, to a certain lot known as lot 11 in block 1, of the subdivision of lot 1 in the Circuit Court Partition, etc., and that said trust deed was filed of record in May, 1914. This trust deed provided, in the event of the death of Adolph L. Benner, then Harold E. Durham should act as successor with like powers. The bill recites that Adolph L. Benner died May 20, 1921, and default was made in the payment of the principal note and that certain taxes were advanced by Otto Benner, complainant, and prays for foreclosure and for a writ of summons against Beardslee and his wife and one Max E. Hagan is made party defendant. To this bill the answer of the defendants Beardslee and his wife was filed and later a motion was made by Mary Lee Colbert and Mildred D. Benner that they be permitted to become co-complainants, which motion was allowed. The affidavit filed in support of said motion stated that one Gustav A. Benner during his lifetime was the owner of said note; that he died in 1918, leaving as his only heirs at law his brothers, Otto Benner and Adolph L. Benner; that the estate of Gustav A. Benner was probated; and that Otto Benner, complainant herein, and Adolph L. Benner were each entitled to an undivided half interest in said estate; that Adolph Benner during his lifetime paid various sums on account of taxes; that Adolph L. Benner departed this life in May, 1921, leaving a last will and testament, appointing Mary Lee Colbert and Mildred D. Benner as executrices and trustees.

On December 30, 1926, leave was granted to Mary-Lee Colbert and Mildred D. Benner to file their.supplemental bill within five days and Otto Benner was ruled to answer the same within ten days thereafter. The supplemental bill charges that since the filing of the original bill Otto Benner obtained a quitclaim deed to the premises described in the bill of complaint, from one Henry H. Mahler and wife who were holders of the outstanding legal title by deed bearing date of April 30, 1924; that the grantee in said deed was one Max E. Hagan; that the said Hagan took title to said property on behalf of the original complainant Otto Benner and held same for his use and benefit. The supplemental bill further charges that in June, 1925 (after the filing of the original bill herein), without the knowledge or consent of complainants, Otto Benner induced Hagan to enter into an agreement to sell the property to one William P. Gorman; that an agreement ivas, entered into for that purpose, between Hagan and Gorman; that the sum of $2,339.49 was deposited in escrow with the Chicago Title & Trust Company for the purpose of carrying out said agreement, and at the same time a warranty deed was deposited by Hagan conveying said premises to Gorman. Otto Benner was made party defendant to the supplemental bill, to which he filed a demurrer, which was overruled, and a rule entered upon him to answer the supplemental bill; and upon his failure to do so, the supplemental bill was taken as confessed against the said Otto Benner. On February 24, 1927, the court entered a decree finding the facts as set up in the supplemental bill of complaint, and ordered that the complainants in the supplemental bill of complaint recover of and from the said Otto Benner the sum of $1,150 with the costs of the suit, the same being the amount due them by reason of their one-half interest in the note and mortgage aforesaid. From this decree the original complainant Otto Benner prayed an appeal to this court.

There appears to be no dispute concerning the facts. Hagan admitted on the stand that he held the title for Otto Benner and that he put up a deed with the Chicago Title & Trust Company for the purpose of carrying out the agreement with Gorman. The agreement between Max E. Hagan and Gorman, represented by the Ellinwood Realty Company, in said transaction, was proven on the trial before the chancellor.

It is apparent that the original complainant Otto Benner, at the time of the filing of his original bill, was aware of the one-half interest in said note and mortgage, belonging to Mary Lee Colbert and Mildred D. Benner, as executrices of the last will and testament of Adolph L. Benner, deceased. For some reason, best known to him, they were not made parties to the original bill, although it cannot be doubted that their interest was known to him at the time of the filing of said bill. The equities in the proceeding are with the complainants in the supplemental bill, and the only question presented to this court for consideration is whether or not the permitting of the filing of the supplemental bill was proper, and whether the complainants in said bill were entitled to the relief granted by the decree.

It appears from the record that the obtaining of the title by Benner from Henry H. Mahler and his wife, in the name of Max E. Hagan, for his use, was unknown to the complainants in the supplemental bill, and that the agreement between Hagan and Gorman, entered into in June, 1925, was after and subsequent to the filing of the original bill in this cause. The matters set up in the supplemental bill were germane to the issues in the cause, and the complainants in said supplemental bill were entitled to ask for other and different relief from that prayed for in the original bill, by reason of the change of circumstances caused by the original complainant, Otto Benner. It is a well recognized rule that equity will settle all matters properly before it, growing out of the same transaction. It is also a recognized rule that where facts occur after the filing of the original bill, in regard to the subject matter, the court will extend its relief in order to care for the newly arisen conditions.

The Supreme Court of this State in the case of Miller v. Cook, 135 Ill. 190, in its opinion at page 204, says:

“It is claimed that the supplemental bill is not based upon the same grounds that the original and amended bills were based on; that the case made by the supplemental bill has no connection with the original cause of action, and lends it no support; and that the rule is, that when an original bill shows no ground for relief, it cannot be aided by a supplemental bill, setting up matters that have arisen since the filing of the original bill. The rule, as we understand it, is well stated by Chancellor Walworth in Candler v. Petit, 1 Paige’s Ch. 168, and is, in substance, that if an original bill is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental bill, founded upon matters which have subsequently taken place; but that if the original bill is sufficient for one kind of relief, and facts afterwards occur which entitle the complainant to other and more extensive relief, he may have such relief by setting out the new matter in a supplemental bill.” To the same effect is Albert Pick & Co. v. Natalby, 211 Ill. App. 486.

The parties in this cause in equity owed an obligation to each other to disclose what, if anything, was being done in regard to the collection of the note and the sale of the property in question. Fair dealing would require that neither should buy the property without the acquiescence of the other. The Chicago Title & Trust Company, in whose hands the fund appears to have been placed by reason of the contract of sale and purchase, were not parties to this suit, and the learned chancellor in his decree provided that the original complainant, and defendant to the supplemental bill,'should be decreed to pay the amount justly due the complainants in the supplemental bill; and entered judgment accordingly against him and execution to issue thereon. No point is made in the brief by the original complainant herein to the propriety of the entry of said judgment in satisfaction of the decree, and it is therefore not before us for consideration.

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

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Blanche Jett, Appellant, v. E. B. Jacobs et al., Appellees.
    Gen. No. 32,264.

      Opinion filed February 23, 1928.
    Robert H. Holmes, for appellant.
    Henry M. Hagan, for appellee E. B. Jacobs.
   Mr. Justice Wilson

delivered the opinion of the court.

The judgment had not been paid and there was no error in permitting the plaintiff in the forcible entry and detainer suit to have both the property and the appeal bond as -security. The property was held in the original suit as security for the judgment, and until that was satisfied he was entitled to possession of the property under the original distress action.

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

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.


author: Mr. Presiding Justice Matchett

text:
    Harriett Flynn Boyle, Appellant, v. John M. Smyth Company et al., Appellees.
    Gen. No. 31,302.

      Opinion filed February 27, 1928,

      Edward J. McArdle, Jr., for appellant; Edward J. McArdle, Sr., of counsel.
    Hamilton Moses, for William P. Smyth, appellee.
    McCulloch & McCulloch, for adult defendants except William P. Smyth.
    Weightstill Woods, pro se, guardian ad litem, for minor defendants.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The subject matter of this litigation is 729 shares of the capital stock of the John M. Smyth Company, a corporation, and certain dividends declared thereon.

Harriett Flynn Boyle, appellant, claims this property as sole legatee under the will of her sister, Mary Flynn Smyth. The children of Thomas M. Smyth and Mary Flynn Smyth, his wife, namely, William P. Smyth, Jane Ann Smyth, Rosalie Smyth and Thomas M. Smyth, claim this property by virtue of the power given to their father, Thomas M. Smyth, to dispose of the same under the terms of a certain trust agreement executed on November 24,1913.

Harriett Flynn Boyle is the executrix of the will of Mary Flynn Smyth. She filed her supplemental bill, praying that the trust agreement of November 24,1913, inight be adjudged null and void; that the trustees thereof should be decreed to hold the stock for her as absolute owner; that she might have an accounting of the dividends, a construction of the will of Mary Flynn Smyth and other relief.

The defendants answered, denying the equity of her bill. William P. Smyth, Jane Ann, Rosalie, Thomas *M., and the executors and trustees under the will of Thomas M. Smyth, and the trustees under the trust agreement, filed cross-bills averring that a receipt for the stock in question, delivered to Mary Flynn Smyth in her lifetime, had been issued without authority and by mistake and certain dividends inadvertently and wrongfully paid to Mary Flynn Smyth. Their cross-bills prayed that it might be so adjudged and the property returned to the trust.

The cross-defendant answered, and after a hearing before the chancellor a decree was entered that the bill of Harriett Flynn Boyle, in so far as it prayed relief in her personal capacity, should be dismissed for want of equity, but that, as executrix of the estate of Mary Flynn Smyth, Harriett Flynn Boyle should retain the receipt which was dated December 31, 1919, subject to the further orders of the court relative to the application of the guardian 'ad litem for fees and to the interests of the minors during their minority; that, upon the completion of her duties as the executrix of Mary Flynn Smyth, Harriett Flynn Boyle, in so far as the said receipt remained “after the payment primarily, there out of the debts of said Mary Flynn Smyth, deceased, and costs and expenses of administration in due course of administration and guardian ad litem’s fees, transfer, set over, and assign and deliver the said receipt or certificate of interest or any interest so remaining, to the said William P. Smyth and the said minors, Thomas M. Smyth, Jane Ann Smyth and Rosalie Smyth, in equal parts.”

The decree also ordered that the John M. Smyth Company pay to Harriett Flynn Boyle as executrix the sum of $29,889 for dividends on the 729 shares of stock, payable since the death of Mary Flynn Smyth; that dividends that might thereafter be declared upon the stock until distribution was made in the Estate of Mary Flynn Smyth, should be paid to Harriett Flynn Boyle as executrix, and that these dividends, in so far as the same were not required for payment of claims and costs and expenses of administration should be delivered to William P. Smyth and the three minors.

• The complainant assigns as error the dismissal of her bill in so far as it asked individual relief. Her appeal has been docketed in this court as general number 31302. The trustees under the agreement of November 24,1913, the executors and the trustees under the will of Thomas M. Smyth, and John M. Smyth Company, jointly and severally appeal from the decree. Their appeals have been docketed in this court as general number 31303, post, and the causes have been consolidated for hearing.

The facts are not disputed. John M. Smyth Company, a mercantile corporation, was organized and successfully conducted by the late John M. Smyth in his lifetime. It has a capital stock of $1,000,000, consisting of shares of the par value of $100 each.

John M. Smyth was the father of Thomas M. Smyth, John M. Smyth, Jr., William P. Smyth, Mary A. Smyth Nelson, Jane F. Smyth Patera, Sarah B. Smyth Wales, Loretta Smyth Wehr and Ellen Smyth Nacey. These children survived him and each became the owner of 1,250 shares of the capital stock of the corporation. Differences arose among the eight children with respect to the management of the corporation. Three of the daughters, Sarah, Loretta and Ellen, disapproved of the views of the other five, Thomas M., John M., Jr., William P., Mary and Jane, and these five entered into the written trust agreement of November 24, 1913. In brief, this writing provided that these five, as owners of the stock of the corporation, describing themselves as “subscribers,” agreed that they would turn over, deliver and deposit with themselves as trustees all of the capital stock of the corporation then owned or thereafter acquired by them during the life of the agreement; that the complete legal and equitable title was thereby transferred and assigned to the trustees for the purposes of the trust; that the trustees should cause the certificates of stock to be transferred upon the books of the corporation to the names of the trustees; that assignments of certificates, proxies and powers of attorney should also be given.

Each depositor was to receive a receipt for his certificate in the form specified. This receipt stated that it was not negotiable or transferable, but it was agreed, notwithstanding this provision, any subscriber might sell stock deposited to any other subscriber, subject to the terms and conditions of the agreement, and that in such case the trustees would issue a similar receipt to such purchaser. The dividends declared and paid upon the stock deposited were to be collected by the trustees and immediately paid to the receipt holders. Certificates for any stock dividends were to be deposited with the trustees to be held under the terms of the agreement and similar receipts issued therefor. Upon the termination of the trust the stock was to be delivered to the receipt holders. The trust agreement bound the trustees, their successors, and the subscribers, their executors, administrators, legal representatives and assigns. It was to continue in force for the period of 20 years and by later agreement extended at the option of the parties to 50 years. There were other provisions which are more specifically stated later.

On January 11, 1914, William P. Smyth, one of the subscribers, died testate leaving neither child not wife. His will directed that his beneficial interest under the trust agreement of November 24, 1913, should be held by his executor and trustee for the male children of his brother, Thomas M., and the male children of his sister, Jane F. Smyth Patera. Thomas M. Smyth was named as executor and trustee and qualified.

The only male children of Thomas M. Smyth are the defendant and cross-complainant William P. Smyth, and his brother, the defendant Thomas M. Smyth, Jr. The only male child of Jane F. Smyth Patera is the defendant Edward Smyth Patera.

Thomas M. Smyth departed this life testate June 29, 1917, and thereupon Frank Q-. Nelson succeeded to his trusteeship under the will of William P. Smyth.

His will bequeathed and devised unto his “beloved children, * * * all of my property, real, personal and mixed, that I may be possessed of at the time of my death, subject to the further provisions of this will which creates a trusteeship for them.” The will gave to his wife, Mary Flynn Smyth, free of inheritance taxes, for the period of her life, one-half of the net income from his estate and directed the balance to be divided equally among his children for their support and education, subject to the approval of his executors and trustees. He named as executors and trustees under his will Mary Flynn Smyth, John M. Smyth, Mary A. Smyth Nelson, Jane F. Smyth Patera and Frank Gr. Nelson. There were provisions that when his sons attained the age of 25 years they should automatically be made additional trustees. The will gave to the executors or trustees power by a majority vote to fill vacancies in their number and power to decide all questions of whatsoever nature affecting his estate.

The will specifically directed that his estate should be held together in trust until the death of his widow and thereafter during the lifetime of his daughters. There were other provisions which will be hereafter specifically set forth.

The will was admitted to probate; the executors and trustees accepted and qualified.

On January 29, 1923, Jane F. Smyth Patera died testate leaving her surviving Edward Patera, her husband, and Edward P. Smyth Patera and Jane Karolyn Patera, her children, her only heirs at law and next of kin. She devised to her husband, Dr. Edward Patera, that portion of the estate which would go to him under the laws of the State of Illinois and the rest to her .trustees to hold, invest, and pay such portion of the net income as they might deem proper for the support, maintenance and education of her children until May 1, 1940, at which time, if her children were living, her estate was to he turned over to them, or in the event of their death without issue, to her heirs. The will named as executors and trustees Dr. Edward Patera, John M. Smyth, Mary A. Smyth Nelson and Frank G-. Nelson. At the time of her death Jane F. Smyth Patera held the receipt of the trustees under the agreement of November 24, 1913, for 2187% shares of the stock of the John M. Smyth Company.

The husband did not retain any part of her estate for his own use. He transferred all his rights in her property under the will to trustees to pay the net income to himself during his life and after, his death to the children of Jane F. Smyth Patera until the time provided in the trust agreement of November 24,1913, for distribution of the trust estate, and then to deliver the same with accumulations thereof to the said children.

. At the time of the execution of the trust agreement of November 24, 1913, all the parties to it Imew of the intermarriage of Thomas M. Smyth with Mary Flynn Smyth. Thomas M. Smyth at his death owned and held the receipt of the trustees under said agreement in the form therein prescribed for 2187% shares of the capital stock of the John M. Smyth Company.

On October 29, 1918, Mary Flynn Smyth filed in the office of the clerk of the probate court her renunciation of the will of Thomas M. Smyth. This renunciation states that she renounces all claim, benefit or interest under the will and elects to take in lieu thereof under the statute.

The surviving trustees under the trust agreement of November 24,1913, on December 31,1919,'delivered to Mary Flynn Smyth a receipt or certificate of interest which recited that Thomas M. Smyth was the holder at the time of his death of a receipt for 2187% shares of the capital stock of the John M'. Smyth Company issued under the agreement of November 24,1913. The receipt recited the execution of the will of Thomas M. Smyth, the provisions therein for the benefit of his wife and her renouncement thereof. It further recited that by reason thereof she was entitled to one-third of the personal property of the decedent; that a partial distribution of the estate was about to be made; that the executors had delivered up for cancellation the receipt issued to Thomas M. Smyth in his lifetime and requested the trustees to issue in lieu thereof other receipts described in clause 4 of the trust agreement of November 24, 1913; that the trustees acknowledged that they received from Thomas M. Smyth in his lifetime and held for his wife, Mary Flynn Smyth, 729 shares of the capital stock of the John M. Smyth Company, which certificates were deposited and receipts issued therefor and held pursuant and subject to the agreement of November 24, 1913. This receipt also expressly stated that it was not negotiable or transferable.

On the same date Mary Flynn Smyth gave to the executors a written receipt which stated that the same should not be deemed or taken to be a waiver of any rights that she might thereafter have in relation to the trust agreement or in relation to the 729 shares of the capital stock, except as the instrument acknowledged a partial distribution in the estate of her deceased husband.

During her lifetime thereafter Mary Flynn Smyth received $16,163.14 as dividends from the 729 shares of the capital stock mentioned in the receipt, and she retained possession of the receipt until the time of her death. It thereafter came into the possession and. is now in the possession of the complainant, Harriett Flynn Boyle.

Mary Flynn Smyth died at Chicago, Illinois, April 21,1924, leaving her surviving her children, William P. Smyth, Thomas M. Smyth, Jane Ann Smyth and Rosalie Smyth, who are also the children of her deceased husband, Thomas M. Smyth, her only heirs at law and next of kin. She left a last will and testament which has been duly probated. The second clause thereof provides:

“I will, devise and bequeath all my property to my sister, Harriett Flynn Boyle, wife of James T. Boyle of Chicago. I make this provision for my sister to the exclusion of my children knowing that their material welfare is amply provided for in the wills of their uncle, William P. Smyth, deceased, and their father Thomas M. Smyth, deceased, and believing that the provision I here make for my children’s aunt will be accepted by them as a small tribute to their aunt for the many acts of kindness and devotion she has shown them.”

Suit was brought in the superior court of Cook county to contest this will. That suit has been dismissed. The will was admitted to probate on June 30, 1924. It named Harriett Flynn Boyle as executrix.

On April 1, 1925, John M. Smyth, Mary A. Smyth Nelson and William P. Smyth were the trustees under the trust agreement of November 24, 1913. On that date John M. Smyth and Mary A. Smyth Nelson were the sole survivors of the persons who signed the receipt or certificate dated December 31, 1919.

On that date the complainant made a demand in writing upon the surviving and then trustees of the trust agreement and upon the officers and directors of the John M. Smyth Company that they deliver up to her the certificate for said 729 shares of stock to be surrendered for reissue to her as executrix, or that the same should be canceled and surrendered to the company and that there be issued to her as executrix a new certificate therefor; that they account to her and pay over to her all dividends received on the stock after the death of Mary Flynn Smyth and all dividends received after the appointment of William P. Smyth as trustee. She demanded the privilege of examining the books of the company, and she exhibited a copy of her letters testamentary.

(1) It is the contention of William P. Smyth and his minor brother and sisters that, as to the receipt for this stock, Mary Flynn Smyth died intestate. On this point the briefs of the parties cite innumerable cases.

They are agreed that the supreme object of the construction of a will must be to ascertain the intention of the testator as expressed in the will when not contrary to public policy or some rule of law. Himmel v. Himmel, 294 Ill. 557, 558; McClure v. McClure, 319 Ill. 271. They cite cases holding that every clause and provision of the will should be given effect (Eyer v. Williamson, 256 Ill. 540; Wells v. Dalies, 318 Ill. 301); that later clauses in the will control previous ones (Drager v. McIntosh, 316 Ill. 460); that the law favors the heirs and that heirs are not to be disinherited by conjecture but only by express words or necessary implication (Smith v. Garber, 286 Ill. 67, 72; Pontius v. Conrad, 317 Ill. 241); and that this rule will be applied, although the result is to cause the estate or part of it to pass as intestate property (Miller v. Worrall, 62 N. J. Eq. 776, 48 Atl. 586; Lynes v. Townsend, 33 N. Y. 558); that the presumption is that it is the testator’s intention that the will should speak from death (In re Thompson, 217 N. Y. 111; Peters v. Spillman, 18 Ill. 370; Woman’s Union Missionary Soc. of America v. Mead, 131 Ill. 338); that subsequent words not imperative and not equivalent to a command cannot control a plain and clear absolute bequest preceding them; that words cannot be supplemented or aided by extraneous facts or circumstances to import into the will an intention not expressed on its face (Bingel v. Volz, 142 Ill. 214; Engelthaler v. Engelthaler, 196 Ill. 230; Greenwood v. Greenwood, 178 Ill. 387), and that where there is no ambiguity, the writing itself is the sole criterion of the intention it expresses. McCormick v. Sanford, 318 Ill. 544.

A consideration of these and many other cases demonstrates the utility of another rule expressed to the effect that decisions upon will construction cases are of less value as guides or authorities than is the case in any other subject of the law, and that each will must be construed in the light of its particular phraseology and the facts and circumstances surrounding the testator at the time of its execution. A few of the cases in which this thought has been expressed are Boyd v. Strahan, 36 Ill. 355, 259; Miller v. Wick, 311 Ill. 269, 277; Alford v. Bennett, 279 Ill. 375, 384.

Conflicting as many of the cases seem to be, we think it can be stated, as a result of a consideration of all of them, that evidence extraneous from the will may be received for the purpose of showing the intention of the testator as expressed in the language of the will, either for the purpose of identifying the particular property devised or the particular person to whom the devise is made. We think, too, the latest decisions of our highest court indicate a disposition to a more liberal interpretation of the general rule as to extrinsic evidence to' the end that the intention of the testator may be ascertained, as also a disposition to hold that the statutory right of the heir to succession cannot be superseded except by testamentary disposition which is unambiguous and clear to that effect. Desmarteau v. Fortin,, 326 Ill. 608; Wahl v. Schmidt, 237 Ill. App. 372.

Was it the intention of Mary Flynn Smyth to bequeath this stock to Harriett Flynn Boyle? It will be helpful in deciding that question to place ourselves in the position of the testator at the time she executed the mil. This was five days after the will of her husband had been admitted to probate. We know from the words of the will who the persons were she deemed herself obligated to consider. These were her sister, Harriett Flynn Boyle, and the testator’s four minor children, two boys and two girls. The testatrix says that William P. Smyth, the children’s uncle and a brother of their father, had made a will in which they were remembered. The will of the uncle provides for the boys out of the trust stock but it gives nothing out of it to the two girls, Jane Ann and Rosalie. We also know, because she says so, that she had in mind not only the will of Uncle William but the will of the father, Thomas M. Smyth, and presumably she was acquainted with its terms. This will created a trusteeship for the wife and the four children and gave to the wife one-half of the net income. The remainder of the income was bestowed upon the wife and afterwards it was all to go to the children. She had not at that time renounced the will. We think it is fair to presume that she did not at that time regard the property disposed of by the will of her husband as her own property. However clear the will may be in other respects, it is certainly ambiguous with respect to the amount of property which it was the intention of the testatrix to bestow on Mrs. Boyle, and is rendered so by the language which' describes the bequest to her as a “small tribute.” This phrase may have been used to convey the idea that the property left to Mrs. Boyle was trivial in amount or that the testatrix thought that even a large amount of property would be a “small tribute” for the “many acts of kindness and devotion” shown by the aunt to the children. The extrinsic evidence does not clear up this ambiguity. The record is silent in so far as disclosing what was the nature of the acts of kindness which the testatrix thought would lead the children to approve oí this bequest. All that is disclosed in this matter is what the will says, and that is that these acts of kindness were “many.”

If we assume that the property here in controversy belongs to the children by virtue of the trust agreement and appointment under the father’s will, then the amount of property which the testatrix owned at the time she made her will could reasonably be said to answer to the description of “small.” On the other hand, if the construction for which Mrs. Boyle contends is accepted, the bequest could not be considered as “small.” In fact, the effect of this construction would be to give to the aunt substantially one-third of all the property which Thomas M. Smyth held in his lifetime, leaving two-thirds to be divided among the four children and giving to each of them one-sixth of the whole. In so far as the boys were concerned, it might possibly be said that the testatrix could do this “knowing that their material welfare is amply provided for in the wills of their uncle, William P. Smyth, deceased,” for the boys were to receive very substantial legacies out of this trust stock under the terms of their uncle’s will; but this would not be true as to the girls, who (if we accept the construction for which appellant contends) would receive practically only one-sixth of the property which the father intended they should have, while there would be bestowed upon the aunt, Mrs. Boyle, one-third of the entire amount. It is difficult to believe, considering all the language of this bequest and the circumstances, that it was the intention of the testatrix to thus discriminate against her minor children.

The will also states that the testatrix believes that the provision she was making for the aunt would be approved by the children. It is apparent by this clause that she was appealing to their mature judgment as to the righteousness of the disposition she was making. It is difficult to believe that the mother would think that the mature judgment of the children would accept and approve of a provision, the net result of which was to bestow upon her sister and their aunt twice as much of the whole property of the family as either of the two daughters was to receive. It is undoubtedly true, as Mrs. Boyle contends, that the term “my property” or the phrase “all my property,” is broad enough, as construed in many cases, to cover the entire estate of the testatrix and all property of which she might die either seized or possessed, but the will does not say so, and, when we put ourselves in the position in which the mother was, it is difficult to believe (considering the language of the will, the extrinsic documents to which she refers, and the whole situation in which she was placed) that such disposition was intended.

On the other hand, if we adopt the construction for which the children contend, namely, that by the phrase “all my property,” the testatrix meant to bestow only the property which was recognized to be her own as distinguished from that which was her husband’s, she might well have appealed to the children to accept such a provision as a “small tribute” to their aunt. Such gift she might well have made, knowing that the material welfare of her children had been amply provided for by the wills of their uncle and father. This construction does no violence to the language used by the testatrix. It removes the objection that these infant heirs would be entirely disinherited by an ambiguous and uncertain provision of the will of their mother. We think that the will, properly construed, does not indicate it was the intention of Mary Flynn Smyth to bestow the property represented by this receipt upon Mrs. Boyle.

However this may be, we think such a construction is rendered imperative by another consideration. By the terms of the trust agreement, the stock represented by the receipt which was held by Mary Flynn Smyth had been transferred expressly to trustees. She did not have the receipt at the time she made her will. She obtained it later, and from that date until she died it affirmatively appears that she had knowledge of its contents. If we could assume that she had any right of property in this stock which it was possible for her to bequeath, we must in fairness also presume that she had knowledge of the title of that property. We must therefore assume that she not only had knowledge of the contents of her husband’s will but that she knew of the terms and provisions of the trust agreement under which the stock had been deposited with the trustees and all legal and equitable title of the same transferred to’them for the uses and purposes set forth in the trust agreement.

Irrespective of technical legal propositions, she could not suppose, either by virtue of the will of Thomas M. Smyth or by reason of her rights under the statute, that the property could be considered as hers.

It is apparent, therefore, that in order to reach the conclusion that Mary Flynn Smyth by the term “all my property” meant to confer the interest in this stock, we must conclude that at the time she made her will she was of the opinion that the trust agreement was either void or revocable. There is no evidence that she so regarded it. On the contrary, she received her receipt for an interest under the terms of the trust, and neither she nor any of the other interested parties, with the exception of Mrs. Boyle, has ever sought to revoke the trust agreement or assume an attitude of hostility towards it. The decree finds (and everything in the record indicates that the finding is right) that it is not to the interests of the minor defendants and cross-complainants to revoke that trust, and that no one. with the right so to do has ever attempted to revoke it. Assuming, therefore, as we must, that Mary Flynn Smyth had knowledge of the trust at the time her will was executed and (as the evidence affirmatively establishes) that she had positive knowledge of the provisions of the trust after making her will and before her death, and that she at all times approved of and acted under its provisions, we think it is impossible to construe her general devise of all her property as intended to cover this property which she may be presumed to have considered not her own and which in fact did not belong to her.

Mrs. Boyle further contends, however, that Thomas M. Smyth, notwithstanding any provisions of the trust agreement with reference to the legal title, was the equitable owner at death of the 2187% shares of stock in the John M. Smyth Company which he had transferred to the trustees. She says that it does not matter that the writing says that it transferred the entire legal and equitable estate; that Thomas M. Smyth was as much the owner of the entire beneficial interest in the stock the day after and up to his death as he was the day before he executed the document; that the trustees took no right of ownership except the bare legal title; that they were “a mere depositary”; that the grant would be void without a beneficiary but that there was a beneficiary — “Thomas M. Smyth and no one else”; that he took the dividends; that he had a supposed power of sale; that he had the power to bequeath, and that, if clause 4, hereinafter quoted, had any effect, he had the power to appoint; that if he did not bequeath or appoint, his next of kin took it. Mrs. Boyle says, ‘ ‘ That is surely about all the power, short of holding the legal title, a man can well have over property”; that if the language used in Thomas M. Smyth’s will — “I bequeath all my property” — does not limit the will’s operation to property actually his own, but because of its general character can extend to, and. be held to be, an execution of a power, such application could exist only upon the theory that the testator was clothed with power to treat the stock in his will as his own; that if he could treat it in his will as his own, it would be treated in law as his own and has inhering to it all the incidents of property actually his to which the rights of his widow would attach.

She further argues that Thomas M. Smyth was clothed with a limited right to sell the stock; that he had the property during life in the only way it could be enjoyed, namely, by a receipt of dividends declared on it, and that he could by his will at death dispose of it. Mrs. Boyle says that if it be conceded that clause 4 grants a power of appointment that the legal title to the stock being vested in the trustees, and Smyth having under the instrument the beneficial use of the stock for fife, he was clothed with the entire equitable title and that a deed in his lifetime would have extinguished the power of appointment. In support of this contention she cites McFall v. Kirkpatrick, 236 Ill. 281; Baker v. Wilmert, 288 Ill. 434; People v. Emery, 314 Ill. 220; 1 Sugden on Powers (8th Ed.), 74, ¶ 26.

The crux of this contention is that the entire equitable interest of Thomas M. Smyth in the stock of the John M. Smyth Company was held by him at the time of his death as beneficial owner and passed under his will; and, since it was property of which he was possessed at his death, his widow’s rights under the statute would attach thereto.

On the other hand, it is contended that the interest of Thomas M. Smyth was not such as would descend or pass by virtue of his will but by virtue of the provisions of the trust agreement, and that the interest of his wife, Mary Flynn Smyth, under the statute, would not therefore attach and she would not acquire under any circumstances any interest therein which could pass to Mrs. Boyle as her legatee.

That contention must be determined from the language of the trust agreement and the intention of the parties to that agreement as expressed therein, construed in the light of the conditions and circumstances under which the agreement was made. The language of the agreement does not leave any doubt as to the purpose for which it was executed. That purpose was to secure a wise and economical administration of the affairs of the corporation for the protection and benefit of the stockholders, and the reading of the agreeinent leaves no doubt as to the means adopted to that end. Clause 1 states in part:

“Full and complete legal and equitable title to all of said stock is hereby transferred and assigned to said Trustees for the purposes hereof, and the said Trustees shall cause the certificates of stock so deposited hereunder to be transferred upon the books of said corporation to the names of the said parties of the second part, as Trustees, but the certificates evidencing such stock shall in all eases and at all times remain deposited with said Trustees.”

It further provides for such proxies and powers of attorney as the trustees might deem necessary, and that the parties should receive receipts for the stock 'which should be held “pursuant and subject to the terms and conditions” of the agreement, and which receipts should state on their face that they are not negotiable or transferable. Clause 3 provides:

“Any subscriber hereto may sell stock deposited hereunder to any other subscriber hereto, subject to all of the terms, provisions and conditions of this agreement.”

Clause 4 provides:

“In case of the death of any of said subscribers during the term of this trust, the right, title and interest of such subscribers under any such receipt held by such subscriber, may be disposed of by the valid last will and testament of such subscriber, or in default of such disposition shall pass by the laws of descent of the State of Illinois then in force, but subject to all the provisions and conditions of this instrument.”

Clause 9 provides:

“In case of the death, resignation, refusal or inability to act of any one or more of said Trustees, the survivors or survivor shall have all the powers, rights, estates and interests granted to or conferred upon said parties of the second part, hereunder, and shall be charged with the duties and obligations herein mentioned.” '

What was the nature of the right, jitle or interest of Thomas M. Smyth under the terms of this agreement to the stock here in controversy? He expressly conveyed the title, complete, legal and equitable, and he completed that transfer by the delivery and assignment of his documents of title. The property was personal property. It was not subject to the statute of uses, and so long as there was no unlawful or fraudulent purpose, the parties had a perfect right to create exactly such interests as they might wish. The transfer conveyed every interest except such interest as was expressly reserved or necessary to the enjoyment of any such reserved right or interest.

This trust agreement speaks the intention of the subscribers thereto to place the legal and equitable title of this stock for a period of possibly 50 years beyond the power of any one of them, voluntarily or involuntarily, through operation of law, or otherwise, to remove the same from the control of the trustees. There can be no question of the right of Thomas M. Smyth to convey this property absolutely and that such conveyance would be valid as against any claim which his wife might make by virtue of the statute. It was not a conveyance which gave to Thomas M. Smyth the right to control the property and to resume the same at pleasure, as counsel for Mrs. Boyle contend. On the contrary, he gave up absolutely his right to control the property, and he entered into an agreement which made it absolutely impossible for him to resume control of that property at his pleasure. There was nothing fictitious about it. There was no sham or pretense about it. The conveyance was absolute and bona fide. There was no fraud about it, for it is undisputed on this record that Smyth retained an estate amply sufficient to meet his obligations to his creditors and to his wife and family.

It would unduly extend this opinion to discuss at length the facts in McFall v. Kirkpatrick, supra; Baker v. Wilmert, supra, and People v. Emery, supra, upon which Mrs. Boyle relies. It must be sufficient to say that the estates there dealt with were legal estates in land, and that in each case they involved the construction of the rule in Shelley’s case, which is applicable only to real estate and not to personal property, by the operation of which the court held that the entire legal and equitable title had become vested in the donee of the power. For perfectly obvious reasons, these cases have no application here.

In People v. Emery, supra, the court expressly said that there was no doubt that the grantor had made it plain that he intended that the heirs should take by purchase from him and not by descent from the life tenant under the rule in Shelley’s case; that the rule in Shelley’s case was a rule of law whose operation was independent 'of the intention of the grantor when the requisites of the rule existed; that the rule could not be evaded, however distinctly the intention to evade might appear. These cases are not applicable to the situation which exists on this record.

On the controlling question as to the nature of the interest of Thomas M. Smyth in and to the stock conveyed by him to the trustee, the minors and others contend that the same has been definitely settled by the case of Merchants' Loan & Trust Co. v. Patterson, 308 Ill. 519. Since all the parties rely upon this case (although the appellant urges that it is distinguishable) it may prove helpful to examine it with some care. In that case Patterson made a deed conveying premises to trustees who were to manage, etc., .and reconvey at the termination of the trust or upon revocation thereof as therein provided. In case of death before its termination, conveyance was to be made to such person as he might have appointed by will and in default of such appointment to the child or children of the grantor, with a final limitation to the legal heirs according to the provisions of the statute.

After executing the trust the grantor married and a child was born. The grantor and his wife executed a trust deed conveying an undivided one-half interest, subject to other charges and incumbrances, to collect the income and pay to the wife during her lifetime, and in case of her death or dissolution of the marriage, to the infant son.

June 18,1915, Patterson died, having executed a will which recited that his father and his wife had been provided for in prior agreements, in consideration of which she had released, etc. The Merchants’ Loan .& Trust Company, trustee in the original conveyance and the executor under Patterson’s deed of October 23, 1914, filed a bill to construe the will and the trust, and the child and wife were made defendants thereto. She filed a cross-bill, setting up alleged marital rights. The court said that the deed of December 20, 1897, conveyed the fee to the grantee who took the legal title, the beneficiaries retaining the equitable ownership.

“This interest of the grantor, Stewart Patterson, was an equitable fee, — the sole equitable ownership— qualified in only one particular. Before executing the deed of trust his estate was a fee simple, indefeasible. "When he executed that deed he imposed upon the estate a certain condition in case he should die before the termination of the trust. That condition was, that in such event his equitable fee should cease and should •not descend to his heirs, as it would otherwise have done, but should go to such person or persons as he might appoint by his will, or in default of such appointment, as the facts have actually happened, to his son. • His estate after the execution of the deed of trust was an equitable fee simple, defeasible in the event of his death before the termination of the trust, and in that event to go over, by way of shifting use, to such person as he might appoint by will, or in default of appointment to the persons specified in the deed. Upon Ms death before May 1, 1917, his estate in fee would come to an end, and the eqMtable ownersMp of the property would pass, not by descent to his heirs but by virtue of the deed of trust to the person whom he might have appointed by will, or if he had made no such appointment, to his children or grandchildren, or in default of any of these, to the persons who were his heirs. None of these, however, would talce by inheritance from him, but whoever would talce any estate would derive ii from the deed of trust.”

While, as Mrs. Boyle points out, that case is in many other respects distinguishable, we think it is not distinguishable as to the form and effect of the trust which was created. The deed in the Patterson case is not distinguishable from the trust agreement in the Smyth case. The question at issue in the Patterson case was (as it is in the Smyth case here) whether the title in the event of the death of the grantor went over by way of shifting use to a person who might be named by the will of the grantor, or whether the title was such as would pass by descent from the grantor. The court said that the title passed by way of the instrument which created the trust; that the estate of Patterson came to its end at his death, and that the property did not pass by a subsequent conveyance nor by descent to his heir, but by virtue of the original deed of trust. The court also said in the Patterson case that the interest of the parties was indestructible by a conveyance of the grantor, and that he could, by exercise of his power, determine where the future interest should vest. It was held in the Patterson case that the parties in interest took under the deed of October 23,1914. Here they take by virtue of the trust agreement of November 24,1913. If the effect of the deed in the Patterson case was to cut off the interest of Mrs. Patterson, the effect of the trust agreement in the present case is to cut off the right, title and interest of Mary Flynn Smy th. In so far as the nature and quality of the estates created are concerned, we think it is impossible to distinguish the Patterson case from this Smyth case, and it is worthy of note that the opinion of the court in the Patterson case distinguishes the case of McFall v. Kirkpatrick, supra, upon which Mrs. Boyle here relies.

Mrs. Boyle contends, however, that the trust agreement was void in part at least because of the clause in the receipt restrictive of alienation and because the whole trust agreement was illegal and void as contrary to public policy, and that, at any rate, the trust instrument was revocable on that ground and that it was in fact revoked by the death of Thomas M. Smyth. Fisher v. Bush, 35 Hun (N. Y.) 641; Luthy v. Ream, 270 Ill. 170; People v. Emmerson, 302 Ill. 300; Venner v. Chicago City R. Co., 258 Ill. 523, and many other cases are cited and relied on.

Babcock v. Chicago Rys. Co., 325 Ill. 16, has, we think, made it unnecessary to discuss the many cases cited. That latest expression of the opinion of the Supreme Court clearly shows that the trustees in an agreement of the kind which we must here construe are the legal owners of the stock and that no question, therefore, of revocable or irrevocable proxies can arise, and, moreover, that the question of whether a trust agreement of this kind is legal or illegal must be determined by the purpose for which it is made. See also Thompson v. J. D. Thompson Carnation Co., 279 Ill. 54; Babcock v. Chicago Rys. Co., 236 Ill. App. 360, all of which seem to sustain the general rule announced in 3 Cook on Corporations, § 622f, p. 2235, where, after a review of the cases, the author says:

“The above decisions seem to lead to the conclusion that a deposit of certificates of stock with trustees for a specified period of time, either with or without a transfer of the same to the trustees, is legal, and is not in violation of the usual statute against restraints on the alienation of personal property; and is not opposed to public policy as a restraint upon trade; and is not an implied fraud upon stockholders who are not allowed to participate; and is not an illegal separation of the voting power from the ownership of the stock; provided always that no actual fraud is involved in the transaction. In other words, such a pooling of stock is not illegal in itself, but, like all contracts, may be illegal if actual fraud is involved.”

There is no claim in this case that there was any intention on the part of anyone to perpetrate a fraud of any kind. We have not overlooked, although we have not discussed, the contention of Mrs. Boyle that clause 4 is void or nonoperative because it expresses merely what the law decrees without it; that clause 4 does not operate inter vivos but that it takes effect at death; that it is therefore testamentary and is void, not being executed with the formalities of a will, and that the clause directing the interest to go by the laws of descent — if it can be considered at all — is a grant inter vivos to persons who cannot come into existence until the death of Thomas Smyth, for no one can be the heir or next of kin of a living person.

Most of the cases cited by appellant to these points are clearly not applicable, and the others must be considered as sufficiently answered by the opinion of the Supreme Court in Merchants’ Loan é Trust Co. v. Patterson, supra, which we have already discussed.

That case must also, we think, be considered a sufficient answer to the further claim that clause 4 is not a power of appointment, because such a power must proceed from an owner to one not an owner, in support of which Heinemann v. DeWolf, 25 R. I. 243, and Freme v. Clement, 18 L. R. Ch. Div. 499, are cited. Any attempt to distinguish between the meaning of the word “power” and the word “disposition” would partake very much of the nature of a disquisition on the subject of how many angels could dance on the point of a needle. In 21 R. C. L. 772, we find;

“A power is defined as a liberty or authority reserved by, or limited to, a person to dispose of real or personal property for his own benefit, or for the benefit of others, and operating on an estate or interest, vested either in himself or in some other person; the liberty or authority, however, not being derived out of such estate or interest, but overreaching or superseding it, either wholly or partially”

The language of clause 4 of the trust agreement, giving the subscriber the right to dispose of his right, title and interest in case of death, cannot be construed as anything else than a power.

However, it is also contended that (even if it be conceded that the right to dispose of his interest at death may be construed to be a power) the will of Thomas M. Smyth fails to disclose that he exercised the supposed power, and in this connection we are cited to many cases holding that where the donee of a power may act in his own right and there is nothing in the will to indicate that he was acting under the supposed power, the law refers his acts in making a will, not to the power but to his own inherent right to dispose by will of his property.

That general rule is not disputed, and the fundamental question in construing a will to this end is that of intention. Technical language is not necessary, and the courts generally incline to a liberal construction. Fairman v. Beal, 14 Ill. 244. It is not necessary that the intention to execute appear by express terms or recitals in the instrument. Goff v. Pensenhafer 190 Ill. 200.

“The intention to execute the power, however mani fested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative.”

Such was the rule laid down in Funk v. Eggleston, 92 Ill. 515, where the leading cases in England and America are reviewed.

The will of Thomas M. Smyth does not distinctly refer to the trust agreement nor to the power which we have held to he expressed therein. The record, however, shows the condition of his estate at the time his will was executed and at the time of his death. Aside from his homestead he had no property interest whatsoever except such interest as he had in the John M. Smyth Company through this trust agreement and another merchandising concern which was a subsidiary of the John M. Smyth Company. Remembering these facts, we notice that the will states:

“The intention of this will is to grant to my Executors and Trustees such broad powers as I would have were I living and endeavoring to conserve my estate and to foster in every possible way the lines of business in which I have been engaged and of which my estate is largely composed through stockholdings. S # #

“Any advances made to my beneficiaries for their support until such times as the companies in which I am interested are able to pay regular dividends are to be considered as loans and deducted from such amounts as may accrue in the future from these companies.”

We think it cannot be doubted that the reference to the companies in which he was interested and his statement that he wishes to grant the trustees the same broad powers as he would have if he were living refer to and must be construed to be an execution of the power conferred upon him by clause 4 of the trust agreement. Indeed, in another clause of his will he grants to his trustees express power to join in any lawful trusteeship for the control of stock. We think the grant of these express powers, under circumstances such as existed at the execution of the will with reference to his estate, are inconsistent with any construction other than an intention to execute the power conferred upon him.

Mrs. Boyle contends, however, that the trust agreement must be set aside as being void under section 4 of the statute of frauds, Cahill’s St. ch. .59, If 4. While counsel for Mrs. Boyle attempts to distinguish the instant from the Patterson case, it is apparent that one of the questions at issue in that case was whether the estate created by Stewart Patterson was fraud upon the marital rights of his wife. It does not appear, however, from the opinion that the statute of frauds was there specially pleaded and relied on, as it is here, and the question is certainly not discussed in that case.

The principle there announced would seem to remove any possible foundation for such a contention here. It is not claimed, as we understand it, that the wife has any equitable claim against the personal estate of her husband during his lifetime, nor is there any doubt that he may convey that personalty or give it away at any time during his life free of all claims whatsoever of the wife on account of her marital rights. There are, of course, exceptions, such as the right to dower, homestead and widow’s award, which by well-decided cases are held to be within the protection of the statute. Many of the cases upon which the appellant relies, such as Padfield v. Padfield, 78 Ill. 16; Deke v. Huenkemeier, 289 Ill. 148, we are convinced, after a careful consideration, do not sustain Mrs. Boyle’s position but are clearly against it. Other 'cases cited are. clearly distinguishable, as, for instance, Emerson v. Bemis, 69 Ill. 537, which is cited to the proposition that fraud will be inferred in a case like this, irrespective of the motives, good or bad. As a matter of fact, that case is authority for the proposition that it is a fraud for a husband in embarrased financial circumstances to convey property to his wife as against his pre-existing creditors. What application this unquestioned rule could have to facts in this case, we cannot understand. It is clearly distinguishable in the first place by the fact that at the time this trust agreement was entered into Mary Flynn Smyth, wife of Thomas M., under whom Mrs. Boyle claims, was not a creditor of her husband, nor, indeed, did she at that time have the right by law to claim that he was in any way neglectful of any marital right, including that of providing for the welfare of his family. The execution of this trust agreement was in that line, and for that purpose was apparently an efficacious and efficient means.

The statute of frauds has no application to facts such as appear in this case.

If we have correctly interpreted the case of Merchants’ Loan & Trust Co. v. Patterson, supra, it follows that the trustees as the legal owners of the trust property had no right to deliver to Mary Flynn Smyth any part of the trust estate. She and they were bound by the terms and conditions of the trust agreement. Neither the children nor the trustees are estopped from claiming (as now by their cross-bill they claim) against the supposed devisee for the return of that property. There is no estoppel and there can be none as to the children nor, we think, as against the trustees, and it necessarily follows that the chancellor erred in decreeing that this property should be turned over to the executrix of the estate of Mary Flynn Smyth. The fact that in the estates of William Smyth and Thomas Smyth these receipts had been inventoried as the property of their respective estates could make no difference. We think it is apparent that the respective parties misapprehended and misunderstood their property rights and the nature and qualities of the estates with which 'they were dealing.

The renunciation of Mary Flynn Smyth was clearly ineffectual because there was nothing upon which it could operate. Her executrix is not entitled to the certificate nor to the dividends on the stock which have been declared since the death of Mary Flynn Smyth. However, Mary Flynn Smyth should not, we think, equitably be deprived of the one-half of such dividends declared up to the time of her death, which it was the intention of her husband to appoint to her and which she would undoubtedly have received but for the mutual misapprehension and mistake in regard to the nature and qualities of the estate. She received only one-third thereof and her executrix is now equitably entitled to receive the remainder as property of the estate of Mary Flynn Smyth, and, subject to the payment of debts and costs of administration, Harriett Flynn Boyle will take the same as a legatee under the last will and testament of Mary Flynn Smyth. The rule applicable is stated in 2 Pomeroy’s Equity Jurisprudence, § 849, as follows:

“Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.”

This rule of equity has been approved by the Supreme Court of this State in Moore v. Shook, 276 Ill. 47, and in many analogous cases relief has been given by the courts. Gordon v. Johnson, 186 Ill. 18. In a' quite recent case that rule was adopted and applied by this court in favor of a widow. See Hanson v. Clark, 246 Ill. App. 496.

It is further contended that, conceding there was a power of appointment, Thomas M. Smyth by the exercise of the same caused the property in question to become a part of his estate for the use and benefit of his creditors. While this doctrine expresses the general rule in England, which has been followed by courts of high authority in this country (see Re Harvey Estate, 13 L. R. Ch. Div. 216; Johnson v. Cushing, 15 N. H. 298; Brandies v. Cochrane, 112 U. S. 344, Clapp v. Ingraham, 126 Mass. 200), the doctrine has been severely criticized, and, in so far as the briefs disclose, it has never been approved by the courts in this State. However, we do not think that question necessarily arises on the facts here appearing, since the right, if it exists, is only one in favor of creditors, and the record does not disclose that there is any unsatisfied creditor asking for any part of the estate of Thomas M. Smyth.

It follows from what has been said that the court erred in decreeing that the receipt for the 729 shares of the capital stock of the John M. Smyth Company should be turned over to the executrix of the estate of Mary Flynn Smyth, in decreeing that the executrix, Harriett Flynn Boyle, should receive the sum of $29,889, the amount of dividends declared upon said stock since the death of Mary Flynn Smyth, and in dismissing the cross-bill.

The decree is reversed and the cause remanded with directions to enter a decree.in conformity with the views herein expressed. One-fourth of the costs in this court will be taxed against Harriett Flynn Boyle and three-fourths against John M. Smyth, Mary A. Smyth Nelson and William P. Smyth as trustees.

Reversed and remanded toith directions.

O’Connor and McSurely, JJ., concur.


text:
    Michael Izzi, Plaintiff in Error, v. Donato Ialongo and Vincenza Ialongo, Defendants in Error.
    Gen. No. 31,682.

      Opinion filed February 27, 1928.
    Alberto N. Gualano, for plaintiff in error; Clarence T. Morse, of counsel.
    Schnackenberg .& Hansen, for defendants in error; Elmer J. Schnackenberg, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The record which this writ of error requires us to review shows that plaintiff, Michael Izzi, on November 26, 1924, brought an action of the first class in the municipal court and filed a statement of claim, verified by an affidavit, which alleged that defendants were indebted to him for money loaned and interest thereon of the amount of $3,910; that the summons issued was returnable on December 8, 1924, and defendants were served on December 1, 1924; that on December 9th their appearance was entered by Elmer J. Schnackenberg, their attorney, with a request for 20 days in which to file an affidavit of merits; that upon December 15, 1924, an affidavit of merits was filed, claiming a defense to the whole demand and specifically alleging that plaintiff had never loaned any money to the defendants, jointly or severally, except the sum of $150 loaned to the defendant Donato Ialongo, which was repaid on or about June 26, 1924; that on November 18, 1925, the defendants being absent and not represented, the cause came on for trial before the court, and that the court, after hearing the evidence, found the issues against the defendants, assessed plaintiff’s damages at the sum of $4,168.70 and entered judgment upon the finding.

June 30, 1926, leave was given defendants to file a petition to vacate the judgment, and upon the same being filed the judgment of November 18, 1925, was vacated and the cause reinstated and set for trial September 16, 1926. From this order an appeal was prayed by the plaintiff, which was granted upon filing a bond in 30 days, and plaintiff was further given 60 days in which to file a bill of exceptions. Neither the bond nor the bill of exceptions was filed. Upon July 23, 1926, an motion of plaintiff, it was ordered that that part of the order of June 30, 1926, vacating the judgment be vacated and set aside and that leave be given plaintiff to file an answer to defendants’ petition instanter, and a hearing upon said petition was had in open court. The petition was sustained and the judgment of November 15, 1925, vacated and set aside, the cause reinstated and set for trial September 16, 1926. From this order the plaintiff prayed an appeal to the Appellate Court, which was allowed, and it was also ordered that 60 days be allowed in which to file a bill of exceptions. November 16, 1926, the cause came on in regular course for trial, and the plaintiff not appearing it was dismissed for want of prosecution and judgment for costs entered against the plaintiff.

The contention of the plaintiff is that the court erred in granting the prayer of the petition and setting aside the judgment. The proceeding was brought under section 21 of the Municipal Court Act (Cahill’s St. ch. 37, (Í 409; Smith-Hurd’s Ill. Rev. St. 1927; ch. 37, § 376) which in substance provides that 30 days after the rendition of the same, judgments of the municipal court of Chicago “shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said municipal court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity.”

Construing this section in Imbrie v. Bear, 230 Ill. App. 155, this court said that the section “manifestly contemplates conferring on such court only such power as a court of equity could exercise in a similar case under analagous proceedings, at least so far as they afford an opportunity for the formation of issues and a hearing thereon. It is an independent proceeding in the nature of a new suit, and not a mere incident to the original suit. The proceedings, therefore, in the absence of any specific statutory direction, should be appropriate to the relief sought (23 Cyc. pp. 947, 948), which require a hearing as to the existence of the grounds on which the relief is invoked. Judgments would stand upon a very insecure foundation if they could be set aside at any time on the mere filing of a petition regardless of the truth of its averments. But the statute manifestly contemplated in conferring such equitable power that it would not be exercised without an opportunity, as afforded in equity, for a hearing as to the existence of the grounds upon which it is invoked. ’ ’

This construction of the statute means that after the expiration of 30 days judgments of the municipal court may be set aside only by a proceeding essentially similar to proceedings to set aside judgments in courts of equity. The rule in equity, as settled by all the cases, is that a diligent defendant who, without negligence or fraud on his" part, has been prevented by accident or mistake from presenting a good and meritorious defense to a cause of action may have the judgment entered against him set aside upon making proper application to a court of equity. A few of the many authorities that may be cited to this point are Owens v. Ranstead, 22 Ill. 161; How v. Mortell, 28 Ill. 478; Bardonski v. Bardonski, 144 Ill. 284; Finlen v. Skelly, 310 Ill. 170; Gottschall for use of Delfosse v. Kimbark State Bank, 220 Ill. App. 473; Craig for use of Nelson v. Chicago Trust Co., 236 Ill. App. 223.

The petition of the defendants averred the beginning of the suit, the issuance of summons, their retainer of a duly licensed attorney to defend, their appearance in the cause by the said attorney, and the filing of an affidavit of merits setting up a defense to the whole of plaintiff’s cause of action, stating that the statement of claim set forth that defendants were indebted for moneys lent, while defendants by their affidavit of merits denied that they had ever borrowed any moneys from the plaintiff jointly, but that the plaintiff had lent to the defendant Donato Ialongo $150 which defendant Donato Ialongo repaid to the plaintiff June 25, 1924. They further averred that the defendant Vincenza' Ialongo never borrowed any money from the plaintiff either severally or jointly with anybody else, and that the defendant Donato Ialongo never borrowed any money from the plaintiff except the sole sum of $150, which he repaid to the plaintiff June 25, 1924, by a bank check, which bank check was cashed by the plaintiff and was collected by the plaintiff through the bank upon which it was drawn, and which bank check was in the possession of the defendants ready to be produced in court.

The petition further averred that the cause was set for trial March 26,1925, but that on that date by agreement of all the parties the cause was postponed generally by the court; that thereafter no notice for the setting of the case for trial was ever served upon the petitioners or their attorney of record; that September 10, 1925, their attorney, Elmer J. Schnackenberg, visited the office of the clerk of the municipal court of Chicago and inquired of the deputy clerk at the information window if there was a calendar of cases which would include the cause which had been con-tinned generally on March 26, 1925; that the deputy clerk directed Elmer J. Schnackenberg to another deputy clerk as the person having charge of such a calendar; that Schnackenberg requested this deputy clerk to show him the calendar of cases including first-class cases postponed generally on March 26, 1925; that thereupon the deputy clerk handed to Schnackenberg a large number of sheets of typewritten paper joined together and stated that that was the calendar which would contain the case; that the calendar consisted of upwards of 15 typewritten sheets containing a large number of titles of cases and numbers thereof; that Schnackenberg carefully scrutinized the entire list of cases but that said case was not on the calendar; that Schnackenberg thereupon called the deputy clerk’s attention to the omission, and the deputy clerk stated that the only way to have the case heard would be to serve notice upon opposing counsel, unless it was desired to wait until the next typewritten calendar of first-class nonjury tases was made up for the next year.

The petition also averred that there was no printed calendar made up containing the case subsequent to March 26, 1925, and that said case never appeared upon a printed calendar in the court; that on June 26, 1926, the petitioners were for the first time acquainted with the fact that said case was called in the court on September 15, 1925, and set for trial on November 15, 1925, and that upon that date there was a trial ex parte resulting in a finding of the issues against the petitioners and judgment was entered for $4,168.70. The petition averred that petitioners were not present, had no notice of the trial of said cause until June 26, 1926 ; that about January 22, 1926, a deputy bailiff left a paper with the petitioners; that "the petitioners are Italian and unable to read English; that they asked the deputy bailiff if they were required by the "paper to go to court and he told them they were not; that on June 26,1926, they delivered the paper of Sehnackenberg, their attorney, who informed them that it was an execution on a judgment entered as aforesaid. The petitioners further averred that they had a good and meritorious defense; that they had used due diligence at all times in the defense of said case; that the judgment against them was unjust and inequitable.

The plaintiff answered, stating that he “denied that said defendants have a good and meritorious defense to the whole of plaintiff’s action, as set forth,” admitting the continuance of the cause generally on March 26,1925, but averring that the cause did appear on the calendar made out by the clerk of the municipal court of Chicago in September, 1925; that the cause appeared also in the “Daily Municipal Court Record,” a secular newspaper of general circulation, published by the Law Bulletin Publishing Company, in various issues thereof, for various days prior to November 18, 1925; that on that date it was called for trial; that no one answered for the defendants; that about noon of that same day the cause was again called for trial before Judge McKinley; that no one appeared for the defendants, whereupon plaintiff proved his case by three witnesses and judgment was entered; that on January 18, 1926, plaintiff caused an execution to be issued and it was served on the defendants on January 22,1926.

The answer denied that the defendants were unable to read English, and in particular stated that Donato Ialongo was a contractor by trade, well able to take care of his business in complicated and large transactions.

The court heard evidence offered in behalf of the respective parties, and on July 23, 1926, finding the facts set forth in defendants’ petition to be true, ordered that the judgment entered on November 18,1925, be set aside and the cause set for trial on September 16, 1926.

The plaintiff has argued here quite at length that the material averments of the petition were not proved by a preponderance of the evidence, but that is not the rule to be applied in considering this record. The judge who saw and hpard the witnesses has found the facts to be as stated by the petitioners, and that fact is binding upon a court of review unless it is made to appear that the finding is manifestly wrong. We have carefully read the evidence and are satisfied that the attorney for the defendants acted in good faith and that he made an examination of the calendar at the office of the clerk of the municipal court, and that such examination did not disclose that the case was on that calendar. He was diligent, not negligent, and whether a mistake was made by the clerk or by the attorney, we think that. equitably the judgment ought not to stand provided the defendants have a meritorious defense. This feature of the case presents a more difficult question.

In support of the allegation of a meritorious defense, the petitioners offered the affidavit of merits which had been filed by defendants in the suit at law, and it was received without objection, the attorney for .the plaintiff, however, refusing to admit, as requested, that it would make a prima facie showing that defendants had a meritorious defense. The plaintiff argues that this pleading was not competent evidence, being in the nature of an ex parte affidavit, citing Bressler v. McCune, 56 Ill. 475; Atkinson v. Linden Steel Co., 138 Ill. 187; Quinn v. Rawson, 5 Ill. App. 130. The petitioners did not ask that the judgment entered be permanently enjoined as was the case in Hussey v. Gourley, 153 Ill. App. 501; Cadillac Automobile Co. v. Boynton, 240 Ill. 171, on both of which cases appellant relies. The petitioners do not ask that the merits of the case be finally determined. That issue awaits the result of the trial at law. The theory of their petition is that the defendants, without negligence on their part, were by inadvertence and inistake deprived of their right to have the issues tried under the law. In support of their petition they showed (properly, we think) that they had filed ah affidavit of merits which set up a good and meritorious defense. If they had asked that the cause be finally determined in their favor, it would have then been necessary to have introduced most positive and convincing evidence that the judgment entered was unconscionable and should not be permitted to stand. They did not ask this. They asked only for an opportunity to present their defense. We think this case is clearly distinguishable from the cases upon which plaintiff relies in this respect. Again, the petition not only set up that the defendants had a meritorious defense, but stated specifically the facts which, if true, would in law constitute a complete and meritorious defense. The answer denies the general statement that the defense is meritorious, but it does not deny the facts averred which would constitute such defense. Those facts were also peculiarly within the knowledge of the respondents. Moreover, the testimony of the attorney for respondents shows that the evidence offered on the ex parte hearing consisted of alleged admissions which under the circumstances here appearing seem very improbable.

The order is therefore affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Presiding Justice Matohett

text:
    W. Espy Curtis, Appellee, v. William M. LeMoyne, Appellant.
    Gen. No. 32,175.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Wm. Sherman Carson, for appellant.
    Urban A, Lavery, for appellee.
   Mr. Presiding Justice Matohett

delivered the opinion of the court.

The complainant filed a bill in equity praying an accounting, that the rights of the parties with reference to certain real estate might be ascertained, and for general relief. The bill was afterwards amended, whereupon defendant demurred, setting up in addition to other causes-that it appeared “that the remedy of complainant, if any there be, is at common law.” The demurrer was overruled and defendant answered denying certain averments of the bill, admitting others but denying that complainant was entitled to the relief prayed.

The cause was put at issue and referred to a master, and by a later order this reference was limited to taking the testimony, proofs and evidence of the parties “solely upon the question as to whether complainant is entitled to an accounting,” and reporting the master’s conclusions of law and fact thereon, together with the basis of such accounting in case complainant was entitled thereto. After some evidence had been taken an order likewise limited wras entered, re-referring the cause to another master with directions to use and consider the testimony theretofore taken.

The master took the evidence and reported in favor of the complainant. The defendant filed objections before the master which were overruled, and these objections stood as exceptions upon the hearing before the chancellor. The chancellor denied a motion of the defendant for re-reference, overruled the exceptions to the report, except as to the amount of interest found due by the master from the defendant to complainant, and entered a decree denying the motion of defendant for leave to amend his answer and approving the report of the master except as to the item of interest. This decree was entered at the December term. At the March term the court entered a further decree finding another reference to a master to settle the. accounting was unnecessary and that the court could and would state and settle the accounting without such reference.

The court found that there was due to the complainant from the defendant the principal sum of $10,000 together with interest thereon from April 7, 1920, amounting to $4,180, making a total sum due of $14,180. The master’s fees of $245 and other costs were taxed against the defendant and the complainant was awarded execution therefor.

There is practically no dispute as to the facts. The transaction out of which the controversy between the parties arises occurred on April 12, 1912. The complainant was a manufacturer. The defendant was and is a lawyer, devoting most of his time to business rather than to professional transactions. The defendant at thó time in question had a contract with the Chicago City Railway Company which gave him the option to purchase from that company certain real estate known as the “Car Barn” property. The parties had been brought together by one Forrest, and from time to time prior to the transaction here in controversy the complainant Curtis loaned various sums of money to LeMoyne, for which LeMoyne -gave his notes with collateral security. The notes drew interest at six per cent.

At the time in question LeMoyne told Forrest that he had to raise $5,000 in connection with this contract for an option on the car barn property, and he asked Forrest to see Curtis, which Forrest did and requested Curtis to go to LeMoyne’s office, and Curtis did so. LeMoyne asked him for a loan of $5,000: Curtis asked LeMoyne what he had to offer and LeMoyne replied: “If you will get me this $5,000, I will give you a twentieth interest in the deal.” LeMoyne began to write the statement, but before finishing it said to Curtis, “I find this will complicate matters, giving you an undivided interest in the property. In lieu of that I will execute a note for $10,000; this will represent a one-twentieth interest and the note will come due when the deal is consummated. ’ ’ Curtis then replied that he would go to the hank and try to get the $5,000. He got it and gave it to defendant. The defendant gave his note therefor, which has since been paid. At the same time LeMoyne executed and delivered to complainant the following document:

‘Chicago Ills. April 12, 1912.

“10,000#
“On or before June 1, 1914 after date I promise to pay to the order of W. Espy Curtis
“The liability and payment of this note is contingent on the consummation by me of the purchase of certain property on 39th Street near Wabash Avenue now under negotiation by me.
Wm. M. LeMoyne.”

It is admitted that the transaction for the purchase of the car barn property was consummated between LeMoyne and the Chicago City Railway Company, and the deed to said property was issued to the defendant in March, 1920.

The master found (his finding is approved by the decree and it is not argued here that the finding is against the weight of the evidence): “That the note for $10,000 was given by the defendant as evidencing one-twentieth interest in prospective profits”; that when the deal for the real estate was consummated in March, 1920, the $10,000 payment was then specifically due and payable.

It is urged that defendant was entitled on a final hearing to the advantage of the defense that complainant had an adequate remedy at law, and, further, assuming that the superior court had jurisdiction, it was lost when upon final hearing it developed that complainant was without special ground for equitable relief. Gordon v. Reynolds, 114 Ill. 118, and other cases following the rule there announced are cited.

If the defendant wished to take advantage of that defense, it should have been set up in the answer.' The subject matter of the suit was not wholly foreign to a court of equity, and the rule that equity will not take jurisdiction where a complete and adequate remedy exists at law is intended for the protection of the court and not for the purpose of shielding defendants from their just obligations. Hart v. Oliver, 296 Ill. 209. The court did not abuse its discretion in this respect.

It is next complained that the decree for the complainant was given under the prayer for general relief and that this was not justified upon the case made by the bill. VanZanten v. VanZanten, 269 Ill. 491, is cited to this point, which seems to he that the hill asked for an accounting as to the car barn property, whereas relief was given only as to the $10,000 note. We think, however, the allegations of the hill are sufficient to cover both items.

It is next urged that the defense of usury should have been sustained. We do not think so. LeMoyne and Curtis became joint adventurers in so far as the purchase of the car barn property was concerned. The adventure was highly speculative and not unlike transactions in mining districts, where what is known as “grub-staking” contracts are often made. In the last analysis the question of whether a contract is tainted by usury must depend upon the intention of the parties. No such intention appears here. Clemens v. Crane, 234 Ill. 215; Orvis v. Curtiss, 157 N. Y. 657; Embola v. Tuppela, 127 Wash. 285, 220 Pac. 789; Ordway v. Price, 194 N. W. 321, are cited and are, we think, in point.

It is next urged that the defendant should have been permitted to amend his answer on the coming in of the master’s report. This was more than five years after the bill was filed, and we think the court did not abuse its discretion in refusing to permit the amendment.

It is next contended that the master’s fees are excessive. This point seems to be raised for the first time in this court. The master’s fees were fixed at $245 in the decree of December 17th; an appeal was then prayed but not perfected. However, we do not think the fees are excessive.

The decree is just and is affirmed.

Affirmed.


text:
    J. J. Daly, Appellee, v. Charles D. Ling et al. Samuel Goldberg and Harry Goldberg, Appellants.
    Gen. No. 32,213.
    Opinion filed February 27, 1928.
    Ernest Saunders, for appellants.
    Good, Childs, Bobb & Westcott, for appellee; F. L. Harris,- of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The appellants were the owners of certain premises demised to one Ling, and they appeal from a decree which gave a lien under the Mechanic’s Lien Act, Cahill’s St. ch. 82, 1 et seq., to Daly, a plumber, who furnished material and labor in connection with certain work done upon the premises at the request of Ling, the tenant.

The cause was heard by the chancellor upon exceptions to the report of a master to whom the cause had been referred. The master reported in favor of the complainant, the exceptions of the defendants, Samuel and Harry Goldberg, were overruled and a decree entered in accordance with the finding of the master.

The facts found by the master were that Goldbergs had made a lease with Ling for a term of three years beginning May 1, 1924, the lease providing that the premises should be used for a restaurant. The lease contained these provisions:

“Fourth. Lessee * * * agrees and admits that no agreement or promise to * * * alter, repair or improve said premises either before or after the execution hereof not contained herein has been made by the lessor or his agent.

“Fifth. Lessee shall make all necessary repairs and alterations upon said premises. * * *

“Eighth. Lessee * * * shall make no changes or alterations in the premises by the erection of partitions or the papering of walls or otherwise without the consent, in writing, of the lessor. And in case he shall * * * place in said demised premises lighting fixtures or any fixtures of any kind without the consent of the lessor first had and obtained such * * * fixtures shall remain for the benefit of the lessor and without expense of removal or maintenance of the lessor.”

The premises had been vacant for three months prior to the lease to Ling, and there was at that time no equipment, gas, water, drain connections or supply pipes in the premises which could have been used by Ling in the operation of the restaurant.

On May 24, 1924, Ling entered into a verbal contract with Daly for the furnishing of materials and labor and installing gas, water, plumbing and drain connections for the kitchen equipment to be installed in the premises. This equipment included an ice box, steam tables, ranges, sinks, coffee urns and a rice cooker. The fixtures were not furnished by Daly but were found upon the premises when he began his work. Daly furnished plumbing material and labor necessary to connect these fixtures for use in the restaurant. He began on May 24th or 25th and completed the job on June 13, 1924. The Goldbergs saw the work being done, and they at no time made any objection thereto. Within four months from the date of the completion of the work, the complainant Daly filed his claim for mechanic’s lien in the office of the clerk of the circuit court. Ling paid rent under the lease only for the month of May.' He defaulted on the June and July rental, and the Goldbergs confessed judgment against him on the lease for the rent for those months and forfeited the lease.

The various exceptions to the master’s report are based on the theory that the master erred in finding that complainant was entitled to a lien. It is argued quite at length that the claim for lien was insufficient and the bill insufficient to sustain the decree, but we think the controlling question in the case is whether the nature of the work done and materials furnished was such as to make the same lienable within the meaning of the Mechanic’s Lien Act, Cahill’s St. ch. 82, TT1 et seq.

■ The evidence tends to show that the work performed by the complainant consisted in running pipes from the gas ranges to the gas main; that these were extended in the basement and brought up through the floor in the basement and connected to steam tables, gas stoves and a rice cooker; that the pipes were not attached to the walls but went right up through the floor below the fixtures themselves; that pipes were also run to a two or three compartment sink and that these came up through the floor and went to various parts of the sink; that drains were also run through the floor and connected to the sewer according to a plan provided by the city ordinance which is explained to mean, extending the pipes from a waste point to a point below the ice box, trapping it, running the waste from the ice box in there without a connection directly to the sewer.

The particular manner in which these connections were attached to the premises does not further appear from the evidence. In Fehr Const. Co. v. Postl System of Health Building, 288 Ill. 634, the court held that there were three necessary requisites of permanent fixtures which would fix the irremovable character of the same: First, that they were firmly attached to the realty; second, that they were adapted to and necessary for the purpose to which the portion of the premises leased was devoted and for which it was leased, and, third, that the parties to the lease intended that these fixtures and alterations should become a part of the realty. The court there also held that the rules for determining what were fixtures between landlord and tenant were not applicable between a lienor and lienee, but on the contrary the rules which obtain between vendor and vendee, mortgagor and mortgagee or between heir and executor were applicable.

In R. Haas Electric & Manufacturing Co. v. Springfield Amusement Park Co., 236 Ill. 452, the court said, quoting from 27 Cyc. 38:

“Whether or not machinery is within the lien laws usually depends upon whether it has become a fixture. If it is stationary and firmly attached to the realty, so as to become a part thereof, it is the subject of a lien, otherwise not.”

The undisputed evidence shows that none of the plumbing installed by Daly remained on the premises after it was vacated by Ling. In the recent case of Hoier v. Kaplan, 313 Ill. 448, the court pointed out that mechanics’ Hens were purely statutory, in derogation of the common law, and therefore must be strictly construed; that the Hens should not be extended to cases not provided for by the language of the act, even though the same may fall within its reason. There is no evidence here that these connections which were installed were intended by the parties to become a part of the premises, and we think under the rules cited it was necessary for the complainant to show that fact.

Our views on this point make it unnecessary to discuss other alleged errors.

For the reasons indicated, the judgment will be reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.

O’Connor and McSurely, JJ., concur.


text:
    Jack Winitt, Appellee, v. Ben Kornblith, Appellant.
    Gen. No. 32,280.

      Opinion filed February 27, 1928.
    Morris K. Levinson, for appellant.
    Theodore Stone, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is by the defendant from a judgment in the sum of $582.50 entered upon the verdict of a jury, after motions for a new trial and in arrest of judgment had been overruled. There is no bill of exceptions, and the error assigned and argued is that the motion in arrest of judgment should have been sustained because the statement of claim did not comply with the provisions of section 18 of the Practice Act, Cahill’s St. ch. 110, if 18.

The statement of claim shows that the claim was in part based upon an account which had been assigned to the plaintiff. Section 18 provides:

“The assignee and equitable and bona fide owner of any chose in action not negotiable, heretofore, or hereafter assigned, may sue thereon in his own name, and he shall in his pleading on oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title.”

“An assignee of a chose in action does not state a cause of action in favor of the plaintiff unless it contains the allegations required by section 18, showing the assignment of the chose in action, the actual ownership thereof by him and setting forth how and when he acquired title.”

This rule has also been followed by this court in Madison & Kedzie State Bank v. Old Reliable Motor Truck Co., 236 Ill. App. 442; MacFadyean v. Watling Mfg. Co., 244 Ill. App. 224. In Fingado v. Wilson Braiding & Embroidering Co., 205 Ill. App. 267, and the second division of this court stated that this provision of the statute, “being in derogation of the common law, it must be strictly construed, and a strict compliance therewith is indispensable,” citing as authority Edwards & Bradford Lumber Co. v. Bontjes, 193 Ill. App. 392; Leemon v. Grand Crossing Tack Co., 187 Ill. App. 247, and similar language without the citation of authority to support it is found in Madison & Kedzie State Bank v. Old Reliable Motor Truck Co., supra. The cases cited in Fingado v. Wilson Braiding & Embroidering Co., supra, do not sustain the statement, and a careful reading of the opinions of the Supreme Court in the two cases heretofore cited fails to disclose the adoption of such rule of construction. The cases all hold, however, that the provisions of this section of the statute must be complied with by an assignee suing in his own name, and that without such compliance in cases where written pleadings are required, no cause of action is stated. The Federal courts have also adopted this construction (see N. & G. Taylor Co. v. Anderson, 14 F. [2d] 353).

However, in the municipal court of Chicago an action of the fourth class is whatever the evidence makes it. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Bruner v. Grand Trunk Western Ry. Co., 236 Ill. App. 541; 319 Ill. 421.

Written pleadings being unnecessary in actions of the fourth class in the municipal court, in the absence of a bill of exceptions we will presume that the defect was cured by verdict. McClunn v. Gillespie, 227 Ill. App. 400; Sher v. Robinson, 298 Ill. 181.

For the reasons indicated the judgment is affirmed.

Affirmed.

O’Cotutor and McSurely, JJ., concur.