text:
    In the Matter of the Last Will and Testament of Jeremiah Graney, also known as Jerry Graney, Deceased. Jennie Leonard, Individually and as Administratrix de bonis non with the Will annexed of said Jeremiah Graney, Appellant.
    Gen. No. 7,708.
    1. Estates of decedents — validity of second grant of letters. The county court has no power to grant letters of administration to a second person unless the prior grant of letters is void, or duly set aside, or revoked as prescribed by statute.
    2. Estates of decedents — what grant of letters not void. A petitioner for appointment as administratrix de bonis non in place of one previously appointed, who in her petition admits the death of the ancestor and the jurisdiction of the county court making the prior appointment as proper and who as one duly made party to the probate of the estate was bound to take notice of intermediate steps, cannot maintain said prior appointment was void.
    3. Estates of decedents — how appointment of administratrix de facto may not be attached. The appointment of an administratrix de facto is not subject to collateral attack.
    4. Estates of decedents — what is power of county courts to remove administrators or executors. County courts have no arbitrary power to remove executors or administrators, but must proceed as prescribed by Cahill's St. eh. 3, 28-35, 38, permitting removal in case of grant on
    false pretense, or when a will is produced or set aside, or in ease of lunacy, habitual drunkenness, conviction for infamous crime, waste or mismanagement, removal from the State, failure to give further or new security, or failure to make settlement.
    5. Estates of decedents — allegations of petition for appointment of new administratrix. In asking for appointment of an administratrix of an estate which already has an administratrix de facto, a petition which does not ask removal of the incumbent on any ground prescribed by statute, Cahill's St. ch. 3, 28-35, 38, gives the county court no power to remove such incumbent.
    6. Probate courts — jurisdiction of circuit court on appeal from county court’s refusal to remove administratrix. Upon the county court refusing to remove an administratrix for lack of any statutory cause in a petition for a new administratrix, an appeal raises "only that question and gives the circuit court no more power of removal than the county court had, nor any general jurisdiction over', the estate.

      Appeal by respondent from the Circuit Court of Kankakee county; the Hon. A. W. De Seem, Judge, presiding. Heard in this court at the October term, 1926.
    Circuit court reversed; county court affirmed.
    Opinion filed September 24, 1927.
    Alexis L. Granger and Claude M. Granger, for appellant.
    Luther B. Bratton, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Kankakee county revoking the letters of Jennie Leonard, administratrix de bonis non with the will annexed of the estate of Jeremiah Graney, deceased, and the appointment of Margaret Graney, the widow of Jeremiah Graney, as administratrix de bonis non with the will annexed of the said estate of Jeremiah Graney, deceased.

It appears that Jeremiah Graney departed this life April 15, 1924. Patrick P. Graney, brother of the decedent, on April 22, 1924, petitioned the county court for probate of the will of Jeremiah Graney, deceased, by which he had bequeathed all of his property to the petitioner and Jennie Leonard, a sister of the decedent, in equal shares. The petition of Patrick F. Graney shows, among other things, that Jeremiah left surviving him the petitioner, a brother, Jennie Leonard and Mary Brake, sisters, Edward Graney, a nephew, and Margaret Graney, widow of the said Jeremiah Graney, deceased, who had for a money consideration paid to her under a post-nuptial agreement renounced all interest in his estate. Notice was duly given to Jennie Leonard, Mary Brake, Edward Graney and Margaret Graney. The will was probated and Patrick F. Graney, named as executor therein, was appointed by the court, qualified, and acted as executor of the will until his death which occurred on the 3rd day of February, 1925. On February 11, 1925, Jennie Leonard filed her petition in the county court of Kankakee county representing that Patrick F. Graney had not fully executed Jeremiah’s will; that she is a sister of Jeremiah Graney and interested in his estate and praying' appointment as administratrix de bonis non with the will annexed. She gave bond, made oath, and letters were duly issued to her as prayed on February 16, 1925.

On February 21,1925, Margaret Graney filed a petition setting up the decease of Patrick F. Graney without having fully executed the will; that petitioner is the widow of Jeremiah and is interested in his estate and prays to be appointed administratrix de bonis non with the will annexed. Jennie Leonard moved to have this petition dismissed showing that she had been duly appointed as such administratrix, duly qualified and was acting, and that no appeal had been taken from the order appointing her. The county court dismissed the petition of Margaret Graney and she appealed to the circuit court. The circuit court on June 15, 1926, after a hearing at which the above facts were presented, entered an order purporting to revoke the letters issued to Jennie Leonard, to appoint Margaret Graney in her stead and awarding procedendo to the county court. From this order Jennie Leonard appeals individually and as administratrix de bonis non with the will annexed to this court.

After the will of the said Jeremiah Graney had been duly probated, with notice to all parties in interest, the sole executor died without having completed the administration. Upon her petition and after having duly qualified, Jennie Leonard obtained letters of administration de bonis non with the will annexed. Margaret Graney afterwards petitioned for similar letters, taking the position that the letters issued to Jennie Leonard were void. The petition of Margaret Graney was by the county court denied but on appeal was granted in the circuit court.

There cannot be two valid grants of letters in an estate at the same time and in the same court. Unless the prior grant of letters to Jennie Leonard was void or was duly set aside or revoked the county court had no power to entertain the petition of Margaret Graney.

In Munroe v. People, 102 Ill. 406, at 409 the court said: “It is plain that unless the order revoking the letters of administration granted to Mrs. Osgood be valid, there was no power of jurisdiction in the county court to appoint Young administrator de bonis non, and the order for his appointment was absolutely void.” The grant of letters to Jennie Leonard was not void. Margaret Graney in her petition to be appointed administratrix with the will* annexed among other things admitted that Jeremiah Graney was dead; that the county court was the proper court in which to administer his estate; and that the executor of his will died February 3, 1925. Upon the filing of the petition by Jennie Leonard the county court had juris: diction of all the parties to this proceeding, including Margaret Graney, because, she had had notice of the probate and as a party to the probate was bound to take notice of all intermediate steps. Hodson v. Hodson, 277 Ill. 137. The court, therefore, had jurisdiction to issue letters to Jennie Leonard. By virtue of the letters issued to her she became at least administratrix de facto and her appointment was not subject to collateral attack.

In Wandschneider v. Wandschneider, 282 Ill. 286, at 293 it is said: “The doctrine that where an administrator has been appointed by the probate court he is at least an administrator de facto and the regularity of his appointment cannot be questioned in a collateral proceeding, has never been doubted, as being the correct rule and has never been modified or questioned.” Until a successful direct attack upon the letters of Jennie Leonard was made and they were properly set aside or revoked in a proceeding for that purpose there could be no legal issue of letters to Margaret Graney. Jennie Leonard by virtue of her letters of February 16, 1925, being a de facto administratrix, her appointment could not be rescinded in favor of Margaret Graney unless upon appeal or by proceedings to revoke them under the statute by a direct attack. Wight v. Wallbaum, 39 Ill. 554, 563; Salomon v. People, 191 Ill. 290, 294. The petition of Margaret Graney does not purport to attack the appointment of Jennie Leonard in either of the ways above indicated.

County courts have no arbitrary power to remove executors or administrators. Munroe v. People, 102 Ill. 406-409; Clark v. Patterson, 214 Ill. 533-544.

The statute permits revoking of letters of administration only in ease of grant upon false pretenses or when a will is produced or set aside, or in case of lunacy, habitual drunkenness, conviction for infamous crimes, waste or mismanagement, removal from the State, failure to give further or new security or failure to make settlement. Smith-Hurd Statute 1925, chapter 3, sections 27, 28, 29, 30, 31, 32, 33, 34 and 37, Cahill’s St. eh. 3, UTÍ 28-35, 38. The petition of Margaret Graney did not set forth any of the above-mentioned grounds for removal. It did not pray for the removal of Jennie Leonard. No evidence was adduced, nor was it attempted to adduce evidence to establish any one of the grounds for removal in the circuit court.

From the files of the county court, as disclosed by the record in this proceeding, there was no pleading which would enable the court to exercise the statutory powers to remove Jennie Leonard. The county court, therefore, had no power or jurisdiction to remove her and upon appeal the circuit court had no greater power in this regard. It is quite apparent that the circuit court in this proceeding was exercising an appellant jurisdiction only. This was not a case for an original administration in the circuit court nor an attempt to invoke the extraordinary jurisdiction of chancery over estates. Patterson v. Patterson, 251 Ill. 153, 180.

The appeal did not transfer administration of the estate or jurisdiction over the estate or property to the circuit court; it was confined to the single question that was before the county court. Schofield v. Thomas, 231 Ill. 114-122. If the county court had no jurisdiction in the premises the circuit court acquired none by the appeal. Schofield v. Thomas, supra; Chapman v. American Surety Co., 261 Ill. 594-603.

In Munroe v. People, 102 Ill. 406, the court held that the probate court, in the absence of statutory authority, has no power to remove an administrator or revoke letters of administration after the administrator has accepted and qualified and entered upon his duties; that until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard — that is, it has no jurisdiction to act.

In Clark v. Patterson, 214 Ill. 533, the court approved the case of Munroe v. People, supra, and on page 544 said: “The legislature has not deemed it wise to confer on the courts unrestricted power to revoke letters of executorship, but has expressly declared the grounds on which such revocation may be ordered. It is only when one or more of such statutory causes are properly brought before the court for judicial action thereon that the courts have jurisdiction to revoke the letters of administration or letters testamentary. ’ ’

It necessarily follows that the circuit court acquired no jurisdiction to remove Jennie Leonard as administratrix and its order purporting to do so was and is wholly void.

We are of the opinion, therefore, that the order of the circuit court should be reversed and the order of the county court affirmed, which is accordingly done.

Order of circuit court reversed and order of county court affirmed.


source: Caselaw Access Project

author: Mr. . Presiding Justice Jett

license: Public Domain

text:
    La Salle County Farm Bureau and Illinois Agricultural Association, Appellants, v. Joseph E. Thompson, Appellee.
    Gen. No. 7,712.
    1. Agriculture — what constitutes contract of membership between member and association. A membership agreement, signed by the member and accepted by the agricultural association, along with the member’s notes which accompanied it, and acceptance thereof by the association, and its charter and by-laws, constituted the contract of membership between the parties.
    2. Agriculture — liability of member refusing to pay clues to association. The refusal of a member of an agricultural association to pay his dues, without terminating the contract as agreed on, does not, without the association’s consent, end his membership or financial liability therein.
    3. Agriculture — how far rules of association binding. Agricultural associations have the right to make their own rules on admission and exclusion of members, and all who become members are bound thereby as well as by other rules, by-laws and the constitution of the association.
    Appeal by plaintiffs from the Circuit Court of La Salle county • the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed September 24, 1927.
    Woodward, Hibbs & Pool, for appellants.
    L. 0. Browne, Sector C. Hitt, T. E. White and Butters & Butters, for appellee.
   Mr. . Presiding Justice Jett

delivered the opinion of the court.

On May 20, 1920, appellee executed the following instrument:

“Joint Membership Agreement

In the

La Salle County Farm Bureau and the Illinois Agricultural Association.

“I hereby join the La Salle County Farm Bureau and Illinois Agricultural Association for a period of three years and agree to pay to the Treasurer of the La Salle County Farm Bureau, the sum of $15.00 each year for a period of three years, first payment to be due June 1st, 1920; the second payment due June 1st, 1921; the third payment due June 1st, 1922. Ten dollars of said amount shall be applied as annual membership dues in the La Salle County Farm Bureau, and $5.00 shall be applied as annual membership dues in the Illinois Agricultural Association. The Treasurer of the La Salle County Farm Bureau agrees to pay $5.00 of each $15.00 installment to the Treasurer of the Illinois Agricultural Association. In case of member’s death or sale of all farm interests, this membership will become null and void upon notifying the Treasurer of the Farm Bureau in writing. Earl-ville No. 3, Ill., 5-20-1920. Signed Jos. E. Thompson. ’ ’

At the same time he executed three other instruments, each in the amount of $15 and each payable to the order of the La Salle County Farm Bureau, one being drawn on the National City Bank of Ottawa, Illinois, payable June. 1, 1920, the other two were drawn on the Merchants Farmers Bank of Ottawa, Illinois, one payable June 1,' 1921, and the other June 1, 1922. These instruments were alike with the exception of the dates. The one due June 1, 1921, is as follows, viz:

“Earlville, Route 3, Illinois 5-20-1920. To the Merchants Farmers Bank of Ottawa, Illinois. On June 1, 1921, pay to the Treasurer of the La Salle County Farm Bureau or order, Fifteen $15.00 for dues in the La Salle County Farm Bureau and the Illinois Agricultural Association, for the fiscal year starting June 1, 1921, and charge to my account.

(Sign here) Jos. E. Thompson.”

These instruments were all delivered by appellee to the La Salle County Farm Bureau and thereupon appellee’s name was placed on the membership roll of the Farm Bureau. During the month of June, 1920, the instrument payable on the first day of that month was presented by the Farm Bureau to the bank upon which it was drawn and paid. The instruments due June 1, 1921, and June 1, 1922, were, at the proper times, presented for payment to the bank upon which they were drawn, but appellee having stopped payment, payment thereon was refused.

This is an action instituted by appellants to recover the amount evidenced by these two instruments. The case was originally brought before a justice of the peace and subsequently appealed to the circuit court where a trial was had by the court without the intervention of a jury and from a judgment in favor of the defendant the record is brought by appeal to this court for review.

In addition to the foregoing facts, the evidence discloses that on October 16, 1914, the Better Farming-Association of La Salle County was incorporated not for pecuniary profit. The objects for which it was formed were to develop the most profitable and permanent system of agriculture possible in the County of La Salle and to promote the social, educational and financial welfare of its inhabitants in every practical manner. Its principal office was located in Ottawa and at the time of the hearing this office was maintained and had been maintained continuously since the organization of the Association in 1914. On May 6, 1920, the name of the Association was changed to the La Salle County Farm Bureau. It further appeared from the evidence that Boy W. Cross became connected with the Association in 1917 as office secretary and since November of that year has served as associate adviser. He testified that in May, 1920, the Bureau put on a drive for new members and upon the receipt of the checks and membership agreement herein referred to, appellee’s name was placed upon the membership roll and appeared thereon at the time of the hearing. The records of the Bureau disclose that the membership of appellee in the Bureau began on June 1, 1920, and extended three years and that on June 26, 1920, $10 was received by the Bureau for it and $ 5 for the Illinois Agricultural Association, but that the dues for the ensuing two years have not been paid. It was stipulated that appellee on May 5, 1920, was a resident and an owner of land in La Salle County and has continued since that date to the time of the hearing to reside in and own land in La Salle County. The by-laws of the Bureau effective during the entire year of 1920, after stating the name of the Association and reciting the purpose for which it was organized, vested the management of its affairs in a Board of not more than thirty-seven directors. These by-laws provided for the election of officers, consisting of a president, vice president, secretary, treasurer and executive committee, defined their respective duties and fixed the time for the annual and special meetings and further provided that “Any resident or owner of land in La Salle County may become a member of this Association by making application therefor in writing, such membership to continue for a period of three successive years and the payment of the annual dues in the regular course of business as provided for in these by-laws. All applications for membership shall be in writing and shall be endorsed by at least two members of the Association. The annual dues of members of this Association shall be ten dollars payable on or before the first day of July.”

The Illinois Agricultural Association is also a corporation organized not for pecuniary profit. The objects for which it was formed are to promote the general interests of agriculture by studying the methods of production and distribution of farm products with the view of working out a system of greater economy and efficiency in handling and marketing the same; to encourage the production, marketing and distribution of live stock; to encourage and promote co-operative organizations of farmers; to publish and issue reports, bulletins and instructions; to effect a system of co-operation between the several farm bureaus throughout the State; to encourage and co-operate with educational institutions, societies and local organizations; to make a thorough study of legislative matters and use lawful influence in seeking the enactment of wise legislation and the defeat of unwise legislation. It has an office at 608 South Dearborn Street in Chicago, which it has maintained since its organization in 1919.

Counsel for appellee insist that the agreement upon the part of appellee to become a member of the Bureau and to pay the dues mentioned was a unilateral one, there being no consideration expressed or implied therein nor any promise made on behalf of the Bureau which would forbid its rescission or operate to make it irrevocable on the part of appellee and that his failure and refusal to pay his dues before the beginning of the -fiscal year of 1921 operated as a withdrawal of his membership.

It is his further contention that if his application for membership be treated as a subscription, and, together with his checks, as his promise to pay, still it was a purely unilateral undertaking and did not become binding until money was expended or liability incurred' by appellants by virtue of it. In support of these contentions the cases of Lehman v. Clark, 174 Ill. 279; Augustine v. Trustees of M. E. Society, 79 Ill. App. 452; Pratt v. Trustees of Baptist Soc. of Elgin, 93 Ill. 475; Beach v. First M. E. Church, 96 Ill. 177; Griswold v. Peoria University, 26 Ill. 41, and Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248, are cited.

The exact question here presented was not passed upon by the court in any of the foregoing cases. Lehman v. Clark, supra, was an action to recover the amount of an assessment made by the receiver of the Masonic Benevolent Association of Central Illinois against a member of the association to cover death losses accrued while the association was doing business. The by-laws of the association provided that if any member failed to pay an assessment within fifteen days after notice thereof had been served upon him he should forfeit his membership in the association and all benefits therefrom. The opinion reviewed numerous authorities and the court held that the application for membership, the certificate of membership, the constitution and the by-laws of the association constituted the contract of the parties and that the contract created was a contract of life insurance; that there was no promise to pay on the part of the member or nothing which could be tortured into an undertaking on the part of the member to pay. for any definite length of time; that the whole scheme of insurance is based on a contract purely unilateral and whether the payment for insurance be termed a premium or an assessment, the right of the association or company is to declare a forfeiture for nonpayment of premium or assessment and not a right to recover the assessment or premium in a suit; that a contract for insurance in any benevolent association is a unilateral contract and the member’s failure to pay is his declaration of severance and that the forfeiture as provided in the by-laws was self-executing and the member, without any action on the part of the association, by mere force of his failure to pay, eo instante, ceased to be a member.

In the instant case, the so-called “Joint Membership Agreement” is not an application for membership but it is an unequivocal declaration by appellee that he thereby joined the appellant Associations for three years and thereby agreed to pay $15 at stated times, as annual membership dues. While this instrument was not signed by appellants, the evidence discloses that it was accepted by the Bureau and, in so doing, the Bureau acted not only for itself but for the other appellant and appellants thereby became bound by its provisions and appellee became a member of both the Bureau and the Association for the stated period of three years. The Bureau obligated itself to pay $5 of each $15 to the treasurer of the Agricultural Assocation, which would be applied as annual membership dues in the Agricultural Association and the remaining $10 should be applied as annual membership dues in the Bureau, and in the event of appellee’s death or the sale of all his farm interests, upon notification thereof to the treasurer of the Bureau, appellee’s membership would thereby terminate. This instrument, its acceptance by appellants, the notes or checks of appellee which accompanied it, their acceptance by appellants and the charter and by-laws of appellants constitute the contract of the parties hereto. The membership of the Farm Bureau was not limited by its by-laws to those who lived and owned land in La Salle County but any resident of that county was eligible to membership or a nonresident of that county who owned land therein was likewise eligible to membership. Membership, however, was to continue for a period of three successive years according to the by-laws and dues of $10 were to be paid annually on or before the first day of July. No provision appears in the by-laws for the suspension, expulsion or withdrawal of members, hence the only provision applicable thereto is that contained in the so-called “Joint Membership Agreement” and under its terms appellee’s membership could only be terminated during the three-year period by his death and notification thereof to the Bureau or upon the sale of all his farm interests and notification thereof to the Bureau. Neither of these contingencies occurred. This declaration and the accompanying checks or notes which appellee signed and which appellants accepted were in strict accordance with the provisions of the by-laws and his deliberate refusal to comply with his obligations to appellants without their consent cannot be said to have terminated his membership or relieved him from his financial liability to appellants. “As a general rule,” says the author of the article on societies and clubs, 25 R. .C. L. 56, “membership does not cease ipso facto because of one’s failure to pay his dues within the time prescribed by the rules of the organization, so as to relieve him from further liability for such dues. He cannot by his own failure terminate the responsibility which he had assumed, though the club might do so. And where the obligation to pay dues is absolute, and the right of expulsion for nonpayment is not made the exclusive remedy open to the club, an action for the recovery of dues even from a suspended member may be maintained.” And the author of the article on corporations, 14 C. J. 840, says: “In the absence of any statute, rule, or law to the contrary, a member of a membership corporation may withdraw at any time, but where valid by-laws impose restrictions and conditions precedent, these must be satisfied before membership is terminated.” In the instant case, the by-laws did not impose any restrictions upon appellee’s withdrawal except they did provide that membership in the Bureau would continue for a period of three successive years and appellee’s declaration was that he had joined appellants for such a period of duration. By becoming a member in appellants’ associations, appellee impliedly agreed to be bound by its constitutions, rules and bylaws. O’Brien v. Rittman, 176 Ill. App. 237. One who becomes a member of a corporation is deemed to have known and assented to the provisions of its charter and by-laws and cannot be heard to object to the enforcement thereof. 25 R. C. L. 50. By-laws are self-imposed rules resulting from ah agreement or contract between the corporation and its members to conduct the corporate business in a particular way. 7 R. C. L. 143. Farm bureaus, agricultural associations, clubs or societies all have the right to make their own rules upon the subject of the admission or exclusion of members and these rules may be considered as articles of agreement to which all who become members are parties. Such bodies may impose such terms and conditions upon the membership as they may choose, and members must comply with those terms and conditions in order to be entitled to the benefits of membership. 25 R. C. L. 54.

In the Lehman case, there was no promise to pay but in the instant case there was an absolute promise to pay by appellee to the treasurer of the La Salle County Farm Bureau the sum of $15 each year for three years. In the Lehman case the member did not become a member for any stated period, the court stating (page 288): “The payment of an admission fee is insurance in advance up to the maturity of the first assessment provided for by the constitution and by-laws and by the certificate of membership and the application. If the member paid no more, he simply forfeited all that he had paid and all benefits under his certificate, but had paid for all he had received. By paying the first assessment and continuing to pay assessments thereafter made from time to time, each time he so paid an assessment his assessment was for his insurance until the maturity of the next assessment,” but in the instant case, appellee’s membership both by virtue of his declaration and the by-laws was for a period of three successive years and in our opinion appellee could not during that period terminate his membership by refusing to pay his dues.

In United Hebrew Benev. Ass’n v. Benshimol, 130 Mass. 325, it appeared that the plaintiff was ah incorporated association, its object being to raise funds for the purpose of granting temporary relief to poor and helpless Israelites. Its constitution provided that any Israelite desiring to become a member could be proposed to the board of directors by paying $1.00 admittance fee and after being elected must pay $5.00 yearly in advance as dues to the association. The defendant was elected a member in 1869, paid his admission fee of $1.00 and the $5.00 annual dues and continued to pay the $5.00 each year for dues up until May, 1875. In an action to recover from the defendant member the annual dues for the five succeeding years the court, in holding the member liable, found he had not resigned his membership, was legally bound by an implied promise to pay the dues provided for by the constitution and by-laws and held that the defendant assumed the obligation to pay the annual dues by joining the association and that the benefit of membership afforded a sufficient consideration, so long as it' continued, for the defendant’s promise.

In Boston Club v. Potter, 212 Mass. 23, 98 N. E. 614, it was held that the by-laws of a club constitute a contract between the members and the corporation and that a member, to relieve himself of liability for membership dues, must comply with the provisions of the by-laws and that by simply failing to pay dues, as required by the by-laws, he could not thereby terminate his liability therefor.

In our opinion the facts in the instant case are clearly distinguishable from those in Lehman v. Clark, supra, and the other cases relied upon by appellee are not in point as they were all actions to recover upon notes given or subscriptions made to aid in defraying the expense of remodeling a church, purchasing a bell, raising a fund, or promoting a like object, and those cases all announce the rule to be that a voluntary subscription may be withdrawn at any time before money has been expended or liability incurred on the faith of it, and that want of consideration is available inasmuch as the promise in such cases stands as a mere offer and may be revoked at any time before being acted upon, it being the expending of money and incurring legal liability on the faith of the promise that gives the right of action.

Prom what we have said it follows that the judgment of the trial court should be reversed and cause remanded, which is accordingly done.

Reversed and remanded.


author: Mr. Presiding Justice Jett

text:
    In re Petition of Grace M. Saunders, filed in Proceedings in the Estate of James Saunders, Deceased. Grace M. Saunders, Appellant, v. Marian B. Saunders, Appellee.
    Gen. No. 7,743.
    1. Witnesses — competency of witness to testify to her alleged marriage to decedent. Under Cahill’s St. eh. 51, 1[ 2, providing no one interested shall testify in his own behalf against the representative, heir or devisee of an ■ estate, a petitioner cannot' testify in regard to her alleged, marriage to the decedent of an estate in her effort to be declared his widow, as against one already declared widow and administratrix and her descendants, irrespective of whether or not there are collateral heirs.

      2. Evidence — admissibility of marriage certificate to prove marriage. An alleged marriage certificate is not admissible to show marriage in the absence of evidence as to its identity and as to its execution or authenticity.
    3. Probate courts — jurisdiction of circuit court on appeal from county court in heirship proceedings. On appeal from the county court’s refusal to declare petitioner the widow of a decedent and to reopen heirship proceedings, the circuit court must try the ease de novo, and has no power to affirm, reverse or remand the cause.
    4. Appeal and error — what Appellate Court will consider on appeal from circuit court judgment in heirship proceeding appealed from the county court. The Appellate Court will consider only the judgment of the circuit court, on proper issue there formed, upon heirship proceedings appealed to it from the county court and not any alleged error in the latter court.
    5. Evidence — admissibility of deeds to show marriage. Deeds, introduced in heirship proceedings to show petitioner is the widow of a decedent, which show persons of the same names as she and decedent to be husband and wife are not admissible without evidence of the identity of the parties. '
    6. Marriage — what does not prove common law. A showing that a man and woman lived together in the same room, and that a man of the same name but not identified as the same, made deeds in Which the woman was named as his wife, does not prove a common-law marriage in face of proof that later both parties entered into ceremonial marriages with other persons.
    Appeal by plaintiff from the Circuit Court of DuPage county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed September 24, 1927.
    Edward J. Kelley and Henry J. Gtbbs, for appellant.
    Charles W. Hadley and John W. Leedle, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

Dr. James Saunders died in DuPage county, Illinois, May 19, 1921, leaving a last will and testament in which his wife, Marian B. Saunders, was named as executrix. The will was admitted to probate. The wife qualified as executrix and filed an inventory. The county court found that the testator left surviving him, his widow, Marian B. Saunders, one son, and several grandchildren. On July 3, 1923, appellant, who styled herself as Grace M. Saunders, filed her petition in the county court, in which she alleged that on October 31, 1899, a marriage was contracted between her and James Saunders, “as she remembers in the city of Milwaukee, county of Milwaukee, and State of Wisconsin, and that while she believes that she is the widow of the said James Saunders,” her name has been omitted from the proof of heirship, and she prayed that the order determining the heirship be vacated and set aside, and that other proof of heirship be taken, and an order entered finding that she is the widow of James Saunders. There was a hearing on the petition and it was dismissed for want of proof and equity. Appellant prosecuted an appeal to the circuit court and the petition was again dismissed. A further appeal was prosecuted to this court.

On the trial in the circuit court appellant took the stand for the purpose of testifying to the facts relative to her alleged marriage with Saunders and the subsequent relations between them. An objection was sustained to her competency as a witness and this ruling is assigned as error.

Section 2, chapter 51, of the statute provides, in substance, that no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as the executor, administrator, heir, legatee, or devisee of any deceased person, unless when called as a witness by such adverse party so suing or defending. Cahill’s St. ch. 51, If 2.

Appellant contends that this proceeding was not a contest between the heirs of James Saunders; that it could not diminish the estate in any way; that it was a contest between appellant and appellee, Marian B. Saunders, to determine who Avas the lawful widow entitled to the AiddoAv’s share of the estate, therefore, this section of the statute does not apply.

This exact question has been before the Supreme Court on several occasions. In Laurence v. Laurence, 164 Ill. 367, a bill for partition was filed by an alleged AvidoAV against the heirs of the deceased, who died leaving no direct issue. The complainant claimed to be entitled to one-half of the real estate and all of the personal estate. The trial court permitted her to testify over the objection of defendants and entered a decree finding that she was the laAvful wife of Laurence at the time of his death. The cause was appealed and appellants challenged the ruling of the court in permitting the alleged widow to testify to the facts of marriage, and to other facts tending to shoAV that the marriage relation existed. The court reviewed all of the prior decisions upon that question up to that date, and on page 373 announced the rule as folloAvs: “The rule to be deduced from those cases is, that where, among those Avho are conceded to be the heirs, there arises a controversy as to the distribution of the estate among them, they may testify, as such testimony does not tend to reduce or impair the estate among them. Appellee was not an heir until she established the marriage Avhieh she alleged and AAdiich was denied by the heirs, and until such marriage was established by proof or conceded, she was a stranger to the estate and incompetent to testify, and the court erred in permitting her to do so, over appellants’ objection.”

In Re Maher’s Estate was before the Supreme Court on three occasions: 183 Ill. 61; 204 Ill. 25; 210 Ill. 160. Maher died intestate leaving only collateral heirs. Jessie R. Maher filed her petition in which she claimed to have been the legal wife of the deceased from April 1, 1884, for a period of about thirteen years; that he left a valuable estate, and prayed that the administrator be ordered to pay her $500 on her distributive share. Two other women, each claiming to be the widow of the deceased, appeared and resisted the petition. The administrator filed an answer neither admitting nor denying the allegations of the petition but stating that the deceased left minor heirs not represented except through the administrator. The probate court entered an order as prayed in the petition and an appeal was prosecuted to the circuit court. In each of the trials in the circuit court, the testimony of Jessie R. Maher was excluded on the ground that she was not a competent witness. On the last appeal to the Supreme Court all of the prior decisions were reviewed, and in 210 Ill. on page 170, the rule is announced as follows: “We therefore hold that a woman claiming to be the lawful widow of a dead man, whose claim in that regard is denied by others who have interests, or assert interests, as heirs, in his estate, is incompetent to testify to the fact of her marriage in a proceeding in which she seeks, as distributee, a portion of all of his personal property, until her status as such widow has been conceded or has been established by the adjudication of a court having jurisdiction of the subject.”

Other cases might be cited announcing the same rule, but as they are referred to in the two cases above cited, it will not be necessary to consider them. The only possible distinction between these cases cited and the one at bar is that in each of them there were only collateral heirs, while in this case there are no collateral heirs. We know of no good reason why the rule should be applied in one case and not be applied in the other, and we are of the opinion that the same rules apply whether there are collateral heirs as whether there are no collateral heirs. Under these authorities, appellant was not a competent witness to testify to the facts relative to the marriage, or to the subsequent relations of the parties, and the court properly sustained the objection to her testimony¡

Appellant offered in evidence a written instrument purporting to be a marriage certificate showing her marriage to Saunders. It was dated October 31, 1898, at Milwaukee, Wisconsin, and was signed by B. Henry Kreutmeyer, Jr., Pastor, and by two witnesses. Objection was sustained to this instrument and this ruling is assigned as error. There was no evidence as to its identity, and in the absence of any evidence as to its execution or authenticity, the objection to it was properly sustained. Tucker v. People, 117 Ill. 88.

In the county court, in the original hearing to establish the heirship, appellee, Marian B. Saunders, was permitted to testify. No answer was filed to the petition of appellant. In the circuit court, an answer was filed to the petition by Marian B. Saunders, and several of the legatees under the will filed their appearances and were represented at the hearing. Appellant insists that there was no issue joined in the county court, therefore, there was no issue to be tried and the proceeding was a nullity; that if appellee was permitted to testify in the county court relative to her .marriage to Saunders, then appellant should have been permitted to testify to that fact in the circuit court.

When appellant filed her petition in the county court she saw fit to go to trial without an answer having been filed. The real question was as to the truth of the allegations of her petition. When that question was decided against her she appealed to the circuit court. The trial in the circuit court was a trial ele novo. The circuit court was without jurisdiction to affirm or reverse the judgment of the county court, or to remand the cause to the county court for further action. The sole duty of the circuit court was to try the case the same as if it had never been tried before. Snell v. Weldon, 162 Ill. App. 11; American Surety Co. of New York v. Sperry, 171 Ill. App. 56. It was from the judgment of the circuit court that this appeal was prosecuted, and the correctness of that judgment is the only question for review in this court. Proper issues were formed in the circuit court and there was no error in this respect. Even if it be conceded that the county court improperly permitted appellee to testify, which question we do not pass upon, appellant is in no position to review in this court the alleged erroneous ruling on evidence. The will expressly stated that Marian B. Saunders was the beloved wife of the deceased, and left a part of the estate to her. At the time she testified in the county court there was no contest over the question as to her being the widow of the deceased.

The remaining question is whether the evidence was sufficient to establish a marriage either ceremonial or at common law. Appellant in her petition alleged that she ivas married to Saunders October 31, 1899, at Milwaukee, Wisconsin. The marriage certificate that she attempted to offer in evidence certified that the ceremony ivas on October 31, 1898. After appellant’s evidence ivas excluded there was no evidence even tending to show that a marriage ceremony was ever performed. If there was no legal proof of a ceremony, the question is whether the facts and circumstances in evidence were sufficient to establish a marriage. The evidence shows that in 1898, Saunders lived in Glen Ellyn, in DuPage county, and had lived there for some time, and continued to live there until the date of his death. Appellant had been married to a man by the name of Matthews, who died in 1889. For a time she lived in Chicago, but in 1898 lived in Glen Ellyn. On February 26, 1902, while she resided in Glen Ellyn, she Avas married to Daniel B,. LaAvrence. She Avas afterivards knoAvn as Grace M. LaAvrence. They moA^ed to Chicago Avhere they lived for several years. In 1921, Lawrence obtained a divorce from appellant in Wisconsin.

Mary E. Matthews, a daughter of appellant, testified that in 1898, Saunders lived at their home in Chicago, and, while living there, Saunders and her mother occupied the same bedroom. Shortly afterwards they moved to Glen Ellyn, and appellant and Saunders occupied the same room at Glen Ellyn; that Saunders resided with appellant but a short time at Glen Ellyn; that she and her mother lived in Glen Ellyn for about seven years; that it was in Glen Ellyn that witness first met Lawrence, and he came to live at their house while they were living in the King house. After that her family moved back to Chicago where Lawrence and her mother resided.

William F. Matthews, son of appellant, testified that he first met Saunders at 431 West Lake Street,. Chicago, in 1898; that Saunders and his mother, while living in Chicago, occupied the same room; that the witness lived at Glen Ellyn with his mother for six months, or possibly a year. He did not know how long Saunders lived' with his mother at Glen Ellyn. He knew of the marriage of his mother and Lawrence but he did not remember the date. After the marriage appellant went by the name of Lawrence. The last time the witness saw Saunders was when the witness left Glen Ellyn which was about six months or a year after he first went there. His mother and Lawrence lived together in Chicago for a while..

Appellant offered in evidence a deed dated March 11, 1901, conveying certain real estate to Grace M. Saunders. An objection was sustained to this offer and we think properly so for the reason that it was not properly identified and had no apparent connection with James Saunders. Appellant also offered in evidence certified copies of two deeds, one dated January 17, 1900, in which the grantors, James Saunders, M, D. and Grace M. Saunders, his wife, of Glen Ellyn, conveyed certain real estate to Amelia Loy and Thomas J. Lewis. The other deed was dated March 4, 1901, and recited that the grantors, Grace M. Saunders, formerly Grace M. Matthews, and James Saunders, her husband, conveyed certain real estate in Chicago to Sarah Slage.

This is practically all of the evidence which tends to show the relations which existed between appellant and Saunders upon which appellant seeks to establish her marriage. The petition is based upon the allegation that a marriage ceremony was performed and there is no evidence that sustains such a contention. Appellant claims that the evidence shows a common-law marriage. The rules with reference to a common-law marriage are well understood and it will not be necessary to go into detail with reference to them. There is practically no evidence which shows that Saunders ever held appellant out as his wife. If the evidence does not come within the rules of law with reference to common-law marriages then appellant is not entitled to the relief sought. The mere fact that the parties may have lived together, either in Chicago or in Glen Ellyn, and occupied the same room, is not sufficient to establish a commonJaw marriage. There is no evidence tending to show that the James Saunders mentioned in the two deeds offered in evidence was the testator in this case, but we are asked to hold that these two deeds, without any evidence as to the identity of the parties, are sufficient to establish the fact that Saunders recognized appellant as his wife. If it is true that appellant was the wife of Saunders, then when she married Lawrence in 1902, she became a bigamist, and she continued as his wife until 1921, when her husband secured a divorce from her. On October 28, 1905, Saunders was married to appellee, Marian B. Saunders, and continued to live with her. until the time of his death in 1921. During a part of this time both appellant and Saunders lived in Glen Ellyn, she living -with her husband Lawrence, and he living with his wife, the appellee. During the time she lived with Lawrence appellant certainly did not make any claim to being the wife of Saunders, and there is no evidence that Saunders during that time ever recognized her as his wife.

Under all the evidence we are of the opinion that it entirely fails to show that appellant was the wife of Saunders, the circuit court correctly so found, and the judgment will be affirmed.

Judgment affirmed.


text:
    Charles C. Gayton, Appellee, v. Equitable Life Assurance Society of the United States, Appellant.
    Gen. No. 7,771.
    1. Insurance — admissibility of evidence as to insured’s actions before disappearance. In an action to recover on a policy on the life of one alleged dead after long absence, the testimony of a -witness was admissible that he drew a will for the insured shortly before his disappearance and that insured’s nervousness and actions at the time attracted his notice.
    2. Insurance — admissibility of letter stating insured’s relatives’ belief in Ms death. In an action to recover on a policy on the life of one alleged dead after long absence, a letter to the insurer stating that the widow and children of insured believed him dead was inadmissible as self-serving and as invading the jury’s province.
    3. Insurance — admissibility of letter stating beneficiary’s belief in insured’s death. In an action on a policy on the life of one alleged dead after long absence, a letter to the insurer to the effect that in the opinion of the beneficiary the insured was dead furnished the jury an opinion on an issue it was to determine and was inadmissible.
    4. Insurance — insurer’s right of inquiry into disappearance of insured claimed dead after long absence. In an action on the policy on the life of one alleged dead after long absence, the insurer may inquire whether the insured was prosperous at the time of his disappearance, whether he was free from suspicion of guilt of any crime, whether his domestic life was peaceful, whether he was a man of rectitude or subjeet to disgrace, and into all other circumstances surrounding him at that time.
    5. Insurance — admissibility of evidence showing insured’s forgery before disappearance. In an action on a policy on one alleged dead after long absence, it was error for the court to refuse admission in evidence of a court record showing insured had committed forgery shortly before his disappearance.
    ' 6. Insurance — propriety of instruction permitting jury to find insured’s death from long absence regardless of cause. In an action on a policy on the life of one alleged dead after long absence, an instruction that even though insured had reason for leaving home if he was absent for seven years and his relatives had been unable to find him, the jury might find him dead, was erroneous in depriving the insurer of the defense that the insured was a criminal and had reason for disappearing.
    7. Death and survival — how presumption of death from long absence overcome. The presumption of death from long absence is one of law and fact which will be rebutted if the circumstances shown account for the person’s absence without assuming his death.
    Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Arthur E. Fisher, Judge, presiding. Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed September 24, 1927.
    Lathrop, Lathrop & Brown, for appellant.
    Hall & Dusher, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an action of trespass on the case on promises, brought in the circuit court of Winnebago county by Charles C. Crayton, appellee, against the Equitable Life Assurance Society of the United States, a corporation, appellant, to recover the sum of $2,000, claimed to be due and payable according to the terms and provisions of a certain insurance policy issued by the appellant on the life of William Henry Moore and payable to Charles C. G-rayton, appellee, as beneficiary.

A jury trial was had and the jury found the issues for the appellee and assessed his damages in the sum of $2,000 with interest at 5 per cent for one year, two months and ten days. The total amount of the verdict when computation was made by the jury was $2,119.43. A motion for a new trial filed by the appellant was overruled and judgment rendered on the verdict of the jury in favor of said appellee and against appellant for $2,119.43, together with costs, and this appeal followed.

The declaration consists of a special count and the common counts. In the special count it is averred that on, to wit, May 29, 1917, the defendant was in the business of insuring the life of persons and issuing policies thereon; that on said date the defendant executed and delivered a policy of insurance on the life of William Henry Moore, in and by which said defendant agreed to pay the sum of $2,000 to Charles C. Gayton, brother-in-law of the said William Henry Moore, in which said policy the plaintiff was named as Charles C. Goyton, but the plaintiff avers that he is the person mentioned in said insurance policy by such last-mentioned name in and by which said policy of insurance the defendant insured the life of William Henry Moore against death.

The plaintiff further averred that after the issuance of said policy, the plaintiff, or those acting for him, and the said William Henry .Moore, or those acting for him, caused the premiums to be fully paid from time to time so that said policy was in full force and effect on the date of the death of the said William Henry Moore as hereinafter mentioned.

It was further charged that on May 31, 1918, the said William Henry Moore disappeared from his home and from his family and from the place where he had lived and conducted business in Rockton, Illinois, and thereafter the said William Henry Moore has not been seen or heard from by members of his family and that diligent effort and inquiry has been made to locate the said William Henry Moore and to ascertain his whereabouts, all of which efforts have failed, and during all of said time since the said date to the present time the said William Henry Moore has not been heard from by any members of his family or any of his friends and acquaintances and the plaintiff says that on, to wit, May 31,1925, the said William Henry Moore died.

The plaintiff averred in his declaration that upon the disappearance of said William Henry Moore the defendant was notified of said disappearance and notified "of all of the facts and circumstances surrounding the same and that the plaintiff or those acting for him and his acquaintances and friends have, from time to time, orally advised the said defendant through its officers and agents of all of the facts with reference to the then present situation with regard to the disappearance of the said William Henry Moore and plaintiff averred that after the death of the said William Henry Moore, as above mentioned, he applied to the defendant and requested the defendant to furnish him proofs of death to be used in such case to be made and executed by him and returned to the said company but that the defendant failed to furnish proof of death to be executed by the plaintiff and that the plaintiff furnished the defendant all of the information he had upon the subject and that the defendant waived the filing of other or different proof of loss.

It is then averred that upon the death of Moore the defendant became and was liable to pay to the plaintiff the sum of $2,000 and that the plaintiff has heretofore requested the defendant to pay same and the defendant has neglected and failed so to do to the damage of the plaintiff in the sum of $2,500.

To the declaration the defendant pleaded the general issue and a special plea in which the defendant set up the fact that neither the appellee nor anyone in his behalf had furnished to appellant any proof of whatsoever kind or nature of the death of the insured and that the appellant had not received due proof of the death of the said Moore and this said appellant was ready to verify.

A demurrer was filed .to the special plea which the court sustained and appellant asked leave to file another special plea which was denied.

It is provided in the policy of insurance of date May 29, 1917, that the appellant insured the life of Moore and agreed to pay at its home office in the city of Rockford $2,000 to his brother-in-law, Charles C. Crayton, beneficiary, upon receipt of due proof of the deatli of the insured, provided premiums had been duly paid, and provided the policy is then in force and then surrendered properly released.

A number of reasons are assigned by the appellant for a reversal of the judgment. David D. Madden testified on the part of the appellee that he last saw William Henry Moore on May 29,1918; that Moore came to his office and talked to him about making his will; that a draft of the will was prepared, read to Moore, and the same was taken away by Moore, but it was not executed. The original will was not produced and no proof of the execution of the instrument prepared by Moore was made. Madden also testified that Moore was nervous and that his actions attracted his attention. Appellant made a motion to strike this evidence from the record. The motion was denied. No error was committed in admitting the testimony of the witness with respect to the preparation of the will for Moore, ■ and as to his appearance and actions at the time.

It further appears that Madden, while representing appellee, on June 29,1925, wrote a letter to the appellant company and requested a form of claim to be executed in making proof of death. It was also stated in the letter “that the plaintiff as well as insured’s widow and heirs-at-law believe him (Moore) to be deceased.”- Appellee objected to the letter being , admitted in evidence; the objection was overruled. The letter should not have been admitted. It is immaterial what beliefs the widow and heirs entertained and the statement was prejudicial to the defendant. It constituted a highly self-serving document and has no probative force. It invaded the province of the jury.

Appellee offered in evidence a letter, written by him to the appellant on May 6, 1919, in which appellee stated, among other things, that Moore had written him two letters on the date he left home and told him of his failure. The following also appeared in the letter: “His letters stated that he would write when he could and send money to his wife; these things he has not done, however, which leads to the suspicion that he may not now be alive.” The letter was admitted over the objection of the appellant. It will be observed that the beneficiary, who is the appellee in this proceeding, by the introduction of the letter was permitted to give to the jury a written statement, wherein he in substance stated that in his opinion the insured was dead. The statement furnished to the jury an opinion on the issue that it was to determine and should not have been admitted in evidence. ■

Appellant on the trial of the cause offered in evidence the findings of the United States District Court for the northern district of Illinois, in which it was, among other things, found that William Henry Moore, a bankrupt, did fraudulently receive from the Adolph ICempner Company, a corporation, by means of three forged bills of lading, the sum of $4,600. The forgery of the bills of lading by Moore was one of the facts upon which the appellant relied to account for the sudden disappearance of Moore. The evidence shows that the forgery had been made within a period of two weeks prior to the insured’s disappéarancé. '

In cases of this character when a suit is instituted to recover upon an insurance policy and thé beneficiary relies upon the presumption of the déath of the insured by reason of his absence for seven years, it is always a matter of proper inquiry to investigate whether such person was in comfortable or disturbed circumstances; whether he was free from suspicion of guilt of any crime; whether his domestic life was peaceful or turbulent ; whether he was a man of rectitude and of good esteem or one who was guilty of moral turpitude and subject to humiliation or disgrace. In fact an inquiry can be made into all of the circumstances then surrounding him. It was pertinent to show that the insured, Moore, was at least charged with being a defaulter. It matters not whether he was a party to the proceeding in which the finding was had or not. The essential thing is, Was he being so accused and would he have an opportunity to know of the accusation 1 We are of the opinion the court was in error in refusing to admit the order of the District Court of the United States.

It is insisted by appellant that instruction No. 1 given on the part of appellee is erroneous. The instruction is as follows:

‘ ‘ The court instructs the jury that it is the continued absence of a person for a period of seven years during' which his relatives, friends and others interested in him have made diligent search to find him, and have heard nothing from him or concerning him that raises the presumption of death, and you are instructed that while you may take into consideration any reasons he had for leaving at the time he did, yet you are instructed that it is the continued absence for a period of seven years, without his relatives, friends and others interested in him, or who might be likely to hear from him, after having made diligent search for him, not having heard from or concerning him, and in this case, even though William Henry Moore had some reasons for leaving his home and friends, yet you are instructed, if you believe from a preponderance of the evidence that he left his home and place of business and friends and relatives May 31, 1918, and that his relatives and others have sought to find him since that time and have not heard from him or concerning him within a period of seven years prior to the beginning of this suit, then you are instructed that such inability to find him and his continued absence for a period of seven years is sufficient upon which the jury may find a verdict that William Henry Moore was dead at the end of seven years from the time he was last seen or heard from.”

The instruction is argumentative and is erroneous because it tells the jury that even though the insured had some reason for. leaving home, nevertheless, if he has been absent for seven years and if his family and relatives have been unable to find him during that time, the jury- are authorized to find that he is dead. The instruction entirely deprives the defendant of the defense that the insured was a criminal; that he had a strong motive for disappearing and that he had planned to escape the consequences of his crime.

Appellee cites Policemen’s Ben. Ass’n of Chicago v. Ryce, 213 Ill. 9, local page 14, as approving this instruction. In the Ryce case a similar instruction was given. It was there held not to be reversible error because other instructions in the series were considered sufficiently explicit to remove the error. The court on page 16 said: “The instructions, considered as one charge, authorized the jury to take into consideration the circumstances, attending the disappearance of the insured, and bearing upon the question whether he was dead or not.”

It is well settled that long absence alone no matter how long continued is not sufficient to raise the presumption of death. The absence must be unexplained for if the cause of absence is known and explained no presumption will arise. The presumption of death from unexplained absence is not, however,- a présumption of law but a mixed presumption of law and fact, which may be rebutted, and it will not be indulged where the circumstances of the case are such as to account for the absence of the person without assuming his death. We are of the opinion that the giving of instruction No. 1 on the part of appellee was reversible error.

Other questions are argued but in view of the conclusion we have reached we do not deem it necessary to discuss them.

The judgment of the circuit court of Winnebago county will be reversed and the cause remanded, which is accordingly done,.

Reversed and remanded.'


author: Mr. Justice Boggs

text:
    Alice Brundege, Administratrix of the Estate of Melvin J. Brundege, Deceased, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 7,746.
    1. Master and servant — violations of speed ordinance as negligence. A right to recover for the death of a railroad employee struck by a train cannot be based merely upon the operation of the train at a speed in violation of a city ordinance.
    2. Master and servant — whether railway servant hilled handling mail was in interstate commerce as jury question. Whether a railway servant, whose general duties as mail handler would engage him in interstate commerce, was so engaged at the time of his death from his master’s train, held a question for the jury.
    3. Master and servant — negligence from speed of train as question for jury. Whether a railroad company was negligent in its duty to a station- employee in operating a train at a speed of from 35 to 4'0 miles .'an hour in a village, held a question for the jury.
    4. ..Master and servant — assumption of rish as a defense undei• the Federal Employers’ Liability Act. A railroad may avail itself of assumption of risk as a defense to an action under the Federal Employers ’ Liability Act for causing the death of a servant in so far as the risk is usual, ordinary, and remains incident to the employment after the master takes reasonable care to prevent or remove it, or, though extraordinary, is so obvious and exposes the servant to such .imminent danger that an ordinarily prudent man would anticipate injury as so probable that he would not enter or remain in such employment.
    5. Master and servant — Federal Employers’ Liability Act as superseding State laws. The Federal Employers’ Liability Act of 1908 superseded all State laws on the subject of an interstate employer’s liability.
    6. Master and servant — defense of assumed risTc as jury question. A verdict should not be directed for a railroad company if there is any evidence in an action for the death of a servant engaged in interstate commerce showing if true, together with inferences reasonably drawn therefrom, that the risk relied on as a defense was not assumed by the decedent.
    Appeal by defendant from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed September 24, 1927.
    Cairo A. Trimble and Perry D. Trimble, for appellant; J. A. Connell, of counsel.
    L. A. Zearing and J. L. Spaulding, for appellee; George W. Hunt, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.

An action was instituted by appellee against appellant in the circuit court of Bureau county under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 321, to recover damages for the death of Melvin J. Brundege, who was struck and killed by one of appellant’s trains at its Fifth Avenue Station, LaGrange, Illinois, on January 24, 1925.

The declaration consisted of eight counts, the sixth count of which was by the court withdrawn from the consideration of the jury. All of the counts charged that both appellee’s intestate and appellant railroad company were engaged in interstate commerce at the time Brundege was struck and killed.

The first and second counts charge in substance that appellee’s intestate, while assisting in interstate commerce by carrying United States mail from the railroad’s mail trains to its depot, was struck and killed by one of appellant’s trains which was being carelessly and negligently operated at a high and dangerous rate of speed. The third count charges a failure to provide appellee’s intestate with a safe place to work. The fourth and fifth counts are in substance the same as the first and second, except that they also charge a failure to sufficiently warn appellee’s intestate so as to enable him to get off the tracks of appellant’s railroad to a place of safety. The seventh and eighth counts were based on an ordinance of the village of LaGrange, which provided that trains should not be operated through said village at a speed greater than 10 miles per hour, and charged that appellant’s train which struck and killed appellee’s intestate was being operated at, to wit, 50 miles per hour. All of said counts allege that said deceased left him surviving a widow and minor son.'

To said declaration a plea of the general issue was filed. A trial was had, resulting in a verdict and judgment in favor of appellee for the sum of $15,000. To reverse said judgment, this appeal is prosecuted.

Melvin Brundege, appellee’s intestate, was assigned to duty at LaGrange, Illinois. Arriving there January 23rd, about 12:30 p. m., he reported to Walter A. Hunter, the agent in charge of appellant’s station, and was told by him that “he was to handle the mail and baggage, deliver Western Union telegrams, sweep out office and waiting rooms, and make himself generally useful.” Hunter, as a witness for appellee, further stated that he “sent Mr. Brundege around with his predecessor who was performing these duties, to show Brundege ivhat and where his job ivas”; that he “cantioned him. about the fast train that came in about 6:38 or 6:40 in the morning, going east, and cautioned him about the fast trains using the running tracks and other trains running very thickly at that hour; to be cautious about crossing the tracks.” He further stated: “I told him No. 8 was due at 6:38, and to look out when he went to meet the 6:40 train, in crossing the tracks, and to be sure to look in both directions before crossing the tracks.”

Brundege reported for work on the next day, January 24, at 6:30" a. m., and while crossing the tracks at Fifth Avenue about 6:40 a. m., was struck and killed by eastbound train No. 8, which, the testimony shows, was being operated at from 35 to 40 miles per hour through said village.

At the close of appellee’s evidence, and again at the close of all the evidence, motions were made by appellant to exclude the evidence and to direct a verdict in its favor, which motions were denied. Thereupon appellant entered a motion to exclude the evidence and to dire’ct a verdict of not guilty as to the seventh and eighth counts of said declaration. These motions were also denied.

Under the holding of our Supreme Court in Village of Atwood v. Cincinnati, I. & W. R. Co., 316 Ill. 425-435; Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402-412; City of Witt v. Cleveland, C., C. & St. L. R. Co., 324 Ill. 494, we are of the opinion and hold that the court erred in refusing said motions. Counsel for appellee concede that under the holding of these eases, unless the Supreme Court should reverse itself or modify its holding no right of recovery can be based on the violation of the provisions of said ordinance as such.

The language and reasoning of the court in the three cases mentioned is so final and conclusive on the subject of the regulation of public utilities by the now Illinois Commerce Commission that it is not necessary for us to discuss the same. The language used by the court in those cases is a complete answer to the argument here made by counsel for appellee, asking the Supreme Court to reverse its holding in those cases. Appellant prayed an appeal from said judgment to the Supreme Court, upon the trial judge certifying that the validity of said ordinance should be passed on by the Supreme Court. That court having transferred said cause to this court, in effect, held against appellant on said proposition.

For the refusal to direct a verdict on counts seven and eight, this judgment must be reversed and the cause remanded. Inasmuch as appellant urges a reversal on other alleged errors which are likely to arise on another trial, we deem it our duty to pass on these also.

It is seriously contended by counsel for appellant that the record fails to disclose that appellee’s intestate, just prior to and at the time of the injury which caused his death, was engaged in interstate commerce.

The general duties of Brundege, as detailed by the witness Hunter, were of a character that would engage him in interstate commerce, and, under the holding of the Supreme Court in Cleveland, C., C. & St. L. R. Co. v. Industrial Commission, 294 Ill. 374, where the court had before it the question as to whether an employee of a railroad company, who was handling the mails in much the same manner as appellee’s intestate was to handle the same, was engaged in interstate commerce, we hold that it was a question for the jury under the instructions of the court, as to whether appellee’s intestate was so engaged. The court therefore did not err in refusing to direct a verdict on that ground.

It is next contended that the evidence failed to sustain the allegation as to the negligence of appellant. We are of the opinion and hold that, without reference to said ordinance, it was a question for the jury as to whether or not the operation of appellant’s train through said village at a speed of from 35 to 40 miles per hour, under the circumstances disclosed by the evidence in this case, was negligent. In making this holding, we do so in view of the duty of appellant railroad company to appellee’s intestate, and not of its duty towards the public generally.

It is next contended by appellant that the record clearly discloses that appellee’s intestate, under the Federal Employers’ Liability Act, assumed the dangers incident to his employment, and that therefore there can be no recovery in this case.

The defense of assumption of risk is unquestionably available to the employer in suits of this character, brought under the Federal Employers’ Liability Act. Boldt v. Pennsylvania R. Co., 245 U. S. 441-445, and cases there cited. While this is true, it is also the law that an employee under said act does not assume “all the risks incident to his employment, but only to such as are usual, ordinary, and remain so incident after the master has taken reasonable care to prevent or remove them, dr if extraordinary, such as are so obvious and expose him to danger so imminent that an ordinarily prudent and careful man would anticipate injury as so probable that in view of it he would not enter upon or remain in the employment.” Chicago & A. R. Co. v. House, 172 Ill. 601-605. To the same effect, but stated in a little different language, are Chesapeake & O. Ry. Co. v. Proffitt, 241 U. S. 462-468; Chesapeake & O. Ry. Co. v. De Atley, 241 U. S. 310-315-317; Kanawha & M. Ry. Co. v. Kerse, 239 U. S. 576-581 (holding deceased’s knowledge of the conditions important); Boldt v. Pennsylvania R. Co., supra; Seaboard Air Line Ry. v. Horton, 233 U. S. 492—504.

Since Congress took over the:. matter of the interstate employers’ liability, by the passage in 1908 of the Federal Employers’ Liability Act, all State laws upon the subject were superseded. Second Employers’ Liability Cases (Mondou v. New York, N. Y. & H. R. Co.), 223 U. S. 1-55, 1 N. C. C. A. 875.

Without going into a detailed discussion of the evidence in this case, it is only necessary to say that if there is any evidence in the record from which, taken as true, with all reasonable inferences to be drawn therefrom, it can fairly be said that the risk in question was one which appellee’s intestate did not assume, then the court did not err in refusing to direct a verdict on this issue.

While the record discloses that the crossing gates at Fifth Avenue were down, and while the evidence is to the effect that the whistle was sounded on the fast train in question, and while the towerman testified that he rang his bell to warn appellee’s intestate, still we are not able to say, under the holding of the United States Supreme Court in the cases cited, as to what may be taken into consideration by the jury in determining whether there was an assumption of risk by an employee, and in view of the evidence as to the speed of said train, the location of tracks, time of day, knowledge of conditions by appellee’s intestate, and all the other facts surrounding the situation in question, that there was no evidence in the record which, taken as true with all reasonable inferences to be drawn therefrom, would fairly tend to prove that this was a risk which appellee’s intestate should be held not to have assumed. This being true, the court did not err in failing to direct a verdict for appellant on that ground.

It is next contended by appellant that the court erred in giving instruction No. 3 given on behalf of appellee, and instruction No. 14 given by the court on its own motion.

Both of these instructions were based on the ordinance in question, and for the reasons heretofore stated, it was error for the court to give the same.

It is next contended that the court erred in refusing to give instructions Nos. 25, 26, 31 and 32, offered by appellant.

Instruction 25 stated a correct principle of law, and should have been given, as it is not in terms covered by any of the other instructions given. It was urged against appellant’s instruction 26 that it particularizes certain of the evidence. We do not think this point is well taken. Bather, it refers to one of the issues to be determined by the jury, and should have been given. Instruction 31 and 32 state correct principles of law applicable to the facts in this case. Counsel for appellee practically concede this, but insist that the same are covered by instruction 14. As we have held instruction 14 erroneous for being based on said ordinance, it follows that instructions 31 and 32 should have been given.

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

Reversed and remanded.


text:
    School Directors of District No. 175, Ogle County, Illinois, Defendants in Error, v. School Directors of District No. 173, Ogle County, Illinois, Plaintiffs in Error.
    Gen. No. 7,759.
    1. Schools and education — requirements for transferring part of one district to another. Under Cahill’s St. eh. 122, UU 46 and 52, the giving of written notice and service of a copy of the petition for transferring part of one district to another on the president or clerk of the boards of school directors of the districts affected is necessary to give the school trustees jurisdiction to act on the petition.
    2. Certiorabi — discretion in issuance. The common-law writ of certiorari is not a writ of right but can only issue for cause shown on application to the court which will grant or refuse it in the exercise of a sound judicial discretion.
    3. Certiorari — public detriment or inconvenience as ground against issuance. When great public detriment or inconvenience will likely follow interference with proceedings of local inferior tribunals of interest to the public, a writ of certiorari should not issue, or if improvidently issued should be quashed.
    4. Certiorari — time limitations on issuance. No statute of limitations applies to the issuance of the common-law writ of certiorari, but the time fixed for suing out writs of error has been declared by the Supreme Court to be the limit for such issuance in case public detriment would result if the writ issued thereafter.
    5. Certiorari — time limitations to question transfer of part of school district. Proceedings of school authorities in transferring part of one school district to another, if no changes damaging the public interests would follow a quashing thereof, can be quashed for irregularities at any time.
    6. Schools and education — right of one district to question its partial transfer to another. A school district, as a public corporation of legislative character, is not estopped merely from lapse of time from asking that the record of school trustees transferring part of it to another district be quashed, if no public harm has resulted from such delay.
    7. Schools and education — how existence of district questioned. As a public corporation a school district, unless divided in compliance with statute, can have its existence called in question only by direct attack through quo warranto proceedings.
    8. Municipal corporations — how existence terminated. Failure of a municipal corporation to exercise its functions for some years will not terminate its existence, since that can follow only on legislative consent or in compliance on legislative provisions.
    9. Municipal corporations — legislative authority over. The legislature has control over municipal corporations and may change, modify, restrict or abolish them to suit exigency.
    Error by defendants to the Circuit Court of Ogle county; the Hon. William J. Emerson, Judge, presiding. Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed September 24, 1927.
    Boy F. Hall, for plaintiffs in error.
    Seyster & Fearer, for defendants in error.
   Mr. Justice Boggs

delivered the opinion of the court.

A petition for a writ of certiorari to quash the records of the trustees of schools, changing the land of one Frank A. Drager from District 175 to District 173, was filed in the circuit court of Ogle county. A motion was made by respondents to quash said writ, and on the hearing the court refused to quash the writ, but entered an order quashing the record of the proceedings of said School District 175. To reverse said judgment, this writ of error is prosecuted.

The return to the writ shows that Frank A. Drager, in March, 1919, filed his petition with the Trustees of Schools of Monroe Township, Illinois, stating that he was a resident of Monroe Township and owner of certain lands, described in his petition, located in School District No. 175, and praying that these lands be transferred from that school district to School District No. 173; that said trustees of schools had a meeting April 17,1919, but so far as the records show no action was taken on said petition. The county clerk of Ogle county transferred said lands on the tax books from District 175 to District 173, and that in extending taxes thereon they have ever since been treated as in District 173, but the basis therefor is not shown in the records of said school district or otherwise.

Section 46, chapter 122, Cahill’s Statutes, provides for the detaching of territory from one school district and adding it to another, but provides, in order that this may be done, among other things, being subdivision 3 of said section 46: “To detach territory from one district and add the same to an adjacent district, when petitioned by a majority of the legal voters of each district; or, when petitioned by two-thirds of the legal voters residing within the territory described in the petition, asking that such territory be detached from one district and added to an adjacent district.”

Section 52 provides: “No petition shall be acted upon by the trustees of schools unless such petition shall have been filed with the clerk at least twenty days before the regular meeting in April, nor unless a copy of the petition, with a notice in writing signed by one or more of the petitioners, shall be delivered by the petitioners, or one of them, at least ten days before the day on which the petition is to be considered, to the president or clerk of the school directors of each district whose boundaries will be changed if the petition is granted. ’ ’

There is no claim or showing that Drager was a resident or legal voter in District 175, or a resident on the land sought to be detached at the time of filing said petition, and there Was no evidence or claim that any notice of the filing of said petition or the hearing thereof had ever been given to any of the school directors of District 175. The evidence offered on the hearing was to the effect that Drager was not then a resident of District 175, or a resident on the lands petitioned to be changed.

The giving of the above notice and the serving of a copy of the petition upon the president or clerk of the board of school directors of the districts affected is necessary to give the trustees jurisdiction to act upon the petition. Board of Education of Glencoe v. Trustees of Schools, 174 Ill. 510-511; People v. Feicke, 252 Ill. 414-417; People v. Jones, 254 Ill. 521; Ebeling v. Trustees of Schools, 285 Ill. 641-646.

Counsel for plaintiffs in error practically concede that the record here in question is not sufficient to effect a transfer of the lands of Drager from District 175 to District 173; the language of counsel in this connection, as contained on page 6 of his brief, being as follows: “It may be that the record of the trustees of schools is not sufficient to act as a transfer of the land from District 175 to 173, but it was a record of an attempted transfer from one district to another.”

Counsel insists, however, that by reason of the lapse of time and the effect that the quashing of said record may have on the districts in question, that this cause should be reversed and said writ be quashed.

A common-law writ of certiorari is not necessarily a writ of right, but the discretion to be exercised by a court in refusing the same is not an arbitrary one. In Clark v. City of Chicago, 233 Ill. 113, the court in discussing this question at page 114 says: “It has often been held by this court that the common law writ of certiorari is not a writ of right, and issues only upon application to the court and for special cause. (Trustees of Schools v. School Directors, 88 Ill. 100.) The reason of this rule is said to be that the inferior tribunals to which said writ issues exercise powers in which the people at large are interested, and that great detriment or inconvenience might result if the writ were inadvertently issued and the powers exercised by said tribunals improperly interfered with; (People v. Supervisors, 15 Wend. 198;) and when a great public detriment or inconvenience is likely to result from interfering with the proceedings of an inferior tribunal the common law writ of certiorari should not issue, and if the writ is issued improvidently, upon the facts being presented to the court the writ will be quashed. Board of Supervisors v. Magoon, 109 Ill. 142; Commissioners of Drainage District v. Griffin, 134 id. 330.”

There is nothing in the record in this case showing or tending to show that any public inconvenience will be suffered by the quashing of the record of the proceedings in connection with the changing of said lands. No debts have been incurred, so far as the record discloses, by District 173 by reason of the purported change of said lands to it. The most that the record shows is that since 1919 said lands have been levied upon and taxed as a part of District 173. The question then arises as to whether mere lapse of time, as contended by counsel for plaintiffs in error, is sufficient to bar a certiorari proceeding in a case of this character.

There is no statute of limitations which applies to common-law writs of certiorari. Our Supreme Court has in many cases applied to such proceedings the time fixed for the suing out of writs of error. Clark v. City of Chicago, supra 114; Schlosser v. Commissioners of Highways, 235 Ill. 214; Fisher v. McIntosh, 277 Ill. 432-435.

But in Jackson v. Blair, 298 Ill. 605, the court specifically held that the time in which common-law writs of certiorari may be brought in cases of this character is not governed by the time fixed for suing out writs of error. In that case the court had before it a certiorari proceeding in which the petition for the writ was not filed until practically two and one-half years after the petition for detachment was filed. On page 607 of the opinion the court, in discussing this question, says:

“That the petition for the writ of certiorari was not filed until September, 1920, practically two and a half years after the first petition for detachment was filed before the board in Stark county, and more than two years after the filing of the other petitions, and that therefore, under the reasoning of this court in People v. Burdette, 285 Ill. 48, and the authorities there cited, the delay was such as to deprive appellants of the right to a review in this court.

“There can be no question, under the reasoning of People v. Burdette, supra, and authorities there cited, that the delay would bar the hearing by this court if this were the same sort of a case as was there under consideration, but that case involved the holding of a position under the Civil Service law, and this court by-various decisions, notably Clark v. City of Chicago, 233 Ill. 113, had established a rule that in that class of cases the review must be brought by certiorari within six months or the action would be barred by laches. # * * In the quite recent case of Fisher v. McIntosh, 277 Ill. 432, the doctrine of the Schlosser case was approved with reference to review proceedings as to the boundaries of school districts under certiorari, and it was said that the doctrine of laches had no application in those cases, and that the period of limitation named in the Clark case would not apply to writs of error to review proceedings ‘where nothing has been done, as in these cases, by the public authorities which will cause great public detriment or inconvenience in case the proceedings are quashed.’ This record does not indicate such public inconvenience or detriment as would require the quashing of these proceedings; we do not think the doctrine of laches can be invoked to prevent the review of these proceedings.”

The court there held that the record should be quashed, and reversed and remanded the cause.

Counsel for plaintiffs in error have sought to obviate the effect of the holding of the Supreme Court in Jackson v. Blair, supra, by attempting to show that the directors and officers of District 175 had actual notice .that an effort had been made to detach the lands in question from said district and attach the same to District 173, and that they are therefore estopped to now question the legality of said proceedings. The evidence is conflicting as to whether said directors had such notice. However, we are of the opinion and hold that the preponderance of the evidence supports the finding of the trial court, to the effect that they did not have actual notice thereof. Each of the directors testified specifically that he did not have such notice until a short time before this petition was filed. There being no evidence in the record to the effect that a public inconvenience will be suffered by reason of the quashing of said record, we hold that inasmuch as this is a public corporation, legislative in character, that it should not be estopped to question the legality of the record here involved.

It is also contended by counsel for plaintiffs in error that the court, in determining the questions here involved, should take into consideration the evidence offered by respondents to the effect that for some two years prior to 1922, no school was maintained in District 175, it being insisted that where no school was maintained, there was a means provided by the statute for dividing up a district of that character.

There is no contention in this case that District 175 was divided; it being a public corporation, unless divided in compliance with the statute, its existence can only be called in question by quo warranto proceedings. Municipal corporations cannot be collaterally attacked. People v. New York Cent. R. Co., 301 Ill. 54-56; People v. Cleveland, C., C. & St. L. R. Co., 305 Ill. 460-466. Municipal corporations can cease to exist only by legislative consent, or pursuant to legislative provisions, and a failure for a term of years to exercise the functions of a municipality does not effect a dissolution. People v. Niebruegge, 244 Ill. 82-86. Municipal corporations are subject to legislative control, and may be changed, modified, restricted or abolished to suit the exigencies of the case. City of Chicago v. Town of Cicero, 210 Ill. 290.

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

Judgment affirmed.