author: Mr. Presiding Justice Denis E. Sullivan

text:
    In re Estate of Louis F. Nonnast, Incompetent. In re Estate of Louis F. Nonnast, Deceased. Leonore G. Nonnast, Guardian of Valerie L. Nonnast et al., Appellants, v. The Northern Trust Company, as Conservator of the Estate of Louis F. Nonnast, Incompetent, and as Executor of the Estate of Louis F. Nonnast, Deceased, Appellee.
    Gen. No. 40,426.

      Opinion filed June 21, 1939.
    Rehearing denied July 3, 1939.

      Stearns & Jones, of Chicago, for appellants; Malcolm McKerchar and Lloyd M. McBride, both of Chicago, and Robert V. Jones, of counsel.
    Vernon R. Loucks, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a final order entered upon the final report and accounting filed in the probate court in the estate of Louis F. Nonnast, incompetent, and the estate of Louis F. Nonnast, deceased, which cause was afterwards heard in the circuit court on appeal from the probate court. The circuit court in effect upheld the action of the probate court.

The plaintiffs, Louis F. Nonnast and Valerie L. Nonnast, individually, and Leonore Gf. Nonnast, as guardian of Valerie L. Nonnast, a minor (hereinafter referred to collectively as the “objectors”), filed objections in the probate court of Cook county to the first and final account and report of the Northern Trust Company, as conservator of the .estate of Louis F. Nonnast, incompetent, and also filed objections to the first current account and report and the amended second and final account and report of the Northern Trust Company, as executor of the estate of Louis F. Nonnast, deceased. With one minor exception, the probate court overruled all the objections filed in both estates, and from those orders the objectors appealed to the circuit court of Cook county. The two appeals were consolidated in the circuit court where trial was had by the court without a jury. The objectors bring this appeal from the circuit court order.

No point is raised as to the pleadings.

The objectors’ theory of the case is that the Northern Trust Company, both as conservator and as executor, violated the law governing the conduct and powers of conservators and executors, made illegal and improper disbursements, and failed and neglected to collect claims due the estate, with the result that the estate has been completely wiped out. Consequently, the objectors maintain that the Northern Trust Company, as executor, should be surcharged in its amended second and final account with an amount equal to the losses sustained by the estate as a result of the acts complained of by the objectors. The objectors also assert that in view of its misconduct, the Northern Trust Company should be denied credit for all fees paid, and should be charged with interest and with the costs of this litigation.

The Northern Trust Company’s theory of the case is that all its disbursements and acts, both as conservator and executor, were legal and proper, and that though losses were suffered in both the estate of Louis F. Nonnast, incompetent, and in the estate of Louis F. Nonnast, deceased, such losses could not be attributed to any violation by the Northern Trust Company of the laws governing the conduct of conservators and executors.

There does not seem to be much controversy as to the facts, and they are in substance as follows:

A few days prior to March 1,1930, Louis F. Nonnast, then 82 years old, suffered a paralytic stroke caused by a cerebral hemorrhage. On March 1, 1930, his son, Emory Nonnast, signed and filed in the probate court of Cook county a petition to have Louis F. Nonnast adjudged incompetent and the Northern Trust Company appointed conservator. This petition stated that Nonnast was “paralyzed, unable to speak, and intermittently in a state of coma.”

On March 6, 1930, a jury in the probate court of Cook county brought in a verdict that Louis F. Nonnast was a “distracted person,” and on the same day letters of conservatorship were issued to the Northern Trust Company. The afternoon of the day of the issuing of the letters of conservatorship, Robert E. Agee, assistant secretary of the Northern Trust Company, and A. J. Hennings, attorney for the Northern Trust Company as conservator, called on Nonnast in his bedroom. Also present was Emory Nonnast. Louis F. Nonnast was still in bed, still paralyzed and still under the constant attendance of a nurse, which condition obtained until his death on May 17, 1930. The conversation was carried on by questions put to Nonnast which he apparently answered by nods of the head and indicating “yes” and “no,” since he could not talk. Subsequently one or two further calls were made on Nonnast by representatives of the Northern Trust Company. The purpose of these calls it was claimed was to learn the details of the incompetent’s estate, which had been entrusted to the care of the conservator, and also, to ascertain the wishes of the incompetent with respect thereto.

One of the principal interests of Louis F. Nonnast had been Louis F. Nonnast Sons, Inc. (hereinafter referred to as the “Nonnast company”), or Louis F. Nonnast Co., Inc., an Illinois corporation engaged in the manufacture and sale of furniture, particularly tables, in which corporation Nonnast, the incompetent, owned 2,850 shares out of 3,000 shares of stock issued and outstanding. At the time the conservator was appointed this company was hopelessly insolvent. It had lost money consistently for many years and as of March 15,1930, it had an accrued deficit of $265,914.40.

The conservator decided that an audit of this company should be made and also of the affairs of its incompetent ward. For that purpose Thulin & Co. was employed. Thulin prepared an audit of the estate and of the Nonnast company as of March 15, 1930, for which audit the conservator paid $975. This audit showed a net estate belonging to Nonnast of $358,512.71, consisting of real estate in the net amount of $177,505 and personal property in the net amount of $181,007.71. This value for the estate of Nonnast in-eluded no value whatever for the stock of the Nonnast company.

On March 15, 1930, the Nonnast company was indebted to Nonnast in a total amount of $282,948.81. This indebtedness had resulted from the efforts of Nonnast to keep the Nonnast company going; he had advanced money from time to time as the affairs of the company had demanded it. Part of the indebtedness was represented by notes, the earliest one being-dated January 30, 1926, and part by open account. In the audit this indebtedness was estimated at - 25 per cent of its face value.

The audit showed that the Nonnast company, as of March 15, 1930, had a condensed balance sheet as per its books, as follows:

‘ ‘ Assets :

Cash ................................ $69.80

Notes & Accounts Receivable (less reserves of $7,129.57).......... $86,692.02

Accounts Receivable (officers & employees)............... 69,379.29

Suspense Accounts & Prepaid Insurance 9,886.98

Inventory ........................... 122,872.77

Machinery & Equipment............... 15,030.63

Good will............................ 127,425.06

$431,356.55

Liabilities :

Bank Overdraft...................... $1,906.13

Notes & Accounts Payable............. 395,364.82

Capital Stock........... $300,000.00

Deficit................. ' 265,914.40 34,085.60

$431,356.55”

The audit indicated that the assets of the company were considerably overstated on its books and that the company’s condition was even worse than as indicated by its balance sheet. Of accounts receivable carried on the books as assets, in excess of $37,000 was owed by firms which had gone into bankruptcy, and only $41,535.56 of the accounts receivable was listed by the audit as good. The receivables from officers and employees were noted as very doubtful. The inventory consisted of raw materials in the amount of $25,112.44, which the audit noted as of very doubtful value, work in process of $66,308.17, and finished goods in the amount of $30,409.82. The audit reported the loss of the company in 1929 had been $132,379.64, and that the company had lost $36,310.20 in the first two and a half months of 1930.

About this time the Northern Trust Company determined to liquidate certain . securities belonging to its ward and to advance the proceeds to the Nonnast company in an effort to keep it going. Accordingly, on March 13, 1930, the Northern Trust Company, without notice to anyone filed its petition in the probate court, representing to the court that the Nonnast company had an inventory of $235,000, “consisting almost entirely of material in process, ’ ’ and requesting authority “to loan the Louis F. Nonnast & Sons Company not exceeding $17,500.00.”

An order granting the relief prayed in this action was entered on the same date. Subsequently the Northern Trust Company sold securities in a substantial amount and with the proceeds lent $20,000 to the Nonnast company. Of this loan $15,200 was lent prior to the death of Nonnast on May 17, 1930 and notes representing that amount were taken from the Nonnast company, and the remaining $4,800 was lent subsequent to the death of Louis F. Nonnast, and notes taken therefor. The last note is dated June 24, 1930.

The conservator Northern Trust Company states that it was influenced in making payment by the advice given it by the distracted person. We do not see how this could be a justification as the wishes of Nonnast were wholly immaterial. The only reason for the conservator having been appointed by the court, as provided by statute, was that Nonnast had become a distracted and incompetent person and was unable to transact any business. We do not think this constitutes a sufficient reason for the court to allow the claim nor was it even the semblance of an excuse and the court erred in admitting’ evidence as to what the ward said to the conservator.

As was said in People’s Bank v. Wood, 207 Ill. App. 602: ‘ ‘ The duty of the conservator to collect the judgment is fixed by law, and the desires of the ward cannot be considered either by the conservator or the court.” As to the actions of the Northern Trust Company, in its capacity as executor, proof of Nonnast’s wishes equally constituted no defense.

In the case of Waterman v. Alden, 144 Ill. 90, the defendants, who were both executors and trustees under the will of Waterman’s estate, were seeking to avoid liability for failure to collect a particular judgment on the ground that Waterman’s business connections during his lifetime were such that he would have preferred not to have had the judgment collected. The Supreme Court in its opinion stated: “While Special Master Loomis, by his report, excuses the conduct of the trustees, he does not do so on the ground that they were not negligent, but rather upon the theory, that, from the relations existing between the testator and the Marsh’s, it is fair to presume that he, if living, would have used no more care and diligence in enforcing those claims than did appellees. It need scarcely be suggested that no such test can properly be applied to the conduct of trustees. There may be abundant reason for believing that Mr. Waterman, though a careful business man, would much rather have lost the indebtedness than to have pressed the collection of it, but that furnishes no excuse for these trustees to neglect or fail to use all reasonable diligence in the matter. Mr. Waterman might do with his own as he pleased, but the duties of these appellees are fixed by the law, and if they have violated those duties they are personally liable.”

We are constrained to hold that the wishes or desires of Louis F. Nonnast or conversations had with him had no place in the evidence.

Louis F. Nonnast died on May 17,1930. In the latter part of May, 1930, shortly after the death of its ward, the Northern Trust Company called a meeting at its place of business for the purpose of considering what should be done about the Nonnast company. Present at the meeting were Messrs. H. H. Rockwell, F. S. Booth and T. S. Estrem, officers of the Northern Trust Company, A. J. Hennings, attorney for the conservator, Emory Nonnast, W. H. Theel, secretary of the Nonnast company, and a Mr. Anderson, bookkeeper for the Nonnast company. At this meeting it was decided, so it is now stated, to liquidate the Nonnast company. At about the same time two of the directors of the Nonnast company resigned and T. E. Estrem and A. J. Hennings were elected directors of the company. From this time forward the Northern Trust Company was in complete control of the Nonnast company and directed all its affairs.

In spite of its statement that it decided in May, 1930, to liquidate the Nonnast company, the Northern Trust Company instructed Thulin & Co. to plan and install a cost accounting system for the Nonnast company and also to furnish the company with a general office manager. For this purpose Thulin & Co. furnished the services of one D. T. Hill, who worked on the installation of a cost accounting system for the Nonnast company and acted as general office manager of the company. He began his duties June 1,1930, and his salary for the month of June was not paid by the Nonnast company, but by the Northern Trust Compauy as conservator. His salary for the months of July to November, inclusive, was paid on September 9, 1930 (prior to the appointment of the executor) by the Northern Trust Company as executor. Thulin & Co. was paid $325 per month for its services. Beginning the first of December, 1930, Hill’s salary was paid by the Nonnast company. Although the Northern Trust Company as conservator and executor paid $325 per month for Hill’s salary, Hill only received $200 per month of this amount until he started working directly for the Nonnast company. Some time during the late summer or fall of 1930, Hill was elected president of the company and became general manager.

During the summer of 1930, the Northern Trust Company which was then in control of the Nonnast company, caused said company to fill a very substantial order for radio cabinets with the Silver-Marshall Co. This order required a substantial amount of capital to carry it through, and further cash being needed the trust department of the Northern Trust Company requested its own banking department (being the same corporation) to advance the sum of $13,000 on the security of trade acceptances of the Silver-Marshall Co. The Northern Trust Company thereupon advanced an additional $13,000 without security. With this money the order was completed. The trade acceptances were duly paid by the Silver-Marshall Co., thereby liquidating one-half of the loan; the Nonnast company later paid $7,500 thereon; and the Northern Trust Company later caused the estate of Nonnast to pay off the balance of the loan.

When the Northern Trust Company loaned the money and charged it against the estate, it put itself in an adverse position to its ward in having to decide between the interests of its ward and that of itself. Said company should not have placed itself in such a position. Its duty was to protect the interests of the ward rather than its own.

On July 2,1930, the Northern Trust Company, representing itself as still being the conservator of Nonnast, incompetent, filed its petition in the probate court, without notice to anyone, representing that Nonnast was liable on a guaranty of certain trade acceptances of the Grand Rapids Furniture Co. in the total amount of $10,394.38, which trade acceptances had been discounted with the Security Bank of Chicago, and requesting authority to sell certain securities of the estate and to pay the amount due, including interest, on account of such trade acceptances, the Grand Rapids Furniture Co. not having paid the same and being in bankruptcy. On the same day an order was entered granting the relief prayed in the petition. Accordingly on July 15, 1930, the Northern Trust Company paid to the Security Bank $10,539.89, being money that belonged to the estate of Nonnast. There were, in fact, no trade acceptances or other obligations of the Grand Rapids Furniture Co. discounted at the Security Bank. There were, however, three notes of the Nonnast company totaling the above amount, which three notes had been given by the Nonnast company to the Security Bank at different times during February, 1930, for moneys lent to the company. The Security Bank claimed that Nonnast had guaranteed the payment of the notes and requested the Northern Trust Company as conservator to pay the amount due, the Nonnast company not having paid the notes when they came due in May, 1930. No guarantee was produced at the trial and no claim was filed by the Security Bank against the estate, as required by statute.

It further appears from the evidence that the Northern Trust Company adopted a policy of paying off all creditors of the Nonnast company except the claim of the Estate of Louis F. Nonnast, and this policy was consistently maintained, throughout the conservatorship and the executorship. Two reasons are advanced by the Northern Trust Company for the adoption of this policy: First, subsequent to Nonnast’s adjudgment as a distracted person, he advised his conservator that he wanted all debts of the Nonnast company paid; and Second, Nonnast or W. II. Theel, secretary of the Nonnast company, had told all creditors of the Nonnast company that Nonnast would see that all bills of the Nonnast company were paid, and the estate of Nonnast thereby became liable for the payment thereof. No claim, however, by any creditor of the Nonnast company was ever filed either against the estate of Nonnast, incompetent, or against the estate of Nonnast, deceased, except one claim by the First Wisconsin National Bank, based upon notes which Nonnast had personally signed as comaker. No objection is made to the payment of these notes to the Wisconsin Bank.

No protection of the assets of the estates was shown or defense offered to the allowance of said claims. This neglect by the Northern Trust Company whose duty it was to protect the estates committed to its charge cannot be countenanced in any way.

On August 12, 1930, the Northern Trust Company, as conservator, filed with the probate court a suggestion that its ward had died testate on May 17, 1930. On October 8, 1930, the will of Nonnast was admitted to probate, and letters testamentary were issued to the Northern Trust Company, which was named executor under the will. The will, after making certain bequests, left the residue of the estate to the Northern Trust Company as trustee for the benefit of certain persons, including the objectors to these reports and accounts.

The Northern Trust Company as conservator continued to deal with the estate of its deceased ward until September 15, 1930. On that day, according to its account as conservator, it turned over to itself as executor all the assets of the estate of its ward remaining in its hands. On October 21, 1930, the Northern Trust Company as conservator filed its first and final account in the probate court, without notice to anyone except to itself as executor, and the account and report were approved. This account and report covers the administration of the Northern Trust Company, as conservator, from March 6, 1930, to the close of business September 15, 1930. In addition to the specific transactions mentioned above, the conservator, during the period from March 6, 1930 to September 15, 1930, collected income due the estate of its ward, and made sundry disbursements. These disbursements were made subsequent to the death of its ward as well as prior thereto and consisted not only in the payment of expenses incurred by the conservator but in the payment of many debts of the decedent, without claims being filed and without a court hearing on such claims individually.

Although the Northern Trust Company as conservator reported that it turned over all the assets in its hands as conservator to itself as executor at the close of business on September 15, 1930, yet the account of the Northern Trust Company as executor indicates the receipt of cash in the amount of $8,200 from the conservator on July 28, 1930. The report of the executor is apparently correct in this regard, inasmuch as subsequent to July 28, 1930, and prior to September 15, 1930, the Northern Trust Company as executor made sundry cash disbursements.

On November 26,1930, the Northern Trust Company as executor filed its petition in the probate court requesting authority to sell additional securities and lend an additional $6,500 to the Nonnast company. This petition was filed without notice to anyone, and on the same day on which it was filed an order was entered granting the relief prayed. This amount was subsequently loaned by the executor, but no notes of the Nonnast company were obtained.

Thereafter, the manufacturing and selling activities of the Nonnast company were gradually reduced during the fall of 1930 and by the end of that year had entirely ceased. Throughout this period the debts of the Nonnast company were being paid off, except the indebtedness to the estate of Nonnast, so that on December 31, 1930, the only indebtedness of the company (other than to the estate of Nonnast) remaining unpaid was a balance of $12,000 owing on the indebtedness to the Northern Trust Company, and trade accounts and notes payable in the approximate amount of $15,000. There was also a liability to the Commonwealth Edison Company on a contract for the purchase of electrical equipment.

Subsequent to December 31, 1930, the Nonnast company collected amounts due to it on trade receivables and paid off all trade accounts and notes payable, and paid the sum of $6,500 on the obligation to the Northern Trust Company, leaving a balance of $5,500 unpaid. This balance of $5,500 remained unpaid until June, 1932, when the trust department of the Northern Trust Company being pressed by the banldng department of the same corporation, executor, for payment of the balance, and the estate of Nonnast having about $6,000 in cash on hand, the Northern Trust Company, on June 4, 1932, took $5,500 from the estate and charged the estate that amount on account of fees alleged to be due to the Northern Trust Company for services, and turned the $5,500 over to the so-called bahking department, and the so-called banldng department turned over to the Northern Trust Company, the executor, the note of the Nonnast company, where it still remains.

When we refer to the trust department and the banking department, we do not mean to infer that there were two separate corporations as they are one and the same and all actions referred to by either department are those of the Northern Trust Company, a corporation, the conservator and executor herein. During the course of the operation of the business of the Nonnast company by the Northern Trust Company, funds of the estate of Nonnast were used by both executor and conservator to pay sundry bills of the Nonnast company.

In further explanation of the written contract between the Nonnast company and the Commonwealth Edison Company which was entered into July 23,1929, said contract was signed on behalf of the Nonnast company by W. H. Theel. It provided for the installation of sundry electrical equipment in the building owned by Louis F. Nonnast on Halsted street, Chicago, which building was used by the Nonnast company as a factory. The price for the electrical equipment was $28,833.34, payable in monthly instalments. Title remained in the seller until the contract price was paid in full. The Northern Trust Company as executor adopted in February, 1931, a policy of paying the monthly instalments due under this contract with funds belonging to the estate of Nonnast. A total of $2,988.15 on account of instalments due under the contract was paid at various times by the executor. After paying the sum of money, for some reason, not apparent, the contract was abandoned by the executor and the equipment thereafter reclaimed by the Commonwealth Edison Company. The Northern Trust Company gives as a reason or excuse for paying this bill that otherwise, damage might result to the estate. This is not a sufficient reason to justify or legalize their acts.

The Northern Trust Company filed its inventory as executor on March 5, 1931. In this inventory all notes of the Nonnast company were listed as “desperate,” as was also the stock therein.

On August 4, 1931, the executor presented to the court a petition asking the court to approve the execution of a proposed contract by the executor with T. J. Ryan, J. S. Hayes and R. T. Doyle. On the day of the petition’s presentation an order was entered giving the executor leave to enter into the proposed contract. The petition and order were without notice to anyone. Under the contract, which was thereafter duly executed, The Northern, Trust Company as executor purported to sell to the second parties the machinery and equipment of Louis F. Nonnast Sons, Inc., and also the entire inventory of furniture, parts in process, raw materials, and supplies of Louis F. Nonnast Sons, Inc., and by the same contract The Northern Trust Company as executor purported to lease to the purchasers for five years the land and building on Halsted street which had been occupied by the Nonnast company as a factory and which had been owned by Nonnast personally. Just how an executor could have the real estate of the deceased in charge is not explained. A total purchase price of $65,000 was agreed to be paid by the purchasers, $40,000 being allocated to the inventory and $25,000 to the machinery and equipment. The purchasers paid no cash on this contract, the entire purchase price being represented by monthly instalments, which began at the rate of $208.33 per month. The purchasers were authorized by the contract to form a company to be known as the Nonnast Company and to convey thereto the assets so purchased. This contract was carried out and the monthly payments thereunder made for a period of approximately one year. By that time the new Nonnast Company had used up all the assets as contained in the inventory which had been purchased, and it then went into bankruptcy. Neither Louis F. Nonnast Sons, Inc. nor the executor ever recovered anything out of this bankruptcy.

During the Northern Trust Company’s management of the Nonnast company, the Nonnast company paid in full all creditors including the Northern Trust Company excepting the claims of the estate of Louis F. Nonnast. On December 20,1932, the Nonnast company, having slightly in excess of $1,600 on hand as its sole remaining asset, paid $1,600 to the estate of Louis F. Nonnast. No other payment has ever been received on account of the notes of the Nonnast company, and they are now totally worthless. The total amount paid out by the Nonnast company on account of debts of the Nonnast company which were owing on March 6, 1930, and which were still owing on May 31, 1930, was $47,253.22.

In the course of its administration of the estate of Nonnast, incompetent, and of the estate of Nonnast, deceased, the Northern Trust Company has taken credit for fees for itself and its attorneys in the total amount of $21,500. Of this amount $11,000 was paid to attorneys, and $10,500 was retained by the Northern Trust Company for its services. The attorneys’ fees were paid as follows: On August 2, 1930, $1,000 to Hyde, Westbrook, Watson & Stephenson, for services as attorneys for the conservator; on September 25, 1931, $6,500 to A. J. Hennings for services as attorney for the executor; on October 25, 1935, $3,500 to Vernon B. Loucks for services as attorney for the executor.

Upon the filing of its final account as conservator, without notice, the Northern Trust Company asked and was allowed a fee of $5,000. It took only $971.12 at that time, leaving the balance of $4,028.88 unpaid. On October 25,1935, the executor paid to itself this balance of $4,028.88. The Northern Trust Company filed no claim for this amount against the estate of Nonnast, deceased, nor did it have any person appointed to represent the estate in connection therewith, as provided by statute.

The Northern Trust Company, as executor, filed its first current account, with notice only to itself as trustee under the will of Nonnast, on March 27, 1933, and on the same day the account was approved by the probate court. Its amended second and final account as executor was filed March 3, 1936.

When the last account was filed, objections were filed by the objectors, both to that account and to the first current account of the executor. At the same time a petition was filed by the objectors seeking to set aside the order approving the first and final account of the conservator and making certain objections.

The total amount which the objectors seek to charge the Northern Trust Company was the sum of approximately $119,817.35. It will be necessary to consider each item by itself.

The Northern Trust Company first as conservator and later as executor, took a total of $26,500 from the funds of the estates which it consecutively administered and loaned the same to Louis F. Nonnast Sons, Inc., on unsecured notes of that company. The Northern Trust Company in its accounting as conservator asks credit for $20,000 disbursed on account of these loans and in its accounting as executor asks credit for $6,500 thereof. The conservator’s account indicates that $15,200 was loaned prior to the death of Louis F. Nonnast and after his death $4,800 was loaned.

As to the loans made by the Northern Trust Company as conservator, the Illinois Bev. Stat. 1937, ch. 86, sec. 18 [Jones Ill. Stats. Ann. 77.320], directs how such funds be invested, as follows:

“It shall be the duty of the conservator to place and keep his ward’s money at interest, upon security to be approved by the court, by investing, on approval of the court, the" same in United States bonds or in the bonds of . . . any state, county, city or nmnicipality, . . . Personal security may be taken for loans not exceeding $100. Loans upon real estate shall be secured by first mortgage, or trust deed thereon and, . . . not to exceed one-half the value thereof. All loans shall be subject to the approval of the court. ’ ’

In re Estate of Lalla, 281 Ill. App. 124, affirmed 362 Ill. 621, 626, wherein the Supreme Court in that case said: “The statutory requirements relating to investments by guardians and conservators are mandatory. . . . They specify the securities upon which funds of a ward may be loaned, and in that regard they supersede the common law.” Chapman v. American Surety Co., 261 Ill. 594; In re Sargent’s Estate, 276 Ill. App. 312; In re Estate of Imita, 362 Ill. 621; McIntyre v. People, 103 Ill. 142.

The Northern Trust Company in this case claims that as to $17,500 of the total $20,000 loaned by it as the conservator, the probate court authorized those loans and in doing so was properly exercising its jurisdiction. No statute or authority has been cited showing that the probate court is authorized to extend beyond the terms of the statute, the kind of investments that may be made by a conservator.

In the case of Chapman v. American Surety Co., 261 Ill. 594, the court had before it the question of whether or not a guardian should be held liable for a loss on an investment which had been authorized by the probate court. The court thereafter held that the authorization of the probate court was void and that the guardian was liable. The statute is binding upon the probate court as it is upon the guardian or anyone else.

As to the $6,500 which was loaned to the Nonnast company by the executor in November, 1930, we find that neither the statute nor the will gave to the executor any power of investment. It has been held in this state that unless the will gives an executor authority to lend money of such estate, that he is without authority and any loans which he may make are at his peril. In re Estate of Wesley, 279 Ill. App. 349; Caruthers v. Caruthers, 99 Ill. App. 402; In re Busby’s Estate, 288 Ill. App. 500.

In the Wadsworth v. Connell case, 104 Ill. 369, the court said: “The statute has not conferred on executors or administrators power to loan the funds of the estate, nor was there any such power conferred by this will. It then follows, that appellant made these loans without legal authority, and of his own wrong. . . . He loaned it at his peril. Nor had the county court any power whatever to render an illegal act valid and binding. ’

Grace v. Seibert, 235 Ill. 190, was a case somewhat in point to the instant case. The decedent in that case prior to his death had entered into an agreement with the plaintiff for a lease of certain store premises, in which premises the decedent was at the time conducting a drug store. The decedent died before the leased term under the new agreement began. The defendant, a relative of the decedent, took possession of the premises and continued to conduct the drug store which the decedent had conducted. He claimed the right to continue in possession under the lease. Suit was brought by plaintiff for possession. It was held by the court that the defendant was an executor de son tort and that since as executor he would have no right to continue to conduct the business, his right as executor de son tort was even less. The court said: ‘ ‘ An administrator or executor would not have been authorized to leave the stock of drugs in trade or business, or to carry on the drug store. Such an enterprise would have been beyond the scope of the functions of an executor. To engage in business with the assets of an estate is regarded as a breach of trust, so that the law will charge an executor who does so, with losses, and will not allow him to receive any profits.”

In the case of Field, Leiter & Co. v. Colton, 7 Ill. App. 379, an executor undertook to carry on the decedent’s mercantile business and, pursuant to an order of the county court duly entered he used the funds of the estate to purchase certain additional merchandise to fill out the line of goods on hand, in order to make it more saleable. There was no question raised as to the good faith of this transaction or the good business judgment of the executor in purchasing the additional stock. The business was, in fact, liquidated with reasonable dispatch and the estate recovered all the money it had invested in additional merchandise and no loss resulted from the transaction. The executor, however, in purchasing the additional goods had purchased most of it from himself, he being in the merchandise business, and he had charged the estate a- slight profit on the goods so sold by him to it, the profit being no greater than would have been charged to another purchaser. The court held that the executor had no authority to continue the business of the decedent and that the county court had no jurisdiction to grant him such authority and that any act or order of the county court purporting to do so was a nullity. Chicago Title & Trust Co. v. Fine Arts Bldg., 288 Ill. 142; Smith v. Preston, 170 Ill. 179 Peterman v. United States Rubber Co., 221 Ill. 581.

From these authorities it appears that if an executor has no right to venture assets of an estate in carrying on a trade or business of the decedent, then an executor certainly is without authority to use assets of an estate in carrying on a trade or business belonging, not to decedent, but simply to a corporation in which the decedent had been a stockholder.

The probate court has no more power to grant to an executor the right to make investments, unless so authorized by the will, than it has to direct the kind of investments which a conservator can make beyond those described in ch. 86, sec. 18, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 77.120]; Wadsworth v. Connell, 104 Ill. 369; Field, Leiter & Co. v. Colton, 7 Ill. App. 379.

The objections which were filed to this item of $26,500 loaned to Louis F. Nonnast Sons, Inc. by the Northern Trust Company as conservator and executor should have been sustained and the said sum accounted for by the Northern Trust Company. We think the objections made by the appellee to the report of the Northern Trust Company as to these loans should have been sustained and the same disallowed and charged to the Northern Trust Company.

Objection No. 2 to the report- of the Northern Trust Company is for the item of $3,550 which represents sundry expenses for the Nonnast company and not for the estates of Louis F. Nonnast. On September 2, 1930, the Northern Trust Company paid Thulin & Co., $1,300, of which amount $975 was for an audit of the Nonnast company and the balance was for the June salary of D. T. Hill, the manager of that company. An additional $1,625 was paid Thulin & Co. on September 9, 1930. As to three of these months this salary was paid in advance. On January 9,1931, the executor paid $25 to the Tates American Machine Co. for appraising the machinery and equipment of the Nonnast company. This appraisal was made in conjunction with the sale of the assets of that company to Ryan, Doyle and Hayes, heretofore mentioned. On October 5, 1931, a personal property tax bill of the Nonnast company amounting to $600 was paid by the Northern Trust Company as executor. These disbursements were not for debts of Louis F. Nonnast, and we cannot see wherein the Northern Trust Company either as conservator or executor had any authority to pay them. Wilcox v. Parker, 23 Ill. App. 429, as to executors; Downing v. Siddens, 247 Ky. 311, as to the authority as executors Edwards v. Lane, 331 Ill. 442; In re Graves’ Estate, 242 Ill. 212. Therefore, the objections as to the items comprising the $3,550, should be sustained and that amount should be charged back to the Northern Trust Company.

The next objection relates to the payment of $2,998.15, to the Commonwealth Edison Company, on account of the contractual obligation of Louis F. Nonnast Sons, Inc. The circumstances with relation to this payment, are as follows:

Prior to the appointment of the Northern Trust Company as conservator, the Nonnast company had contracted with the Commonwealth Edison Company for the installation of a certain electrical equipment. It is claimed on behalf of the executor that this equipment covered by the contract was necessary to the operation of the Nonnast factory and, had the payment not been made, the Commonwealth Edison Company would have reclaimed it. The force of this contention is not supported for the reason that no payments were made from March 6,1930, the date of the conservator’s appointment, until December 31, 1930, at which time the plant had been shut down. The equipment was not reclaimed until many months thereafter. No claim was ever filed by the Commonwealth Edison Company against either the conservator’s estate or in the executor’s estate. This was an obligation of the Louis F. Nonnast Sons, Inc. and not of the decedent and the executor had no authority to expend money of its estate for such a corporate obligation. The executor made the following payments on that contract:

“Feb. 17, 1931...........................$ 496.05

Mar. 24, 1931........................... 996.05

Apr. 29, 1931........................... 996.05

Oct. 27, 1931........................... 500.00

$2,988.15”

No contention is made that these items were in any sense the obligation of any one but the Louis F. Nonnast Sons, Inc. The contract does not bear the signature of the deceased, but was signed on behalf of the company by W. II. Theel as its secretary. Evidently the Commonwealth Edison Company did not regard the estate as liable in any way as it did not file a claim against the estate. The executor had no authority to make this payment as this was an obligation of the Nonnast company and not of Louis F. Nonnast, and the objections thereto should have been sustained. Edwards v. Lane, 331 Ill. 442; In re Graves’ Estate, 242 Ill. 212. It might be noteworthy to mention here that through evident lapse of care on behalf of the Northern Trust Company, executor, $500 was paid on this equipment on October 27, 1931, which was more than a year after letters testamentary had been issued on October 8, 1930, no claim having ever been filed in the decedent’s estate. Consequently, the executor had no right to make that payment.

Ck. 3, sec. 71, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.071], provides:

“ . . . All claims and demands of whatever class not exhibited to the court within one year from the granting of letters as aforesaid shall be forever barred as to property and estate of the deceased which has been inventoried or accounted for by the executor or administrator”; This provision of the statute constitutes a complete defense which an executor is legally bound to assert to the payment of any claim which was not filed within the specified year. Hallgren v. Utt, 155 Ill. App. 640 (Abst.); In re Estate of Duffield, 258 Ill. App. 78. Neither the executor nor the probate court could waive or ignore this defense. Hapke v. People, 29 Ill. App. 546; Austin v. City Bank of Milwaukee, 288 Ill. App. 36; Wingate v. Pool, 25 Ill. 118. If an executor pays after the expiration of the year, a claim which has not been exhibited to the probate court within the year as required by statute, then he cannot obtain credit for such payment. Yaple v. Mahy, 241 Ill. App. 446. These payments should be surcharged to the Northern Trust Company.

The next objection is made to the payment of $10,539.89 to the Security Bank of Chicago by the Northern Trust Company in payment of three unpaid notes of Louis F. Nonnast Sons, Inc. which were held by said Security Bank on May 17, 1930, the date of Nonnast’s death. One note was dated February 3, 1930, one dated February 19, 1930, and one dated February 28, 1930. The principal of these notes, together with interest, aggregated $10,539.89 which was paid out of the estate funds on July 15, 1930. No claim was filed by the Security Bank against the Nonnast estate with respect thereto. It is claimed that payment was made because Nonnast was personally liable therefor as a guarantor. The Northern Trust Company made this payment in its capacity as conservator and the objectors take "the position that the Northern Trust Company, as conservator, had no power to make such disbursement after the death of its ward, and that this fact alone makes the Northern Trust Company liable therefor. It appears to us, however, that inasmuch as the Northern Trust Company made this payment without any claim having been filed and approved, which is contrary to the provisions of the statute, the Northern Trust Company had the burden of mating proof that Louis F. Nonnast, the deceased, was in fact obligated on the notes in question. Millard v. Harris, 119 Ill. 185; Walker v. Diehl, 79 Ill. 473; Lynch v. Hickey, 13 Ill. App. 139. It therefore follows that in mating the disbursement in question the Northern Trust Company was, in fact, paying an obligation upon which Louis F. Nonnast was not liable. They relied upon a written guarantee which was not produced at the hearing.

The two witnesses who testified against the estate were Norman B. Collins, president of the Security Bank, and Robert E. Agee, an assistant secretary of the Northern Trust Company, executor herein. We here find by this procedure, the officers of the executor testifying against the estate in an effort to justify their payment of these notes, leaving no one to defend the estate regarding said claims. It is the duty of an executor to protect and defend an estate and not do as was done in this case aid creditors to secure payment of their claims. In re Estate of Duffield, 258 Ill. App. 78.

From a review of the evidence we do not think it proves the liability of the estate of Nonnast. The payment should not have been made and should be surcharged against the executor for such wrongful payment.

This brings us to a consideration of the attorney’s fees. After the death of Louis F. Nonnast, the Northern Trust Company on August 2, 1930,- paid $1,000 to Messrs, Hyde, Westbrook, Watson & Stephenson for their services as attorneys for the conservator, these services having been rendered during the lifetime of the deceased. The proper procedure would have been to file a claim therefor against the decedent’s estate. This was not done, but the Northern Trust Company paid the amount due in full. There is nothing in the record as to the amount of the services rendered, the time spent thereon or as to what would be considered the usual or customary fee that should be charged therefor. The amount of this claim in our opinion should be surcharged to the Northern Trust Company.

The conservator received a total of $5,000 for its services, $971.12 of which was paid by the Northern Trust Company as conservator after Nonnast’s death, and $4,028.88 of which was paid by the executor on October 25, 1935. No formal claim was ever filed by the Northern Trust Company in the decedent’s estate for such fees, nor was there any hearing in the probate court in connection with the payment thereof at which some “discreet person” as provided by statute was appointed and appeared to defend the estate against the claim of the said executor for the fee purportedly due it for its services as conservator. Sec. 73, ch. 3, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.073], provides as follows:

“When an executor or administrator has a demand against his testator or intestate’s estate, he shall file his demand as other persons; and the court shall appoint some discreet person to appear and defend for the estate, and, upon the hearing, the court or jury shall allow such demand, or such part thereof as is legally established, or reject the same, as shall appear just. . .

For having failed to comply with the requirements of section 73 of chapter 3 of the statute, the Northern Trust Company cannot be allowed this claim and it should be surcharged against it. Corrington v. Corrington, 15 Ill., App. 393; Elting v. First Nat. Bank of Biggsville, 173 Ill. 368; Fragd v. Estate of Mary A. Fragd, 175 Ill. App. 246.

■ The Northern Trust Company insists, however, that it preserved its rights in this regard by asserting a lien, as conservator, on the assets which it delivered in that capacity to itself as executor, for the then unpaid balance of its fee. We find no provision in the law permitting a conservator at fault to have a lien for its fees upon the assets held in its trust. Kerner v. Peterson, 368 Ill. 59, 81. At any rate it is clear that the assertion of a lien is not equivalent to the filing of a claim for a debt which the lien is supposed to secure. Moore v. Chandler, 59 Ill. 466.

In addition to what has been said, we note that the item of $4,028.88, as the conservator’s fees, for which no claim was filed, was paid more than one year after letters testamentary had been issued in the executor’s estate. The statute prevents the payment of debts which are not filed in the estate out of the assets inventoried after letters testamentary have been issued, unless the claim has been filed within a year thereafter, but we do not think the legislature intended that the payment of costs and allowance of fees would be included in such limitation. Letters testamentary were issued on October 8, 1930, and the second instalment amounting to $4,028.88 was paid almost four years after the statute of limitation imposed by section 71 had run.

We are not inclined to place a narrow construction upon the requirements set forth in the statute of limitations relative to not allowing fees to an executor or administrator in the event such claim for fees is not filed within a year, the same as other creditors. In allowing the fees of an executor, trustee, administrator, etc., it is necessary for a court to know the financial condition of the estate, the nature of the work necessarily involved, the amount of time consumed in doing such work and the result thereof, in order that the court may fix a reasonable fee. This, necessarily, must in most cases await the conclusion of such work and near the closing of the estate relative to filing claim and furnishing proof thereof with the appointment of someone to defend the estate. However, for noncompliance with the statute as to filing this claim and having the same proven and the estate protected in the manner provided by statute, the said claim is disallowed and surcharged to the Northern Trust Company.

It is next contended that the Northern Trust Company personally should be liable for the costs in this matter because of its mismanagement of the estate. We think much force should be given to this contention. Here is an estate which has been entirely dissipated because of the actions of the conservator and executor. Among other evidences of mismanagement the Northern Trust Company loaned $26,500 of the estate’s funds either as conservator or executor to Louis F. Nonnast & Sons, Inc., and lost it. It paid $2,988.15 to the Commonwealth Edison Company, which claim it was not obliged to pay; it paid $10,539.89 to the Security Bank of Chicago, which represented the principal and interest on three notes of the Louis F. Nonnast Sons, Inc., upon which notes the deceased was not liable, and to other creditors was paid the sum of $3,550; and, also made payments to the Grand Bapids Furniture Company without said claims having been exhibited to the court.

We do not think the costs in this case should be charged against the estates but should be borne by the executor and conservator who, because of their neglectful actions have caused the loss to the estates.

Person's or corporations who accept positions as conservators, executors, trustees, etc., are thereby placed in a fiduciary relationship and should observe, or should be compelled to observe, the law which governs the high duty which they have agreed to perform;

As was said by Mr. Justice Cardozo in Meinhard v. Salmon, 249 N. Y. 458, 164 N. E. 545, 546:

“Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

It is the duty of courts charged with the administering of estates to see that such estates are protected by demanding a complete, faithful observance of such duties. Failure to perform such duties by the executor has resulted in the instant case in the assets in these estates being almost entirely exhausted.

For the' reasons herein given the order appealed from is reversed and the cause is remanded with directions to sustain the objections of the objectors and surcharge the items in the executor’s and conservator’s report against the Northern Trust Company as indicated in this opinion.

Order reversed and cause remanded with directions.

Hebel and Burke, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Estate of Arthur S. Jackson, Deceased. Florence M. Jackson, Appellant, v. Lou B. Jackson, Executrix of Estate of Arthur S. Jackson, Deceased, Appellee.
    Gen No. 40,485.
    Opinion filed June 21, 1939.
    Rehearing denied July 3, 1939.
    Nash, Ahern, McDermott, McNally & Kiley and Maxwell L. Rubin, all of Chicago, for appellant.
    Winston, Strawn & Shaw, of Chicago, for appellee; John C. Slade and Frank B. Gilmer, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

On November 1, 1934, Florence M. Jackson, plaintiff herein, filed her claim in the estate of Arthur S. Jackson, deceased, in the probate court of Cook county for the sum of $100,000 and interest. Thereafter, on June 10, 1935, her amended claim was filed which claim was denied by the probate court. An appeal was taken to the circuit court of Cook county which also denied the claim and it is'from that order an appeal is perfected to this court.

The amended claim of plaintiff was based upon the so-called gift inter vivos of $100,000 by her husband Howard B. Jackson, who died on January 19, 1923.

Plaintiff alleges that the gift of $100,000 from her husband was made by the transfer to her credit on the books of Jackson Bros. & Co. from her husband’s account; that this was done prior to his death and that her husband Howard B. Jackson had been a partner in said firm; that at no time did she receive payment of said sum nor did she at any time authorize or direct a transfer of said sum to any person; that Arthur S. Jackson was the surviving partner in said firm and that he died, on September 28, 1933.

No pleadings other than the claim and the amended claim of the plaintiff were filed. The amended claim in substance alleges that the $100,000 claimed by her was a gift, inter vivos from her husband, Howard B. Jackson, and was “to be, paid to her by said Arthur S. Jackson upon the death of said Howard B. Jackson which occurred on January 19, 1923.”

The cause was heard upon the amended claim, and the answer of Lou B. Jackson, executrix of the estate of Arthur S. Jackson.

Plaintiff’s theory of the case is that her husband,. Howard B. Jackson, a partner of the firm of Jackson Bros. & Co. grain and stock brokers, during his lifetime gave her $100,000; that the gift to her was evidenced by the transfer of credits upon the books and records of Jackson Bros. & Co. from her husband’s account to the credit of plaintiff, Florence M. Jackson; that at no time did she receive payment of said sum of $100,000, nor did she at any time ever authorize or direct a transfer of said sum of $100,000 to any person, and that Arthur S. Jackson, against whose estate she filed her claim, was liable for the payment of said sum of money t.o her, Arthur being a surviving partner of the firm of Jackson Bros. & Co.

Plaintiff further contends that she discovered the cause of action in her favor against Arthur S. Jackson in the latter part of the year 1933, or the early part of 1934; that the cause of action had been fraudulently concealed from her until that date, and that, therefore, the statute of limitations did not begin to run until the date of the discovery of the cause of action by her.

Defendant does not set forth her theory of the defense, as provided by rule of court. Appellant stated that defendant’s theory is that there never was a gift of $100,000 to plaintiff, and even if there had been a gift the statute of limitations bars recovery by plaintiff.

The evidence adduced in this case tends to show that Howard B. Jackson and Arthur S. Jackson were partners in a brokerage firm under the .name of Jackson Bros. & Co. of which Howard B. Jackson was the senior partner; that Howard B. Jackson died January 19, 1923 and that Arthur S. Jackson died September 28, 1933; that entries on the books purported to show various bookkeeping transfers of credit for $100,000 from Howard B. Jackson to the name of his wife, the plaintiff herein.

The evidence further shows that these so-called transfers were all bookkeeping entries and there is no testimony, so far as we can discover, by which the actual money was transferred to or given to Mrs. Jackson, nor is there any evidence of any transfer having been had between Mrs. Jackson and anyone else, by which the right of action accrued, or by which the purported bookkeeping entries would be a recitation. In other words, how did the cause of action arise by which the estate of Arthur S. Jackson should be charged with $100,000 and the same given to Florence M. Jackson? Apparently, from the record before us, the claimant here did not know that her husband had given her $100,000.

It further appears from the evidence that Howard B. Jackson who, it is claimed made the gift to his wife prior to his death, died on January 19, 1923. Arthur S. Jackson, the decedent herein was also a partner of Jackson Bros. & Co. from and after the year 1915. The partnership agreement in force at the date of Howard B. Jackson’s death was dated July 31, 1920, and the members of the firm at that time consisted of Frank G-. Jackson, Edward E. O’Neill, James E. Cairns and Edward Hymers, in addition to Howard B. Jackson and Arthur S. Jackson.

It further appears from the evidence that Howard B. Jackson left a last will and testament which was duly admitted to probate in the probate court of Cook county, Illinois on February 1, 1923. By that will he devised and bequeathed his entire estate (with the exception of his interest in the furniture, fixtures, trade name and good will of the partnership, which he bequeathed to Arthur S. Jackson) to Harris Trust & Savings Bank, in trust, to pay the entire income therefrom to his wife, Florence M. Jackson, during her lifetime, if she should survive him, and after her death to his brother, Frank G. Jackson, provided he should survive said Florence M. Jackson. Upon the death of both of these life beneficiaries, the trust was to terminate and the principal thereof was to be transferred to Arthur S. Jackson, if then living, and if not, then to his lawful heirs. The will nominated plaintiff Florence M. Jackson and Arthur S. Jackson as executors, or the survivor of them as sole executor, of the will. Both of them duly qualified as such executors and letters testamentary were issued to them on February 1,1923.

This will of Howard B. Jackson, plaintiff’s husband, was dated as being executed on July 1, 1922. The significance of this date of execution is that the credit of $100,000, which had previous to that time been credited to the account in the name of Florence M. Jackson on the books of the firm, actually stood at that time to the credit of Howard B. Jackson, the testator, in his capital account on said books to which it had been restored on February 8,1922, and made his capital account $200,000. It remained at that figure thereafter until his death.

On January 19, 1924, the surviving partners of Howard B. Jackson filed their partnership inventory in the probate court of Cook county, which was on that date approved in open court by the then probate judge. The inventory was prepared in accordance with the specific directions given in Howard B. Jackson’s will for determining the net value of his interest in the capital and assets of the partnership at the date of his death. This inventory showed that net value to be $356,553.27, composed of the following items:

Capital investment......................$200,000.00;

Personal account....................... 120,780.33;

Share of earnings to close of business on January 19, 1923..................... 35,772.95.

That total amount was thereafter paid by said surviving partners, with interest as directed in the will to Arthur S. Jackson and Florence M. Jackson, as executors. Payment was completed on January 21, 1924.

These facts and figures are important in view of the fact that in order to account for the delay in filing her claim plaintiff alleges in her brief that the cause of action was fraudulently concealed.

The evidence discloses that the account on the books of Jackson Bros. & Co. showed that at one time, between 3915 and 3922, various items of credit placed upon the books of said company aggregated $100,000; that for several years $6,000 a year had been paid to plaintiff, Mrs. Florence Jackson, said sum it is claimed represented interest on the $100,000, but no evidence appears in the record as to who paid the so-called interest or why; that at the time this entry appeared on the books Mrs. Jackson did not know of the transfer of any money to her credit.

Much contradictory evidence was offered in this case but in view of the fact that it was not heard before a jury, we shall accept the ruling of the court on the admission of evidence as having worked no prejudice to either contestant herein and under the law the court is presumed to have considered only such evidence as was competent.

The principal contention of plaintiff is that this was a gift inter vivos from husband to wife, and that the transfer of property by a husband to his wife is presumed to be a gift and that the power of the husband to repossess himself of the gift does not rebut the presumption.

It is contended by defendant that there was a complete failure on the part of plaintiff to prove that Howard B. Jackson made the alleged inter vivos gift of $100,000 to the plaintiff; that the evidence did not establish that the decedent, Arthur S. Jackson, ever became obligated to pay said sum of $100,000 to plaintiff upon the death of plaintiff’s said husband, Howard B. Jackson, or at any other time; that if plaintiff ever had a cause of action against Arthur S. Jackson for the recovery of $100,000, claimed to have been given to her by Howard B. Jackson, that cause of action was barred by the statute of limitations prior to the death of Arthur S. Jackson.

As to the gift inter vivos, we do not think the proof shows that a gift was intended or that it was made to his wife by Howard B. Jackson.

The evidence shows that Howard B. Jackson in his lifetime caused an entry to be made on the books, showing that the plaintiff was credited with that amount and also that she received $6,000 a year. Later, and before his death, he caused said sum to be changed and the credit eliminated on the books. Ho evidence of the gift or delivery of the money itself was submitted.

The rule as to a gift inter vivos provides that it must be shown that the giving by one person and the receiving by another is a mutual action; that one party receives it and the other one parts with possession, with no power on the part of the donor to repossess himself of the gift,?which must take place at the time of the giving, and not at some future date.

As was said in the case of Suchy v. Hajicek, 364 Ill. 502, at p. 511: “It is essential to a gift inter vivos that it be absolute and irrevocable, that the donor part with all present and future dominion and control over the property, that the gift go into effect at once and not at some future time, and that there be a delivery to the donee and such a change of possession as puts it out of the power of the donor to repossess himself of the property. (People v. Csontos, 275 Ill. 402.) ” Telford v. Patton, 144 Ill. 611; Millard v. Millard, 221 Ill. 86.

It seems to us that even if Arthur S. Jackson was ever liable, as contended by plaintiff, to pay her the $100,000 in question, such claim would be barred by the statute of limitations. The date of Howard B. Jackson’s death was January 19, 1923, and if such cause of action existed, it must have commenced at that time. Whether the cause of action arose on December 31, 1915, at the time of the first entry on the books of credit to plaintiff, or on January 19, 1923, the date of the death of Howard B. Jackson, is not made plain, but assuming the more favorable date to be the correct one, namely, January 19, 1923, it would appear that if suit had been brought during the lifetime of Arthur S. Jackson on such an implied contract, the five-year statute of limitations (Ill. Rev. Stat. 1937, eh.. 83 ¶16, § 15 [Jones Ill. Stats. Ann. 107.275]) would apply, and the statute would have barred this suit prior to the death of Arthur S. Jackson which occurred on September 28, 1933.

It is contended by plaintiff that this defense cannot be considered because a written pleading setting up the statute of limitations was not filed. We do not think this was necessary.

In the case of Thorp v. Goewey, 85 Ill. 611 at p. 613, the court said: ‘ The statute does not require written pleadings where a claim is presented for allowance in the county court, and if an appeal is taken from the judgment of the county court, in the circuit court the trial is de novo. No written pleadings were, therefore, necessary or required to a proper disposition of the case.” See also Thomson v. Black, 200 Ill. 465; In re Estate of Schmitt, 288 Ill. App. 250.

It is contended on behalf of plaintiff, evidently in order to avoid the running of the statute, that there was a fraudulent concealment of the cause of action by Arthur S. Jackson. We do not think the evidence justifies this position. The plaintiff was an executor of Howard B. Jackson’s estate. The property was turned over to her and the coexecutor, Arthur S. Jackson, and while the record is not complete in that regard, we assume that in the probate of the estate of Howard B. Jackson, the executors performed their duties, made their reports and were duly discharged. In that event the plaintiff must have known all the conditions relative to the Howard B. Jackson estate, his book accounts, papers, etc. We do not think any fraudulent concealment is shown. Lancaster v. Springer, 239 Ill. 472; Bartelott v. International Bank, 119 Ill. 259.

It is contended by plaintiff that there was a fiduciary or confidential relationship between Arthur S. Jackson and plaintiff concerning the subject matter of this claim. As we have heretofore stated, we do not see where the cause of action arose at any time, and the claim that it is based on a fiduciary or confidential relationship is not justified by the evidence. Ehrich v. Brunshwiler, 241 Ill. 592; Higgins v. Chicago Title & Trust Co., 312 Ill. 11.

From a careful review of this evidence, we do not believe the plaintiff had a cause of action against Arthur S. Jackson or his estate. We might add that even though plaintiff had such a cause of action it would have been barred by the statute of limitations before the death of Arthur S. Jackson.

For the reasons herein given we are of the opinion that the findings of the probate court and the circuit court were correct and for that reason the judgment of the circuit court appealed from is hereby affirmed.

Order affirmed.

Hebel and Burke, JJ., concur.


author: Mr. Presiding Justice Denis E. Sullivan Burke, J.,

text:
    Mary Jane Storen, Minor, by The Trust Company of Chicago, Guardian, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,495.

      Burke, J., dissents.
    Opinion filed June 21, 1939.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Joseph D. Shane, of Chicago, for appellee; Gilbert A. Siegel and Lester E. Williams, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

The city of Chicago brings this appeal from a judgment entered in the circuit court in favor of plaintiff for the sum of $15,000 and against the defendant city of Chicago because of injuries alleged to have been sustained by plaintiff.

The only question involved in this appeal is whether or not the city of Chicago is liable for injuries which plaintiff sustained because of said city having failed to construct and maintain a section of curbing 10 feet 5 inches in length which was removed or omitted from the rest of the curb and was flush and level with the street pavement. The defendant alleges that this was done for the purpose of a driveway.

The evidence shows there was no driveway at the place in question; that this removal or omission of a portion of the curb was usually employed to permit and aid in the passage of vehicles from the pavement of the street on to private property but that no pavement had been laid leading from the street across the parkway and sidewalk; that in the center of the parkway was a fire hydrant; that the accident happened at or near 83rd and Marquette streets in the city of Chicago; that the building at the northeast corner is a two-story brick, being no. 2700 Eighty-third street; that there is a building adjacent to and east of it; that 83rd street from curb to curb, is 44 feet wide; that the pavement has a crown center and the elevation from the center to the north curb line varies one to six inches; that at a point opposite, the east crosswalk of Marquette street there is a four inch crown; that at 100 feet east of that point there is a six inch crown; that the pavement slopes so water runs on the pavement to the inlet which lies 100 feet east of the crosswalk.

The evidence further shows that on the- evening of November 22, 1935, between 5:00 and 5:15 o’clock in the evening, Mary Jane Storen, the plaintiff, aged seven, was playing around the fire hydrant at this corner with some girls; that a Chevrolet coach, owned by Edward Filmanowicz, was parked alongside the north curb in front of his drug store at 2702 East 83rd street, facing west; that the front end of the car was even with the center of the store window and the wheels were alongside the curb; that a car going west on 83rd street, struck the parked Chevrolet and as a result it rolled from in front of the drug store along the street, curb until it reached the place where there was no curb, it then turned on to the parkway where children were playing and crushed the child plaintiff against a fire plug on said parkway, injuring her as alleged.

The evidence further shows that as a result of the injuries sustained-it was necessary that plaintiff’s leg be amputated and she was obliged to remain in the hospital several months; that two operations were necessary and she suffered divers injuries to her chest, abdomen and spine and severe shock and injuries to her nervous system and that she suffered great pain and also that she is permanently injured. In view of the fact that the defendant does not contest the amount of the damages sustained, we shall make no further comment on the injuries which plaintiff sustained.

There does not seem to be any dispute as to how the accident occurred.

A witness by the name of Hybert testified that he saw the accident as he was standing in the doorway of the building at 2702 East 83rd street; that he heard a crash, looked up, and saw the car rolling along the curb; that the car then swung over to where there was no curb and went right against the fire hydrant; that the parked car was caused to run along the curb because of the impact of the other car; that when it came to a stop it was right alongside the other car at an angle; that the right front wheel of the car came into the parkway and the other wheel was on the street; that the rear part of the Chevrolet was struck by the other car, the tire was blown, the axle bent and the bumper and fender were torn off; that Mary Jane Storen was pinned against the fire hydrant by the front end of the Chevrolet and was injured.

One Taylor, a consulting engineer, was called on behalf of plaintiff and testified that the purpose of a curb is to definitely establish the line of the roadway and to segregate the roadway line from the rest of the right-of-way and act as a curb for vehicle traffic and pedestrian traffic, to keep vehicles off parkways, sidewalks, etc.; that curbs are not used for purposes of drainage, but that the gutter is used for the drainage.

No question is raised on this appeal as to the size of the award.

Apparently the only question for decision is whether or not the city of Chicago would be liable in permitting an opening to be made and remain in a curb for a space approximately 10 feet 5 inches, which would permit uncontrolled automobiles or other vehicles to go off the street and onto the sidewalk, thereby endangering persons in the exercise of ordinary care for their own safety, and further in permitting this condition to exist for a period in excess of 10 years.

It further appears from the evidence that there was no driveway established at this point. It is apparent that the city recognized as dangerous a condition such as the one presented in the instant case when it made the provisions as set forth in the Revised Chicago Code 1931, Art. II, secs. 856 to 861, inclusive, wherein it is provided, among other things, that before any one is permitted to install a driveway it must be by special permit and a bond shall be provided in the penal sum of $10,000 on the condition to keep and save harmless the city of Chicago against all liabilities, judgments, costs, damages and expenses which may in any wise come against said city in consequences of the granting of said permit.

Whether or not a municipality is guilty of negligence in each case depends upon the facts and circumstances in relation thereto.

In the case of Caruso v. City of Chicago, 278 Ill. App. 247, the plaintiff while hurrying toward a motorbus stumbled over a water valve box which was maintained by the defendant city in the parkway between the curb and sidewalk, and which protruded several inches above the ground and was partially covered with snow. It was held, in an action for resulting injuries, that a verdict in favor of the plaintiff was not against the weight of the evidence on the question of defendant’s negligence. Counsel argued that the city owed no duty to a pedestrian traveling over the sidewalk, parkway and street, to exercise care to see that the pipe or box was not such obstruction as was liable to injure such pedestrian, crossing the parkway in the exercise of ordinary care, and that the evidence did not disclose any actionable negligence. The court cited the case of Brennan v. City of Streator, 256 Ill. 468, and quoted with approval from that decision, as follows: “Not all parts of all streets are needed for public passage, and it is customary and lawful for cities to improve certain parts of the streets for the use of vehicles, certain parts for foot passengers, and to permit other parts of some streets not required for these uses to be occupied by trees, hitching posts, hydrants, flower beds, stepping stones, poles for telephone or telegraph wires, or wires for the transmission of electricity for light or power. Such obstructions do not constitute a violation of the duty of the city toward the public if the street, still remains reasonably safe for those using it in vehicles or on foot and exercising ordinary care. But the question arises in each case whether the obstruction is of such a character that the passenger using the street or the sidewalk in the ordinary way and using ordinary care for his own safety is exposed to an unnecessary and unreasonable risk. This is usually a question of fact, but it may become a question of law where the obstruction is of such a character that reasonable minds cannot differ about it. The present is not such a case. It cannot be said, as a matter of law, to show a want of ordinary care for a person desiring to pass a party of walkers tailing up the whole walk to step on the sod a few inches to one side of the brick or stone or concrete sidewalk. It is not an unusual thing, and what is not unusual is to be anticipated. It is negligence for one whose duty is to use reasonable care to make conditions safe, to provide conditions which are unsafe under circumstances which ought to be anticipated. At least it ivas a question of fact which was proper for submission ,to the jury whether the valve-box, constructed and located as it was with reference to the sidewalk, was so dangerous a menace to persons using the sidewalk with ordinary care as showed a want of ordinary care for their safety on the part of the city in permitting it to remain there.”

We do not think it an unreasonable requirement that the city should anticipate that an automobile parked along the curb when struck would move parallel with the curb until it reached a point of no resistance and it would then pursue that course. Where the crown of the street was higher than the curb and the point of least resistance was a cut down section of the curb, and served no useful purpose whatsoever, naturally when the automobile was driven in that direction, finding nothing to interfere with its progress owing to the absence of the curb, it ran on to the fairway. The parked automobile did not go over a three or four inch curb when the impact first occurred but traveled several feet until it reached the depression. Had the curb been in a reasonably safe condition, the accident unquestionably would not have occurred.

In City of Chicago v. Seben, 165 Ill. 371, where the plaintiff was injured by stepping into the catch basin of a sewer, the court held that the city was not relieved from liability when the plan devised and put into operation left the streets in a dangerous condition for public use. The court at page 383, stated: “ . . . where the city has adopted a plan and created an existing condition in a street in pursuance thereof, if that condition renders the street unsafe, the city must go further and perform the duty cast upon it, growing out of the statute, to exercise ordinary care to make the street, thus encumbered with the product of its plan, reasonably safe for public travel.”

So, in the instant case, while it is true that the city is not obligated to put in a curb, nevertheless it having adopted a plan of putting in curbs on city streets, we believe it to be the duty of the city to guard against such parkways and sidewalks being rendered unsafe owing to the lack of a curb. It is well-known that it is of the utmost importance that curbing serves as a protective measure to pedestrians and the city is obligated to keep the streets and sidewalks free from obstruction and in a reasonably safe condition.

The principal case cited by the city as justifying its action is that of Boender v. City of Harvey, 251 Ill. 228. That case, as we understand it, was decided on the question of whether or not the city had notice of a large stone in the street over which a milkman, who was delivering milk, fell and was injured. The court in that case decided that there was not sufficient notice to the city.

In the instant case the city apparently recognized that the jury should pass upon the facts in the case as to the liability of the city, when it caused the following instruction to be given on behalf of defendant:

“20. The court instructs the jury that under the law, the defendant the City of Chicago is under no duty or obligation to construct on its streets any curb or curbs of any particular size, height or kind; but in the event the defendant does construct any curb or curbs, the law imposes a duty on said defendant to keep said curb or curbs in a reasonably safe condition.” We think this properly states the law and the jury after considering that instruction properly found the defendant guilty.

No question is raised as to contributory negligence on the part of plaintiff, she being a child of seven years. She was entitled to be on that part of the parkway where the accident occurred.

For the reasons herein given the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel, J., concurs.

Burke, J.,

dissents: The manner in which the curb was constructed or maintained was not the proximate cause of the injuries. The injuries were caused by the car proceeding west on 83rd street, striking the parked Chevrolet automobile, combined with the failure of the owner of the parked car to set his brakes.


text:
    City National Bank and Trust Company of Chicago, as Trustee and Guardian of the Estate of Arthur W. Sewell and John W. Sewell, Minors, Appellee, v. Arthur Sewell. In re Earl B. Dickerson, Next Friend of Arthur W. Sewell and John W. Sewell, Minors, and Edward H. Morris and James B. Cashin, Appellants.
    Gen. No. 40,503.

      Opinion filed June 21, 1939.
    Rehearing denied July 3, 1939.
    Edward H. Morris and James B. Cashin, both of Chicago, for appellants.
    Nash, Ahern, McDermott, McNally & Kiley, of Chicago, for appellee; Michael J. Ahern and Martin J. McNally, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

An order was entered in the superior court denying to Earl B. Dickerson, Edward H. Morris and James B. Cashin any fees as against the estate of the minors, Arthur W. Sewell and John W. Sewell, and also denying the petition of said petitioners for a change of venue and also from an order fixing the fees of the master in chancery to whom the cause was referred. From these orders and the decree entered, this appeal is taken.

The decree appealed from overrules the exceptions of the said Dickerson, Morris and Cashin to the report of the master denying the claim of the said Dickerson for compensation for services rendered as next friend of Arthur W. Sewell and John W. Sewell, minors, and the claim of Edward H. Morris and James B. Cashin for compensation for their services as attorneys for the said next friend in certain litigation engaged in and by the said minors in the superior court of Cook county, Illinois and the Supreme Court of Illinois. The decree appealed from sustains the objections of the guardian of the said minors and fixes the fees of the master in the sum of $3,500 and also an additional sum of approximately $500, and taxes the said sums as costs against the said Earl B. Dickerson, Edward H. Morris and James B. Cashin. The claim herein was instituted by Earl B. Dickerson, as next friend of said minors, and Edward H. Morris and James B. Cashin for fees as attorneys for services rendered Arthur W. Sewell and John W. Sewell. The claims for fees were instituted by a petition filed by the three petitioners in a chancery proceeding originally brought by Dickerson, next friend of the minors, for the purpose of ascertaining what interest, if any, Arthur Sewell, their father, had in the property, he having acted as the guardian of the minors’ estate, and asked for an accounting. The claim of Dickerson is for services rendered as next friend in that proceeding, and that of Morris and Cashin for legal services performed as attorney for the next friend. Dickerson’s claimed fee was for $5,000 and that of Morris and Cashin was for $50,000, and the petition asks that payment and satisfaction of the claims are sought from the assets held by the respondent City National Bank & Trust Company, as trustee, by appointment under a prior decree of the superior court rendered in the aforesaid proceeding adjudicating the father had a curtesy estate in the minors’ property, and as guardian of the estate of the minors. No question of jurisdiction is raised.

The decree of the chancellor here appealed from embraces only the claims of the petitioners for fees and was entered upon the report of the master finding and recommending that none of the petitioners is entitled to any compensation whatsoever. The decree approved and confirmed the findings of the master, dismissed the petition for want of equity and taxed the master’s fees and costs one-half against the petitioners and the other half against the City National Bank & Trust Company.

The pleading of the petitioners was a petition setting forth in general the services claimed to have been rendered by them in the proceeding heretofore described. That petition contained no prayer that the trustee or the guardian of the minors’ estate answer or otherwise plead to it. The petitioners did not ask the entry of the rule upon the trustee or guardian to answer the petition, nor did the trustee ask that they be permitted to file an answer, nor did the court direct that an answer be filed, so no issue was made, nor does the pleading throw any light on what the defense might be.

The theory of the petitioners is that the court below was in error in overruling the exceptions of said petitioners to the master’s report which found among other things .that they were not entitled to any compensation whatever for services they rendered Arthur W. Sewell and John W. Sewell, minors, in certain litigation in the superior court of Cook county and the Supreme Court of Illinois; that the court below was also in error in sustaining the objections of the City National Bank & Trust Company and assessing the master’s fees of $3,500 and other costs of approximately $500 against the petitioners.

Petitioners further contend that the trial judge was prejudiced against them and each of them; that a petition for a change of venue in due and proper form was signed and sworn to by petitioners, and in ample and proper time was presented to said court, but that the same was improperly and erroneously denied. It is further contended that the court below was in error in fixing the master’s fees in the sum of $3,500 and assessing the same as well as all other costs against the petitioners. The petitioners had filed objections to the fees and charges of the master, claiming that the fees and charges of the master were excessive and exorbitant. When the master was a witness in his own behalf upon the hearing upon his fees and charges and direct examination of him had been completed, the petitioners attempted to and requested that the master cross-examine, but the court would not permit any cross-examination of the master after he had testified in chief concerning his fees.

The theory of the respondents, advanced in this court for the first time, is that the petitioners Dickerson, Morris and Cashin are not equitably or legally entitled to any fees or compensation whatsoever.

On the hearing of the petition before the master for attorney’s fees, as before stated, no answer was filed which would indicate any restriction of the evidence to any issue that was made, so we are not aided in that regard in our consideration of the matter. Much evidence was heard and necessarily the petitioner was required to put in much of the evidence in detail as to the work which he had performed in order to earn the claimed fees. To set forth this evidence in detail would unnecessarily extend this opinion to undue length, so we shall set out the evidence as briefly as possible.

The evidence shows that Dickerson acted as the next friend to the minors and that Morris and Cashin were his attorneys.

It is claimed by the trustee and now guardian of the estate of the minors, City National Bank & Trust Company of Chicago, that the petitioners are not entitled to any compensation because they instituted the proceeding in which their services were performed to establish an interest for Arthur Sewell adverse to the interest of the minors whom they purported to represent.

The record of that suit shows that the proceeding was commenced for the purpose of ascertaining the interest of the father in the ground and properties from which the oil had been contracted to be sold, the purchasers of which had threatened to cease paying any more money for the oil until the question as to what the interests of the father and the minors were in this property and what their respective claims were on the income that was received from the sale of the oil. The minors also prayed for an accounting against their father who was their guardian. These measures were necessary and were so found.

It is next contended that a next friend cannot recover compensation for services in the absence of statutory authority.

"While there is no statute in this State governing the actions of a next friend or the fixing of compensation, yet such questions have been before the courts for consideration in the past.

In the 31 Corpus Juris 1118, it is said: “A next friend or prochein ami is one who, without being regularly appointed guardian, acts for the benefit of an infant; one admitted to the court to prosecute for an infant. Such persons are considered as agents or officers of the court, their office being to represent the interest of the infant in the litigation. "While technically speaking a next friend or prochein ami represents an infant plaintiff, and a guardian ad litem represents an infant defendant, there is little, if any, difference between their functions or powers. A next friend is in the nature of a guardian ad litem or an attorney by whom the suit is brought or defended in behalf of another.” See also Zazove v. Minnieapolis St. P. & S. S. M. R. Co., 218 Ill. App. 534.

On the question as to whether or not a next friend • can employ counsel, in the 31 Corpus Juris 1143, it is said:

“Although a next friend or guardian ad litem may employ an attorney to conduct the suit, he cannot make a contract for the payment of a specified compensation which will bind the infant or his estate, unless the agreement meets with the approval of the court; but the compensation of the attorney will be fixed by the court without regard to any such contract. There are cases holding that the next friend may employ counsel to represent him and agree on the compensation to be paid, subject, however, to the limitation that the fee agreed upon shall be reasonable, which is a question for the court.” See also Ellison v. Ward, 294 Ill. App. 197.

It is next contended by the present guardian that the only way the attorneys could recover would be for necessaries furnished and that their services were not necessaries. This question has also been passed upon by this court in the case of Haj v. American Bottle Co., 182 Ill. App. 636, in which this court said at p. 639:

“The minor and his next friend could each make a valid contract for necessaries and could agree to pay what the same were reasonably worth.”

In Burns v. Illinois Cent. R. Co., 190 Ill. App. 191, it was said:

“Attorney’s services are necessaries for which a minor, or his next friend, may make a binding agreement to pay a reasonable compensation.”

In Baker v. Baker, 202 Ill. 595, it is evident that the Supreme Court intended that services rendered by,a next friend and his attorneys should be compensated for in proper cases. The court in that case said at p. 621: “It is the duty of the court to see that he makes all proper defenses. (Peak v. Pricer, 21 Ill. 164.) He must act under the directions of the court. (Stunz v. Stunz, 131 Ill. 210.) It must therefore be presumed that the chancellor had knowledge of the services rendered by Healey and the reasonable value of such services. He could, in the exercise of his legal discretion, make the allowance, and in the absence of evidence tending to show an abuse of that discretion we cannot say the allowance was unreasonable.”

As before stated, inasmuch as the litigation for which these fees are claimed was before several courts of this county as well as the Supreme Court of Illinois, and neither the opposing counsel nor the courts having raised any question that the minors were properly represented, we must presume that the duties which are being performed for these minors by these petitioners were not only necessary, but also that such duties were being properly performed. As to the alleged improper action of the guardian Sewell in the misappropriation of funds, we do not see how his attorneys would be chargeable therewith unless they knowingly joined therein.

When this case was referred to a master to hear the petition of Dickerson, Morris and Cashin for fees, the master made a finding that no fees could be recovered, to which finding objections and exceptions were taken by both sides to the controversy and when the master’s report was presented to the court a petition in proper form was filed asking for a change of venue.

The application for a change of venue was in proper form, but we are precluded from considering it by the action of the petitioners. When this cause came before this court it was presented on its merits by briefs and abstracts, and by presenting it on its merits, this amounted to a waiver of any error that may have been made by denial of the application for change of venue. As was said in Kerner v. Peterson, 368 Ill. 59, at p. 81:

“Appellant has argued two points in her brief which we will not consider. She urges that she should have been allowed a change of venue, and that the Attorney General has wrongfully allowed private persons to prosecute this suit in his name. She, nevertheless, asks that we consider the case on the merits. This amounts to a waiver of both points, because if either were well taken a consideration of the merits would be unnecessary.” The action of the court in denying the change of venue will not be further considered.

It is contended by defendant-appellee that the claim for fees is too high. Several members of the Chicago Bar made estimates as to the amount which should be allowed for such services and their estimates varied from $50,000 to $60,000, but nowhere in the record has it been pointed out the amount of time consumed in performing these services. One of the necessary elements in establishing a lawyer’s fee is the amount of time consumed as well as the actual work involved, also it is necessary to know the nature of the work, the skill required, the result obtained and the intricacies of the questions involved. The time involved is one of the important elements when fees are being considered by a reviewing court when determining whether the fee charged is a reasonable one. Courts do not desire to deprive a lawyer of an honestly earned fee for services which he has performed and to which he is entitled as compensation under the law. In this case while we think the petitioners are entitled to reasonable fees for services which they have performed, we also think that, after answers have been filed to the petition so an issue is made, additional evidence supporting their claim should be submitted to the court and a finding made by the court as to the fees earned, based on the actual number of days that were necessarily consumed in doing the work as well as the other elements involved.

Objections were filed by petitioners to the master’s fees. In his first report the master asked for a total of $5,174.65 as his fees and on objections the court ordered a bill of particulars from the master and properly had him appear before the court and the court reduced the amount asked for master’s fees to $3,500. There is no finding of fact by the court, however, which would permit us to determine whether or not the amount arrived at was justified as based on the time consumed by the master in this case. The master made a report showing that he consumed 755 hours, which would be approximately 151 days of five hours each, or about one-half year. The master also claimed having read the law contained in many cases decided in this and other jurisdictions, etc., for which he should be paid. Such reading was unnecessary. Masters’ fees are based on the provisions as set forth in the statute and should be allowed in pursuance of the same.

As was said in Kerner v. Peterson, 368 Ill. 59, at p. 82: “The master was allowed $500 for clerk hire, and $875 for taking and reporting testimony. The master certified that he devoted seventy-five days to a consideration of the .case. The master’s position and responsibility are inferior to those of the chancellor

and his daily compensation should not be equal to or exceed the chancellor’s compensation when reduced' to a per diem basis. (Klekamp v. Klelcamp, 275 Ill. 98.) The chancellor, in fixing the master’s fees, should determine the actual number of days reasonably necessary for the master to prepare a report and familiarize himself with the facts and the law, and the number of days allowed should not be so excessive as to render nugatory the restrictions on the per diem allowance. (Herpich v. Williams, 300 Ill. 540.) A consideration of this case should not require seventy-five days. The record consists of approximately 2500 pages and the briefs and arguments filed by the parties in this court total 484 pages, and appellant says that she furnished the master with briefs and arguments almost identical with those furnished this court. The compensation was determined at the rate of $80 per day, which is far in excess of the chancellor’s salary figured on a per diem basis. The master’s fees were grossly excessive.

“The decree of the circuit court will be reversed and the cause remanded. ...”

In the instant case the number of pages contained in the record are considerably less than the number of pages contained in the record in the Kerner v. Peterson case, supra, and the charges allowed in the instant case are considerably more than in that case. Regarding the attorneys’ fees as well as those of the master, the court should have made a finding as to the number of days which were necessarily consumed in doing the work and then should have made an allowance per day as would reasonably compensate the master and the attorneys' for the services which were necessarily and actually performed.

For the reasons herein given the decree of the superior court is reversed and the cause is remanded with directions to place the cause at issue by appropriate pleadings and give further consideration to the taking of such proof as may be necessary, both as to attorneys’ fees, next friend’s fees and master’s fees, based on the amount of time consumed and what would be considered as a reasonable fee for each of them for the work done and to make an allowance to the master, to the solicitors, and to the next friend, to reasonably compensate them for the work which was necessarily done by each.

Decree reversed and cause remanded with directions.

Hebel and Burke, JJ., concur.