author: Mr. Presiding Justice Riess

text:
    Havana National Bank, Administrator of the Estate of Phillip D. Dieffenbacher, Deceased, for the use of Hartford Accident and Indemnity Company, Appellant, v. The Tazewell Club, Appellee.
    Gen. No. 9,149.
    Opinion filed January 24, 1939.

      Cassidy & Knoblock, of Peoria, for appellant; John Cassidy and John E. Carlson, both of Peoria, and John F. Sloan, Jr., of counsel.
    Hunter, Kavanagh & McLaughlin, of Peoria, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The plaintiff has appealed from an order of the circuit court of Tazewell county sustaining a motion of defendant appellee, The Tazewell Club, a corporation, to dismiss appellant’s amended complaint.

From the pleadings, it appears that on June 22,1934, Phillip D. Dieffenbacher. was an official of the Havana National Bank and was attending a bankers’ association meeting at the Tazewell Club in Pekin, Illinois; that a porch railing at its clubhouse gave way, causing him to fall and receive injuries from which he died on the following day.

On June 21, 1935, within one year after his death, suit was filed by the Havana National Bank, as administrator of his estate, against the defendant appellee under the Injuries Act for the benefit of his surviving widow and three minor children, as next of kin. The defendant filed its answer denying the acts of negligence and averring that the deceased was an employee of the Havana National Bank and that the alleged injury and death arose out of and in the course of his employment; that both the bank and defendant were operating under the Workmen’s Compensation Act of the State of Illinois, and by reason thereof the plaintiff had no cause of action against the defendant.

The widow of the deceased also filed a claim for compensation against the employer, which was heard before the arbitrator on June 5, 1935, and compensation was denied. A petition for review was filed with and heard by the Industrial Commission, which approved the decision of the arbitrator. An appeal was then taken to the circuit court of Mason county, and on September 18,1936, the decision of the commission was reversed, and an order followed awarding compensation in the sum of $5,500. The respondent petitioned for a writ of error to the Supreme Court, which was denied.

On February 15,1938, plaintiff appellant was granted leave over defendant appellee’s objections to amend the name of the plaintiff in the suit previously filed by the administrator for the use of the widow and next of kin, to read “Havana National Bank, administrator of the estate of Phillip Dieifenbacher, deceased, for the use of Hartford Accident and Indemnity Company” and leave was granted to file an amended complaint. The amended complaint, with supporting affidavits of subrogation under section 22 of the Practice Act, alleged that by virtue of section 29 of the Compensation Act, the deceased’s employer became subrogated to the right of action of the personal representative, and that in turn the Hartford Accident and Indemnity Company became subrogated to the right of the employer to whom it had issued a policy of insurance, under the terms of which it had paid the compensation awarded against the employer.

Defendant’s motion to strike the amended complaint was heard and allowed, judgment for costs was entered, and this appeal followed.

Defendant’s motion to strike the amended complaint alleged in substance: (1) That in an action for wrongful death, the personal representative has no authority to bring suit for the benefit of any other person than the next of kin. (2) That the plaintiff named in the original complaint, and retained in the amended complaint, lacked the capacity to prosecute a suit under the law and facts as pleaded. (3) That the amendment to the complaint was barred by the one-year provision of the Injuries Act.

Plaintiff appellant contends that it has a right of action which can be prosecuted in the name of the personal representative under the amended complaint for the use and benefit of the Hartford Accident and Indemnity Company as subrogee of the original plaintiff. Appellant further contends that since the original complaint was filed by the administrator of the deceased employee within one year after his death, the amended complaint was not barred by the limiting proviso of the Injuries Act.

Section 29 of the Workmen’s Compensation Act of Illinois (Ill. Rev. Stat. 1937, ch. 48, par. 166; Jones Ill. Stats. Ann. 143.44) provides, that where both the employer and employee are under the act and compensation becomes payable, and the employee is injured or killed under circumstances creating a legal liability in a third person, who is also bound by the act, “then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.” Prior to 1935, the word “subrogated” appeared in place of the word “transferred” in the above section.

Numerous cases are cited wherein the employer, who paid to the employee the amount of compensation awarded, has prosecuted his right of action against the third person who was also under the provisions of the act, but no cases are cited wherein the employer or the insurance company which paid the award and was subrogated to the rights of the employer under its contract, has filed or prosecuted suit for the recovery of such award in the name of the personal representative of the deceased.

It has been held under such circumstances, that while the employer may prosecute such suit in his own name againfet the third person directly (Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N. E. (2d) 838) or for the use of the insurance company as subrogee of such employer (Lincoln Park Coal & Brick Co. v. Wabash Ry. Co., 338 Ill. 82, 170 N. E. 8), the “personal representative cannot maintain the action, the right having been transferred to the employer.” Parker v. Alton R. Co., 295 Ill. App. 60, 63, 14 N. E. (2d) 665. See also Brennan Const. Co. v. Blair, 261 Ill. App. 9; McNaught v. Hines, 300 Ill. 167, 174, 133 N. E. 53; Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322, 327, 138 N. E. 658; Goldsmith v. Payne, 300 Ill. 119, 122, 133 N. E. 52.

In Parker v. Alton R. Co., supra, at page 64, we said: “If the appellee was in fact under the Compensation Act, it is clear from the decisions above quoted that the appellant would not have the capacity to sue, and the only right of action in this case would be in the employer’s name.”

In Lincoln Park Coal & Brick Co. v. Wabash Ry. Co., supra, it was held in a case wherein the employer sued the third person to recover the amount of the award paid by him to the employee, when all three parties were operating under the provisions of the Workmen’s Compensation Act, and the complaint was filed by the employer in his own name within one year after the death of the employee, the complaint could be thereafter amended by making the insurance company which paid the award a party as subrogee of the rights of the employer which passed to it under the terms of the insurance contract. The time limit of one year having passed for so filing a direct proceeding by the employer for the use of the insurance company as subrogee, as was done in the above case, the plaintiff appellant herein has sought to save his cause of action by an amendment to the original declaration, which was not filed by the employer but was filed within one year after the employee’s death by his personal representative under the provisions of the Injuries Act.

Section 29 of the Workmen’s Compensation Act, which provides for such suit by the personal representative of a deceased employee, is limited to those cases wherein the third person against whom the cause of action has accrued is not operating under the act. Where all three parties are subject to the act, the personal representative is deprived of his right to sue and is confined to a right of recovery by an award of compensation under the terms of the act. The right to sue and pursue a remedy under the Injuries Act, of which the personal representative is deprived, is by the terms of said section of the Compensation Act transferred to and inheres in the employer, who has paid or become obligated to pay the award.

In Schlitz Brewing Co. v. Chicago Rys. Co., supra, it is said concerning the above provision in section 29, that “Its evident purpose was to give the employer the right to recover from a negligent third party who injured his employee, the damages sustained, not exceeding the amount of compensation payable to the employee by the employer under the act. ’ ’

It is there further said that “the word ‘subrogated’ used in the statute, was not a fortunate selection of a word to simplify the legislative intent. Section 6 prohibits an action by the employee against a third party, and any right of action he previously had is prohibited to him. It would seem the legislature did not intend to subrogate the employer to a right of the employee it had in the same act abolished. Some phases of this hydra-headed section of the Compensation act have been considered by this court heretofore, and the word ‘subrogated’ has been treated as having the meaning of transferred. (Friebel v. Chicago City Railway Co., 280 Ill. 76; Gones v. Fisher, 286 id. 606.) ... It has been settled by a number of decisions that the Compensation act abolishes the common law right of action of an employee against a third party for an injury when the employer, employee and the third party are subject to the provisions of the act. The cases are cited in O’Brien v. Chicago City Railway Co., 305 Ill. 244. In City of Taylorville v. Central Illinois Public Service Co., 301 Ill. 157, the court said it was ‘the same action which the employee would have had but for the prohibition of section 6. ’ ”

The above provisions of the Compensation Act should be construed in connection with those of the Injuries Act. In Goldsmith v. Payne, supra, the court (page 122), in commenting on the provisions of section 29, said “that if the person, other than the employer who is liable for damages for the injury or death, is bound by the provisions of the act, the right to recover damages shall belong to the employer and shall be limited to the amount of compensation payable under the act, but if the person, other than the employer, so liable for damages is not bound by the provisions of the act, then legal proceedings may be brought against such other person by either the employer or the injured employee. (Gones v. Fisher, 286 Ill. 606.)”

In Friebel v. Chicago City Ry. Co., 280 Ill. 76, 86, 117 N. E. 467, the court also held that “the word ‘subrogated’ as used in that section is more nearly equivalent to the word ‘transferred’ than perhaps any other word that might be used in its place. The meaning of that sentence is, that the right of action of the employee against the third party causing the injury is transferred to his employer by operation of section 29.”

In the case of Brennan Const. Co. v. Blair, supra, wherein the employer sought to recover compensation paid by him to the dependents of the deceased employee whose death was alleged to have been caused by the negligence of a third party also under the Compensation Act, it appeared that no administration was had of the estate of the deceased. The court held that the Compensation Act “creates the right to compensation and points out the procedure to be followed, and this does not include any action in any court”; that the right of a personal representative to recover for the wrongful death as provided in the Injuries Act was abolished in such case and “there is no necessity for the appointment of a personal representative of the deceased.”

The court further held (page 15) that section 18 of the Practice Act (now section 22) providing for suit by subrogee or in name of subrogor for use of subrogee and for affidavits in support of the complaint, which provisions the plaintiff herein seeks to invoke, was not applicable in such case and that the Workmen’s Compensation Act expressly provides that under the facts alleged, plaintiff is entitled to maintain an action against the defendants for negligently causing the employee’s death, as a result of which plaintiff was required to pay compensation to his dependents. “There was no necessity for plaintiff to set forth on oath that it was the bona fide subrogee as provided in section 18; that section does not apply to compensation cases. It has been held that the right of an employee who is injured through the fault of a third person is ‘transferred’ to the employer who has paid the employee compensation, rather than that the employer is subrogated to such right. Friebel v. Chicago City Ry. Co., 280 Ill. 76.”

Both courts of review of Illinois have uniformly placed the same construction upon the intent of the legislature in the use of the word “subrogated” in this section as meaning “transferred,” and to further clarify this very situation, it may be noted that by an amendment of the above section in 1935 (Laws of Illinois, 1935, p. 842) the word “subrogated” was eliminated and the word “transferred,” as so used and construed by the courts, was substituted and used in lieu thereof.

It appears to this court that the above provisions of sections 6 and 29, when considered in connection with the provisions of the Injuries Act and of section 22 of the Civil Practice Act concerning the right of subrogees to recover in the name of either the subrogor or subrogee (Ill. Rev. Stat. 1937, ch. 110, § 146 [Jones Ill. Stats. Ann. 104.022]) upon which appellant relies in this case, have no application to and are not intended to permit the employer to pursue his remedy and right of recovery against the third person in the name of the personal representative of the deceased employee.

In the recent case of Metropolitan Trust Co. v. Bowman Dairy Co., supra, at page 225, concerning the Injuries Act of 1853, wherein the time for commencing suit was reduced from two years to one year after death by the Amendment of 1903, it is said “Under that act we have uniformly held that the time fixed by it for commencing an action for wrongful death is not a statute of limitations, but is a condition of the liability itself. It is a condition precedent attached to the right to sue at all, and being so, the plaintiff must bring himself within the prescribed requirements necessary to confer the right of action. (Bishop v. Chicago Rys. Co., 303 Ill. 273; Hartray v. Chicago Rys. Co., 290 id. 85.)”

In Schlitz Brewing Co. v. Chicago Rys. Co., supra, at page 327, the court said that “we feel bound to hold that the right of the employer to sue is not a new cause of action created by section 29 hut is the employee’s right of action taken from him and transferred to the employer. We recognize this construction will in many cases defeat any recovery from a third person under section 29, for it seems quite clear the employer is in no position to commence suit to enforce his right of action until the damages he has sustained have been fixed and determined,” and (page 330) “If the construction we have given section 29 will have the effect in many cases of defeating the purpose sought to be accomplished by its enactment the remedy lies with the legislature. We do not see how we can give the statute the construction contended for by appellant without resorting to legislation ourselves.”

The provisions of the Subrogation Act contained in section 22, supra, do not apply under the facts set out in the amended complaint, and it does not state a cause of action. The trial court did not err in sustaining the defendant’s motion to strike the amended complaint.

The judgment of the circuit court of Tazewell county is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Charles Deleuw and Company, Appellee, v. City of Charleston, Coles County, Illinois, Appellant.
    Gen. No. 9,129.
    Opinion filed January 24, 1939.
    Alton B. Coper and J. B. Lane, both of Charleston, for appellant.
    Craig & Craig, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This was a suit brought by Charles Deleuw and Company, a corporation, the plaintiff: appellee, against the city of Charleston, a municipal corporation, the defendant appellant, to recover for services rendered by the appellee, as civil engineers, in mailing surveys, plans and specifications, etc., for a proposed improved waterworks system owned by the appellant.

The case was tried by the court without a jury upon the pleadings, stipulations and an agreed statement of facts, which set forth substantially the following: That the defendant appellant is a municipal corporation organized and operating under the general laws of the State of Illinois; that in the early part of the summer of 1933, the appellant had under consideration the making of an application to the Federal Emergency Administration of Public Works, for a loan from the Federal government for funds to enlarge and improve the waterworks system of the appellant, the city of Charleston; that at the time the appellant had no regularly employed city engineer, and on the 7th day of October, A. D. 1933, the appellee was employed by the appellant to render all necessary engineering services in connection with said application and project, wdfich employment was evidenced by a written contract entered into between the parties; that under said contract the appellee was to be paid for his services as follows:

(a) “For preliminary services and report the sum of $350.00, payable upon the completion'of the financing, and , • :

(b) “For contract plans and specifications, detailed estimates, bidding sheets, instructions to bidders, a sum of money equal to 3 per cent of the estimated cost of work, payable at the time of the letting of.the contract.” It was further provided in the contract that the agreement could be terminated by either party by giving a 30-day notice in writing of their intention to cancel the same; that after the execution of the contract the appellee made investigations, surveys and rendered other services which finally resulted in a plan and report to the appellant, together with estimates of costs and recommendations, which included a plan for financing the project, which plan was designed to secure federal financial aid; that on the 2nd day of November, A. D. 1933, the appellee submitted to the appellant complete plans, specifications and detailed estimate of cost for the necessary work as contemplated by the appellant, which report was duly accepted and approved by resolution of the city council, and adopted December 7th, 1933; that said resolution also authorized the mayor and the water board of the appellant to file an application for a loan of $100,000, with the Public Works Administration at Chicago for the purpose of financing the improvement and extension of said waterworks; that the appellee prepared for the appellant an application to be filed with the Emergency Administration of Public Works for such loan and grant, which application was filed with the Illinois advisory committee of said body on the 12th day of December, 1933; that on March 6, 1934, said application was referred by the Chicago office to the main office at Washington for review and consideration; that T. M. Gofer was the duly appointed, qualified and acting city attorney of said city of Charleston from the period of May 1, 1933 to May 1,1935; that on April 13, 1934, the appellee wrote a letter to the appellant stating that it had come to its attention that appellant had advertised for proposals for a water filter plant for the Charleston waterworks and that each bidder was to furnish his own plans and specifications and submit bids on April 18, 1935. The appellee in said letter requested information as to the action of the board on said matter and also as to the disposition of plans and specifications prepared by appellee; that on May 17, 1934, appellee wrote another letter to appellant addressed to the said city attorney asking for further information as to the status of waterworks project at Charleston, and stating that they had received no reply to their letter of April 13th. The letter also called the attention of the appellant to the fact that the appellee had completely complied with the contract in furnishing a preliminary report and in the preparations of plans, specifications, estimates, etc.; that on May 23, 1934, appellant wrote a letter to the appellee under the name of T. M. Gofer, city attorney, stating that the mayor and city council were unable to obtain the loan under the Public Works Administration, and for that reason were compelled to abandon the plans outlined in their application, and further stated that the application reached Washington too late to receive any of the monies available for such application. The letter further stated that because of the urgency of immediate attention to the conditions of the water plant it was decided to make certain limited improvements within the financial resources of the city without issuing water revenue bonds, and that, therefore, it was impracticable to use any of the plans prepared by appellee ; that on May 31, 1934, the Chicago office of the Federal Emergency Administration of Public Works wrote a letter to the appellant suggesting certain changes with reference to the loan applied for; that on June 12, 1934, the said Chicago office again wrote the appellant a letter asking for information and a reply to their letter of May 31; that on June 13, 1934, the appellant wrote the said Chicago office a letter stating that the city officials of the city of Charleston had decided to withdraw their application for the Public Works Administration loan. On June 21,1934, the said city council of the said city of Charleston adopted a resolution formally withdrawing their application for the loan of $100,000; that on July 9, 1934, the Chicago office wrote, the appellant a letter stating that they had received word from Washington that the loan and grant in the amount of $100,000 for the project herein-above described had been approved, but because of notice received from appellant that the application had been withdrawn they were marking their records to that effect; that on the 1st day of June, 1933, the city council of the city of Charleston, Illinois, passed its annual appropriation ordinance effective for the year beginning May 4, 1933, which contained, among other items, the following: “For water works fund $35,000.00.”

The agreed statement of facts further discloses that during the course of the trial the appellant, by Alton B. Gofer, its attorney, orally stipulated and agreed that if appellee was entitled by law and by competent and revelant evidence presented to the court, to recover any damages from appellant, that the sum of $3,250, would be the reasonable value of the services performed by appellee for the appellant.

The court found the issues in favor of the appellee for the sum of $3,250, and entered judgment in favor of appellee and against the appellant for that amount and costs of suit. From this judgment the appellant prosecuted an appeal.

The appellant in this cause relies upon two defenses for the reversal of the judgment. First, that no valid contract can be made to bind a municipal corporation by the city council, or any committee thereof, or any officer, unless an appropriation has been previously made to cover any and all expenditures of money for which said city may become liable under the terms of said contract. In support of this proposition the appellant relies mainly upon the case of DeKam v. City of Streator, 316 Ill. 123. In that case the city of Streator entered into a contract with one Clausen for the purpose of designing a sewage system for the city of Streator, and reported his plans to the city council whereby the sewage system could be improved. The contract in that case, on its face, shows that no provision was made for the payment of Clausen’s work and states definitely that the board of local improvements had no authority to bind any further city council or board. The contract further states that the city council of Streator had no authority to enter into such a contract because there was no appropriation from which to pay for this service. Clausen completed his work and submitted a bill to the city council for payment. DeKam and other tax payers filed a bill to enjoin the city of Streator from paying Clausen the amount that he claimed was due on this contract. While the city subsequently ratified this contract and passed appropriations for the payment of Clausen’s services the court held that the contract was void ab initio because there was no appropriation made for the service prior to the time the indebtedness was incurred. It may be conceded that in line with the holdings of the DeKam, case that where there has been no appropriation by the city of Charleston, a contract for services similar to the one in controversy in this case would be absolutely void and the’city of Charleston could not be estopped to deny liability thereon. In this case, however, appellee contends that such principle of law is not applicable because of the annual appropriation ordinance containing the following item: “For water works fund $35,000.00.” Appellant urges, that such appropriation was not sufficient in law upon which to base the said contract in that it does not comply with that part of sec. 2 of art. VII, ch. 24, par. 101 of the act on Cities and Villages, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.192], where in providing for the annual appropriation ordinance it reads as follows: “And in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose.” It is contended by appellant that the above appropriation is vague, indefinite and in violation of the above requirement. It is clear that appellees right to recover from the appellant must be based upon the said item of appropriation.

Our courts have had occasion to pass upon similar appropriation items and we believe have definitely concluded that it is not necessary to specify every item which the city may pay out under an appropriation item. A single appropriate general purpose has been held sufficient to include every expenditure required for that purpose although there may be many items. In the case of People v. Clark, 296 Ill. 46, 52, objection was made to a tax levy as being made for more than one purpose without designating separately the amount for each purpose. The item contained in the appropriation ordinance and tax levy was as follows: “For cleaning of streets, collection and removal of garbage, ashes and miscellaneous refuse, and for the repair of unimproved streets, sidewalks and miscellaneous street work, and for the maintenance and operation of buildings and the equipment in connection therewith, $3,510.00.” In ruling upon the objection the Court said:

“The law requiring that when a city tax is levied for several purposes the amount for each purpose shall be stated separately does not require that each particular item for which the tax is levied shall be separately stated. There is no valid objection to levying a gross sum for several different purposes where the several purposes are properly embraced within some general designation, citing People v. Illinois Central R. Co., 271 Ill. 236; People v. Chicago & Alton R. Co., 273 Ill. 452.” A very similar situation as to the facts was considered by the Appellate Court of the Fourth District in Murrie v. Harper, 249 Ill. App. 586, and after a rather thorough analysis of the cases, the court concluded,

“It will thus be seen by an examination of the authorities that in making a tax levy each item need not be specifically mentioned in making an estimate, but it is proper if it naturally comes within a general class in mailing the appropriation. Thus in making a levy for streets, alleys and sidewalks, any item that would necessarily come within that expense would be embraced within that item and need not be specially mentioned.” Therefore, in the present case it becomes a question of fact whether the services rendered by appellee, as civil engineer, in making surveys, plans, specifications, reports, etc., for the proposed improved waterworks system of the appellant, the city of Charleston, would be an item contained within the annual appropriation ordinance of the city of Charleston for the year commencing May 4, 1933, and prior to the time that appellee was employed under the written contract to render the service that it is now claiming pay for.

We are of the opinion that the appropriation ordinance item above discussed was sufficiently definite to cover the services rendered by the appellee under the contract with the appellant. It was merely the preliminary or research work necessary to be done in order to enable the city to continue the performance of a function in which it was regularly engaged. It seems to us that the services would naturally follow and become an ordinary current expense in the completion of the project desired by appellant.

The second defense urged by the appellant is that the appellee cannot recover for the reason that there was no liability against the appellant even under the terms of the written contract; that the contract was a result of a resolution passed by the city council and any authority which the water board, as a committee, had to enter the contract must have been derived from the provisions of said resolution; that the said resolution provided for the improvement of the present waterworks system and that the expense of said improvement should be paid for by a loan from the Federal Government; that the water board were not anthorized to incur any liability against the city of Charleston for said improvements until such fund had been provided, and until such improvements had been approved by vote of the people.

While there is nothing in the written contract which makes the payment for appellee’s services contingent upon the mailing of the loan, still if it could be construed that payment for appellee’s services should be made out of the loan which the city proposed to procure from the Federal Government the agreed statement of facts shows there was a material change made by the appellant in its plans and that it voluntarily withdrew its application for a loan and abandoned the project originally contemplated. The courts of this State have held that where an individual undertakes a municipal improvement, agreeing to look wholly to a special fund to be created therefor, and thereafter the city abandons the proposed improvement, the municipality cannot avoid payment by setting up the contingent nature of the contract but is liable out of the general fund. Bunge v. Downers Grove Sanitary Dist., 356 Ill. 531; Gray v. City of Joliet, 287 Ill. 280; Murrie v. Harper, 249 Ill. App. 586.

For the reasons herein discussed it is our judgment that the finding and judgment of the trial court was entirely correct and the said judgment is hereby affirmed.

Affirmed.


text:
    Lena Viehweg et al., Appellees, v. The City of Mount Olive, Appellant.
    Gen. No. 9,133.
    Opinion filed January 24, 1939.
    L. M. Harlan, of Mt. Olive, and Jesse Peebles, of Carlinville, for appellant.
    James II. Murphy, of Carlinville, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

Lena Viehweg and twenty-two other persons, holders and owners of certain bonds the plaintiffs appellees, filed this complaint against the city of Mount Olive, defendant appellant, to recover their proportionate share of monies collected in by said city which were due and payable upon said bonds. After answer filed, the cause was referred to a special master who took the proofs and filed his report finding the issues to be with the appellees. Objections were filed to the report and made exceptions in the circuit court of Macoupin county. The trial court overruled the exceptions and sustained the findings of the special master and entered a decree in favor of the plaintiffs appellees against the appellant, the city of Mount Olive.

The facts are not seriously in dispute. It appears that on May 4, 1928, the board of local improvements of the city of Mount Olive, Illinois, recommended an ordinance to the city council of said city, providing for the installation of a sewer system in a portion of the said city which afterwards became known as District No. 2. Following the recommendation, the city council of Mount Olive on the 17th day of May, 1928, passed an ordinance creating the proposed district and provided for the installation of the improvements. In due course of time the sewer system covered by the ordinance was installed and completed. The ordinance provided that no part of the costs of the improvement should be paid by the city of Mount Olive, and that the entire cost of the improvement should be paid by special taxation upon abutting property. On or about October 1, 1928, the city of Mount Olive issued bonds aggregating the sum of $61,200, issuing them in series from 1 to 9, both inclusive, each series being in the sum of $6,800. These bonds were payable solely from the special taxes when collected.

The main controversy in the case arises over the appointment of a collector for said special taxes. It appears that one Collie Clavin, cashier of the First National Bank of the city of Mount Olive, performed all the duties as a collector of said taxes from the year 1928 until his death sometime 2 years later. The evidence shows that the matter of the collection of the taxes and the retiring of the bonds was left entirely in the hands of Mr. Clavin. He received the payments, paid interest on the bonds and handled the matter for the city of Mount Olive without any apparent supervision or interference whatever. He was not required to give bond and did not furnish any so far as the record discloses. Upon the death of Mr. Clavin in 1930, it was found that he had collected in a large amount of money in each of the instalments securing the said bonds but that he had diverted large sums of money to his own use and to other purposes rather than the payment of bonds. The amount of the judgment is not in question if it be determined that the city of Mount Olive is liable for the moneys handled by the said Collie Clavin.

It is the contention of the appellant that Mr. Clavin was never regularly appointed as city collector and that the city of Mount Olive at no time had any possession of the monies collected in by Clavin, that it never reached the city treasury, that the city had no part in its collection or distribution at any time, and that therefore the municipality was not liable to the bondholders in this case. It asserts that the principle of law applying to the facts in this case is correctly set forth in the case of Conway v. City of Chicago, 237 Ill. 128, 139, as follows: “We are not inclined to extend the general liability of a municipality for special assessments beyond that which results from a failure to pay over money actually collected by it. ’ ’ It insists that Collie Clavin never was either a de facto or de jure city collector of special taxes in the city of Mount Olive for Sewer District No. 2. In support of their contention, they state that there is no record of the city council or the board of local improvements showing the appointment of Collie Clavin, and that he was therefore not the collector, and even if he did collect the special taxes, the city would not be liable because the money never reached the treasury of the city.

The law is well settled in Illinois that so far as the bondholders are concerned, whatever the city collects by way of special taxes or special assessments is to be held by the city as a trust fund to be paid pro rata to the bondholders of each series as set forth in the statute. Rothschild v. Village of Calumet Park, 350 Ill. 330; People ex rel. Anderson v. Village of Bradley, 367 Ill. 301. We believe it is conceded by the appellant that if the city of Mount Olive had collected this money it would lie required to account to each of the bondholders for his respective portion of the same. At the time of the death of Clavin there were some deposits of money on hand belonging to the appellant here and these monies were turned over to the city by the administrator of the Clavin estate.

Testimony was introduced on behalf of the appellees to show that Clavin was at least a de facto officer and that the city had recognized and ratified him as the proper officer of the city to collect the special tax for said improvement. Briefly, it showed that Clavin had been the collector of the only other sewer district in the city, Séwer District No. 1, and had been from the time it was built. The only person that ever collected any money for either sewer district up until the time of his death was Collie Clavin. The city attorney dealt with Clavin as the collector of special assessments. The tax rolls and the books in which the records of the collections were kept at Clavin’s office in the First National Bank of Mount Olive. He paid out the money as collector for various purposes and many checks were offered in evidence to show such disbursements. Many witnesses testified that Collie Clavin was the only person recognized by the city as the collector of special taxes. It is not denied that he not only collected in the money due the district but paid it out as well. The young lady who was his private secretary testified that he was performing all the duties of the office of collector from the very beginning until the time of his death and that he purchased books and records, when needed, paid the vouchers presented and certain bonds and coupons, kept all of the records of the district in his bank and every one recognized him as the'collector. Employees of the bank testified to substantially the same facts. A former mayor of the city of Mount Olive, John Danklef, who was in office at the time the improvement was installed, testified that he appointed Collie Clavin collector and that he did it at a meeting of the board of local improvements of the city of Mount Olive over which he presided. The clerk of said board, Elmer W. Weidler, testified to substantially the same fact. L. M. Harlan also testified that Collie Clavin was appointed collector for Sewer District No. 2, and that his appointment would be effective the 1st day of January, 1929. He testified further that he continued to act as such collector up until the time of his death. The record of the board of local improvements was also introduced in evidence but it contained no records of any meeting from April 18, 1928 until September 14, 1929. It was testified that there were many meetings during that period of time and that the local improvement known as Sewer District No. 2, was constructed between the said dates. Because of the records of meetings during such period of time being lost and missing it was competent to prove the fact by parol and therefore the testimony above outlined was admissible. Maxcy v. Williamson County, 72 Ill. 207.

Without discussion of the details of the testimony we believe it shows conclusively that Collie Clavin was the collector for Sewer District No. 2; that he was properly appointed and recognized to be such by the city of Mount Olive. It was the duty of the city of Mount Olive to collect the special taxes with interest thereon after they became due. The money when collected has been defined by our courts to be a trust fund to pay the bondholders their interest and principal and we believe the court properly held in this case that the appellees should each receive his or her pro rata share of whatever collections had been made.

The judgment of the circuit court of Macoupin county is therefore affirmed.

Affirmed.


author: Mr. Justice Hayes

text:
    Arthur G. Moore, Executor in the State of California of the Last Will and Testament of Lydia T. McKee, Deceased, et al., Appellants, v. Edward O. Smith, Executor in the State of Illinois under the Last Will and Testament of Lydia T. McKee, Deceased, et al., Appellees.
    Gen. No. 9,148.

      Opinion filed January 24, 1939.
    Monroe & Allen, of Decatur, for appellants.
    Bedmon, Bedmon & Bodman, of Decatur, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

Lydia T. McKee, a resident of the State of California, died testate on April 24, 1932, seized of real estate located in Illinois and California, and possessed of other property. She provided in her will that her Illinois executor should sell her Illinois land and remit the proceeds to her California executor, who was likewise ordered to sell her California land. The entire proceeds were then to be distributed by the California executor, under the terms of the will. The will contained a general residuary clause disposing of all the remainder of her estate to some nineteen beneficiaries, using this language: “I give, devise, bequeath all the rest and residue of my estate of every kind in equal shares unto the following named persons who have been heretofore named in this Will.” She appointed her brother, Edward O. Smith, executor of her will in the State of Illinois, without bond, and gave him full power to sell all or any part of her estate in Illinois, without order of court and without notice, and directed him to sell all property in Illinois and reduce all her estate in Illinois to cash as soon as practical, without sacrificing the same, and pay the proceeds of such sale to the California executor for distribution. She then makes, to a large number of persons, specific bequests in money, ranging from $500 to $24,000. Because of the depressed land values, the Illinois executor did not sell the land immediately after her death, but waited until 1935, when land values had picked up some, and then sold part of it, and sold the remainder in 1937. After testatrix’ death, and prior to the sale of said real estate, Edward O. Smith rented out said premises and collected the rents therefrom, and out of the rents paid for the repairs, insurance and taxes, and over and above said expenses there was a net from said land of $14,615.18, which he has in his hands, and which is the subject matter of the dispute in this case.

The circuit court of Macon county on a suit to construe the will filed by Arthur G-. Moore, the California executor, et al., entered a decree ordering the rents to be paid to the heirs at law of the testatrix, and found that Lydia T. McKee died intestate as to Illinois real estate pending sale thereof as directed by the will.

The appellant herein, contends that the doctrine of equitable conversion applies because of the mandatory directions to sell given the Illinois executor, and that this doctrine is broad enough to require the net rents to be transmitted to the California executor along with the proceeds of the sale from the land. While the appellee, Edward O. Smith, the Illinois executor, contends that the fee of the Illinois real estate passed as intestate property subject to the power of sale and that the rents belonged to the heirs at law of the testatrix as the owners of the fee. Both the appellant and appellee apparently agree that if their respective contentions cannot prevail, the rents should pass under the residuary clause.

Iii the construction of a will, it is an elementary principal that a court will, if possible, give effect to the intent of the testator. (Vierieg v. Krehmke, 293 Ill. 265.) It is likewise well established that a testator will be presumed to have intended to die testate as to all of his property. (English v. Cooper, 183 Ill. 203.) Any reasonable construction of a will which avoids intestacy as to any part of decedents property will be adopted. (Halderman v. Halderman, 342 Ill. 550.) The primary rule of construction, which governs in determining what character is to be given to property passing under a will, is the intention of the testator, which, if not expressly stated, must be adduced from the whole instrument rather than from the terms or provisions of any particular part thereof, which, regarded alone, might be inconsistent with the testamentary scheme as a whole. (Grove v. Willard, 280 Ill. 247, 255.) However, where, as here, land is not devised to an executor for purposes of sale, but he is merely given a mandatory power of sale, legal title to the land passes to the heirs or devisees under the will subject to the power of sale. (Emmerson v. Merritt, 249 Ill. 538; Pope v. Kitchell, 354 Ill. 248.) Because of the presumption against intestacy and because testatrix included in her will a general residuary clause broad enough to pass all property not otherwise disposed of, we hold that legal title passed under the residuary clause to the beneficiaries therein named. Not only did legal title to the Illinois land pass, subject to the power of sale to the residuary devisees; under the general rule the rents earned by such land between the time of the testatrix’ death and the date of sale, also pass under the residuary clause unless an intention to make other disposition of them is apparent from the will. (69 C. J. 426; Cruikshank v. Home for the Friendless, 113 N. Y. 337.)

The will directed the sale of the Illinois land as soon as practical without sacrifice. This was done within a reasonable time. Specific property was not devised in the will but rather legacies in money. On payment of each particular legacy, full effect will be given to the provisions of the will, and each legatee will have received in full what the testatrix gave him. The $14,615.80 comes within the scope of the residuary clause and should be distributed according to its provisions.

We find nothing in the will compelling us to depart from the general rule and hence we hold that the rents now in the hands of the Illinois executor should be distributed among the residuary devisees and legatees, which gives effect to the intent of the testatrix to dispose of all her property.

The judgment of the circuit court of Macon county is therefore reversed, cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


text:
    J. F. Thornton, Appellee, v. Harriett Thornton, Appellant.
    Gen. No. 9,157.

      Opinion filed January 24, 1939.
    Paul F. Wanless and Virginia Brown Wanless, both of Springfield, for appellant.
    Thomas H. Crain and Edmund Burke, both of Springfield, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

J. F. Thornton filed his complaint in the circuit court of Sangamon county on December 16, 1935, to annul his marriage to Harriett Thornton on the ground that she was, at the time of their marriage, insane and mentally incapable of entering into a marriage contract. Mrs. Thornton filed an answer denying her mental incapacity, and on February 20, 1936, counterclaimed for separate maintenance, in which she alleged that the plaintiff caused her to enter the State Hospital for insane at Jacksonville, Illinois, on August 18, 1935; and that thereafter had refused to permit her to return to his home. Plaintiff filed a general denial to the counterclaim, and on August 7, 1937, filed a supplemental bill for divorce, without instituting a new suit, alleging desertion by Mrs. Thornton from December 16, 1935, to the date of the bill. The defendant, in her answer to plaintiff’s supplemental bill, denied that she had deserted her husband, and on January 20, 1938, filed her counterclaim for divorce, likewise alleging desertion. On January 25, 1938, the defendant moved for judgment on the pleadings, or in the alternative to strike the supplemental bill alleging that during the period that she was supposed to have deserted her husband, he had on file a complaint for the annulment of the marriage. This motion was denied.

The case was tried on January 5,1938, and a verdict returned in favor of the plaintiff. Defendant has appealed to this court, alleging that the trial court erred in denying her motion for judgment or in the alternative to strike plaintiff’s supplemental bill.

Our Supreme Court said in the case of Floberg v. Floberg, 358 Ill. 626, 629. “The State, as the sovereign, has an interest in maintaining the integrity and permanency of the marriage relation. Parties cannot in this State contract for divorce. Neither can a divorce be properly secured by collusion of the parties. The dissolution of the marriage contract can only be granted by a court for some one or more of the causes enumerated in our divorce statute. It is the policy of our courts to give the divorce laws a strict rather than a liberal construction. The statute providing for a divorce on the ground of desertion contemplates a willfulness without any reasonable cause. The living separate and apart by mutual consent of the parties does not constitute a willful desertion within the divorce statute. While the point is not raised by the appellant that the full period of one year’s desertion had not run at the time of the filing of the cross-bill, yet "it is the duty of the court in this character of a case of its own motion to examine that question and determine whether the complainant had deserted the appellee for the period of one full year prior to the filing of the cross-bill. ’ ’

Again the Supreme Court of this State said in the case of Embree v. Embree, 53 Ill. 394, 396. “Nor is the case altered, when the' bill is prematurely filed, by filing a supplemental bill, alleging two years’ desertion, when the two years includes any portion of the time which has elapsed after filing the original bill. A hearing can only be had on the grounds which exist when the suit is commenced. Subsequent grounds can not be incorporated into the case after the proceeding has been commenced.”

The legislature of this State has provided that when either party to a marriage “has wilfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of one year” the injured party may obtain a divorce. (Ill. Rev. Stat. 1937, ch. 40, par. 1 [Jones Ill. Stats. Ann. 109.169]). There is no question that Mrs. Thornton lived separate and apart from her husband between December 16, 1935 and August 7, 1937; the sole issue in this case is whether Mrs. Thornton had “reasonable cause” for so doing. We believe that she did. In Haltenhof v. Haltenhof, 44 Ill. App. 135, a husband filed a bill for divorce which was later dismissed. Less than two years later he filed another bill alleging desertion. The statute at that time required desertion for two years as a ground for divorce and the trial court therefore dismissed the second bill. In affirming this decree, the Appellate Court for the first district said: “Clearly, while the former proceeding was pending, it cannot be said that a desertion could take place. Appellant had brought suit against appellee charging her with desertion; there can be no presumption that during the pendency of that suit he would have received her had she returned. Nor can it be said to be incumbent upon either husband or wife to resume the marital relation and duties while a suit for divorce is in progress. After the termination of that suit, if appellant had offered to appellee a home with him and to restore her to lawful position as his wife, and she had refused to return, a period of desertion might be said to begin; but a decree for desertion can not be rendered under the bill filed October 5, 1886, without reckoning as a portion of the statutory two years some weeks during which the former application was pending and undetermined. ’ ’

Thornton contends that this case is not applicable here, because of the allegation in his supplemental bill that he had “asked her to return and live with him on or about August 1, 1936, and that he would dismiss his suit for annulment if she would return and live with him.” However, until Thornton actually dismissed the annulment proceedings, the records gave notice to the public of his claim that his marriage was null and void and that he and Mrs. Thornton were not and never had been husband and wife. Under these circumstances, we do not believe that Mrs. Thornton acted unreasonably by refusing to resume cohabitation with him until he dismissed his bill for annulment.

The Supreme Court of this State reached a result in accord with this view in Floberg v. Floberg, supra. In that case, a wife filed a bill for separate maintenance four months after she and her husband had separated. Less than a year later, he filed a counterclaim for divorce on the grounds of desertion. The Supreme Court, in reversing the decree of the trial court granting the husband a divorce said: “The general rule is where a suit for divorce is brought and the same is pending between the parties to the marriage contract, the parties are not only justified in living apart but necessarily must do so. Such living separate and apart does not constitute willful desertion without reasonable cause within the meaning of the Divorce Act. It would be incompatible with a pending suit for the dissolution or modification of the marriage contract for the parties to live together. If the suit is carried on bona fide, it is not incumbent, during its pendency, upon either party to resume the marital status. The time so consumed by the litigation cannot be reckoned in the calculation of the statutory period of desertion.”

Thornton further asserts that the pendency of a prior suit to terminate the marriage relation is merely evidence that a separation during the period involved is justifiable; that such evidence may be overcome by proof that the other spouse has a fixed intention never to return; and that where such proof is made, the entire period during which the suit is pending may be included in computing the time of desertion. In this connection he cites Hartpence v. Hartpence, 121 Atl. 513, a New Jersey case. Assuming for the purpose of this case that the rule announced there would be followed in this State, we do not believe that the facts of this case justify its application here. The New Jersey court found in the Hartpence case that: “Here it appears clearly that during the three months preceding the institution of the suit, and for nearly two years after its dismissal, the desertion was willful and obstinate and that during its pendency the mental attitucfe of the defendant underwent no change.” As stated above, there is no proof here that Mrs. Thornton would have refused to return to her husband had he indicated his good faith by dismissing his bill for annulment.

In our judgment, the circuit court of Sangamon county erred in overruling Mrs. Thornton’s motion for judgment on the pleadings. For this reason, the judgment must be reversed and the cause remanded to that court with instructions to dismiss plaintiff’s complaint.

Reversed and remanded, with directions.


author: Per Curiam.

text:
    Mildred Strang Schmalz, Administratrix of the Estate of Anna M. Cowen, Deceased, Appellee, v. Estate of Walter B. Strang, Deceased, Vert M. Day, Sole Legatee, Appellant.
    Gen. No. 9,111.

      Opinion filed January 24, 1939.
    Stevens & Herndon, of Springfield, for appellant.
    Egbert E. Harmon and Edward J. Flynn, both of Jacksonville, for appellee.
   Per Curiam.

This is an appeal from a judgment of the circuit court of Greene county, dismissing an appeal pending in said court from an order and judgment of the county court of Greene county.

The will of Walter B. Strang, deceased, was admitted to probate and record in the county court of Greene county, and by the terms of which the appellant, Vert M. Day, was named the sole legatee and devisee of his estate. W. J. Sullivan, named in the will as executor, having died, the court upon petition of the heirs at law of said deceased, appointed A. D. McLamar, husband of one of the heirs at law, administrator with the will annexed of said estate.

He fixed upon the May term, A. D. 1934, of the county court of Greene county as claim term, and gave due notice thereof. On October 8, 1934, Anna Cowen, now deceased (whose administratrix, Mildred Strang Schmalz, has been substituted by order of this court as appellee herein), filed a claim against said estate; and A. D. McLamar, administrator, etc., entered his appearance and consented to the allowance of the same on November 27, 1934, which claim was allowed by the court in the sum of $5,362.05, as of the sixth class, on said day.

On December 27, 1934, appellant, Vert M. Day, filed his motion, objecting to the claim and moving the court to vacate and set aside the order allowing the same. On October 29, 1936, the claimant, Anna Cowen, filed her motion to strike the objections and motion of appellant to vacate and set aside said claim. On December 4, 1936, leave was granted appellant to file an amended motion to vacate the judgment, which motion charged that said claimant procured the same to be allowed in the sum of $5,362.05, when she knew that the estate of Walter B. Strang, deceased, was not indebted to her in excess of the sum of $3,319.59, and that said administrator, when he entered his appearance on said claim and consented to its allowance, had in his possession the books, records and accounts of said deceased, covering the period to which said claim related, and that said administrator knew, or by the exercise of ordinary diligence should have known, that said Walter B. Strang was not indebted to Anna Cowen in excess of said sum of $3,319.59, and charges upon information and belief that the claimant, Anna Cowen, since the filing of the claim, has admitted that part of it was included by error and mistake and should not have been included, and was not due or owing to her.

On March 4,1937, the court, upon hearing the motion to vacate the allowance of the said claim, denied said motion and granted the motion of Anna Cowen to strike such objections and motion to vacate the judgment, and further ordered that the motion to vacate the allowance of the claim, as amended, be stricken.

Vert M. Day prayed an appeal to the circuit court of Greene county, and the court fixed the amount of the appeal bond at the sum of $100 with sureties to be approved by the court, and on March 15, 1937, the appeal bond was approved by the court and filed in said cause.

On June 11, 1937, the claimant, Anna Cowen, filed her motion in the circuit court of Greene county to dismiss the appeal of appellant. It is first claimed that the circuit court had no jurisdiction of the subject matter of the appeal; that the appeal was not filed in accordance with the provisions of (section 68 of the Administration Act, Ill. State Bar Stats. 1935, ch. 3, ft 69 [Jones Ill. Stats. Ann. 110.069] Smith-Hurd Ann. St., ch. 3, § 69), which provides that in case of the allowance or rejection of a claim by the county court, an appeal may be taken to the circuit court of the same county, in the same time and manner appeals are taken from justices of the peace, upon giving bond, etc., and that no appeal bond was filed within 20 days from the date of the allowance of the claim.

That the 'motion to set aside the allowance of the claim was filed in the county court 30 days after entry of the judgment allowing the same, and did not give the court jurisdiction io set aside the allowance of said claim; that after the time for appeal had expired, the judgment of the county court was conclusive against said legatee and the circuit court has no jurisdiction to entertain an appeal after the expiration of the 20 days from the entry of the judgment allowing the claim.

We are of the opinion that the position of the attorneys for claimant, Anna Cowen, is not tenable. In the first place this is not an appeal from the allowance of a claim, but is an appeal from the order denying the motion of appellant, Vert M. Day, moving the court to vacate and set aside the allowance of the claim and permit him, the sole legatee and devisee, to defend.

Prior to the enactment of the Civil Practice Act a judgment became final upon the expiration of the term of court at which it was entered, and the court had jurisdiction to set aside or vacate or annul the same during said time, and also to entertain a motion made during said time to vacate such judgment, and if such motion was not disposed of during such term the court still had jurisdiction of the cause until judgment was entered upon such motion, and an appeal could be taken from an order granting or denying such motion in the same time and manner as from other judgments. Since the enactment of the Civil Practice Act, however, terms of county courts are abolished, and under the provisions of the statute (Smith-Hurd Ann. St., ch. 77, §§82, 83; Callaghan’s Ill. St. Ann. 1932-1935 Supp., ch. 110, ¶¶ 268, 269) a judgment, decree or order, final in its nature, of any court of record in any civil or criminal proceeding shall have the same force and effect as a conclusive adjudication, upon the expiration of 30 days from the date of its rendition as, under the law heretofore in force, it has had upon the expiration of the term of court at which it was rendered. And any such judgment may be modified, set aside or vacated prior to the expiration of 30 days from the date of its rendition or in pursuance of a motion made within such 30 days, wherever under the law heretofore in 'force, it might have been modified, set aside or vacated prior to the expiration of the term of court at which it was rendered or in pursuance of a motion made at that term. ■ 1

Appellant was sole legatee and devisee of said estate, and the only person interested in the residuum thereof after the payment of the debts, and it appears that the estate is solvent, and as sole legatee and devisee he has such a standing as to enable him to institute a proceeding to have vacated and set aside a judgment against the administrator, procured through fraud or mistake.

County courts have such equitable jurisdiction in respect to all matters in its charge in the settlement of" estates that it may on motion made at a subsequent term to the entry of a judgment allowing a claim against an estate set such judgment aside, if fraud or mistake has entered into its allowance. Schlink v. Maxton, 153 Ill. 447, 38 N. E. 1063; Sherman v. Whiteside, 190 Ill. 576, 60 N. E. 838.

Even though appellant had not made his motion to vacate and set aside the allowance of said claim within 30 days from the date of its allowance by the county court, yet the motion having charged that fraud and mistake had entered into the allowance of such claim, the circuit court of Greene county was - in error when it sustained the motion of Anna Cowen, appellee, to dismiss the appeal on the ground that the court was without jurisdiction to entertain such appeal, because of the reason advanced by appellee, that the motion was made more than 20 days after the entry of the judgment, the time within which an appeal could be taken, and that after the time for .an appeal had expired, the county court had no jurisdiction to set aside the allowance of the claim, and therefore the circuit court was without jurisdiction to entertain such appeal.

The appellant in his petition for rehearing strongly contends that he is entitled to have the suit proceed in the circuit court in exactly the same manner as if he had taken and perfected an appeal on the same day on which the county court entered its judgment; then to have the circuit court try the cause de novo, and not determine whether the county court may have proceeded erroneously but to comply with the language of the statute and try the claim upon its merits without any preliminary hearing as to the regularity of the county court denying his motion to vacate the judgment.

It is our opinion that in order for appellant to have what he asked for in the rehearing, he should have complied with section 69, chapter 3 [v. Rev. Stat. 1937; Jones Ill. Stats. Ann. 110.069], which he did not do.

The right to appeal from a probate proceeding to a circuit court is purely statutory, and a strict compliance with the statute granting such right is required. (Davison v. Heinrich, 340 Ill. 349; In re Estate of Boening, 274 Ill. App. 434.)

Appellant points out that he is entitled to call upon the county court within 30 days of the entry of the judgment to correct its own error, and failing in this he can then appeal from the original judgment, even though the 20 days provided by the statute have expired, just as he could have done in the first instance. This same contention was made in the case of Freeland v. Estate of Freeland, 245 Ill. App. 286. The Appellate Court for the Fourth District held that, even though an application could be made to set aside a judgment any time during the term, and even after the expiration of 20 days, nevertheless, to take an appeal from its original judgment, it was necessary to perfect the appeal by filing the bond within the 20 days as provided by the statute. While it is true that under section 83, of ch. 77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.100], that appellant had 30 days, after the entry of the judgment, to make the motion to set it aside, it does not follow that on an adverse ruling on said motion that he is then entitled to take the appeal from the original judgment under section 69 of the Administration Act, even though the 20 days have expired. To make this construction would nullify the express terms of section 69 of said act. The most that he is entitled to is an appeal from the order denying his motion to vacate.

The judgment of the circuit court of Greene county dismissing said appeal is reversed and the cause is remanded to said court with directions to hear the motion of appellant as amended, to vacate and set aside the judgment allowing said claim, and if the court shall find from the evidence that fraud or mistake entered into the allowance of said claim by the county court of Greene county, it shall vacate said judgment and try said claim de novo and permit appellant to defend against the allowance of the same.

Reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    In the Matter of the Petition of Vida M. Lehman, Individually and as Administratrix of Estate of Herman F. Mette, Deceased, Appellee, v. Inez Cottrell et al. Kathryn Koopman et al., Appellants.
    Gen. No. 9,349.

      Opinion filed January 26, 1939.
    GrEENEBAUM & BURNS, of PoiltiaC, EDWARD F. RlELY, of Minonk and George B. Graven, of Chicago, for appellants.
    J. H. McFadden, of Pontiac, for appellee.
   Mr. Justice Huffman

This case involves a question of priority between two groups of creditors of Herman F. Mette-, deceased. It arises from a controversy between judgment creditors on the one hand, and general creditors on the other. The question involved is whether judgment creditors have priority over general creditors to the proceeds derived from the sale of homestead premises in a proceeding by the administratrix to sell the property to pay debts.

Appellants obtained their several judgments against the deceased in the circuit court of Livingston county, during the month of December, 1932. Executions were issued upon the judgments at the time of entry, and placed in the hands of the sheriff of said county. They were returned unsatisfied.

The deceased acquired the premises involved in this proceeding in 1891. He went into possession thereof and resided thereon with his family, which consisted of his wife and four children. Two of the children died in infancy, his wife died in 1932, and his two surviving daughters are married and have homes of their own. Mr. Mette died intestate, in February, 1937. His daughter, appellee, was appointed and qualified as administratrix of his estate. There was insufficient personal property to pay the debts. The administratrix in December, 1937, filed a petition in the county court to sell real estate to pay debts. The only real estate of which the deceased died seized was the homestead premises. Appellants were made defendants in this petition. It was alleged therein that the premises in question constituted the homestead of the deceased, and that the reasonable value thereof was $800. Appellants’ judgments were set out. It was alleged that the interests of appellants as judgment creditors were inferior to the right of the administratrix to sell the premises for the payment of debts of the decedent, and that the same was free of lien because of such judgments.

Appellants by their answers, denied that the real estate was free and clear from incumbrances; denied that the deceased occupied the homestead until the time of his death; denied that the premises were worth only $800, but alleged the value thereof to be in excess of $1,000; alleged that they as judgment creditors had a lien against the same; denied that their rights were inferior to the rights of the petitioner to sell the premises to pay debts; and alleged that their rights were superior and constituted prior liens against the property with respect to the general creditors of the estate.

The court granted the prayer of the petition, finding the value of the premises involved did not exceed $1,000, and that they were occupied by the deceased as a homestead from, on or about December 30, 1891, to the time of his death. The court found that judgments were obtained by appellants as claimed; that executions were issued thereon at the time of entry of such judgments; and that said executions were not satisfied. The court further found the appellants’ judgments were not liens against the premises; that the premises remained in the same situation as if such judgments had not been taken; and that appellants stood in the same position as general creditors of the estate.

Appellants prosecute this appeal from the decree of the county court as above rendered. They insist that as judgment creditors of deceased, they had the right to levy and sale by virtue of their judgments; that the lien of their judgments merely remained in abeyance during the continuance of the homestead right, and attached as soon as the homestead right ceased to exist; and that they were therefore entitled to be first paid from the proceeds derived from the sale of the premises before any distribution of such' money should be made to the general creditors. They next urge that the deceased abandoned the homestead approximately 2 years before his death, and that by virtue of this fact, their judgments became hens thereon, paramount to the rights of general creditors. It is also urged by appellants that the value of the premises exceeded the sum of $1,000. The testimony in the record wholly fails to support this latter contention, and no further reference thereto will be made.

Whether an abandonment of the homestead premises has taken place is a question of fact. The question in each case is, did the party intend to permanently relinquish and abandon his home. During the last year or two of his lifetime, Mr. Mette rented a portion of his home to a tenant, reserving unto himself certain rooms therein as his own, in which he moved his bed and other furniture and personal effects. He was old and not in good health. He spent a large portion of these last two years with his two married daughters, but during such time he did return to the homestead to obtain certain personal effects, or to exchange some for others. He was then an old man, he had built this house in 1891, and had spent his lifetime there. It does not appear from the evidence that he ever acquired a new homestead. His absence from the premises in question was temporary, due to his age and state of health, and we are not disposed to consider that such was designed to be permanent. It is generally recognized that a claimant for purposes of health, pleasure, business, or for any cause he may deem sufficient, may absent himself from his homestead without forfeiting his homestead rights, and the opinion sustained by the greater number of authorities is, that when no new homestead has been acquired, absence from the old one, unless for an extended period, does not create a presumption of its abandonment. To this effect are the cases of Ives v. Mills, 37 Ill. 73; Potts v. Davenport, 79 Ill. 455; Palmer v. Riddle, 197 Ill. 45, 47. We are not favorably disposed toward the contention that Mr. Mette abandoned the premises as his home and homestead, and therefore this point has not been considered in the disposition of this case.

We now come to a consideration of what appellants’ rights were upon the extinguishment of the homestead, by the death of Mr. Mette. Since homestead rights are created by statute, their application is largely one of statutory construction, and the statutory differences of the various jurisdictions, account for apparently conflicting results reached in cases of the several States. Therefore, cases from other jurisdictions would have no binding authority here, and owing to the diversity in general provisions and in the details of the statutes of other States, the use of decisions therefrom would be only productive of difficulties. However, the chief object of homestead laws is to shelter the family. In this respect we find that homestead statutes have a common purpose. It is well settled in the various jurisdictions that when a statute exempts a homestead from forced sale, a judgment against the homestead debtor will not create a lien thereon which can be enforced while it retains its homestead character in the hands of the debtor; but as to other effects of judgments upon an existing homestead, there are two conflicting lines of decision. One holds that the lien of a judgment does not attach to the homestead in any event, and that it may be conveyed by the judgment debtor free of such hen. This is the rule in this State. The other line of cases hold that the lien of a judgment does attach to an existing homestead, but remains dormant, or in abeyance, while the land continues to be occupied as a homestead, and becomes active and attaches as soon as the homestead right is lost, abandoned, terminated by alienation, or otherwise extinguished.

Those cases, which hold that a judgment is not a lien upon the homestead property, proceed upon the theory that a judgment is not a lien upon property which is not subject to execution and sale thereunder; that the lien of a judgment, like the homestead exemption, is purely a creature of statute, and that one statute having created and defined the lien of a judgment upon lands of the debtor, and another providing that a definite portion of the debtor’s lands should be exempt from sale for the satisfaction of judgments against him, that the two statutes cannot stand together in their full extent, and the legislature will be deemed to have intended that the homestead exemption statute should be held to partially displace the statute relative to judgment liens. Those jurisdictions which have adopted an opposite view, base the same upon the assertion that the homestead exemption is not an assignable estate, but a mere possessory right, personal to the debtor, and does not run with the land. The weight of authority, as well as the better reasoning, is in favor of the doctrine adopted by this State.

At common law, land was subject neither to execution nor to the lien of a judgment. Both these results are purely statutory. The lien of a judgment and of an execution is almost universally regarded as arising from the right to sell property thereunder. Hence, where the right of sale cannot be asserted, the existence of the lien must be denied. Freeman on Judgments (3rd ed.), ch. 14, secs. 339, 340, 355; Freeman on Executions, par. 249, p. 388. It would follow as a logical result from the application of this general principle, that a judgment rendered after the creation and during the existence of a homestead, cannot be a lien thereon. The first and leading case in this State holding that the Act of 1851 created an exemption from the lien of a judgment is Green v. Marks, 25 Ill. 204, 207 (orig. ed. p. 221). To the same effect are Fishback v. Lane, 36 Ill. 437; McDonald v. Crandall, 43 Ill. 231, 236; Howard v. Logan, 81 Ill. 383; Nichols Shepard & Co. v. Spremont, 111 Ill. 631; Moore v. Flynn, 135 Ill. 74; Wike Bros. v. Garner, 179 Ill. 257.

There have been three distinct periods in the development of the homestead exemption statute of this State. The first was from 1851 to 1857, during which the act of 1851 was in force. In 1857 the act of 1851 was amended. In 1872 the act of 1851 and the amendment of 1857 were repealed, and a new homestead law enacted. This was repealed in 1873 and re-enacted the same year. The Act of 1873 constitutes the present act, except for amendments to sections 4 and 10 thereof. Since the passage of the first act, the statutes exempting homestead property from execution and sale by virtue of judgment liens, have been so far uniform, that all the cases which have ever dealt with the subject, may be considered without reference to what statute they were decided under.

The Homestead Act of 1873 [Ill. Rev. Stat. 1937, ch. 52, § 1 et seq.; Jones Ill. Stats. Ann. 107.124 et seq.] expressly creates an exemption from “judgment” (sec. 1). This is further re-enforced by the provision that, “when a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not have been subject in the hands of such owner” (sec. 6). Accordingly, it has been held that a judgment is not a lien upon the property subject to the homestead exemption.

Thus, the debtor while in the enjoyment of his exemption, may transfer title to another, waiving the exemption, and delivering up possession of the property pursuant to the conveyance. The judgment having been no lien upon the homestead interest of the debtor, at the time of the conveyance, title thereto passed clear of any lien, and the homestead interest could not, after the conveyance, be levied upon in the hands of the purchaser. This was so held by the cases above cited and by Conroy v. Sullivan, 44 Ill. 451; Loomis v. Gerson, 62 Ill. 11; Leupold v. Krause, 95 Ill. 440. From what has previously been said, we have seen that a judgment is not a lien on the homestead property. In addition to this, it has been held in Winslow v. Leland, 128 Ill. 304, 340; and Clingman v. Hopkie, 78 Ill. 152, 155; that after the debtor’s death, a judgment creditor without a lien, has no preference, and stands on the same footing as simple contract creditors.

A judgment against the original householder cannot be a lien upon the reversionary interest in the hands of the heirs or devisees. Brinkerhoff v. Everett, 38 Ill. 263. Nor could an execution be levied on a reversionary interest upon such a judgment. This is not because the reversionary interest is subject to an exemption, but because there was never a time when the judgment could become a lien upon the $1,000 interest in fee. In the hands of the original householder, the fee in the property to the extent of $1,000, was exempt from the lien of a judgment, and at once upon the death of the original householder, title passed from him to his heirs or devisees. This situation is identical with that where the original householder conveys his $1,000 interest in fee while his exemption is in existence, and where it has been held that the judgment, never having been a lien on the $1,000 interest while in the hands of the transferor, cannot be a lien upon it in the hands of the transferee.

Immediately upon the death of Mr. Mette, the title to this property was transferred from him to his heirs, by operation of law. The judgments never became liens upon the property in dispute. The situation here presented is identical with a voluntary conveyance of the premises by the householder to a grantee or mortgagee. Since he possesses the right to voluntarily convey or mortgage the homestead free from judgment liens, it follows that the judgments could never become a lien upon the property, except upon abandonment thereof or a waiver of exemption. Abandonment of the homestead and death of the householder, are not at all similar. Abandonment requires the element of intent, and in such case the estate of homestead passes to nobody. The act of abandonment operates as a voluntary termination of the homestead exemption, and therefore the estate raised to support it, merely falls. Under such circumstances, the property becomes liable to the lien of a judgment the same as any other property of a debtor which is not subject to the Homestead Exemption Act, and it would appear that all prior judgments will attach at the moment of abandonment; that they have no precedence over one another, and that the judgment creditor who first proceeds to the enforcement of his judgment, will gain priority over the other judgment creditors. Bliss v. Clark, 39 Ill. 590, 596.

In the above case, the householder and his wife released the benefit of homestead by deed to a plaintiff in a junior judgment. The debtor and his wife then abandoned the premises and moved to another State. The junior judgment creditor proceeded with levy and sale. The holder of a senior judgment subsequently proceeded to levy and sale. It was held that the Homestead Exemption Act no longer exempted the-property from levy and sale after the same was released to the junior judgment creditor and after the debtor and his wife had abandoned the homestead as above set out. After the senior judgment creditor had caused a levy and sale, an action of ejectment was brought against the purchaser under the levy and sale as made by the junior judgment creditor. Judgment therein for the defendant was affirmed. If the plaintiff could have maintained his proposition that judgments are a lien upon real estate, irrespective of the Homestead Act, and merely held, in abeyance thereby, then he must have prevailed. Failing to do this, his title was worthless. In that case the court held that the householder had the right to release and transfer his homestead exemption to a judgment creditor, and that the junior lien holder, having acquired such title, and first causing levy and sale to be made after the homestead was abandoned, was entitled to a priority over the senior judgment creditor and that his judgment became postponed to the rights of the junior judgment.

There is no claim in this case that any of the debts in question were contracted for the purchase price of the homestead property, or for any improvements or repairs thereon. We are of the opinion that the judgments of appellants did not at any time become liens upon the homestead estate of the decedent, and that upon his death the title thereto immediately passed from him to his heirs, by operation of statute. Under such circumstances, the county court was correct in holding that appellants stood in the same relation as general creditors of the estate, and its decree is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Hall

text:
    Irene H. Hallam, Appellee, v. Rodney Hallam et al., Appellants.
    Gen. No. 39,932.
    Opinion filed February 1, 1939.
    John F. Cusack, of Chicago, for certain appellant; Robert Irmiger, of Chicago, of counsel.
    I. J. Berkson, of Chicago, for certain other appellants ; Eugene A. Weinberg, of Chicago, of counsel.
    William L. Bourland, of Chicago, for certain other appellants.
    Essington & McKibbin and Cassels, Potter & Bentley, all of Chicago, for appellee; George B. McKibbin, Walter E. Beebe, Kenneth B. Hawkins and Hamilton K. Beebe, all of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On February 18,1936, Irene H. Hallam filed her complaint in the circuit court of Cook county against the heirs and next of kin of Ralph M. Hallam, deceased, in which she charged that a postnuptial contract entered into between Irene H. Hallam and Ralph M. Hallam, her husband, is void because it was induced by duress and undue influence; also that the contract is void as being against public policy.

The contract was executed October 1, 1934, and provides that in consideration of the creation of an annuity, payable at the rate of $200 per month, by depositing with the Provident Mutual Life Insurance Company of Philadelphia, the sum of $41,439, together with the conveyance of considerable other personal property, by Ralph M. Hallam to Irene H. Hallam, Irene Hallam released all of her claim to or any right in any other property of Ralph Hallam; also all her right to any widow’s award, or other claim against Hallam, or his estate, in case of his death, including any claim for alimony, maintenance or support, past, present or future, except as provided by the annuity. Hallam immediately deposited the sum of money mentioned with the Provident Mutual Life Insurance Company, as agreed, the annuity contract ivas issued, and beginning with November 1,1934, and up to the time of the filing of the complaint herein on February 18,1936, and after the hearing thereon, Irene Hallam has received the payments provided for in this contract. Insofar as anything to the contrary is shown by the record, she is still receiving* these payments.

Upon the issues made by the pleadings, the cause was submitted to a master in chancery, and the master, after hearing* a large amount of testimony, found and reported that the contract was free from fraud, duress and undue influence, and recommended that the complaint be dismissed for want of equity. Objections to the master’s report were overruled and after a hearing by the court upon objections and exceptions to the report, the court entered a decree sustaining the master’s report and dismissing the complaint. This decree was entered on June 8,1937. Shortly after the entry of this decree, the court’s attention was called to an opinion of the Supreme Court, entitled, Berge v. Berge, 366 Ill. 228, which had been filed on June 2, 1937, and thereupon and on motion of the complainant, the court at the September term, 1937, vacated the decree formerly entered, and on October 14, 1937, entered another decree in which it found that the contract between the parties was null and void because of the fact, alone, that it was contrary to public policy for the reason that by its terms, Ralph M. Hallam was released of all obligation to support his wife. This is an appeal from that decree.

Plaintiff has filed cross errors here and urges that the court was in error in finding that the contract was not obtained through duress and undue influence.

The record indicates that Ralph M. Hallam was an alcoholic, for which he had been treated at various hospitals, sanitariums and institutions, and that the relation between the parties, for this reason, at times, had been strained. On the other hand, the record also indicates that in spite of this fact, he had apparently been successful in business and had accumulated considerable wealth. Early in the year 1932, Mrs. Hallam consulted two lawyers, Adelor J. Petit and Robert C. Baumgartner, each of whom testified in the hearing of the case for defendants. The record indicates that certain securities and cash which had been accumulated by the Hallams during* their married life, were kept in a joint safety deposit box in the First National Bank of Chicago. Upon the- advice of Baumgartner, Mrs. Hallam transferred these properties to a vault in the Continental & Commercial National Bank. Thereafter, and after consultation with their attorneys, Baumgartner was directed by both parties to prepare a draft of a postnuptial contract to be entered into between them. There seems to be little question but that Hallam was frequently in an intoxicated condition, at such times his attitude towards his wife was far from what it should have been, that he frequently threatened her with injury, and that she had often been compelled to leave him because of his conduct, threats and ill treatment.

Robert C. Baumgartner, plaintiff’s attorney in connection with the negotiations had prior to the executions of the agreement referred to and the final execution thereof, testified, in substance, that other prior agreements had been drawn, which Mrs. Hallam refused to sign; that in conversations between the parties, Mrs. Hallam had stated to her husband that if he would refrain from drinking, she would renew their relations and live with Mm, but that she would not do so unless he would prove that he was able to refrain from driMring, to wMch he replied, in substance, that he had stopped drinking, that he wanted her to come back to him, but that if she insisted on the contract being entered into between them, $200 a month was all that he would agree to give her; that thereafter, the final draft of this contract was prepared by Baumgartner and that when it was executed, Judge Adelor J. Petit and Baumgartner, representing Mrs. Hallam, were present, together with Mr. and Mrs. Hallam and Hallam’s attorney. He also testified that prior to this time, Mrs. Hallam had taken possession of certain securities and moneys in a vault in the Continental & Commercial National Bank, and that these securities together with certain moneys, were turned over to Hal-lam, with the exception of the articles mentioned in the contract, together with certain jewelry which Mrs. Hallam retained; that thereafter, in accordance with the terms of the contract, Hallam deposited with the Provident Mutual Life Insurance Company the sum of $41,439, and that there was issued to plaintiff by this insurance company an agreement by which the insurance company should pay to the plaintiff the sum of $200 a month, the payments to begin on the first day of November, 1934, and a like amount to be paid thereafter at the expiration of each successive month during the lifetime of plaintiff.

In the case of Berge v. Berge, 366 Ill. 228, upon which case the trial court seems to have predicated its decision and decree, it appears that the parties were married in the year 1893 and separated in 1928; that after the separation the parties^ executed a certain instrument in which the husband, Fred Berge, was named as the first party and the wife, Lena Berge, the second party, and the agreement stated that in consideration of the husband conveying to his wife certain city property and delivering to her a note for $1,500 signed by his son, she agreed to and did, by the document, relinquish, convey and quitclaim to her husband all right, title and interest which she had in a certain farm then under contract of sale, to a third party, which contract had been made in the year 1920, by which this third party agreed to purchase the farm for $30,000, paying $1,500 cash on the execution of the contract and promising to pay $1,000 on or before March 1, 1922, and $27,500 on March 1, 1932. The husband and wife executed a deed conveying the premises to the third party, and in conformity with their contract with him, deposited the deed in escrow with another party, as trustee, to be delivered to the third party when he had completed his payments for the farm. The contract between the husband and wife contained the following provisions: “ ‘. . . that said second party shall receive from the said first party annually, payable on the first day of March of each and every year, beginning March 1, 1929, the sum of $600, said payments to be made to said second party during her natural life, out of the income of said farm. ’ These annual payments were made for the years 1929, 1930 and 1931.” Also, it was provided: “ ‘That the parties will live apart and neither will remarry unless they agree to vacate this agreement; that neither will molest the other; that Lena shall not contract any debt for which Fred shall be liable, and neither she nor any other person or persons on her behalf or with her authority, consent or procurement, shall or will institute any suit or civil process or proceedings whatever against the said husband, either for separate maintenance, alimony or support, it being hereby expressly understood and agreed that the aforesaid conveyances by the parties shall be in lieu of all rights of said parties hereto, ’ etc.’> The purchaser defaulted his contract and thereafter he and Fred Berge reached an agreement, by the terms of which the deed held by the trustee was, at Berge’s direction, delivered to the purchaser, the purchaser and his wife conveyed the farm by deed to the trustee, and it was admitted that this trustee held the title for the benefit of Berg*e. Thereupon Berge claimed that .he had no interest in the farm, had received no rent from it, and for that reason refused to make any further payments to his wife. It clearly appears that by the proceeding resorted to by Berge, he deliberately created a condition which would relieve him from carrying out the contract he had made with his wife, and insofar as the facts there are concerned, the case is not in any respect comparable to the instant ease. In the case at bar we find the fact to be that the husband made the settlement agreement after plaintiff had been fully advised in the premises, and that the annuity trust was created and is irrevocable. There can be no question as to his good faith in the matter.

In Lyons v. Schanbacher, 316 Ill. 569, the Supreme Court said:

“It was formerly held in England and two or three States in this country that agreements between husband and wife for a separation were illegal, but it is now held by substantially all courts that such agreements are not per se invalid, and it is now the law that an agreement between husband and wife, fairly and understandingly entered into, adjusting and settling their mutual rights in each other’s property, may be lawfully made. . . . ” With reference to the agreement in that case, the court said:

“The purpose of this agreement was the renunciation of the marital obligation. One consideration for its execution was the release of appellant forever from any obligation to support or contribute to the support of his wife. The duty of the husband to support the wife is imposed upon him by law. It does not depend upon inadequacy of the wife’s means but upon the marriage relation. Husband and wife may contract with each other as to their mutual property rights, but the husband cannot by contract, either before or after marriage, relieve himself of the obligation imposed upon him by law to support his wife. [Citing cases.]” Lyons v. Schanbacher, supra, has been followed by the Supreme Court in the case of Vock v. Vock, 365 Ill. 432, in the Berge case supra, and in the other cases there cited, and it seems clear that the Supreme Court of this State has determined that while a husband and wife may contract with each other as to their mutual property rights, that nevertheless, because of public policy, the husband cannot by contract relieve himself of the obligation imposed upon him to support his wife. Whether or not the Separate Maintenance Act, entitled, “An Act in relation to married men and women,” as amended by an Act of July 11, 1935, creates a public policy different from that announced by the Supreme Court, or does away with such policy entirely, seems never to have been considered. Section 1, ch. 68, par. 22, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.189], provides, in part, “that married men or women, who without their fault, now live or hereafter may live separate and apart from their wives or husbands, may have their remedy in equity, in their own names, respectively, against their said wives or husbands in the Circuit Court of the county where the wife or the husband resides for a reasonable support and maintenance while they so live or have so lived separate and apart.”

In Fenske Bros. v. Upholsterers International Union, 358 Ill. 239, the Supreme Court said: “One of the fundamental principles of our government is that the legislative power shall be separate from the judicial. To declare what the law is or has been is a judicial power; to declare what the law shall be is a legislative power. (1 Cooley’s Const. Lim. (8th ed.) p. 191.) ”

However, the question for us to determine now, is whether or not, under the authorities cited, it can be said that Ralph Hallam, by the terms of the contract between the parties, divested himself of the obligation to support his wife in case the annuity failed through the insolvency of the insurance company, which, as we view the situation, would be the only contingency that could possibly arise which might result in her failing to receive that support from her husband to which she was entitled. In our opinion, Hallam did not seek to avoid his obligation, but, on the contrary, met it by creating this annuity as agreed. If the bill of complaint should be sustained and the contract releasing Hallam from further contributing to plaintiff’s support be held to be void, it could not affect the trust created in her behalf, and in addition to the payment to her of $200 a month by the insurance company during her life, she would receive her distributive share of Hallam’s estate. We can see no equity in such a holding. Therefore, it is our opinion that the decree of the circuit court of Cook county should be and it is reversed.

Reversed.

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